Industrial Relations Commission of New South Wales CITATION : Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award - Statement and Recommendation [2004] NSWIRComm 172 APPLICANT New South Wales Teachers Federation RESPONDENT PARTIES : Department of Education and Training TAFE New South Wales INTERVENOR Minister for Industrial Relations FILE NUMBER: IRC3749 of 2003 CORAM: Walton J Vice-President; Boland J; Grayson DP; McLeay C CATCHWORDS : Award - Leave reserved - Commission on its own initiative inquiring into an industrial matter - Threatened industrial action by Teachers Federation over salaries for Principals and other senior employees in Government schools - Statement and Recommendation - Parties to confer on the issue of Principals' rates of pay - Report back scheduled CASES CITED : Catholic Schools Case [2004] NSWIRComm 159 Government Schools Case [2004] NSWIRComm 114 HEARING DATES: 06/18/2004 EXTEMPORE JUDGMENT DATE : 06/18/2004 APPLICANT Mr S Crawshaw of senior counsel Mr M Gibian of counsel New South Wales Teachers Federation Ms B Seymour, Assistant General Secretary Research and Industrial RESPONDENT Mr R Kenzie of senior counsel Mr P Ginters of counsel LEGAL REPRESENTATIVES: Department of Education and Training TAFE New South Wales Mr G Boyd, Solicitor for the Crown Solicitor INTERVENOR Mr P Robinson State Crown Solicitor's Office Minister for Industrial Relations Mr B Stewart, Assistant Crown Solicitor JUDGMENT: - 4 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: WALTON J, Acting President BOLAND J GRAYSON DP McLEAY C Friday 18 June 2004 Matter No IRC 3749 of 2003 CROWN EMPLOYEES (TEACHERS IN SCHOOLS AND TAFE AND RELATED EMPLOYEES) SALARIES AND CONDITIONS AWARD. Application by the New South Wales Teachers' Federation for a new award. STATEMENT AND RECOMMENDATION [2004] NSWIRComm 172 1 In the public interest, we have reconvened this matter of our own motion, ahead of any proceedings to settle the form of the new award already made by us in our decision of 9 June 2004. We have done so in an endeavour to avoid any unnecessary and unwarranted industrial action and its attendant adverse consequences for students in Government schools and their parents. The Federation confirmed that the industrial action is planned, in part, over the rates of pay of Principals and other senior employees in Government schools. (For convenience we shall refer to this group of employees as "Principals"). 2 In order to deal with the issue concerning Principals it is necessary to record some basic facts: (i) At no time throughout the extensive proceedings before us did the Federation pursue any application which had as its particular focus the adjustment of the rates of pay for Principals. In other words, the claim by the Federation was for a 25 per cent salary increase for all classifications, with no distinction being drawn between the general body of teachers and Principals. What the Federation did elect to do, however, was place the question of additional increases for Principals in Leave Reserved (that is, certain claims for Principals were reserved in the award for later consideration). (ii) The application by the Federation for a Leave Reserved clause regarding Principals was opposed by the respondents but was granted as part of the resolution of arbitrated claims in our recent decision. (iii) We do observe that the Federation's claim for an additional increase for teachers at the top of the teachers' incremental scale (Step 13) was supported, in part, by reliance on the erosion of relativities between the top of the incremental scale and the bottom of the promotions scale. In other words, the Federation's claim was to lessen the salary gap between teachers and Principals by increasing the rate of pay at the top of the incremental scale. This is inconsistent with any notion that there would be an increase for promotional positions above the general increase for teachers as the compression of relativity could not be achieved if Principals were moved by the same amount as Step 13. (iv) Even so, there is no reason immediately apparent to us why any particular claim relating to Principals might not now be pursued in accordance with our decision to grant the Federation leave to do so or an application pursuant to s17(3)(c) of the Act being mounted. (v) There was agreement that a special case had been made out in the Catholic Schools Case and that additional increases should flow to Principals by agreement. (vi) The application relating to Principals in the Catholic system was made by the employer respondent in that case, the Catholic Commission for Employment Relations. This application resulted in Principals receiving specified percentage amounts above teachers on the Common Incremental Scale, irrespective of the outcomes for teachers on Step 13 of that Scale (or Steps 14 or 15 if those additional levels, as sought were granted). The employer's application was consented to by the Independent Education Union in open proceedings before the Commission. The application in relation to Principals was substantially determined on that basis. Principle 2 of the State Wage Fixing Principles provides that such agreements are to be approved on the basis of the parties consent (provided the minimum statutory requirements are met). (vii) In the Catholic Schools Case the parties had submitted an Agreed Statement of Facts in which special reference was made to the particular issues relevant to Principals and in which the statement was made that "there are no relationships between promotions positions in the government sector and Catholic schools." That Agreed Statement of Facts was made available to the Federation in the Government Schools Case on 24 September 2003. 3 It follows that the differential which presently exists between the rates of pay of Government and Catholic school Principals is not a product of any particular assessment of any special aspects of the work or work value of Principals by the Commission in either the Government or Catholic schools proceedings. Nor, for that matter, has there been any assessment of the relative positions of Principals in the two sectors. The simple fact is that the genesis of the present differential is the consent arrangement in the Catholic sector and the failure by the Federation to pursue additional increases for Principals in the Government sector above those of teachers on the Common Incremental Scale. 4 Having not advanced a case directed specifically for Principals in the substantive proceedings before us and having not pursued any available application after the Catholic schools case until today, efforts by the Federation up to this point to decry the outcome for Government school Principals have been quite disingenuous. 5 However, the Federation today has made an application to have the Commission consider the issue of the differentiation between the salaries of Principals in Government and Catholic Schools and has sought that the same increase in rates of pay should apply in both sectors. This is a matter which will depend for its resolution in one respect on the Federation clarifying the basis of its application. That application, such as it is, has always been open to the Federation and we intend to deal with it at the earliest possible time. 6 In the circumstances, it is difficult to conceive of any legitimate basis upon which the Federation may pursue industrial action over this issue. 7 We recommend that: (i) The Federation and the respondents hold a further meeting on an urgent basis to discuss the issue of the rates of pay and the nature of the Federation's application relating to Principals in Government schools in light of this Statement; and (ii) The Federation desist from taking or threatening to take industrial action over the issue of Principals, irrespective of the outcome of that meeting. 8 If there is any ongoing industrial action over the issue then we shall consider what, if any, further steps should be taken, although we would expect the respondents and the Intervenor to take some responsibility in that regard. 9 We will receive a report on those discussions at 9.30 am Monday 21 June 2004 at which time we will consider any consent arrangement or, alternatively, the appropriate programming of any application that the Federation may decide to bring as to Principals (and issues which the respondents may wish to ventilate in relation to the same). 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