Industrial Relations Commission of New South Wales CITATION: Community College Principals (New South Wales) Award 2006 [2007] NSWIRComm 84 PARTIES: APPLICANT NSW Teachers' Federation FILE NUMBER(S): IRC 3095 of 2006 CORAM: Harrison DP CATCHWORDS: Application by NSW Teachers' Federation for new award - application unopposed - State Wage Case Wage Fixing Principles - public interest - fair and reasonable conditions of employment - award made. LEGISLATION CITED: Industrial Relations Act 1996 Community and Evening College Principals Award (Matter No 984 of 1991, 11 June 1992, Bauer J, unreported) State Personal/Carer's Leave Case 1998 (1998) 84 IR 416 CASES CITED: State Wage Case 2006 (2006) 153 IR 264 Marine Motor Drivers Coxswains &c (State) Award [1994] NSWIRComm 57 Re Transport Industry (State) Award (2002) 120 IR 151 HEARING DATES: 2/4/07 DATE OF JUDGMENT: 12 April 2007 EXTEMPORE JUDGMENT DATE: 2 April 2007 APPLICANT Mr A Hatcher of counsel LEGAL REPRESENTATIVES: RESPONDENTS No appearance JUDGMENT: - 7 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP 12 April 2007 Matter No IRC 3095 of 2006 COMMUNITY COLLEGE PRINCIPALS (NEW SOUTH WALES) AWARD 2006 Application by New South Wales Teachers Federation for a new award DECISION [2007] NSWIRComm 84 1 This is an application by the New South Wales Teachers' Federation pursuant to s 11(2)(b) of the Industrial Relations Act 1996 ("the Act") for an award, to be know as the Community College Principals (New South Wales) Award 2006 ("the Award). 2 The application was filed on 11 September 2006 and the matter subject to various and extensive directions throughout the latter part of 2006 and early 2007. 3 Directions were issued which required service of the application on all community colleges at their operational addresses and to the chairmen of governing bodies of community colleges separately; to Employers First; and to Mr John Shugg, Executive Director of Community Colleges NSW, a body representing 19 of the 21 community colleges listed as respondent to the application. Directions also required the application to be served upon the New South Wales Ministers for Education and Industrial Relations. 4 Affidavits of service, supported by evidentiary documentation, are filed confirming that the directions were properly executed. 5 Mr Shugg responded to the service by submission filed in the Commission on 25 January 2007. This submission acknowledged the application and made extensive comment in response to the detail of the application, leading to amendment of the application, filed by the Teachers' Federation on 27 February 2007. 6 Mr Shugg set out the basis of the submission in the following terms: 6. Of the 21 listed respondents 19 are members of Community Colleges NSW. 7. Community Colleges NSW is not a registered industrial organisation and does not represent any of the respondents to this application in an industrial capacity. 8. This submission by Community Colleges NSW is made on the basis that it is in the public interest for the Commission to consider this submission. The business of the colleges is strongly linked to communities across New South Wales via the educational opportunities that the colleges provide to the public. 9. The NSW Teachers Federation has made contact over matters of an industrial nature with Community Colleges (NSW) during at least the last six years and as such recognises that Community Colleges (NSW) is a part of, has contact with and knowledge of the sector and the colleges. 10. Apart from this submission Community Colleges NSW seeks no other involvement in the matter other than to attend and observe proceedings. Mr John Shugg, the Executive Director of Community Colleges (NSW) will attend the Commission at the times listed for this matter in order to clarify any matters if the Commission so wishes. 7 The Minister for Education, the Minister for Industrial Relations, and Employers First advised that they would not participate in the proceedings. 8 The application was subject to hearing on 2 April 2007. 9 Mr A Hatcher of counsel appeared on behalf of the Teachers' Federation with Ms L Hankinson and Ms B Seymour. Mr Shugg was in attendance but did not make a formal appearance, however, was available to assist the Commission. 10 Mr Hatcher pressed the amended application, which he submitted provided for a wage increase of approximately four percent per annum since the wage rates in the Award were last adjusted from 1 June 2003. 11 The application also seeks to give effect to the State Personal/Carers Leave Case 1998 (1998) 84 IR 416 and to update the award to maintain maternity, adoption, parental and long service leave entitlements for principals of community colleges in line with those of public schools principals established in 1996. 12 The grounds and reasons in support of the application are set out in Schedule B of the amended application in the following terms: Grounds, Reasons and Particulars 1. The nominal terms of the current award expired on 31 December 2004. 2. The applicant seeks improvements in salaries and conditions consistent with State Wage Case Fixing Principles. 3. The applicant considers that it is appropriate for salaries contained in the award to be subject to review by the Industrial Relations Commission. 4. Current salary rates are approximately 24% below salary rates for principals and teachers under other awards, including those awarded by the Industrial Relations Commission in Special Cases applying to teachers in Government and Catholic Schools. 5. This application is in the public interest. 6. Such other grounds and reasons as the Industrial Relations Commission may deem fit and proper. 13 It is submitted that the wage increase is sought to provide fair and reasonable rates of pay and will restore relativity with award rates of pay for primary school principals. 14 On 11 June 1992 in Matter No 984 of 1991 his Honour Justice Bauer made the Community and Evening College Principals Award (unreported). In determining that award his Honour said: The proposed award provides a salary stage which on step ten gives a maximum of $55,350 which sits between the salary of primary principal 3 at $54,089 and that of primary principal 2 at $56,375. To achieve grade ten salary the principal must acquire post graduate qualifications in adult education. It is to be noted, however, that the graduates commence at step five on the salary scale which is a salary of $50,225. 15 Analysis of wage rates set out in the application reveals that this relativity was maintained until 1998 at which time the position of community college principals diminished to the point where they are currently a little more than $20,000 per annum behind the relativity established in the 1991 proceedings. 16 The application seeks to recover that position by graduated steps over a three year period. 17 The matter comes for hearing in the absence of a contradictor. 18 Mr Hatcher relied upon the current Wage Fixing Principles (see State Wage Case 2006 (2006) 153 IR 264 at 268), submitting that these proceedings fall for consideration within Principle 2, which states: 2. When an Award may be Varied or Another Award Made Without the Claim Requiring Consideration as a Special Case In the following circumstances an award may, on application, be varied or another award made without the application requiring consideration as a special case: (a) to include previous State Wage Case increases in accordance with Principle 3; (b) to incorporate test case standards in accordance with Principle 4; (c) to adjust allowances and service increments in accordance with Principle5; (d) to adjust wages pursuant to work value changes in accordance with Principle 6; (e) where the applicant is consented to by the parties it will be dealt with in terms of the Act; (f) to adjust wages for the State Wage Case 2006 in accordance with Principle 8; (g) to approve of an enterprise arrangement reached in accordance with Principle 11; and (h) to adjust wages pursuant to an application claiming that work has been undervalued on a gender basis in accordance with Principle 14. 19 Mr Hatcher reinforced this submission by reference to Principle 10, Special Case which particularly excludes applications consented to by the parties. Principle 10 states: 10. Special Case Except for the flow on of test case provisions, any claim for increases in wages and salaries, or changes in conditions in awards, other than those allowed elsewhere in the principles, will be processed as a special case before a Full Bench of the Commission, unless otherwise allocated by the President. This principle does not apply to applications for awards consented to by the parties, which will be dealt with in the terms of the Act, or to enterprise arrangements, which will be dealt with in accordance with the Enterprise Arrangements principle. 20 Mr Hatcher submitted that the absence of contradiction should be taken as consent. Mr Hatcher referred to a judgment of Peterson J in Matter No 763 of 1994, Marine Motor Drivers Coxswains &c (State) Award [1994] NSWIRComm 57 wherein his Honour determined that an intention by a party (in that matter Employers' Federation) to make no submission was accepted as an indication of its acquiescence or consent. Mr Hatcher further referred to a decision of a Full Bench of the Commission in Re Transport Industry (State) Award (2002) 120 IR 151 in which the Marine Motor Drivers Coxswains &c (State) Award was cited with approval and the absence of submissions accepted as acquiescence. At para 8 of its judgment (120 IR at 152) the Bench said: As to the non-appearance by Employers' First and the absence therefore of an expression of view of that organisation in these proceedings, and having regard to the expressed view by Full Benches in that regard in the 1996 and 2000 special case judgments, we do not regard the position as affecting the consent which exists in these proceedings. We are satisfied that the matter may be dealt with under principle 2(e). 21 Mr Hatcher submitted that the absence of contradictor afforded consent to the application, allowing it to be dealt with pursuant to Principle 2. 22 Mr Hatcher submitted that the wage increase and other variations to the Award sought were justified industrially and that it was appropriate and within jurisdiction for an award to be made in terms of the amended application. 23 Analysis of the wage rates proposed and comparison with those of primary school teachers reveals that by July 2008 when all increases sought have taken effect, community college principles will remain almost $8,000 (or 7.2 percent) per annum behind the mid point for primary school teachers, grade 2 and 3, as determined by Bauer J in the 1991 proceedings. 24 On enquiry to Mr Shugg, Mr Hatcher was unable to provide a comprehensive answer to the question of actual effect of the award variation as some salaries are confidential, however, in the instance of one known salary it is sufficiently in excess of the application for the award when made to have no effect. 25 With the further assistance of Mr Shugg, Mr Hatcher submitted that there is no jurisdictional impediment to the making of the award arising from the organisation structure of commonwealth colleges. 26 I note that no part of the decision by any colleges not to appear or be directly represented in these proceedings is linked to any jurisdictional argument that might arise from conflict with the Australian Workplace Relations Act 2006. 27 I accept the submission that absence of objection should be taken as consent to the application. 28 I note that interested parties have been afforded extensive capacity to object to the application and have taken a positive decision not to appear in the proceedings for that purpose. 29 I am satisfied on the material produced by the NSW Teachers' Federation, in particular analysis of the award rates of pay information provided by Mr Shugg, that there is no public interest impediment to the making of the award. 30 The Community Colleges Principals (New South Wales) Award 2006 is made in terms of the amended application filed on 27 February 2007. 31 Matter No IRC 3095 of 2006 is so concluded. oo0oo DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.