Industrial Relations Commission of New South Wales CITATION: New South Wales Department of Education and Training and Anor and New South Wales Teachers' Federation [2008] NSWIRComm 213 NOTIFIER Director General New South Wales Department of Education and Training PARTIES: Managing Director TAFE Commission RESPONDENT New South Wales Teachers' Federation FILE NUMBER(S): IRC 2129 of 2008 CORAM: Boland J President CATCHWORDS: Industrial Dispute - Claim by NSW Teachers Federation for a 5 per cent salary increase for teachers in schools and teachers in TAFE - Stop work meeting called by Federation during school hours to provide report to members on progress of claim - Direction sought by employers to cancel stop work meeting - No reasonable basis for conducting meeting during school hours - Disruption to parents and students - Direction made LEGISLATION CITED: Industrial Relations Act 1996 CASES CITED: Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award and Crown Employees (Teachers in TAFE and Related Employees) Salaries and Conditions Award [2008] NSWIRComm 209 HEARING DATES: 14 November 2008 DATE OF JUDGMENT: 14 November 2008 RESPONDENT Mr S Crawshaw of Senior Counsel with Mr M Gibian of Counsel New South Wales Teachers' Federation LEGAL REPRESENTATIVES: NOTIFIER Mr P Kite of Senior Counsel with Ms M Fraser of Counsel New South Wales Department of Education and Training Managing Director TAFE Commission JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: BOLAND J, President Friday 14 November 2008 Matter No IRC 2129 of 2008 NOTIFICATION UNDER SECTION 130 BY THE DIRECTOR GENERAL NEW SOUTH WALES DEPARTMENT OF EDUCATION AND TRAINING AND MANAGING DIRECTOR TAFE COMMISSION OF A DISPUTE WITH NEW SOUTH WALES TEACHERS FEDERATION RE INDUSTRIAL ACTION STATEMENT AND DIRECTION [2008] NSWIRComm 213 1 In a decision given on 4 November 2008 (Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award and Crown Employees (Teachers in TAFE and Related Employees) Salaries and Conditions Award [2008] NSWIRComm 209), the Full Bench dealt with an application by the New South Wales Teachers Federation for an expedited hearing of two applications to increase salaries in the Crown Employees (Teachers in TAFE and Related Employees) Salaries and Conditions Award and Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award. The increase sought was five per cent in both awards to apply from 1 January 2009. 2 The Full Bench declined to proceed on an expedited basis, the main reason being the injunction constituted by the no further claims provisions in the two awards, which proscribed further claims during the life of the awards. The nominal expiry date of the two awards is 31 December 2008. 3 Nonetheless, the Full Bench was not unmindful of the Federation's submission that its claims should be dealt with quickly. Accordingly, the Full Bench proposed a way forward having regard also to applications filed by the respondent employers for new awards. At [24] - [27] of its decision the Full Bench stated: [24] We note the Federation's concern that teachers have not received any salary increase since 1 January 2008 and that inflation is now running at about 5 per cent. That is obviously eroding the real value of teachers' salaries. However, the respondents have indicated that they are prepared to consent to an increase of 2.5 per cent payable from 1 January 2009. Such an increase would provide some immediate relief for teachers and, in our opinion, together with other measures that we will propose, relieves the urgency that is said to accompany the Federation's applications. If there is consent, we propose to vary the awards to apply a 2.5 per cent increase from 1 January 2009. [25] Additionally, the Commission will chair conferences of the parties in November and/or December 2008 according to dates that are convenient. If necessary, the Commission will be available during the law vacation to continue the conferences. The applications that will be the subject of the conferences will be those that are the subject of these proceedings, namely, Matter Nos IRC 1979 and 1980 of 2008 and those filed by the respondents, namely, Matter Nos IRC 2042 and 2043 of 2008. All of these applications seek increases to salaries. The respondent's applications, however, make conditional on cost savings any salary increase above 2.5 per cent. It would seem quite illogical to deal with the applications in separate conciliation proceedings. Should the Federation file the further applications which it has foreshadowed, those applications will also be dealt with in these conciliation proceedings. [26] Whilst we recognise that there is a fundamental disagreement between the parties over the role to be played by the Government's Wages Policy, that disagreement has existed in other significant public sector cases dealt with by the Commission this year. However, with the benefit of conciliation and, ultimately goodwill, claims for salary increases have been satisfactorily resolved. [27] Nevertheless, we have taken the step of reserving three weeks for arbitration proceedings commencing on 16 March 2009 in the event that conciliation is unsuccessful. Questions of joinder of the various matters may be considered in the conciliation conferences if that becomes necessary. If such questions cannot be resolved by agreement, the Commission will determine them. 4 The Full Bench made the following orders: (1) the respondents shall, within seven days, file and serve schedules setting out variations to the Crown Employees (Teachers in TAFE and Related Employees) Salaries and Conditions Award and the Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award that give effect to a 2.5 per cent increase in salaries, rates of pay and allowances to take effect on and from 1 January 2009; (2) Matter MIC No 4 of 2008 and Matter Nos IRC 1979, 1980, 2042 and 2043 of 2008 are listed before Boland J, President at 9.30 am Friday, 14 November 2008 for the purpose of making directions regarding conciliation in accordance with this decision and, if there is consent to the variation schedules, for the purpose of varying the subject awards. 5 On 10 November 2004, the respondent employers (Director General of the Department of Education and Training and the Managing Director of TAFE) notified the existence of an industrial dispute in relation to planned industrial action by the Teachers Federation in the form of stop work meetings scheduled for Wednesday, 19 November 2008. The stop work meeting of teachers in schools, at TAFE colleges and within the Department of Education had been called to hear a report on: the staffing, standards and salaries campaign and vote on further action. This includes possible significant statewide industrial action commencing at the beginning of the 2009 school and TAFE college year. 6 The dispute notification was listed before me today, together with the scheduled directions hearing arising out of the Full Bench proceedings in connection with conciliation of the salaries claim and the variation of the awards to incorporate in them a 2.5 per cent increase from 1 January 2009. 7 The Federation did not consent to the variations regarding the 2.5 per cent increase and so given that it was a condition imposed by the Full Bench that the increase be by consent, I was not in a position to make the variations. The Federation's attitude in this respect would have been perverse but for its reliance on the prospect of the employers passing on a 2.5 per cent increase from 1 January 2009 by administrative action. 8 As to conciliation proceedings, the Commission fixed a number of dates for conciliation, they being 19, 24, 25 and 27 November and 15, 16 and 17 December 2008 before Walton J, Vice President. The Commission also set a timetable for the filing of material in connection with an arbitration of the parties' claims commencing on 16 March 2009 if conciliation ultimately proved to be unsuccessful. 9 As to the dispute notification, the respondent employers sought a direction from the Commission pursuant to s 134(2) of the Industrial Relations Act 1996 that the stop work meeting not proceed. The employers expressed concern at the prospect of disruption to students' education by up to two hours next Wednesday and the difficulties that will be confronted by parents if there is no supervision available at schools because teachers are absent attending the stop work meeting. 10 The Federation insisted there was a legitimate requirement for it to communicate with its members, not only in respect of the important salary issue but also other matters including staffing and qualifications and that the practice, at least in 2008, had been to conduct meetings during school hours without complaint by the employers. 11 It seems to me that it is unreasonable for the Federation to conduct a stop work meeting for the purpose that has been stated. Whilst I accept that the Federation must have the right to communicate directly with its members and that, given the subject matter, meetings are the best way of achieving this, the Federation's tacit objective in holding the meeting during school hours is to apply industrial pressure to the employers to concede to the salaries claim. 12 The reasons for concluding that the Federation's course of action is unreasonable are as follows: (i) the Commission has sought, to the extent proper, to accommodate the Federation's desire to deal quickly with the salaries claim. This has involved the fixing of dates for conciliation in November and December 2008, and the giving of directions for filing evidence and other material in anticipation of an arbitration of the claim commencing in March 2009; (ii) the Full Bench said in its 4 November decision that there should be no industrial action or threat of industrial action where the Commission has arranged for conciliation to be undertaken in respect of claims for improved wages and working conditions; (iii) in order to provide some immediate relief for teachers regarding the escalating cost of living the Commission indicated it would vary the relevant awards to provide a 2.5 per cent increase from 1 January 2009, if there was consent. However, the Federation did not consent; (iv) the Federation has indicated its strong objection to the employers' position that any increase beyond 2.5 per cent will need to be funded by cost savings. That may be the employers' position but in the event of continuing disagreement the outcome will be determined by the Commission, not by the employers; (v) the stop work meeting will inevitably cause unnecessary disruption to students' education and parents, especially working parents; (vi) there is no reason why meetings of the nature called by the Federation could not be called before or after school hours or at some other time other than school hours in order to accommodate TAFE teachers; and (vii) the industrial action by the Federation in support of a claim for a five per cent increase in salaries at this time is inconsistent with its undertaking, embodied in the subject awards, to make no further claims during the life of the awards. 13 The concern of teachers over the rapidly escalating cost of living is completely understandable. However, it is disappointing that the Federation has chosen to resort to industrial action in circumstances where the Commission has, without delay, sought to address that concern by putting in place a proper process for addressing the salaries claim. 14 In the circumstances, the Commission makes the following directions pursuant to s 134(2) of the Act: (1) The Federation shall cancel the stop work meeting scheduled for 9.00 am Wednesday 19 November 2008 and shall make alternative arrangements to communicate with its members so that the disruption caused by such stop work meeting is averted. (2) The Federation shall bring this Statement and Direction (1) to the attention of its members. ___________________ 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.