Industrial Relations Commission of New South Wales CITATION: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales and Department of Education and Training re permanent part year employment [2009] NSWIRComm 1099 APPLICANT Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales PARTIES: RESPONDENT New South Wales Department of Education and Training FILE NUMBER(S): IRC 454 of 2009 CORAM: McKenna C CATCHWORDS: Industrial dispute - public sector - dispute between PSA and DET about whether permanent part-year employment is a valid form of employment under the Public Sector and Employment Management Act for employees at a TAFE college - legislation, award and Hansard considered - HELD: contrary to Public Sector and Employment Management Act to employ on permanent part-year basis, other than in specified circumstances for transferred employees and under flexible work practices policy - direction not to proceed to offer such employment - pay equity considerations noted - recommendation not to proceed to offer such employment for pay equity-related reasons - recommendation to discuss implications of decision Industrial Relations Act 1996 Public Sector Employment and Management Act 2002 LEGISLATION CITED: Public Sector Employment Legislation Amendment Act 2006 Technical and Further Education Act 1990 AWARDS Crown Employees (NSW TAFE Commission – Administrative and Support Staff Conditions of Employment Award 2009 Glynn Report (see Report to the Minister - Pay Equity Inquiry. Reference to the Minister for Industrial Relations pursuant to section 146(1)(d) of the Industrial Relations Act 1996. Unreported. Glynn J. Matter No. IRC 6320 of 1997, 14 December 1998) CASES CITED: Re Crown Employees (New South Wales Fisheries Salaries and Conditions of Employment) Award [2003] NSWIRComm 405 Re Crown Librarians, Library Officers and Archivists Award Proceedings - Applications under the Equal Remuneration Principle [2002] NSWIRComm 55 Re Equal Remuneration Principle [2000] NSWIRComm 113 HEARING DATES: 30 November 2009 DATE OF JUDGMENT: 23 December 2009 APPLICANT Mr N Keats, solicitor W G McNally Jones Staff LEGAL REPRESENTATIVES: RESPONDENT Ms L Piper, Principal Industrial Officer New South Wales Department of Education and Training DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES McKENNA C 23 December 2009 Matter No IRC 454 of 2009 NOTIFICATION UNDER SECTION 130 BY PUBLIC SERVICE ASSOCIATION AND PROFESSSIONAL OFFICERS' ASSOCIATION AMALGAMATED UNION OF NEW SOUTH WALES OF A DISPUTE WITH NSW DEPARTMENT OF EDUCATION AND TRAINING AND ANOTHER RE INSTITUTE NOT PROCEED WITH FILLING ANY POSITIONS AND FREEZE ADVERTISING ACTION DECISION [2009] NSWIRComm 1099 1 The Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales ("the PSA") is in dispute with the New South Wales Department of Education and Training ("the DET"). Shortly stated, a facility administered by the DET, the South Western Sydney Institute of Technical and Further Education ("the Institute"), had proposed, as part of a restructure, to employ (as permanent employees) librarians, and administrative and support staff for a set number of full-time or part-time hours each week, but for only for a set part of any given year; the balance of the year would be unpaid. 2 The DET considers it is open to the Institute to employ new employees under permanent, part-year employment ("PPYE") arrangements. The PSA contends that PPYE is an invalid form of employment within the public sector, when considered in the context of the relevant employment framework established by the Public Sector Employment and Management Act 2002 ("PSEM Act") and, so far as most of the group of affected employees is concerned, the Crown Employees (NSW TAFE Commission – Administrative and Support Staff Conditions of Employment) Award 2009 ("the award"); and that it is not properly open to the Institute to advertise PPYE positions or appoint new employees on a PPYE basis. 3 This dispute comes to the Commission by way of a notification made pursuant to s130 of the Industrial Relations Act 1996 ("the Act"). The relief sought by the PSA in the arbitral proceedings is: 1. A determination made under s175 of the Industrial Relations Act 1996 that the employment by DET of employees as permanent part year at South Western Sydney Institute of TAFE ("SWSI") is contrary to the provisions of the PSEM Act. 2. A direction that SWSI not employ persons as permanent part year. 3. In the alternative, a recommendation that SWSI not employ persons on a permanent part year basis. 4 The DET opposes the relief proposed by the PSA, contending that PPYE is not an invalid form of employment. 5 On the hearing of the matter, Mr N Keats, solicitor, represented the PSA. Ms L Piper, Principal Industrial Officer, represented the DET. PSA's submissions 6 The evidence indicated the Institute had developed plans to convert a number of permanent part-time positions and permanent full-time positions into PPYE positions The PSA submitted PPYE is objectionable on a number of bases, including the fact wages are not paid and service-related entitlements do not accrue during the breaks in employment. The PSA's submissions noted that, other than as may be specified by statute, industrial instrument or contract of employment, employers do not have any common law rights to effect unpaid stand-downs. The PSA conceded the TAFE Commission formerly had the ability to employ employees under PPYE arrangements. Mr Keats submitted that the Institute's ability to employ new employees under PPYE arrangements had, however, been lost since March 2006, consequent upon the enactment of the Public Sector Employment Legislation Amendment Act 2006. That legislation effected changes to "insulate" certain classes of employees working in public sector type organisations within the New South Wales jurisdiction in the wake of federal legislative developments. As to this, the PSA's submissions were as follows: 32. The PSA submits that permanent part-year employment is not a valid form of employment under the PSEM Act. 33. In March 2006, TAFE administration and support staff were transferred from the NSW TAFE Commission to the Department of Education and Training (see clause 20 of schedule 4 of the PSEM Act). 34. As a result of the amendments to the Technical and Further Education Act 1990, [the Institute] lost its ability to employ staff and set their terms and conditions of employment (sections 15 and 16 were repealed). Additionally, no regulations have been made under section 17. 35. Chapter 2 of the PSEM Act regulates the employment of staff of DET. It limits the employment categories to officers, temporary employees and casuals. 36. Permanent part-year employment is not one of those categories. 7 Mr Keats submitted that the PSEM Act bestows constrained powers in terms of the way staff can be employed. He submitted the categories of employment are closed and the DET is purporting invalidly to create a new category of employment that is foreign to the public sector. DET's submissions 8 The DET submitted the work of TAFE's administrative and support staff is seasonal, given the structure of the educational calendar - which comprises four terms separated by student vacations. Ms Piper submitted that, as was highlighted in the evidence of Sharyn Kuchar (Human Resource Business Partner TAFE NSW – South Western Sydney Institute), PPYE has been a familiar employment practice within TAFE institutions over the years. Ms Kuchar's evidence comprised, among other matters, documentary materials showing the evolution of what was then described as full-time/part-time seasonal employment and matters relevant to, for example, payment for public holidays as a "gratuity" for those categories of employees upon their re-employment following the term vacation. 9 Ms Piper noted that under the PSEM Act, there are three categories of employment - namely, "officer", "temporary" and "casual". The PSEM Act does not delineate further whether employment within those three categories is, for example, full-time or part-time; and nor does the PSEM Act specify conditions such as hours of work, shifts and flexible working arrangements. The determination of such matters is within the authority of the Department Head, Ms Piper submitted. Moreover, if a person accepts an offer of employment with PPYE, he or she does so knowing the terms and conditions of the position. 10 Ms Piper referred to various statutory provisions which were said presently to form the basis under which PPYE for new employees is permitted and, in so submitting, referred also to the decision of the Full Bench in Re Crown Employees (New South Wales Fisheries Salaries and Conditions of Employment) Award [2003] NSWIRComm 405. Support for the DET's position concerning PPYE was said also to arise from a consideration of the Interpretation Act 1987. The DET submitted the PSA had been tardy in raising its concerns about this form of employment, given that, since March 2006, numerous employees had been newly employed on PPYE arrangements. Against that background, the Commission should, in the public interest, be cautious about making any determination as proposed by the PSA. In this respect, Ms Piper submitted that the PSA has failed to clarify its view as to what should happen to those employees who had been employed since March 2006 if PPYE were now found to be an invalid form of employment. The DET's view is that staff employed since March 2006 under PPYE arrangements have been, and continue to be, validly employed as either officers or temporary employees in the New South Wales public service; and that it is open to the Institute to create new PPYE positions. The DET's key contentions were encapsulated as follows in written submissions: The Commission should not grant the relief sought by the PSA on the following grounds: (1) the interpretation sought pursuant to s175 of the Industrial Relations Act 1996 is not consistent with the object of the Public Sector and Employment Management Act 2002; (2) the application seeks to limit the power of a Department Head to create and establish staff positions in the Public Service in a way not intended by the legislation; (3) it is contrary to the public interest to determine that employees engaged in permanent part year positions subsequent to March 2006 have not been validly employed in the NSW Public Service; (4) the Institute has responsibility for determining the appropriate mix of employment arrangements to best suit the needs of the students, teachers and the community in the South Western Sydney region and the application seeks to impinge on the Institute's ability to meet this responsibility; (5) the Institute has genuinely consulted with the Public Service Association regarding the implementation of a workforce planning strategy and now seeks to implement that strategy; … CONSIDERATION 11 It is common ground the Institute would have had the capacity to engage employees on PPYE arrangements prior to legislative changes in March 2006. It is also common ground that TAFE employees who were employed under PPYE arrangements before March 2006 may, by virtue of transitional arrangements, continue validly to be employed under PPYE. 12 So far as these proceedings were concerned, the dispute, initially at least, concerned the PSA's contention that there should be a halt to: (a) implementing the restructure involving the creation of new PPYE positions at the Institute, at the expense of permanent full-time positions and permanent part-time positions; and (b) appointing new employees under PPYE arrangements at the Institute. That is, the PSA did not agree that PPYE could be offered as a discrete, stand-alone form of employment by the Institute to new employees (as opposed to continuing PPYE arrangements for employees who had been transitioned in March 2006 with such arrangements). 13 The differences between the parties did not turn on what pay and conditions should apply to PPYE, but whether such positions actually may be advertised and offered by the Institute. An industrial outcome could not be brokered between the parties in relation to the dispute concerning the Institute. Hence, the PSA now seeks a determination pursuant to s175 of the Act in relation to the applicable provisions of the PSEM Act. As the DET's submissions noted, if the Commission were to find in favour of the PSA's contentions as to interpretation, that outcome may have more broad-reaching implications than otherwise envisaged in relation to the dispute about positions within just the Institute itself. Apparently, the DET has employed many employees on PPYE arrangements at other TAFE institutions since March 2006, albeit the specific number of employees was not in evidence; given my conclusions concerning PPYE, this will require the parties' further attention. 14 Section 175 of the Act provides as follows: 175 Powers of interpretation The Commission may, for the purpose of exercising its functions in connection with a matter before it, determine any question concerning the interpretation, application or operation of any relevant law or instrument (including the industrial relations legislation or instrument). For the reasons outlined below, I consider that the interpretation of the relevant provisions referred to by the parties in this matter leads to a conclusion in favour of the contentions advanced by the PSA in relation to PPYE at the Institute. 15 The PSEM Act contemplates three categories of employment. Those categories are specified in s7(1), as follows: 7 Categories of employment (1) Staff may be employed in a Department in the following categories: (a) officers—being persons employed in chief or senior executive positions or other staff positions in the Department, (b) temporary employees—being persons employed to carry out work in the Department on a temporary basis, (c) casual employees—being persons employed in the Department on a casual basis. (2) Temporary employees may be employed in following subcategories: (a) Departmental temporary employees—being persons employed under Part 2.4 to carry out work in a Department, (b) special temporary employees—being persons employed under Part 2.5 to carry out work for a political office holder. (3) The usual basis for the employment of staff in a Department is to be the employment of officers. (4) Subsection (3) does not apply to the employment of staff for the purpose of carrying out work for a political office holder. 16 As to staff positions within the categories specified in s7(1) of the PSEM Act, s9 further provides as follows concerning the powers of a Department Head: 9 Staff positions in a Department for officers (1) The staff positions in a Department consist of: (a) the position of the appropriate Department Head (except where the position is created by some other Act), and (b) such other positions as the appropriate Department Head from time to time determines in accordance with this Act. (2) A Department Head may create, abolish or otherwise deal with any staff position in the Department, other than his or her own position. (3) A Department Head must classify and grade each position created under subsection (2), but may only do so: (a) in the case of a senior executive position—with the approval of the Minister, or (b) in any other case—in accordance with such guidelines as may be issued from time to time by the Director of Public Employment. (4) A person does not cease to be an officer merely because the staff position held by the person is abolished. (5) Temporary employees and casual employees are members of staff of, but do not hold positions in, a Department. 17 As noted in the DET's submissions, the PSEM Act, in establishing the categories of "officer", "temporary" and "casual", does not provide "any further instruction" as to the nature of that employment. Mr Keats referred to Hansard extracts for the second reading speech for the PSEM Act given by the Hon J Della Bosca in the Legislative Council on 18 June 2002 in submitting that PPYE was antithetical to the legislative intention that public sector employment should be "ongoing". I accept the PSA's submissions in this respect. PPYE as proposed by the Institute is not ongoing, in as much as it contemplates employment for, for example, between only 36 to 41 weeks a year, rather than 52 weeks. It is a hybrid form of employment. At best, all that could be said of PPYE is that continuity purportedly is not broken during the unpaid segment of the year; but, in my opinion, PPYE certainly could not be regarded as "ongoing" in a real and practical sense. As Mr Keats submitted, PPYE as proposed by the Institute is akin, in ways, to being stood-down without pay - although the Institute has no lawful ability to effect unpaid stand-downs other than, for example, in relation to disciplinary matters. 18 It may be noted in this respect that the Institute is proposing between 36 and 41 weeks of paid employment in any given year; however, as Ms Piper conceded in response to questions from me, there would be nothing to prevent a Department Head from selecting an even shorter working year if the DET's submissions were accepted. Relevantly, the TAFE NSW Personnel Policies – Flexible Employment Options/Flexible Work Options contemplated staff being employed for less than six months a year - in as much as the following policy definition is provided: 4.1 Definitions … 4.1.3 Permanent part-year arrangements: For example, staff employed for a minimum of 24 weeks to a maximum of 48 weeks per year. 19 The provisions of the award also relevantly arise for consideration. As Mr Keats' submissions noted, there is nothing in the award itself that deals, within terms, with conditions of employment that would be applicable to PPYE for example, in relation to payment for public holidays during the break in paid work. That is, PPYE is not contemplated within the award as a discrete category of employment with its own discernable set of conditions. This may be contrasted with the detailed provisions that apply, for example, to other categories of employment described in the award. 20 I accepted Mr Keats' submissions that the provisions concerning permanent part-time employment within the award are relevantly concerned with part-time employees who, in the ordinarily-understood sense of part-time work, work fewer hours than the standard, full-time hours. This much is clear from a plain reading of the general and specific definitions in the award apposite to hours and part-time work. Nor could PPYE arrangements as a discrete form of employment be said to be envisaged sitting comfortably within other clauses of the award, read in their proper context – such as cl69 (Leave without pay). 21 To the extent that PPYE is contemplated in the award, it arises indirectly in the context of the "Flexible Work Practices, Policy and Guidelines". This is defined in the award as a "document negotiated between the Public Employment Office, the Labor Council of New South Wales and affiliated unions which enables staff members to rearrange their work patterns". The document in question (Department of Premier and Cabinet memorandum M1995-40 – Flexible Work Practices) describes nine flexible work options, namely: 1. part-time work; 2. job sharing; 3 part time leave without pay; 4. career break scheme; 5. part-year employment; 6. variable-year employment; 7. working from home; 8. varying hours of work; 9. short term absences for family and other responsibilities. The flexible work guidelines relevantly provide as follows in relation to part year employment (at pp5-6): 5. Part-year employment This option means that employees, by agreement with the employer, may elect to take a number of weeks unpaid leave in addition to their annual entitlement to recreation leave. Salary is to be paid for weeks worked, and for recreation leave accrued, and the remaining weeks are unpaid. For agencies, an annual period of unpaid leave may be particularly suitable where work loads fluctuate. Employees may be better able to coordinate work and family responsibilities, for example, by taking leave during school vacation periods. And further at pp18-19: 5. Part-Year Employment Description Part-year employment offers employees a number of weeks unpaid leave per year. This means that employees work an agreed number of weeks per year, by agreement with the employer, with an agreed number of weeks unpaid leave, and recreation leave on a pro-rata basis. … 22 I do not consider the flexible work guidelines, read in their context, could be used as a proper foundation for the Institute unilaterally to create and advertise a PPYE position. The guidelines presuppose, for example, that an employee might wish to "elect" to make an application for flexible working arrangements to meet, for example, personal or domestic exigencies. I do not consider the flexible work guidelines properly may be used as a vehicle for the Institute to create a new PPYE position and appoint a new employee on specific terms involving work and wages for only for part of a year. Here, the sole or principal reason for the DET's proposal concerning PPYE positions at the Institute is that DET wishes to pay employees to work for only part of each year because it considers that work at the Institute is seasonal in nature. PPYE is not a condition being made available to employees as a flexible work practice within their existing, permanent employment which would otherwise comprise 52 weeks a year on a full time or part-time basis as a permanent employee. Moreover, notions of genuine offer and acceptance of PPYE, as adverted to in the DET's submissions, simply do not arise when the positions are initially structured and advertised on PPYE terms determined unilaterally by the Institute. 23 I note, in passing, that many occupations subject to the PSEM Act have some seasonal element. For example, a seasonal descriptor could be applied to the staff at almost any educational institute with term or semester breaks; or for staff at courts and tribunals that observe law term arrangements; or for staff working in Parliament House, given the sitting arrangements. If PPYE arrangements are considered to be available and appropriate for staff at the Institute employed under the PSEM Act, similar considerations might be extended by public sector employers in relation to these other types of employees whose work has at least some seasonal element – resulting in a significant diminution in pay and conditions that otherwise would apply to permanent, ongoing employment. 24 It seems to me it is not open to the Institute to determine to advertise new PPYE positions, having regard to the regulatory framework of employment comprising the PSEM Act or the award, or both. Positions within the Institute would need, in my opinion, to be advertised as permanent positions, with part-time hours or full-time hours relevantly spanning the full 52 weeks of the year. Despite Ms Piper's submissions that there was no prohibition within the PSEM Act on a Department Head's decision to create PPYE positions, public sector employment is, as Mr Keats submitted, closely regulated. While there may be no specific prohibition, nor is there any general license for Department Heads to purport to create a new form of employment given the regulatory framework. I do not consider that it properly open to a Department Head to purport to create permanent positions involving impermanent work and wages. PPYE not, in my opinion, just a differently-configured style of permanent part-time work. Permanent part-time work, as ordinarily understood, and as contemplated in the award, involves working fewer hours each week than standard full-time hours. PPYE, as the different nomenclature indicates, is, in form and in substance, qualitatively different from permanent part-time work, temporary employment and casual employment. It is a form of employment that is not, in my view, properly available to the Institute since the legislative changes in March 2006. As such, I do not consider that it is open to the Institute to purport to initially recruit a permanent employee on the basis of, for example, between 36 to 41 weeks a year of paid employment, with the balance of the year treated as unpaid employment. 25 Once an employee has been employed by the Institute as a permanent employee, whether on full-time hours or part-time hours, relevantly spanning the full year, it would then be open to that employee to discuss with the Institute's management whether he or she wished to elect to avail himself or herself, on the making of an appropriate application thereto, of options that may be available under the Flexible Work Practices, Policy and Guidelines. 26 Having regard to the foregoing, I am satisfied that it is appropriate to: (a) determine it would be contrary to the PSEM Act (or the award, or both) for the Institute to employ new employees on PPYE arrangements; and (b) direct that the Institute not to proceed to offer employment to new employees on a PPYE basis. 27 Lastly, I note the parties agreed the issues for determination at this stage of the proceedings turned principally on questions of interpretation. However, there was evidence as to the fact it predominantly would be women who are affected by the PPYE proposals at the Institute. This is not surprising given the typical gender profile of employees in these types of occupations. As to broader industrial considerations, I am bound to say the Institute's proposals, involving the abolition of permanent full-time and permanent part-time positions – in favour of the creation of PPYE positions - could hardly be viewed as being consistent with redressing gendered pay inequities for these types of classifications of employees. Those gendered inequities have been well-identified in this jurisdiction in inquiries and cases such as the Glynn Report (see Report to the Minister - Pay Equity Inquiry. Reference to the Minister for Industrial Relations pursuant to section 146(1)(d) of the Industrial Relations Act 1996. Unreported. Glynn J. Matter No. IRC 6320 of 1997, 14 December 1998); Re Equal Remuneration Principle [2000] NSWIRComm 113; and, of course, the decision of the Full Bench concerning library-related classifications in Re Crown Librarians, Library Officers and Archivists Award Proceedings - Applications under the Equal Remuneration Principle [2002] NSWIRComm 55. Having regard to pay equity-related considerations alone arising from PPYE proposals at the Institute and the provisions of s3(f) and s169(1) of the Act, I am prepared to recommend, as the PSA had also proposed as alternative relief, that the Institute not proceed with its proposals. 28 Given the potentially broader-reaching import of this decision beyond the Institute, I recommend also that the parties enter discussions forthwith concerning those employees of the DET who have been recruited on PPYE arrangements since March 2006. _________________ 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.