Industrial Relations Commission of New South Wales CITATION: Crown Employees (Teachers in TAFE and Related Employees) Salaries and Conditions Award and others [2008] NSWIRComm 250 APPLICANT (MATTER NOS IRC 2042 AND 2043 OF 2008) NOTIFIER (MATTER NO IRC 2414 OF 2008) RESPONDENT (MATTER NOS IRC 1979, 1980, 2241AND 2242 OF 2008) PARTIES: Director-General Department of Education and Training RESPONDENT (MATTER NOS 2414, 2042 AND 2043 OF 2008) APPLICANT (MATTER NOS 1979, 1980, 2241 AND 2242 OF 2008) New South Wales Teachers Federation FILE NUMBER(S): IRC 2414; 1979; 1980; 2042; 2043; 2241; 2242 of 2008 CORAM: Walton J Vice-President CATCHWORDS: Industrial dispute - award application - conciliation - industrial action - no reasonable likelihood dispute resolved by conciliation - certificate of attempted conciliation - referred to arbitration LEGISLATION CITED: Industrial Relations Act 1996 CASES CITED: Re Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award & Anor [2008] NSWIRComm 209 Re Operational Ambulance Officers (State) Award & Others [2008] NSWIRComm 168 HEARING DATES: 16, 17, 22, 23, 30 and 31 December 2008 DATE OF JUDGMENT: 31 December 2008 APPLICANT (MATTER NOS 2042 AND 2043 OF 2008) NOTIFIER (MATTER NO IRC 2414 OF 2008) RESPONDENT (MATTER NOS IRC 1979, 1980, 2241 AND 2242 OF 2008) Mr P Kite SC with Ms M Fraser of counsel NSW Department of Education and Training LEGAL REPRESENTATIVES: RESPONDENT (MATTER NOS IRC 2414, 2042 AND 2043 OF 2008) APPLICANT (MATTER NOS IRC 1979, 2980, 2241 AND 2242 OF 2008) Mr S Crawshaw SC with Mr M Gibian of counsel New South Wales Teachers Federation JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: WALTON J, Vice-President Wednesday 31 December 2008 Matter No IRC 2414 of 2008 NOTIFICATION UNDER SECTION 130 BY NEW SOUTH WALES DEPARTMENT OF EDUCATION AND TRAINING OF A DISPUTE WITH NEW SOUTH WALES TEACHERS FEDERATION RE INDUSTRIAL ACTION Matter No IRC 1979 of 2008 CROWN EMPLOYEES (TEACHERS IN TAFE AND RELATED EMPLOYEES) SALARIES AND CONDITIONS AWARD APPLICATION BY NEW SOUTH WALES TEACHERS FEDERATION FOR VARIATION RE SALARIES AND OTHER MATTERS Matter No IRC 1980 of 2008 CROWN EMPLOYEES (TEACHERS IN SCHOOLS AND RELATED EMPLOYEES) SALARIES AND CONDITIONS AWARD. APPLICATION BY NEW SOUTH WALES TEACHERS FEDERATION FOR VARIATION RE SALARIES AND OTHER MATTERS. Matter No IRC 2042 of 2008 CROWN EMPLOYEES (TEACHERS IN SCHOOLS AND RELATED EMPLOYEES) SALARIES AND CONDITIONS AWARD 2009. APPLICATION BY DIRECTOR-GENERAL DEPARTMENT OF EDUCATION AND TRAINING FOR A NEW AWARD. Matter No IRC 2043 of 2008 CROWN EMPLOYEES (TEACHERS IN TAFE AND RELATED EMPLOYEES) SALARIES AND CONDITIONS AWARD 2009 APPLICATION BY DIRECTOR-GENERAL DEPARTMENT OF EDUCATION AND TRAINING FOR A NEW AWARD Matter No IRC 2241 of 2008 CROWN EMPLOYEES (TEACHERS IN TAFE AND RELATED EMPLOYEES) SALARIES AND CONDITIONS AWARD. APPLICATION BY NEW SOUTH WALES TEACHERS FEDERATION FOR A NEW AWARD. Matter No IRC 2242 of 2008 CROWN EMPLOYEES (TEACHERS IN SCHOOLS AND RELATED EMPLOYEES) SALARIES AND CONDITIONS AWARD. APPLICATION BY NEW SOUTH WALES TEACHERS FEDERATION FOR A NEW AWARD. STATEMENT [2008] NSWIRComm 250 1 By a notification of an industrial dispute filed on 24 December 2008, the New South Wales Department of Education and Training advised of the existence of an industrial dispute pursuant to s 130 of the Industrial Relations Act 1996 concerning industrial action proposed by the New South Wales Teachers Federation for 28 and 29 January 2009 (4 and 5 February 2009 in the case of the Western Division of the Department's operations) ("the dispute proceedings"). The proposed industrial action consists of a strike by teachers in government schools and TAFE. 2 Industrial action has been called by the Federation in support of claims for improvements in wages and allowances. The Federation has also brought applications for improvements in wages and allowances under ss 11 and 17 of the Act. It did so initially by applications to vary the Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award and the Crown Employees (Teachers in TAFE and Related Employees) Salaries and Conditions Award ("the awards") (Matter Nos IRC 1980 and 1979 of 2008) and, subsequently, by applications for new awards to replace the awards (Matter Nos IRC 2242 and 2241 of 2008). The Department also brought applications for new awards (Matter Nos 2042 and 2043 of 2008) (collectively the applications by the Federation and the Department shall be referred to as "the applications" or "the application proceedings"). 3 The initial applications to vary brought by the Federation were the subject of a decision as to a preliminary issue by a Full Bench of the Commission on 4 November 2008: Re Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award & Anor [2008] NSWIRComm 209. As foreshadowed by the Full Bench in that decision, the initial applications for variation and related applications brought by the Department (Matter Nos IRC 2042 and 2043 of 2008) were scheduled for conciliation before the Commission as presently constituted. The subsequent applications brought by the Federation were joined with those matters for the purposes of conciliation. Conciliation conferences in the application proceedings were convened by the Commission on 16, 17, 22 and 23, 30 and 31 December. The conciliation of the dispute proceedings pursuant to s 134 of the Act was undertaken on 30 and 31 December. 4 Despite the substantial time and energy devoted to the conciliation by the parties and the considerable progress made during the course of private conferences chaired by the Commission in relation to the respective applications, the parties were unable to reach an agreement and significant issues remain unresolved. An alternative method for resolving the applications (or the remaining matters in dispute) known as the "Bluescope Model" (see Re Operational Ambulance Officers (State) Award & Others [2008] NSWIRComm 168) was accepted by the Department but rejected by the Federation. Similarly, the conciliation of the industrial dispute has been unsuccessful. This is not surprising, as the impasse in negotiations with respect to wages and allowances is common to the application and the dispute proceedings. 5 The Federation has made it clear that, in the absence of a resolution of its claims through the conciliation process, it would proceed with the proposed industrial action. No agreement has been reached to avert the industrial action. 6 The industrial action is contemplated for the start of the new school year for 2009, and has the potential to adversely affect the public, particularly those members of it with children attending government schools. 7 The Full Bench of the Commission hearing the applications is advised by this Statement that conciliation has been unsuccessful. The applications will proceed to hearing on the dates fixed in March and April 2009. 8 An application was made by the Department under s 135(5) of the Act for the Commission to issue a certificate of attempted conciliation under s 135(2) of the Act. The Federation opposed the issuing of the certificate. The parties were heard in that respect. 9 In my view, a certificate of attempted conciliation should be issued by the Commission in the dispute proceedings. There is no issue that reasonable attempts have been made to resolve the industrial dispute and, in any event, I have reached that conclusion for the purposes of s 135(2). Further, given that the conciliation process conducted by the Commission was exhaustive, and given the nature and extent of the remaining unresolved issues dividing the parties, I am of the view that the issues in dispute will only now be resolved by arbitration. It is appropriate to allow, in this respect, for applications for arbitral relief to be brought under s 136 of the Act 10 In any event, I have formed the view that there is no reasonable likelihood that the dispute will be resolved by conciliation. The further steps which Mr Crawshaw, SC, who appeared for the Federation, indicated may be taken in conciliation do not alter that conclusion (further, my view is that those steps have already been substantially undertaken in the conciliation process). On that basis, I am required by s 135(6) to issue the requisite certificate without delay. 11 A further consideration is the impending industrial action by the Federation. Whilst I do not make a finding for the purposes of s 135(7), and the industrial action has not yet commenced, it is clear that the Federation intends to proceed with that action if its claims are not settled. Given my conclusions as to the lack of prospect of settlement, industrial action will then occur on the dates specified by the Federation. The fact that the action is not scheduled to commence until the end of January does not remove the significance of this factor given the likely disruption to the public and the steps that may be required to be taken by the Department to deal with the consequences of the industrial action. Nor does the fact that the Federation may contemplate industrial action for reasons other than those associated with the impasse in negotiations over the applications remove the importance of this factor. This is because the industrial action will proceed if the Federation's claims in that respect are not resolved. The certificate should be issued so as to permit the Department and the Federation to bring such proceedings as they may be advised under Parts 1 or 2 of Chapter 3 of the Act. 12 I will issue the certificate of attempted conciliation pursuant to s 135(2) at the time of delivering this Statement. The dispute proceedings and any application brought in relation to that matter (filed and served by 4pm 5 January 2009) shall be listed for directions before his Honour, Marks J, at 10am, 7 January 2009. ______________________________ 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.