Industrial Relations Commission of New South Wales CITATION: Notification under section 130 by the New South Wales Teachers Federation of a dispute with Department of Education and Training re changes to TAFE teacher education programs [2008] NSWIRComm 117 APPLICANT: New South Wales Teachers Federation PARTIES: RESPONDENT: Department of Education and Training FILE NUMBER(S): IRC 127 of 2008 CORAM: Schmidt J CATCHWORDS: Award - notice of motion - TAFE teachers - jurisdiction - section 19 of the TAFE Act 1990 - no extra claims provision of current award - jurisdiction not affected by s 19 of the TAFE Act 1990, given claims advanced - parts of award claims precluded by current award 'no extra claims' provision - claim made in relation to fees, not precluded, as not dealt with in current award LEGISLATION CITED: Industrial Relations Act 1996 Technical and Further Education Commission Act 1990 Amery v State of NSW [2001] NSWADT 37 Re Corrections Health Service Nurses' State Award (1999) 90 IR 235 CASES CITED: Re Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award (2002) 116 IR 361 Re NSW Education Employees (Non-Continuing Contract Employment) Award (1998) 92 IR 239 Re New South Wales TAFE Commission (Teachers and Other Educational Staff) Salaries and Conditions Award 1996 (1999) 123 IR 360 HEARING DATES: 11 June 2008 DATE OF JUDGMENT: 13 June 2008 APPLICANT/RESPONDENT ON MOTION: Mr M Gibian of counsel LEGAL REPRESENTATIVES: RESPONDENT/APPLICANT ON MOTION: Mr S Benson of counsel JUDGMENT: - 23 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Schmidt J 13 June 2008 Matter No IRC 127 of 2008 Notification under section 130 by the New South Wales Teachers Federation of a dispute with Department of Education and Training re changes to TAFE teacher education programs JUDGMENT [2008] NSWIRComm 117 1 These proceedings commenced in February 2008, when the New South Wales Teachers Federation ('the Federation'), filed a dispute notification pursuant to s 130 of the Industrial Relations Act 1996 ('the Act'). The matter was not resolved in conciliation and was programmed for hearing, commencing on 17 June. 2 On 27 May, the Federation filed a formal application for the orders which it asked the Commission to make, pursuant to s 136 of the Act. On 29 May, the New South Wales Department of Education and Training ('the Department'), filed a motion seeking orders that the proceedings be dismissed for want of jurisdiction and because the Federation's application was brought in breach of the No Further Claims provision of the Crown Employees (Teachers in TAFE and Related Employees) Salaries and Conditions Award 2006 ('the current Award'), which presently applies to the teachers employed by the Department at TAFE Colleges. 3 The dispute notified to the Commission concerned steps taken by the Department in 2008, to change arrangements for teacher education for new TAFE teachers. The Federation claimed that advice provided to the Federation, indicated that steps taken by the Department were contrary to the provisions of the Award and were inconsistent with existing Departmental education policies and procedures. This was said to involve reducing qualification requirements for permanent TAFE teachers and to 'withdraw a commitment to a university level qualification', adversely affecting TAFE teachers' careers, by 'altering the confirmation requirements for permanency, progression and promotion'. 4 The Federation's application seeks an interim award, pending the making of the new award sought: That, pending the hearing and arbitration of the dispute, teachers commencing permanent employment in TAFE in 2nd Semester 2008 who elect to undertake a course towards the achievement of a university teaching qualification shall be entitled to up front payment by the Department of tuition fees under the Higher Education Contributions Scheme ("HECS") and any administrative fees associated with that course and to receive reductions in direct teaching time as follows: a) For teachers undertaking a Graduate Diploma of Education or equivalent level qualification - ten (10) hours per teaching week over one year; b) For teachers undertaking a Bachelor of Education or equivalent level qualification - eight (8) hours per teaching week over two years. 5 Second Semester 2008 is due to commence on 15 July 2008. The new Crown Employees (TAFE Teacher Education) Award 2008 ('the new Award'), which the Federation otherwise asked the Commission to make in these proceedings, is to apply to permanent teachers, whose employment is now covered by the current Award. The operative provisions of the proposed new Award provide: 4. Any teacher who does not already possess such a qualification shall be required to complete a higher education teaching qualification within 2 years or, where the teacher requests a longer period, within 3 years of commencing permanent employment with TAFE. 5. Any teacher who does not complete a higher education teaching qualification shall not progress more than one step along the common incremental salary scale above the salary step paid on initial appointment, for graduates, and shall not progress beyond the second step paid on initial appointment, for non graduates, as provided for under the Crown Employees (Teachers in TAFE and Related Employees) Salaries and Conditions Award 2006 (or its successor). 6. The Department shall pay up front the tuition fees under the Higher Education Contributions Scheme ("HECS") and any administrative fees associated with a permanently employed teacher who undertakes a course towards the achievement of a higher education teaching qualification. 7. A permanently employed teacher who undertakes a course towards the achievement of a higher education teaching qualification shall have, in addition to release from teaching to which the teacher is otherwise entitled, the following reductions in direct teaching time: 7.1 For teachers undertaking a Graduate Diploma of Education or equivalent level qualification - ten (10) hours per teaching week over one year; 7.2 For teachers undertaking a Bachelor of Education or equivalent level qualification - eight (8) hours per teaching week over two years. 6 A 'higher education teaching qualification' means: a) For graduates - a Graduate Diploma of Education or equivalent level qualification; b) For non-graduates - a Bachelor of Education or equivalent level qualification. The Department's case 7 The Department's case was that the Commission had no jurisdiction to make either the interim award, or the new Award sought by the Federation, given the provisions of s 19 of the Technical and Further Education Commission Act 1990 ('the TAFE Act') and the provisions of clause 43, No Further Claims of the current Award. 8 It was the Department's case that the proposed award was somewhat ambiguous. If the effect of the award sought was to impose an obligation on permanent TAFE teachers to complete a university degree, the award was beyond the Commission's jurisdiction; it could not impose such a qualification on teachers who were neither parties to the proceedings, nor to the dispute. If the award sought instead, to establish minimum teacher training requirements for permanent TAFE teachers, the effect of the new Award, in conjunction with other provisions of the current Award, would be to make appointment to a position as a permanent TAFE teacher, contingent upon the mandatory teacher training requirements imposed by the new Award being met. The imposition of such a prerequisite, was prohibited by s 19 of the TAFE Act. 9 The Federation's claims were also argued to have been pursued in breach of clause 43 of the current Award, because the new Award seeks to deal with teacher training, salary progression, employer support for professional development and reduction of direct teacher time, while training is undertaken, all matters already regulated by various existing provisions of the current Award. These claims all concerned conditions of employment, which were expressly prohibited from being pursued by the No Further Claims provision, prior to December 2008, when the nominal term of the current Award expires. 10 It was also argued that the interim award contravened the No Further Claims provision of the current Award, given that it, too, concerned conditions of employment presently regulated by the current Award. The Federations' case 11 The Federation argued that the awards which it sought were neither beyond the Commission's jurisdiction, nor in breach of the current Award's No Further Claim provisions. 12 The proposed Award was not ambiguous. Clause 4 required permanent TAFE teachers to acquire a 'higher education teaching qualification', as defined, within 2 or 3 years of commencing permanent employment. By clause 5, a teacher's salary progression was halted, if the qualification was not obtained. 13 It was submitted that the Commission had power to make awards fixing fair and reasonable conditions of employment under s 10 of the Act. Such an award was binding on all employers and employees, to whom it applied, whether or not a party to the making of the award (s 12). Qualifications of employees is a matter expressly given as an example of an industrial matter (see s 6(2)(c) of the Act). It followed that the claims made as to teacher qualifications clearly fell within the definition of 'condition of employment', defined in the Dictionary to the Act, as including 'any provisions about an industrial matter'. 14 It was accepted that s 19 of the TAFE Act has been found to prevent the making of awards dealing with the creation and appointment of persons to positions at TAFE, or to recruitment processes leading to such appointment. It was also formally submitted that the decision of the Full Bench in Re New South Wales TAFE Commission (Teachers and Other Educational Staff) Salaries and Conditions Award 1996 (1999) 123 IR 360, was wrongly decided and should be reconsidered, because, properly construed, s 19 of the TAFE Act was concerned with appointment to particular positions, not appointment generally, or the creation or filling of positions generally. 15 Nevertheless, it was argued that s 19 of the TAFE Act is not concerned with the conditions of employment of staff, once appointed. (See New South Wales TAFE Commission (Teachers and Other Educational Staff) Salaries and Conditions Award 1996 at pp 368-9.) The proposed awards sought to impose no conditions upon the appointment of permanent teachers to TAFE. They were only concerned with conditions of employment, after such appointment. 16 As to the No Further claims provision, while a strict approach to the construction of such clauses was accepted as being necessary, it was also argued that the actual words used by the parties who negotiated the clause, could not be ignored. (See Re Corrections Health Service Nurses' State Award (1999) 90 IR 235 at 245.) Clause 43 was limited to 'matters expressly contained in the Award'. The provisions sought in the claimed awards, did not deal with such matters. 17 Even if they did, the appropriate course, in the present circumstances, was submitted to be for these proceedings to be stood over, until the expiry of the present award, on 31 December 2008. (See Re Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award (2002) 116 IR 361 at [52].) Consideration 18 There was no issue between the parties that both the interim and final awards sought by the Federation, concerned conditions of employment for permanent teachers employed by the Department at TAFE and that so long as such conditions did not impact on the question of appointment of such staff at TAFE, the Commission had jurisdiction to deal with the claims made. This reflected the provisions of s 10 of the Act, which empower the Commission to make awards 'setting fair and reasonable conditions of employment for employees' and the fact that s 19 of the TAFE Act is not concerned with conditions of employment, once a teacher is employed. 19 Section 12 of the Act provides: 12 Persons bound by award (1) An award is binding on all employees and employers to which it relates, whether or not they were a party to the making of the award. (2) An award that applies to a particular industry is, subject to its terms, taken to bind all employees and employers engaged in the industry. (3) An award is, subject to its terms, binding on all industrial organisations that were a party to the making of the award. 20 Given the provisions of s 12, it is clear that contrary to the Department's submission, there is no necessity for teachers who might be affected by the proposed award, to be made parties to the proceedings, in order for the Commission to have jurisdiction to entertain the claims made by the Federation. The Federation is entitled to exercise the rights granted to registered organisations, by s 11 of the Act, which provides: 11 When award may be made (1) An award may be made: (a) on application to the Commission or on the Commission's own initiative, or (b) in the course of an arbitration by the Commission under Chapter 3 to resolve an industrial dispute. (2) An application for an award may be made only by: (a) an employer, or (b) an industrial organisation of employers or employees, or (c) a State peak council. (3) Anyone who can apply for an award may become a party to any proceedings for making an award. (4) An applicant for an award, or to become a party to the making of an award, is required to satisfy the Commission that it or any one or more of its members has a sufficient interest in the proposed award. 21 The Federation's application for the making of the interim Award and the new Award has been made in the course of an arbitration under Chapter 3 of the Act, to resolve an industrial dispute. The Commission has jurisdiction to entertain the application, subject to any restriction flowing from s 19 of the TAFE Act. Section 19 of the TAFE Act 22 In New South Wales TAFE Commission (Teachers and Other Educational Staff) Salaries and Conditions Award 1996 a Full Bench of the Commission had to consider the interaction between s 19 of the TAFE Act and the Act. The TAFE Act has since been amended, albeit s 19 of that Act remains relevantly unaltered. It provides: 19 Legal proceedings not to be brought in respect of appointments etc (1) The appointment or failure to appoint a person to a vacant position in the TAFE Commission Division of the Government Service, or any matter, question or dispute relating to such an appointment or failure, is not an industrial matter for the purposes of the Industrial Relations Act 1996. (2) Subsection (1) applies whether or not any person has been appointed to the vacant position. (3) No proceedings, whether for an order in the nature of prohibition, certiorari or mandamus or for a declaration or injunction or for any other relief, lie in respect of the appointment or failure to appoint a person to a position in the TAFE Commission Division of the Government Service, the entitlement or non-entitlement of a person to be so appointed or the validity or invalidity of any such appointment. (4) Subsection (3) does not affect the operation of the Government and Related Employees Appeal Tribunal Act 1980. 23 Section 19 is concerned with 'the appointment or failure to appoint a person to a vacant position in' TAFE and 'any matter, question or dispute relating to such an appointment or failure'. 24 The proposed interim award sought, is concerned with teachers who commence permanent employment after Semester 2 2008 and their entitlement to reduced teaching time and payment of tuition and other fees, if undertaking particular studies. Plainly, these are matters within jurisdiction, being concerned with conditions of employment, but not with appointment or failure to appoint to a vacant position. The interim award seeks new conditions of employment, for permanent teachers, once appointed. Section 19 of the TAFE Act is not concerned with such matters. 25 The same conclusion must be reached in relation to the new Award, which also seeks to deal with various conditions of employment, of 'teachers permanently employed in a teaching position in TAFE' (cl 2). Given the provisions of clause 9, Initial Employment, of the current Award, initial employment at TAFE is for a minimum probationary period of one year. Permanent employment depends on certain confirmation, thereafter. The new Award seeks conditions of employment to apply to teachers, once they become permanent employees. 26 In those circumstances, it is clear that the Commission is not precluded from dealing with the claims which the Federation seeks to pursue in these proceedings, as a matter of jurisdiction, given the limitations imposed by s 19 of the TAFE Act. The Federation's claims are all concerned with conditions of employment of permanent TAFE teachers, after appointment. Clause 43 of the current Award 27 Nevertheless, it is also apparent that in large measure, what is sought by the Federation is inconsistent with the provisions of clause 43, which binds the parties to the current Award. That clause provides: 43. No Further Claims 43 Except as provided by the Industrial Relations Act 1996, prior to December 2008, there shall be no further claims by the parties to this Award for changes to salaries, rates of pay, allowances, or conditions of employment in relation to matters expressly contained in this Award. Clause 4 of the new Award 28 Clause 43 restrains the Federation from making further claims 'in relation to matters expressly contained in this Award'. The new Award in clause 4 seeks the introduction of new qualifications, which are to be required to be held by 'teachers', defined as: "Teacher" means a person employed permanently in a full time or part time teaching position in TAFE covered by the Crown Employees (Teachers in TAFE and Related Employees) Salaries and Conditions Award 2006 . 29 The current Award deals with teacher qualifications, by reference to what the Department requires. This approach reflects the provisions of s 18 of the TAFE Act, which provides: 18 Appointments and promotion on merit (1) The appointment of members of staff and any promotions for such staff are to be made on the basis of the merit of the applicants for appointment or promotion. (2) The merit of persons eligible for appointment or promotion to a vacant position are to be determined having regard to: (a) the nature of the duties of the position, and (b) abilities, qualifications, experience, standard of work performance and personal qualities of those persons that are relevant to the performance of those duties. 30 Reflective of the legislative approach to merit appointment by the Department on the basis, amongst other things, of qualifications it determines, 'are relevant to the performance of the duties' of the teacher in question, the current Award defines a 'trained teacher' in clause 2.48 as: "Trained Teacher" means a teacher who has satisfactorily completed a prescribed course of training at a higher education institution, or such other course or courses which the employer determines as satisfying requirements for classification as a teacher. 31 A 'teacher in training' is defined in clause 2.47 as: "Teacher in Training" means a person employed as a teacher who is undertaking a course of teacher education which has been prescribed by the employer as a compulsory course for that teacher to undertake. 32 Consistently with s 18 of the TAFE Act, in clause 9, Initial Appointments of the current Award, it is provided that: 9.1 The initial appointment of all officers shall be for a minimum probationary period of one year. Confirmation of an officer's permanent appointment shall depend on completion of a satisfactory annual review pursuant to clause 6, Salary Progression and Maintenance and in the case of teachers, upon satisfactory completion of teacher training requirements. 9.2 All initial appointments shall be on the basis of merit. 33 This emphasis in the current Award, on the Department determining required training or education of the teachers it employs, is further reflected in Clause 28, Qualifications for Appointment and clause 6, Salary Progression and Maintenance, which respectively provide: 28. Qualifications for Appointment 28.1 Except where the employer determines that special circumstances exist in relation to a particular person which warrant that person's appointment with a lesser qualification or a shorter duration of vocational experience, the minimum qualifications for appointment to positions are as follows: 28.1.1 Education officer - appropriate degree or diploma at AQF level or equivalent and appropriate vocational and or industrial experience. 28.1.2 Teacher - appropriate technical or professional qualifications plus from two to five years, as appropriate, vocational and or industrial experience. 28.1.3 Counsellor - appropriate degree from a higher education institution and at least three years study in psychology or other such study as the employer deems appropriate, plus two years appropriate vocational experience. 6. Salary Progression and Maintenance 6.1 An officer shall be entitled to progress along or be maintained on the common incremental salary scale or the salary level for a promotions position after each 12 months of service subject to the officer demonstrating by means of an annual review, continuing efficiency in teaching practice, satisfactory performance and professional growth. 6.2 Any teacher who does not satisfy the teacher training requirements as determined by the employer shall not progress more than one step along the common incremental salary scale above the salary step paid on initial appointment. 34 Given these provisions of the current Award, which each specify that teacher qualification and consequential salary progression is a matter for the Department, I am satisfied that there can be no question that the matter of qualifications required of teachers is already 'expressly contained' in the current Award. What the proposed new Award seeks to do is to regulate that matter, in a different way to how it is regulated by the current Award, namely to remove from the Department a discretion which it expressly has at present under the current Award, to determine what qualifications it requires the permanent teachers it employs at TAFE to hold, or to acquire. Instead, qualifications required of permanent teachers are to be specified by the new Award. 35 On Mr Bradley's affidavit evidence, the Federation's application was made, following a change in a long time custom or practice at TAFE, whereby the Department required permanent TAFE teachers who did not hold university level teacher training qualifications on appointment, to acquire them. Instead, the Department has determined that in future, it will only require permanent TAFE teachers to hold, or acquire a Certificate IV in Training and Assessment. 36 The Federation disagrees with that decision and other changes which the Department has made to pre-existing practices in relation to release time and other support provided to teachers while studying to upgrade their qualifications. The Federation takes the view that these changes directly contradict public policy efforts directed at increasing the skills and qualifications of the Australian workforce. The Federation believes that the Department's initiative will result in short term savings, at the cost of the quality of the vocational training which TAFE delivers, through the employment of more highly trained staff. This follows because in the past TAFE required its permanent teachers to undertake some 500 hours of training for a university degree, as opposed to 90 hours' training, which it now requires teachers to undertake, for a Certificate IV qualification. 37 In the Federation's view, these changes would also impact on TAFE teachers' career prospects and downgrade their pre-existing conditions. 38 While all of these concerns might be understandable, that does not alter the fact that the current Award expressly deals with the matter of qualifications of teachers, including appointment as a permanent TAFE teacher, in such a way that it is a matter for the Department to determine what qualifications it requires its permanent TAFE teachers to hold, or to acquire. That being so, it follows that clause 43 precludes the Federation from making a further claim, seeking an alteration to the current Award regulation of that matter, during the life of the current Award. Clause 5 of the new Award 39 The same conclusion flows in relation to what is sought in clause 5 of the new Award. There, a new provision is sought, which determines what salary a teacher who does not obtain the qualifications required to be obtained by clause 4, to be paid. While not expressed to be a variation to the current Award, that is plainly the effect of clause 4. The provision sought is directly inconsistent with provision presently made in clauses 3.4 and 3.7 of the current Award, which provide: 3.4 Subject to satisfying the conditions prescribed by this Award, the salaries of the following officers and temporary employees shall be paid in accordance with Schedules 1 and 4. Classification Schedule Teachers, education officers (TAFE), counsellors, adult literacy officers, assistant outreach coordinators. Schedule 1 Promotion classifications salary scales. Schedule 4 3.7 Subject to clause 6, Salary Progression and Maintenance and clause 32 Calculation of Service, officers and temporary employees shall progress without change to their incremental date by way of annual increments to Step 13 on the common incremental salary scale as set out in Schedule 1. 40 Clause 5 departs from these provisions, so that teachers who do not obtain a 'higher education qualification', within the time specified in clause 5, are precluded from advancing to the top of the incremental scale provided for teachers in schedule 1 to the Award, which they would otherwise be free to advance to, if the new Award were not made. 41 This is confirmed by the provisions made in clause 6 Salary Progression and Maintenance, earlier quoted. Progression along the salary scale would no longer be a matter of satisfying the 'teacher training requirements as determined by the employer', but would depend upon satisfying the requirements of clause 4 of the new Award which the Federation seeks. Plainly, clause 43 of the current Award also precludes the Federation making this claim, during the life of the Award. Clause 6 of the new Award 42 Clause 6 of the Award requires the Department to pay, 'up front', fees payable by the teacher under the 'Higher Education Contributions Scheme' and any administrative fees associated with a teacher undertaking a 'higher education qualification' course. Given the terms of the claim, such a payment would be required to be made, whether or not the course was completed, or indeed, required to be undertaken by the teacher. I make this last observation, because the Federation submitted that its claims could be dealt with independently of each other, even if some were precluded from being pursued at the moment, by clause 43 of the current Award. 43 It is not necessary to consider whether, as matter of discretion, such an award provision would be made, if the claim were pressed. The parties have not been heard on the merits of any of these claims. The question is rather whether this 'matter', is one presently 'expressly contained' in the current Award. 44 It seems to me that it is not. Clause 30 Professional Development - Education Officers, Related Employees and Counsellors provides in clause 30.2.3: 30.2.3 Where the employer requires professional development, the employer will meet the compulsory fees involved. Where the professional development opportunity is voluntary the employer may, at its discretion, refund all or part of the compulsory fees incurred by the related employees as per clause 30.2. 45 There is no such provision made in clause 21 Professional Development - teachers. On Mr Bradley's evidence, this matter has in the past also been dealt with by the Department in its policies. Those policies have now been altered in various ways, which have led to this application being made. It follows from the face of the current Award, confirmed by that evidence, that it must be concluded that clause 43 does not preclude this aspect of the Federation's claim being pursued, because the matter of fees associated with any professional development, including the acquisition of higher education qualifications, is not expressly contained in the current Award, so far as teachers are concerned. Clause 7 of the new Award 46 Clause 7 of the new Award deals with release time from teaching, when a permanent teacher undertakes a course towards the achievement of a higher education teaching degree. Again, I take the view that clause 43 precludes this claim from being pursued during the life of the current Award. 47 The current Award deals expressly with a teacher's required hours of attendance, (30 hours per week - see clause 14 Attendance - Teachers and Counsellors, over 5 days per week). The current Award also deals with Allocation of Duties in clause 16, which specifies that the direct teaching component of a full time teacher shall be 20 hours per week, with the proviso that all teachers are entitled to a reduction of their direct teaching time, 'by the requisite amount of professional development time'. Clause 16 expressly provides in clause 16.3: 16.3 Only at the discretion of the institute director (or nominee) shall any reduction in the teaching load be permitted. If any such reduction is permitted, the teacher shall not be paid for excess teaching hours, except as otherwise approved by the institute director. 48 Clause 16.5 of the current Award also sets out a table, specifying, for teachers, 720 direct teaching hours per annum, including 36 hours' professional development; 360 hours of related duties during teaching weeks and 150 hours of related duties during non teaching weeks, making a total of 1230 annual hours, to be worked over 41 annual weeks of attendance. 49 Clause 17 of the current Award specifies Duties Related to Teaching, in these terms: 17. Duties Related to Teaching 17.1 For the purpose of this clause teacher includes head teacher, adult literacy officer and special program coordinator. 17.2 In addition to direct teaching activities teachers shall be entitled to attend to duties related to teaching for 30 minutes for each hour of teaching that forms part of their approved program, except that adult literacy officers shall be entitled to six hours of related duties time for each week of teaching. 17.3 Where a teacher is given a teaching release, each hour of teaching release shall involve a 30 minute reduction in the teacher's related duties time. 17.4 Duties related to teaching shall also be undertaken during the five non teaching weeks per annum. 17.5 Teachers shall continue, in consultation with their immediate manager, to determine duties that shall be conducted during related duties time. 50 Clause 21 Professional Development, explains the 36 hours' professional development referred to in the table set out in clause 16.5. It provides: 21. Professional Development - Teachers 21.1 For the purposes of this clause, teacher includes head teachers, special program coordinators and adult literacy officers. 21.2 Discussions are to occur between the teacher and their appropriate head teacher/supervisor for an agreed professional development plan that meets the development needs of the teacher and the section/faculty/unit. The plan will be developed as part of the Annual Teacher Review process and will guide the professional development plan over the year. 21.3 An approved program for all teachers shall include professional development on the following basis: 21.3.1 teachers undertaking teacher training shall have two hours per teaching week professional development in their first two years of service; 21.3.2 teachers who are teacher trained on recruitment shall have two hours professional development per teaching week in their first year of service; and 21.3.3 all other teachers shall have one hour of professional development per teaching week and may elect to use their professional development time on a weekly basis or to accrue this time over a period of up to twelve weeks. 21.4 The parties shall encourage teachers to accumulate their professional development time up to a maximum of twelve hours. This shall facilitate teachers engaging in more meaningful accredited professional development programs. This shall not prevent teachers electing to take their professional development time on a weekly basis. 21.5 The related duties time which would normally accrue to the hour(s) of teaching replaced by professional development shall continue to be used for teaching related duties. 21.6 The professional development allocation, which is provided by agreement between the parties, is in recognition of the potential value of professional development and: 21.6.1 is available for professional experience; 21.6.2 is available for self initiated activities; 21.6.3 shall be in addition to other professional development time/activities already provided by the employer; and 21.6.4 teachers are encouraged to share their experiences with other teachers. 51 While it was submitted for the Federation that it followed that the 'matter' of release time for teachers undertaking a 'higher education teaching qualification' is not expressly dealt with in the current Award, I am unable to accept that argument. The Federation relied on the observation of Wright J President (as he then was), in Re Corrections Health Service Nurses' Award (1999) 90 IR 235 at p 245: In approaching the construction of no extra claims provisions, or provisions such as those contained in the Heads of Agreement, a strict approach of their construction should be applied consistent with the necessity of maintaining the integrity of the wage fixation principles. Nevertheless, a strict construction (that is, one which would be alert to ensure inappropriately brought claims do not proceed) does not require the Commission to ignore the actual words used in the provision or to ignore a clear attempt by the parties to limit the terms of the commitment. 52 Equally, it seems to me, in determining what a no extra claims provision which award parties have agreed is directed to, the Commission must be alive to what the award in question, in reality, deals with, in order to ensure that careful drafting of new claims does not achieve a circumvention of what has, in truth, been agreed by the award parties, in a no extra claims provision. 53 In this case, again, while not expressed to be a variation to the current Award, properly understood, that is intended to be the effect of clause 7 of the new Award. The new Award envisages in clause 7 that in addition to the normal release time provided by the current Award for professional development, teachers undertaking 'higher education teaching qualification', will receive either 8 or 10 additional hours per week additional release from their normal loads, as specified in clause 16, thereby also reducing their annual hours, accordingly. This additional release has consequential impact on the provision made in clause 17 Duties Related to Teaching. The effect of the making of the award, is to remove the discretion given to Institute Directors in clause 16.3, as to other reductions in teaching loads. The effect of the making of the new Award, is to reduce the loads otherwise specified in clause 16. 54 Further, as was submitted for the Federation, the current Award already envisages that the Department gives teachers undertaking a 'higher education teaching qualification', additional release time by way of policy. This follows from clause 21.6.3, where it is specified that professional development allocation dealt with in clause 21, 'shall be in addition to other professional development time/activities already provided by the employer'. 55 The parties expressly recognised in the current Award, that the Department operated such practices and policies and in doing so, left the alteration of such matters in the Department's hands. It is just such an alteration of an existing policy, in relation to additional release time, which has resulted in this application. 56 The effect of clause 7 of the proposed award is also to remove the employer's discretion as to such matters, which the current Award envisages the Department is to have and to replace it with the express provisions made in the proposed award, as to that matter. 57 Again, it follows that the Federation is precluded from pursing this aspect of its claim, because this matter is 'already expressly contained in the award', in the various provisions I have referred to. The application seeks a variation to the arrangement made by the current Award, as to teaching and other loads, as well as release time, which clause 43 precludes it from pursuing, during the life of the Award. The interim award 58 There was no issue between the parties that the Commission could make an interim award. (See s 16(4) of the Act). Whether it would do so, has yet to be determined. The interim award seeks to apply only to 'teachers commencing permanent employment in TAFE in Second Semester 2008 who elect to undertake a course towards the achievement of a 'university teaching qualification'. 59 The interim award again seeks 'up front' payment of tuition fees and administrative fees, as well as reductions in teaching times. 60 For the reasons explained above in relation to the new Award, I am satisfied that while clause 43 of the current Award precludes the Federation from pursuing its claim in relation to release time, it does not preclude its pursuit of the claim in relation to payment of tuition and administrative fees. What course should the proceedings now take? 61 Finally, it is necessary to deal with the Federation's suggestion that rather than dismissing the Federation's claims, or any part of them, the proper course is to stand that aspect of the proceedings over, until the expiry of the current Award in December. I do not accept that submission. While it was a course taken in Re Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award (2002) 116 IR 361 it has not been accepted in other cases. As the Commission there explained, that was a peculiar situation, flowing from a decision in Amery v State of NSW [2001] NSWADT 37, where unlawful discrimination flowing from an award was found to have arisen. This is quite a different case. 62 In Re NSW Education Employees (Non-Continuing Contract Employment) Award (1998) 92 IR 239, a Full Bench of the Commission observed at pp 244 - 245: There is no doubt that the claims, if granted, would confer significant additional benefits on casual employees and significant additional obligations, both monetary and otherwise, on the respondents in relation to that class of employee. In an industrial relations context the purpose of a no extra claims clause in a consent award is that for the period of duration of the award there will be no extra claims in favour of either side unless by agreement. To limit the no extra claims provision to the type of matter already specified in the award would leave the way open for legalistic, unscrupulous claims in relation to additional matters to be put forward. We do not think that such an interpretation is justifiable in the circumstance of this case: rather, in our opinion, the no extra claims clause precludes the present claims which are aimed at substantially improving, at the expense of the employer, the employment conditions for casuals authorised by the current award. 63 This approach was followed by another Full Bench in New South Wales TAFE Commission (Teachers and Other Educational Staff) Salaries and Conditions Award 1996 (at pp 370-1). A similar outcome was achieved in Re NSW Education Employees (Non-Continuing contract Employment) Award (1999) 92 IR 239. There is no basis upon which this approach could properly be departed from in these proceedings. The parties have made a no extra claims agreement. They must adhere to it. To permit the Federation to make these claims, during the life of the award, would be inconsistent with the purpose of the no extra claims provision, which the parties have agreed. 64 I have concluded, however, that the Federation is free to pursue one aspect of its claim, in both the awards it seeks. Whether it wishes to do so, given the other conclusions which I have reached, is a matter which it must have an opportunity to consider. Sensibly, it might also wish to take the opportunity to have some further discussions with the Department, in the circumstances. 65 In those circumstances and given the hearing currently programmed to commence on 17 June, I will list the matter for mention at 10am on Monday, 16 June 2008. ----------------------- 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.