Industrial Relations Commission of New South Wales CITATION: Notification under section 130 by New South Wales Teachers Federation of a dispute with Department of Education and Training re breach of agreed procedures [2008] NSWIRComm 95 APPLICANT: New South Wales Teachers Federation PARTIES: RESPONDENT: Director-General, NSW Department of Education and Training INTERVENING PARTY: Public Service Association of New South Wales FILE NUMBER(S): IRC 2011 of 2007 CORAM: Schmidt J CATCHWORDS: Industrial Dispute - application for leave to intervene in arbitrated proceedings concerning an award for employees with teaching qualifications and experience - consideration of true effect of award sought on other staff - necessary interest in award application demonstrated - leave sought granted LEGISLATION CITED: Industrial Relations Act 1996 In re Plumbers and Gasfitters (State) Conciliation Committee (1936) Industrial Reports 341 CASES CITED: In re Special Constables (Police Department) Award [1956] AR (NSW) 880 Transport Industry - Waste Collection and Recycling (State) Award (No 2) (2001) 103 IR 322 HEARING DATES: 6 May 2008 DATE OF JUDGMENT: 9 May 2008 NEW SOUTH WALES TEACHERS FEDERATION Ms P Lowson, counsel DIRECTOR-GENERAL, NSW DEPARTMENT OF EDUCATION AND TRAINING LEGAL REPRESENTATIVES: Ms E Brus, counsel INTERVENING PARTY: PUBLIC SERVICE ASSOCIATION OF NEW SOUTH WALES Mr N Keats, solicitor SOLICITORS: WG McNally Jones Staff JUDGMENT: - 7 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Schmidt J 9 May 2008 Matter No IRC 2011 of 2007 Notification under section 130 by New South Wales Teachers Federation of a dispute with Department of Education and Training re breach of agreed procedures REASONS FOR DECISION [2008] NSWIRComm 95 1 This dispute was notified to the Commission by the New South Wales Teachers Federation ('the Federation'), on 1 November 2007. Conciliation proceedings, before both her Honour Justice Staunton and myself, proceeded in November and December 2007 and February, March and April 2008. The Public Service Association of New South Wales ('PSA') was given leave to intervene in the dispute and participated in the conciliation proceedings. Despite extensive efforts by the Commission and ongoing separate discussions between the parties, the dispute was not resolved. On 10 April 2008, a certificate under s 130 of the Industrial Relations Act 1996 ('the Act') was issued, indicating that reasonable attempts to resolve the dispute by conciliation had been made. 2 An issue then arose between the Federation and the PSA, as to whether or not the PSA's leave to intervene in the proceedings, should continue during the arbitration which the Federation now pursues. The PSA's application was supported by the Department of Education and Training ('the Department'). At the hearing I announced that I had concluded that the leave sought should be granted and that I would give reasons for that decision. These are the reasons. 3 The Federation originally notified the Commission that the dispute concerned an alleged breach of an agreement between the Federation and the Department, in relation to non-school based teaching service positions. The Department proposed to reclassify certain positions in its Employee Performance and Conduct Directorate, as public service positions. Those positions had previously been classified as non-school based teaching service positions. The Federation claimed that prior to this proposal, approximately half of the positions in the Unit, whose work involved the investigation of allegations of misconduct brought against teachers employed in Departmental schools, had been classified as public service positions and the other half, as non-school based teaching service positions. 4 The Department had decided that there was no longer a requirement that such positions be occupied by persons with teaching qualifications and recent school based experience. Accordingly, it proposed to reclassify all of these current non-school based teaching service positions as public service positions, with the result that, as vacancies arose, the positions would be advertised and filled, without requiring such teacher qualifications and experiences. This would not preclude persons with teacher qualifications and experience from applying, but the successful applicant would be paid applicable public servant rates, not those applying to non-school based teaching service positions. 5 The Federation now seeks the making of an award to be known as the Teachers (Investigation of Alleged Misconduct) Award 2008, which will require, amongst other things, that: 4. All teachers shall have allegations of misconduct that are referred to a Child Protection Investigation Team (i) Assessed by persons holding teaching qualifications recognised in NSW and with (preferably accredited) school based teaching experience (ii) Investigated by a Child Protection Investigation Team that comprises at least 50% of persons holding teaching qualifications and (preferably accredited) school based teaching experience. 5. So far as possible, all persons receiving training from EPAC shall have the training performed by persons holding teaching qualifications and with (preferably accredited) school based teaching experience. 6. So far as possible, all Principals shall receive advice from EPAC by persons holding teaching qualifications and with (preferably accredited) school based teaching experience. 7. Persons employed in the Child Protection Investigation Teams who hold teaching qualifications and (preferably accredited) school based teaching experience shall be paid in accordance with the Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award 2006 . 6 Directions for preparation for the hearing of the application have been given and the matter has been listed for hearing before Staunton J. 7 The parties agreed that the Commission has power to grant the application and that the applicable principles are those discussed in In re Plumbers and Gasfitters (State) Conciliation Committee (1936) Industrial Reports 341; In re Special Constables (Police Department) Award [1956] AR (NSW) 880 and Transport Industry - Waste Collection and Recycling (State) Award (No 2) (2001) 103 IR 322. 8 The PSA called evidence from Ms Judith Anne Daley, a Senior Investigator employed by the Department. The Federation called evidence from Mr Graham Leake, a Principal Investigator employed by the Department. On their evidence there was essentially no dispute that the numbers of team members with teaching, as opposed to public sector backgrounds, employed by the Department had fluctuated over time, with the result that when this dispute was notified, some 43% of staff had a teaching background. At earlier points in time the numbers had been around 50%. 9 Ms Daley and Mr Leake also agreed that staff with both types of background contributed to the work of the child protection teams in question. Both staff with teaching and public sector backgrounds, are presently employed to deliver various kinds of training in child protection issues and also to provide advice on such issues. Principals are encouraged to seek such advice, which is usually delivered by telephone, by staff having both types of background. Mr Leake estimated that about 50% of such advice is presently provided by staff with public sector backgrounds. 10 I was satisfied, on the evidence, that the PSA had made out a case for intervention. While the form of the award which the Federation seeks, is framed by reference to teachers having the right to have allegations of misconduct investigated by persons with certain training, and training and advice in relation to child protection issues being given by such persons, the real effect of the award is to regulate the qualification and payment of those whom the Department employs to undertake certain work. The award which the Federation seeks, if made, will undoubtedly impact on the work now being performed by PSA members in the teams in question. It will reduce the numbers of persons who do not have teaching qualifications, who may be employed in those teams. The Federation advised that it would propose a phasing in of that provision, by way of attrition, underlining the direct impact which the award would have on the PSA's members. 11 As the PSA argued, the evidence well demonstrated that this was a case where the PSA ought to be given the right to be heard, as to the award conditions sought. The award conditions proposed would have undoubted consequences for its members, which they opposed. Unlike the circumstances discussed in In re Plumbers and Gasfitters (State) Conciliation Committee at pp 345-6, on the evidence, the questions arising to be determined by the Commission in these proceedings will directly affect the PSA's members. In effect, they will be precluded from performing work which they are presently employed to perform. It follows that the PSA has a real and direct interest in the award which the Federation seeks. Indeed, given the content and effect of the award, as opposed to its form, it may be that the PSA has the right to appear in the proceedings as a party. That, however, was not argued, and is unnecessary to decide, given the conclusions which I have otherwise reached. 12 As discussed in In re Special Constables (Police Department) Award at p 885, here intervention will ensure that the interests and concerns of the PSA's members will be fully appreciated by the Commission, when considering the award regulation which is sought by the Federation. 13 Further, while the Federation argued that the PSA's case was essentially similar to that of the Federation, that was a submission which I could not accept. 14 Not only does the Department oppose the making of the award sought, so does the PSA, in so far as clauses 5, 6 and 7 of the award affect its members. While both Mr Leake and Ms Daley agreed that both employees with teaching and non-teaching backgrounds presently contribute to the work of the Department's child protection teams, Ms Daley did not agree with the award which the Federation sought. Her evidence pointed to the effect which the award would have, for example, in preventing those with non-teaching backgrounds from continuing to undertake work which they presently undertake, in providing training and advice on child protection matters. 15 As to the role which the PSA seeks to play in the proceedings, that was explained by Mr Keats to be: We accept we are not going to have the same rights as a party if intervention is granted, and what we ask that we be allowed to do is call the evidence of one witness, Judith Daley, and that Judith be allowed to give evidence in relation to the three areas we have just discussed; the ratio, the training and the advice to principals. We similarly request that we be granted leave to make submissions about those matters and cross-examine any witnesses about those matters. We are not interested or concerned in other matters that might arise in proceedings. For example, clause 7 of the proposed award talks about what team should be paid that are teachers; we are not concerned with matters such as that. 16 On the evidence, I was satisfied that leave to intervene on that basis should be granted, in these circumstances. While Ms Lowson suggested that the Federation's award application might need to be further amended, to reflect its true intent, I was satisfied, on the basis of the current application, that the PSA must be permitted to participate in the proceedings, on the basis proposed. 17 As I noted at the hearing, the question of the PSA's participation in the proceedings, will remain a matter for Justice Staunton to consider further, in light of the way in which the proceedings develop. Indeed, if the Federation were to further amend its application, the PSA might wish to pursue a different course to that which it has taken thus far, in response to the Federation's present application. 18 Nevertheless, both the PSA and the Commission must deal with the application which the Federation currently pursues. On the evidence, that application is such that the PSA must be allowed to participate in the proceedings on a basis which will ensure that the true impact of the proposed award on its members, will be appreciated by the Commission, when determining whether its award making discretion should be exercised, in the way in which the Federation seeks. That discretion, it ought not to be overlooked, appears in s 10 of the Act, which provides that: The Commission may make an award in accordance with this Act setting fair and reasonable conditions of employment for employees. 19 In an application such as this, the impact of the award sought on the PSA's members may not be overlooked, consistently with the statutory regime. The PSA has the right to be heard, in relation to such matters. ------------------------ 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.