Industrial Relations Commission of New South Wales CITATION: Director General, NSW Department of Education and Training v NSW Teachers Federation [2009] NSWIRComm 147 Director General, New South Wales Department of Education and Training (Notifier) PARTIES: New South Wales Teachers Federation (Respondent) FILE NUMBER(S): IRC 513 of 2009 CORAM: Boland J President; Sams DP; Grayson DP CATCHWORDS: INDUSTRIAL DISPUTE - dispute orders - NSW Teachers Federation - industrial action by TAFE teachers after indication to Full Bench by Federation that industrial dispute of teaching hours should be resolved without resort to industrial action - industrial action indefensible given Federation's agreement to a process to resolve industrial dispute - Disruption caused by 24 hour strike - Application of s 173 of the Industrial Relations Act 1996 - Application by Federation that Full Bench disqualify itself on the grounds the members had attempted conciliation - one member stepped aside - two members refused on the grounds they had not attempted conciliation - dispute orders confirmed. LEGISLATION CITED: Industrial Relations Act 1991 Industrial Relations Act 1996 Commissioner of Police v Police Association of New South Wales [2005] NSWIRComm 132; 141 IR 423 CASES CITED: Crown Employees (Teachers in TAFE and Related Employees) Salaries and Conditions Award and others [2009] NSWIRComm 2 Director General, NSW Department of Education and Training v NSW Teachers Federation [2009] NSWIRComm 140 Public Service Association of NSW and Department of Corrective Services & Anor [1994] NSWIRComm 148 (Hill J, Peterson J and Murphy CC, 9 December 1994) HEARING DATES: 1 September 2009 DATE OF JUDGMENT: 9 September 2009 Mr P Kite SC with Mr S Benson of counsel (Notifier) for NSW Department of Education and Training LEGAL REPRESENTATIVES: Mr S Crawshaw SC with Mr M Gibian of counsel (Respondent) for NSW Teachers Federation JUDGMENT: - 13 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: BOLAND J, President SAMS DP GRAYSON DP 9 September 2009 Matter No IRC 513 of 2009 DIRECTOR GENERAL, NSW DEPARTMENT OF EDUCATION AND TRAINING v NSW TEACHERS FEDERATION NOTIFICATION UNDER SECTION 130 BY THE DIRECTOR GENERAL, NEW SOUTH WALES DEPARTMENT OF EDUCATION AND TRAINING OF A DISPUTE WITH THE NSW TEACHERS FEDERATION RE CLAUSE 47 REASONS FOR DECISION [2009] NSWIRComm 147 1 On 1 September 2009, the Full Bench made dispute orders against the NSW Teachers Federation, its officers, employees and members employed by the Managing Director of TAFE pursuant to s 137(1)(a) of the Industrial Relations Act 1996 and directions under s 136(1) of that Act. Upon making the orders, the Full Bench indicated it would provide its reasons in due course. We now publish our reasons. 2 The background to the industrial dispute that gave rise to the industrial action that was the subject of the dispute orders, is set out in a Statement issued by the Full Bench on 17 August 2009: see Director General, NSW Department of Education and Training v NSW Teachers Federation [2009] NSWIRComm 140. 3 Briefly stated, the dispute concerns the question of employee related cost savings appropriate to fund salary increases granted by the Commission in the making of an award, known as the Crown Employees (Teachers in TAFE and Related Employees) Salaries and Conditions Award 2009 on 19 February 2009. The Award was made by consent in consequence of the parties accepting a Recommendation made by the Commission on 21 January 2009: Crown Employees (Teachers in TAFE and Related Employees) Salaries and Conditions Award and others [2009] NSWIRComm 2. That Recommendation was the subject of specific endorsement by the Executive of the Federation. The Award provided for salary increases to the common incremental salary scale therein of 4.4 per cent from 1 January 2009, 3.8 per cent from 1 January 2010 and 3.8 per cent from 1 January 2011. 4 The variation to the Award following upon the Recommendation included the following provision: 47. Further Employee Related Reform Measures and Cost Savings 47.1 In order to fund the salary increases provided under this award, the parties have committed to the identification and implementation of further employee related reform measures and cost savings to improve TAFE operational efficiency and competitiveness. 47.2 The parties agree to establish immediately a working party to identify and finalise the reforms by 3 April 2009. The working party shall consider a range of initiatives, including direct teaching hours of work of TAFE teachers and time credit hours to fund (to the extent not already achieved by the employee related reform measures already agreed and implemented by the parties as outlined in the Industrial Relations Commission Recommendation [2009] NSWIRComm 2 relating to IRC Matter Numbers 1979 of 2008, 1980 of 2008, 2042 of 2008, 2241 of 2008 and 2242 of 2008) the salary increases beyond 2.5% each year. 47.3 Should the working party not identify the necessary employee related reform measures and cost savings or should any dispute arise during the process, the parties acknowledge and commit to take all necessary steps so that the Industrial Relations Commission shall arbitrate on and determine by June 2009, the employee related cost savings necessary to fund the salary increases under this award. 5 The parties were unable to reach agreement and on 1 July 2009 the Director General filed an application to vary the Award (the application was amended on 24 July 2009). The application seeks, inter alia, an increase in direct teaching hours to fund the salary increases in excess of 2.5 per cent. The application was listed for hearing before a Full Bench commencing Monday 14 September 2009. The Federation is opposed to the application. 6 Despite the matter being listed for arbitration, Walton J, Vice-President persisted in his attempts to achieve a settlement by conciliation. His Honour had reached the point by 3 August 2009 where he was actively countenancing issuing a recommendation with a view to resolving the matter. It was at this time the Commission was advised of past and planned industrial action by members of the Federation at a number of TAFE campuses in the State. On 4 August 2009, the Full Bench made a direction that the industrial action not proceed and suspended the conciliation proceedings occurring before the Vice-President. 7 On 13 August 2009, the Commission was advised that stop work meetings of TAFE teachers were convened by the Federation on 11 August 2009 contrary to the Commission's direction. Further, that the Federation had placed on its website a report dated 11 August that TAFE teachers at the stop work meetings voted to take further industrial action 'if necessary' including a possible 24 hour strike in the week commencing 31 August 2009. 8 On 17 August 2009, the Full Bench issued a Statement directing that the Executive of the Federation meet within seven days to consider the Statement and a Direction made by the Full Bench on 4 August 2009 that planned industrial action not proceed. In that respect, the direction required the Executive to communicate its position to the Full Bench by 25 August 2009 by means of correspondence under the hand of the Secretary of the Federation: see Director General, NSW Department of Education and Training v NSW Teachers Federation [2009] NSWIRComm 140. In the Statement the Full Bench observed: [16] The situation now prevailing is remarkable by reference to any acceptable measure of industrial behaviour. The members of the Federation are in receipt of substantial salary increases over a three year period, which were sustained, in substantial part, by the provisions of cl 47 of the Award, which permitted the Department to pursue further cost savings by means of an agreement reached out of a working party or conciliation or by means of arbitration. That arrangement was reached as a result of the acceptance of a Recommendation by the Commission. Any industrial action now taken could only be viewed as an attempt to pressure the Department into desisting from taking the very steps which the Federation has agreed it may take. The inappropriateness of that position is aggravated by the fact that the Department acted in accordance with the parties' acceptance of the Commission's Recommendation and the terms of an Award. In short, the Department had a right to bring the application which it brings in these proceedings. [17] The position is all the more remarkable when one considers that any prospective industrial action would occur in the face of an ongoing conciliation proceedings before the Commission (where the Federation resists issuing of a certificate of attempted conciliation) and a scheduled arbitration of the matters in dispute (falling squarely within cl 47) of which the Federation is also an active participant. [18] We have recalled all of those matters in such detail, as it appears to us incomprehensible that the Executive of the Federation would countenance industrial action in this context. This is not to say that the Federation's Executive may not have strong views about the right to take industrial action. However, we could not envisage that the Federation would wish to embrace industrial action when the action was at least against the spirit of the earlier agreement that it had entered into and where it wishes to be heard in proceedings brought in conformity with that agreement. 9 On 25 August 2009, in a letter tendered by senior counsel for the Federation, Mr S Crawshaw, the Full Bench was advised, in part, that: Executive remains hopeful that the matters in dispute can be resolved through negotiation and/or conciliation and accepts that the Commission's attempts to satisfactorily resolve the dispute should occur in the absence of industrial action. 10 The Full Bench accepted the correspondence as a 'positive response' by the Federation and announced that the conciliation proceedings before the Vice-President would resume. Further conciliation proceedings occurred before Walton J on 27 August 2009. 11 A meeting occurred between the parties on 31 August 2009 at which officers of the Department were advised that the Federation intended to take industrial action on 2 September 2009. The industrial action was to be in the form of a 24 hour strike by TAFE teachers as well as a rally. 12 On 1 September 2009, the Full Bench was advised of the planned industrial action and an urgent listing of the matter was sought by the Crown Solicitor's Office acting for the Department. The Full Bench convened at noon when Mr P Kite of senior counsel for the Department sought a certificate of attempted conciliation under s 135(2) of the Act and, upon the issuing of that certificate, the dispute orders referred to earlier. The Federation did not oppose the issuing of the certificate. 13 Having heard the parties Walton J, Vice-President, a member of the Full Bench who had, for many months, attempted conciliation of the dispute, issued the necessary certificate and copies were provided to the President and to the parties in accordance with the relevant provisions of the Act. Senior counsel for the Federation then moved, pursuant to s 173 of the Act, to preclude the Vice-President from exercising arbitration powers in relation to the dispute. The Vice-President stepped aside. 14 Senior counsel also sought under s 173 to have the other two members of the Full Bench, the President, Boland J and Grayson DP, removed from any arbitration proceedings on the ground they had exercised conciliation powers on 4 August and 17 August when the directions referred to above were issued that sought to avert any industrial action. Both Boland J and Grayson DP declined to stand aside from the arbitration proceedings on the basis that neither of them had attempted conciliation of the industrial dispute and, indeed, that was the case, with the whole of conciliation of the dispute having been attempted by Walton J. 15 Section 173 provides that: 173 Members who may exercise arbitration powers after attempted conciliation (1) The member of the Commission who attempted conciliation of an industrial dispute or other matter is not to exercise arbitration powers in relation to the dispute or matter if a party to the arbitration proceedings objects and requests that a different member of the Commission exercise arbitration powers. (2) A member of the Commission is not, for the purposes of this section, taken to have attempted conciliation merely because: (a) the member attempted conciliation after having begun to exercise arbitration powers, or (b) the member arranged or gave directions for a conference of the parties involved in the industrial dispute or other matter, or their representatives, to be presided over by the member, but the conference did not take place or was not presided over by the member, or (c) the member arranged or gave directions for those parties or their representatives to confer among themselves at a conference at which the member was not present. 16 Section 173 is directed at enhancing the conciliation process. In Commissioner of Police v Police Association of New South Wales [2005] NSWIRComm 132; 141 IR 423 the Full Bench cited with approval what was said by the Full Commission in Public Service Association of NSW and Department of Corrective Services & Anor [1994] NSWIRComm 148 (Hill J, Peterson J and Murphy CC, 9 December 1994) about s 209 of the Industrial Relations Act 1991. The Full Bench noted that s 209 of the 1991 Act was in 'very similar' terms to s 173. 17 Section 209 was in the following terms: 209(1) If a member of the Commission has attempted conciliation in relation to a question, dispute or difficulty, arbitration powers in relation to the question, dispute or difficulty are to be exercised by a different member if a party to the arbitration proceedings so requires. (2) A member of the Commission is not taken to have attempted conciliation merely because: (a) the member attempted conciliation after having begun to exercise arbitration powers; or (b) the member arranged for a conference of the parties involved in the question, dispute or difficulty, or their representatives, to be presided over by the member, but the conference did not take place or was not presided over by the member; or (c) the member arranged for those parties or their representatives to confer among themselves at a conference at which the member was not present. 18 The passage referred to in the 1994 case by the Full Bench in the 2005 Police case was in the following terms: It is in the nature of conciliation that a member of the Commission may both express views to, and receive views from, a party which may be thought to be contrary to the interests of that or the other party in any later arbitration. It is inherently desirable that the member and the parties should not feel constrained from freely engaging in discussions in the pursuit of settlement by the prospect that the expression of views or positions may redound to their later disadvantage if conciliation should fail. Section 209(1) reflects the view that conciliation may be enhanced by the parties being able to freely explore settlement of a claim without that inhibition. 19 In the present proceedings, the 'industrial dispute' that was the subject of attempted conciliation, initially by Kavanagh J and later by Walton J, was that notified by the Director General of the Department on 14 April 2009 when the notifier sought the Commission's assistance to resolve the issue of 'employee related cost savings necessary to fund salary increases as required by clause 47 of the Award'. The parties had been unable to reach agreement in accordance with cl 47 of the Award. 20 Walton J proceeded to attempt to resolve the outstanding differences between the parties, but by June 2009 no settlement had been reached. At that stage it was considered prudent to set dates for arbitration and make directions in that respect (by consent) in the event conciliation ultimately proved unsuccessful. That was done. Nevertheless, the Vice-President continued to conciliate. 21 What then occurred is described earlier: on 4 August 2009, the Full Bench issued a direction that the industrial action not proceed and directed that the conciliation proceedings occurring before the Vice-President be suspended. That Full Bench was constituted by Boland J, President, Walton J, Vice-President and Staff J. The later Full Bench that issued the Statement on 17 August 2009 was constituted by Boland J, President, Walton J, Vice-President and Grayson DP. 22 As mentioned earlier, the Federation's resort to s 173 in respect of Boland J was his participation on the Full Bench in the proceedings on 4 August and 17 August 2009 when directions were made in relation to planned industrial action. The objection in relation to Grayson DP could only have been on the basis of his participation on the Full Bench on 17 August 2009. 23 Bearing in mind the purpose of s 173, that is the enhancement of conciliation proceedings whereby 'the parties should not feel constrained from freely engaging in discussions in the pursuit of settlement by the prospect that the expression of views or positions may redound to their later disadvantage if conciliation should fail', it was plainly the case that neither Boland J nor Grayson DP 'attempted conciliation' of the industrial dispute over 'employee related cost savings necessary to fund salary increases as required by clause 47 of the Award'. There could have been no apprehension on the part of the Federation that either Boland J or Grayson DP '[expressed] views to, and receive views from, a party which may be thought to be contrary to the interests of that or the other party in any later arbitration'. The application by the Federation to disqualify the two members of the Full Bench was more in the nature of a ploy to avoid the Department's application for dispute orders being heard prior to the industrial action planned for the following day taking place, rather than out of any genuine concern for the Federation's position in the arbitration proceedings. 24 In the absence of the Vice-President it was necessary to re-constitute the Full Bench as it is presently constituted. It may be noted, in that respect, that the Vice-President stepped down notwithstanding that his Honour had been proceeding to endeavour to resolve the dispute by conciliation on the basis that the Federation had indicated to him in conciliation that it would have no objection to the Vice-President sitting on the Full Bench in the arbitration proceedings if conciliation failed. That indication was given in the context of the proceedings in Crown Employees (Teachers in TAFE and Related Employees) Salaries and Conditions Award and others [2009] NSWIRComm 2. However, there was no disjunct between those proceedings and the present proceedings in so far as the subject matter was concerned: the present proceedings may be regarded as merely an extension of the earlier proceedings and we understand there was nothing said by any party to his Honour that would have caused him to believe that if he were to continue with conciliation in Matter No IRC 513 of 2009 there would be an objection taken to him sitting on the Full Bench in the event arbitration became necessary. That reinforces our view that the Federation's resort to s 173 was merely a cynical ploy. 25 The Full Bench then proceeded to hear the application for dispute orders. In that respect, Mr Kite read the affidavit of Kevin James Harris, Institute Director of TAFE NSW Northern Sydney Institute. In his affidavit Mr Harris deposed to the background to the dispute which is earlier outlined in these Reasons. Mr Harris also deposed that the planned strike and rally would cause significant interruption to students at TAFE who would find it difficult to recover lost class time. He also stated that the strike would have an impact on the provision of employers' services by TAFE Institutes, including specific skills training. Mr Harris noted that the industrial action on 11 August had caused 728 TAFE classes to be cancelled with one college cancelling all classes. Some 8,736 students were affected by classes being cancelled. Mr Harris was not required for cross-examination. 26 Mr Crawshaw noted that the issuing of dispute orders was a discretionary matter and the Full Bench should exercise its discretion not to do so on the ground that neither the Premier nor the Minister for Education and Training had responded to urgent requests by the Federation on 20 August 2009 to intervene in the dispute. Consideration 27 Resort by the Commission to the issuing of dispute orders is a rare occurrence. Most often disputes are resolved by conciliation, but if that is unsuccessful, by arbitration, usually in the complete absence of industrial action. In 2008 and 2009 the Commission has been able to assist in resolving every major wage dispute in the public sector with either no or minimal industrial disruption, despite seemingly intractable positions being adopted by both sides of the industrial relationship. 28 The present dispute, however, is an exception. One can understand an organisation representing teachers having strong disagreement with any proposal to increase in direct teaching hours to fund the salary increases in excess of 2.5 per cent. The organisation is entitled to mount a case in opposition. But in the present case, the Teachers Federation has secured salary increases of 12 per cent over three years on the basis that if the parties failed to reach agreement between themselves or through a process of conciliation over the teaching hours issue, the matter would proceed to arbitration for resolution. That was always understood to be the case by the Federation to the extent that directions were made without demur from the Federation for the filing and serving of material in preparation for the arbitration proceedings scheduled to commence on 14 September 2009. 29 By its conduct in organising and encouraging industrial action by its members employed at TAFE, the Federation is now undoubtedly attempting to pressure the Department to either forego its right to have the hours issue proceed to arbitration or to have the Department alter its position to the advantage of the Federation, but at the same time the Federation intends that its members should keep the benefits of the Recommendation it accepted in February 2009. It is a clear attempt to subvert the process that the Federation understood would occur from the outset in return for the substantial increase in salaries. 30 The attitude of the Federation in pursuing a course of industrial action in this matter was indefensible, a fact reinforced by the Federation's weak defence of its position to embark on industrial action. That the Premier and/or Minister did not respond to the Federation's demand for them to intervene was to be completely expected given that the matter was proceeding before the Commission in conciliation, with dates having already been set for the matter to go to arbitration before a Full Bench, if conciliation was unsuccessful. 31 The planned industrial action had the potential to be highly disruptive for students and employers in circumstances where the action was inexcusable. 32 We confirm the orders made by the Full Bench on 1 September 2009 as follows: A. Pursuant to s.137(1)(a) of the Industrial Relations Act 1996 the Commission makes the following orders: 1. The NSW Teachers Federation by its officers, employees and members employed by the Managing Director of TAFE are hereby ordered to refrain from taking industrial action including a 24-hour strike proposed to take place commencing 2 September 2009. 2. The NSW Teachers Federation, its officers, employees and members employed by the Managing Director of TAFE are hereby ordered to cease and refrain from authorising, organising, supporting, encouraging or inciting industrial action, including a 24 hour strike proposed to take place, commencing on 1 September 2009 for a period of three months. B. Pursuant to s.136(1) of the Industrial Relations Act , the Commission makes the following directions: 1. The NSW Teachers Federation and its officers are hereby directed to take all reasonable steps to ensure that the employees and the members of the NSW Teachers Federation comply with orders A1 and A2, including notifying its members of the said directions no later than 1 September 2009. 2. Service of orders A and B may be effected by sending a facsimile copy to the NSW Teachers Federation or by handing a copy of these orders to an officer or employee of the NSW Teachers Federation by 5pm on 1 September 2009. C. Pursuant to s.136(1) of the Industrial Relations Act , the Commission makes the following directions: 1. These orders and directions shall take effect from 2.30pm today, 1 September 2009 and shall remain in force for 3 months unless, on formal application, they are varied or rescinded in the meantime. ______________________ 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.