Industrial Relations Commission New South Wales Medium Neutral Citation: New South Wales Teachers Federation and NSW Department of Education and Communities [2011] NSWIRComm 140 Hearing dates: 13 October 2011 Decision date: 17 October 2011 Jurisdiction: Industrial Relations Commission Before: Boland J, President Decision: Recommendation: 1. I decline to make a recommendation or direction that the rate of pay for the Principal at the SSCL should remain at the level paid to that of a PH1. 2. The school based selection process is not appropriate, for the reasons articulated by the Department, to select the Principal of the SSCL. I recommend the parties undertake further discussions with a view to agreeing on the constitution of the selection panel. 3. Attendance during the last two weeks of the summer vacation prevail for the time being in order to assess the need for the Principal to be in attendance. Catchwords: INDUSTRIAL DISPUTE - Notification by NSW Teachers Federation regarding salary and employment conditions for Principal of Saturday School of Community Languages - RECOMMENDATION - Salary level - Selection process for appointing Principal - Requirement to work during summer vacation period Legislation Cited: Teaching Services Act 1980 Category: Principal judgment Parties: NSW Teachers Federation (Applicant) NSW Department of Education and Communities (Respondent) Representation: L Hankinson (Applicant) NSW Teachers' Federation B Charlton (Respondent) NSW Department of Education and Communities File Number(s): IRC 1359 of 2011 RECOMMENDATION 1On 12 August 2011, the NSW Teachers Federation ("the Federation") notified the existence of a dispute with the Department of Education and Communities ('the Department") concerning the Principal of the Saturday School of Community Languages ("SSCL"). Background 2By way of background, SSCL is a NSW public secondary school established in 1978 to cater for the language maintenance and development of public high school students who spoke a language other than English at home that was not available in the Monday to Friday school. The Principal leads and manages 16 school sites with more than 3,900 students, 340 teaching staff, 49 executive staff and 60 clerical staff. As at September 2011, there were 3,930 students at the Saturday School of Community Languages for years 7 through to 12. 3The conditions of employment and rates of pay for employees at SSCL are provided for at cl 37 of the Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award 2009 ("the Award"). Clause 37 refers to Schedule 10 of the Award, which sets out the particular salaries and conditions for employees at SSCL. 4The Principal of SSCL is defined in Clause 2.15 of Schedule 10 of the Award as follows: "Principal, Saturday School of Community Languages" means the officer appointed by the Director-General to be responsible for the operation of the Saturday School of Community Languages. 5The Principal is employed under the Teaching Services Act 1980. The Award, however, does not prescribe the salary for the Principal of SSCL. The Award establishes the classification of school principal (other than Principal of SSCL) based solely on school student enrolments. There are two classifications of high school principal, they being Principal High Class 2 (PH2) for a student enrolment of one to nine hundred students and Principal High School 1 (PH1) for student enrolments in excess of nine hundred. The Principal of SSCL is currently paid at the rate of PH1 as provided for under the Award. 6In October 2010, the Director-General of the Department approved a recommendation from the Acting Director, Curriculum K-12 that the position of Principal at the SSCL be paid at the rate equivalent to that of a Principal high school grade 2 (PH2) in future recruitment action. On 17 November 2010, officers of the Department met with officers of the Federation to advise of that decision and other matters relating to the conditions of employment for the Principal at SSCL. The other matters included: (a) hours of duty including the requirement to be on duty on Saturday; (b) requirement to be on duty for the last three weeks of the summer vacation period in January of each year. 7On 23 November 2010, the Director-General made "Determination 4 of 2010 - Special Conditions of Employment for the Principal at the Saturday School of Community Languages" as an exercise of his statutory power pursuant to the provisions of s 13 of the Teaching Services Act . The Determination reflected what the Federation had been advised on 17 November 2010 regarding changes to arrangements affecting the Principal. 8The Department took no immediate action and the temporary appointment of the incumbent in the Principal's position was extended to the end of 2011. On 27 July 2011, the Department informed the Federation that in accordance with its advice of 17 November 2010 it intended to undertake recruitment action for the Principal's position in accordance with the provisions of Determination 4 of 2010 . Then followed the dispute notification by the Federation. 9Since the notification the parties have met on several occasions to resolve the dispute. On 27 September 2011 the Department indicated in correspondence that: (a) the Principal's position would be filled on a permanent basis; and (b) the Principal would only be required to be on duty for the last two weeks of the summer vacation period and not the last three weeks as previously sought. 10Additionally, the correspondence indicated that the Department intended to advertise the position using the non-school based procedures at the rate of pay equivalent to that of PH2 with the Principal observing public service administrative hours and not school hours. The selection process had not previously been raised with the Federation as an issue. Issues in dispute 11The issues that remain in dispute between the parties are the Federation's claim: (i) that the salary and classification of the position of principal at the SSCL should be a principal high school grade 1 (PH1); (ii) that the selection process for the SSCL principal should follow the procedures for school base non teaching service positions; and (iii) the attendance of the principal during non-term time, including the summer student vacation should be as for teachers in NSW government schools. Case for the Federation 12In relation to the salary issue the Federation contended: There is acceptance by the parties that the appropriate salary for Principal of the Saturday School of Community Languages equates to the salary of a Principal of a NSW government high school. The Award establishes the classification of school principal based solely on school student enrolments. PH1 applies to high schools with student enrolments in excess of nine hundred As at September 2011, there were 3,930 students at the SSCL for years 7 through 12. While the school provides tuition in one field of discipline i.e. LBOTE (Language Background Other Than English) each of the 24 languages taught has its own specific syllabus. The Principal of SSCL is responsible for providing education and organisational leadership for 340 teaching, 49 executive and 60 clerical staff across 16 school sites, 14 of which are within the Sydney Metropolitan area with one each in Wollongong and Newcastle. 13In relation to the selection issue it was submitted that the use of a non-school based selection process was inconsistent with the " Agreement between the NSW Department of Education and Training and the NSW Teachers Federation on the Staffing of NSW Public Schools 2009-2012" ("the Staffing Agreement"). That Agreement covers: The filling of vacant classroom teacher, executive staff and principal positions and related matters from term 1, 2009 until the commencement of term 2, 2012. 14The Federation contended the Staffing Agreement was applicable to the filling of the position of the Principal at SSCL. The relevant procedures for filling positions covered by the Staffing Agreement are the Selection Panel Procedures for School Teachers 2009. 15In relation to the attendance during non term time, the Federation contended: The Department's rationale for requiring the attendance of the Principal of Saturday School of Community Languages in the final weeks of the Summer student vacation period is that "during this period of time students need to be enrolled, new students need to be assessed and enrolled, classes need to be formulated and staffing requirements need to be determined". The enrolment procedures for enrolment in the Saturday School of Community Languages are set out by the Department. The enrolment procedures require the completion of a declaration by a student's home high school principal. For students commencing Year 7 in 2012 the completion of the declaration would not occur until after a student has commenced high school at the beginning of the school term. The Department's advice to parents and carers is that "Year 7 applications should be made as early as possible in 2012". The majority of Saturday School of Community Languages students for Years 8 through 12 would be continuing students and in the same circumstances as students continuing in any NSW government high school. In the advice from the Department provided to parents and carers regarding new enrolments, applications for placement in school year 2012 "should reach the Saturday School of Community Languages before 16 December 2011". This is to ensure that applications ". . . will be processed and confirmed in time for students to commence on Saturday 4 February 2012". It should be noted that applications "for all Years close formally on 24 February 2012". The closing dates for applications and enrolments fall within normal school terms and, in this regard, there is little to sustain the Department's proposition for different arrangements for the Principal of Saturday School of Community Languages from that of teachers in NSW government schools in so far as required attendance during the Summer student vacation. Case for the Department 16The Department relied on three statements: Mr Mark Philip, Director Industrial Relations for the Department; Mr Peter Johnson, Director Staffing Services for the Department; and Ms Karen White, Assistant Director, Learning Services, Curriculum and Learning Innovation Centre, for the Department. Each person was required for cross-examination. 17In relation to the salary issue the Department submitted: The history of the relevant classification of the person in charge of the SSCL shows that the position prior to 1996 was not that of a principal but that of another non school based classification, that of a Principal Education Officer. Following a "one off" appointment of an officer of the Department (who already held the position of PH1 at a high school) to the position of the position of principal at the SSCL, the rate of pay was maintained for that officer at the level of PH1 to maintain his existing salary and status. The Department considered and accepted a recommendation made by an educational consultant that the rate of pay for the SSCL principal should be at the rate of a PH2. The Director-General made a Determination pursuant to s 13 of the Teaching Service Act. The determination making power of the Director-General is an exercise of the statutory authority of this position and is an important process used by the Director-General in the efficient, effective and economical management of the functions and activities of the Teaching Service pursuant to s 6(1) of the Teaching Service Act . The determination making power of the Director-General has been exercised in accordance with the relevant statutory power. Determination 4 of 2010 provides a statutory basis for conditions of employment for the SSCL Principal where no other basis exists under the school teachers award or any other determination. It would be contrary not only to the public interest but to the operations of the Department if the Federation's submission was accepted by the Commission given the existence of Determination 4 of 2010 . The current rates of pay for a principal at the rate of PH1 and PH2 are $145,675 and $139,573 respectively. It is accepted that the establishment of the rate of pay for the SSCL Principal at the same rate as a PH2 is a difference of approximately $6,000 pa. The new rate of pay will apply prospectively in 2012 pending the finalisation of recruitment action for the SSCL principal's position. The Department did not seek to apply the rate of pay of a Principal Education Officer (PEO) under the school teachers award which is currently $126,997. Had the Department sought to adopt this rate of pay the salary difference would have been $18,500 pa. The Department's submission is that the establishment of the rate of pay for the SSCL Principal's position at a rate equal to that of a PH2, rather than at the PEO rate is reasonable and fair given the significantly decreased enrolments of the SSCL since 1996 (enrolments in 1996 were 7,641. In 2010 they were 4,175. In the period 2010 to 2011 enrolments have further decreased to 3,930). 18In relation to the selection issue, the Department submitted: Any selection process undertaken by the Department must, as a matter of fundamental importance, be able to establish a validly constituted selection panel. This is not possible under the school based procedures proposed by the Federation. The Federation's contention that the incorrect procedures should be used is also maintained in circumstances where the Department has proposed the use of alternative procedures (already in practice in the Department) that would enable a valid selection panel to be convened. The impracticality and unreasonableness of the Federation's contention on this issue is highlighted by the fact that the officer of the Department who is responsible for the supervision of the Principal of the SSCL, would be unable, under the school based selection procedures proposed by the Federation, to sit on the principal's selection panel. Conversely, the non school based procedures rejected by the Federation, will enable the SSCL Principal's supervisor to convene and sit on the selection panel. The requirement of the school based selection procedures that a representative of the Teaching Service at the school be elected by and from the members of the Teaching Service at the school will never be able to be met by the employees at the SSCL, none of whom (other than the Principal) are members of the Teaching Service. The history of the unsuccessful attempt to fill the Principal's position in 2009 using the school based selection procedures at that time shows that these are not the appropriate procedures for the position of the SSCL Principal. 19In relation to attendance during non-term time the Department said it has now agreed that the Principal will only be required to be in attendance during the last two weeks not, as initially required, during the last three weeks of the summer school vacation period. Consideration 20I shall deal with each of the matters in dispute. First, the salary issue. It is apparent that the Award does not prescribe the salary for the Principal of SSCL and that its original fixation was more of a matter of what was thought to be appropriate and fair at the time the original incumbent was appointed to the position and that arrangement was simply applied to later occupants of the position, including the current temporary incumbent. 21Why the Award does not fix the salary for the Principal escapes me. Schedule 10 of the Award deals in detail with salaries and conditions of employees at SSCL but not the Principal's salary. Instead the Principal has been dealt with in a somewhat ad hoc fashion, which is probably what has contributed to this dispute. 22The rationale for changing the salary level from PHI to PH2 was that apparently a report provided to the Department sometime in 2010 made that recommendation. It would appear that the recommendation was based simply on the fact that the number of enrolments in SSCL had fallen since 1996. 23That enrolments may have dropped seems to me to be a somewhat questionable and highly subjective basis upon which to change the Principal's salary level. What will happen if enrolments increase? How much will they need to increase by in order to increase the salary level? How much will they need to decrease to cut the salary level even further? Why was consideration not given to other factors that may have been relevant to the level of salary such as the nature of the work, skill and responsibility? Were there other factors justifying the salary remaining the same or even increasing it? 24The Federation's position was that because there are more than 900 students at SSCL the PH1 rate should apply. But the only reason the PH1 rate applied in the first place was because it was expedient to apply it and considered fair in the circumstances. I am not convinced that there is necessarily a nexus to be found between the principal of a high school whose salary is fixed according to the number of students enrolled (above or below 900) and the Principal of SSCL where the enrolment is about 3,900, but where students attend school only on Saturday. If such a nexus were to exist one would have thought reasonably minded people would have fixed the SSCL Principal's rate in the Award in accordance with the nexus. 25Because I am not convinced of any nexus for salary fixing purposes, I do not accept the Department's contention that if the current enrolment of the SSCL, operating one day a week, is compared on a pro rata basis with an enrolment of a high school operating five days a week, the pro rata student enrolment of the SSCL would be approximately 780 students by comparison (that is 3,900 (student enrolments) divided by 5 (days of operation)) and, therefore, an enrolment of 780 students is within the PH2 enrolment range. The SSCL Principal is responsible for 3,900 students undertaking any one or more of 24 languages, not 780 students. 26The proper approach to have been adopted by the Department regarding the Principal's salary was to consider all of the relevant factors, not only the drop in enrolment numbers, and it should have been done in consultation with the Federation. Either a consent position would have been reached or failing that one or both parties could have applied to vary the Award which, in my opinion, is the proper repository of the salary rate. The Commission could then have undertaken a proper work value review. 27As matters stand, I have insufficient information that would assist me in determining which party is correct, or if either is correct, in their assessment of the salary rate for the Principal's position. 28In the meantime, the Director-General exercised his power under s 13 of the Teaching Service Act to fix the salary at PH2 level. I am in no position to dispute the salary fixed by Determination 4 of 2010 properly reflects the work value of the Principal or not. I simply do not have adequate information. For the Commission to recommend something different to what the Determination provides, a Determination that on its face was regularly made, with the Director General exercising his proper authority, would require a very sound basis. That basis is presently not there. 29Accordingly, I decline to make a recommendation or direction that the rate of pay for the Principal at the SSCL should remain at the level paid to that of a PH1. I would recommend, however, that a proper review be undertaken as to what should be the appropriate salary for the Principal, having regard to my earlier observations. That review should not be an obstacle to advertising the position in order to recruit a Principal for the 2012 year. 30The second issue concerned the selection process. It seems to me that the school based selection process is not appropriate, for the reasons articulated by the Department, to select the Principal of the SSCL. The non-school based process also has its flaws in my opinion, especially as it does not provide for a representative of the teachers to sit on the selection panel. 31I recommend that the parties undertake further discussions with a view to agreeing on the constitution of the selection panel and the process to be adopted. In the event of disagreement the parties have liberty to apply to the Commission. 32The third issue concerned the requirement for the Principal to be in attendance during the last two weeks of the summer vacation. It appears that this obligation is not placed on high school principals, who act with a degree of autonomy in carrying out their administrative responsibilities. 33I would recommend that the position of the Department, that is attendance during the last two weeks of the summer vacation prevails for the time being, with the opportunity for the Federation to apply to the Commission to have that arrangement reviewed following the expiry of the summer vacation in January 2012. The Commission would then be in a position to assess whether the need for the Principal to be in attendance is real or whether the Principal should enjoy the same degree of flexibility and autonomy afforded to high school principals. ********** 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. Decision last updated: 17 October 2011