Industrial Relations Commission New South Wales Medium Neutral Citation: Re Crown Employees (School Administrative and Support Staff) Award [2012] NSWIRComm 127 Hearing dates: 29, 30, 31 October 2012 Decision date: 16 November 2012 Before: Boland J, President Decision: Application to vary in this matter is dismissed. Catchwords: AWARD VARIATION - Crown Employees (School Administrative and Support Staff) Award - Applicant sought variation to the Award to include employment protection provisions - Government recently promulgated policy for "Managing Excess School Administrative and Support Staff Employees" - Whether Industrial Relations Commission possesses jurisdiction to make award variation - Consideration of s 146C of Industrial Relations Act 1996 and Industrial Relations (Public Sector Conditions of Employment) Regulation 2011 - Held no jurisdiction to make award variations - Observations regarding long term temporary employees and consultation between parties - Application dismissed. Legislation Cited: Education (School Administrative and Support Staff) Act 1997 Employment Protection Act 1982 Industrial Relations Act 1996 Industrial Relations (Public Sector Conditions of Employment) Regulation 2011 Interpretation Act 1987 Public Sector Employment and Management Act 2002 Cases Cited: Australian Education Union v Department of Education and Children's Services [2012] HCA 3; (2012) 285 ALR 27 Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 1984 Termination, Change and Redundancy Case: (1984) 8 IR 34 and (1984) 9 IR 115 Westfield Holdings v Adams [2001] NSWIRComm 293; (2002) 114 IR 241 Category: Principal judgment Parties: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (Applicant) Department of Education and Communities (Respondent) Representation: Mr M Gibian of counsel (Applicant) Mr M Easton of counsel (Respondent) Mr N Keats (Applicant) Mr C Wollard (Respondent) File Number(s): IRC 775 of 2012 DECISION 1This matter arises as a consequence of a notification on 11 July 2012 by the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales ("PSA") under s 130 of the Industrial Relations Act 1996. The notification asserted there was no award, policy or legislative provision that provided protection for School Administrative and Support Staff ("SAS Staff") in the event of redundancy. The notification noted that the overwhelming majority of SAS Staff were female. 2The notification further asserted that it was appropriate that the relevant award, the Crown Employees (School Administrative and Support Staff) Award ("the Award"), contain employment protection provisions. 3On 12 July 2012, the dispute was listed for a compulsory conference before the Commission. On that occasion the representative of the Department of Education and Communities ("DEC") sought an adjournment to obtain instructions and the matter was relisted for 20 July 2012. On that day the parties indicated some progress towards resolution had been made but the PSA was concerned that there should be no move against employees to their detriment until the matter had been resolved. The Commission indicated that employees should not be disadvantaged whilst discussions between the parties were continuing. The matter was adjourned to 30 July 2012. 4On 30 July 2012, it was evident there remained disagreement between the parties. The PSA foreshadowed an application for interim orders to protect long term temporary employees who were at risk of having their working hours reduced. Pending the filing of an application by the PSA, directions were made to hear the application on 24 August 2012. 5On 8 August 2012, the parties sought conciliation before the Commission was to hear the PSA's application for interim relief. That occurred on 13 August 2012, but it was unsuccessful. A Certificate of Attempted Conciliation was issued. Application to vary Award 6On 31 August, the PSA filed an application pursuant to s 17 of the Act seeking a variation to the Award. The application was listed for hearing on 29-31 October 2012. Up to the eve of the hearing it was correct that there was no award, policy or legislative provision that provided protection for SAS Staff in the event of redundancy. However, on Friday 26 October the Commission was advised that the respondent would promulgate a Policy on Monday 29 October 2012 for "Managing Excess School Administrative and Support Staff Employees". That did occur and the Policy is referred to in an affidavit of Mr Mark Philip, the respondent's Director Industrial Relations. Mr Philip's evidence is summarised below. 7The PSA's application sought a variation to the Award by inserting a new cl 22A - Redundancy Pay and Notice of Termination and a new cl 22B - Consultation. The variation would apply to all permanent employees and to temporary employees who have at least two years' continuous service. The other main provisions of the proposed variation are as follows: (a)the continued operation of the nominated transfer procedure in accordance with the "Ancillary Staffing Operation Procedures" which provide for an employee to seek a transfer for a period of one term; (b)employees to have the option to elect to seek redeployment for a further period of three months during which the employee would be entitled to priority access to positions; (c)an appropriate package of redundancy payments in the event that an employee is not redeployed and retrenched on grounds of redundancy; (d)appropriate obligations to be imposed upon the respondent to discuss proposed changes and consult with the PSA and affected employees. 8The application sought to have the variation operate from the first full pay period commencing on or after 1 July 2012. Evidence Applicant's evidence 9The applicant's evidence consisted of eight statements by the following persons: (1)Suzanne Walsh, School Administrative Manager; (2)Anthony D'Adam, Senior Industrial Officer for the PSA; (3)Christine Jones, School Administrative Manager, Level 4; (4)Julie Mitchell, School Learning Support Officer; (5)Robyn Dean, School Learning Support Officer; (6)Teresa MacAlpine, School Learning Support Officer; (7)Kay Knight, School Administrative Officer; and (8)Suzanne Foley, School Learning Support Officer. Only Ms Walsh and Mr D'Adam were required for cross-examination. Ms Walsh 10Ms Walsh is President of the PSA and has been since 2000. Since that time she has been on secondment from the respondent to the PSA. Ms Walsh has been involved in industrial negotiations with the respondent in relation to the salaries and working conditions for SAS Staff (formerly known as ancillary staff) for more than twenty years. 11Ms Walsh described the functions of persons employed as SAS Staff, such staff including the following: Aboriginal Education Officers, School Support Officers, School Administrative Officers, School Administrative Officers (Food Technology), School Administrative Officers (Library), School Administrative Officers (Science), School Administrative Managers, School Learning Support Officers, School Learning Support Officers (Braille Transcriber), School Learning Support Officers (Sign Interpreter), School Learning Support Officers (Ethnic) and School Learning Support Officers (Pre-School). 12Ms Walsh observed that 96 per cent of the members of the PSA who are employed as SAS Staff are female and 47 per cent of the members of the PSA who are employed as SAS Staff are over the age of 54. This compares to 60.99 per cent of the NSW Public Sector who are female and 22.11 per cent of the NSW Public Sector who are over the age of 54. 13In referring to long term temporary employees, Ms Walsh stated: Long term temporary employees are a group of SAS Staff who have been employed on a temporary basis for a period in excess of one school term. Under the Education (School Administrative and Support Staff) Act 1997 temporary employees are not to be employed for 2 or more periods that together are in excess of 12 months in any period of two years without the concurrence of the Minister. In 2007 the PSA conducted a survey of temporary employees. It showed a significant number of employees employed for more than 12 months and in some cases in excess of 10 years. The longest period found by the survey was 29 years. Since 2006 the PSA regularly requested that the Department permanently employ Long Term Temporary School Administrative and Support Staff. As a result of those requests the Department in 1997, 2001 and 2005 agreed to place Long Term Temporary School Administrative and Support Staff into permanent positions through a placement exercise. On each occasion it was a "one off" exercise. In 2010 the PSA lodged a dispute with the Commission as to the Department's practice of employing temporaries over extended periods. In 2011 the PSA made application for an award provision that would enable the conversion of long term temporaries into permanents as a proposed settlement of that dispute. Following conciliation it was agreed that the Department would make a determination providing for a process of conversion.... The determination also provides for an appeal process if the employee is unsuccessful. The determination only partially resolved the concerns of the PSA. In particular in relation to SLSOs the school principal must be satisfied that there is ongoing work for the employee and funding for the establishment of a permanent position at the school. The award provision sought by the PSA in this matter, like the determination, seeks to apply to long term temporary employees who have worked for a period of 2 years or more. 14Ms Walsh described staffing arrangements up to the first half of 2012. Ms Walsh noted that prior to the announcements by the NSW Government in March 2012, SAS Staff numbers were determined by formulae. When the Department determined to reduce the hours of a SAS Staff or abolished a position the procedures in the "Ancillary Staffing Operation Procedures" ("the Procedures") were to be followed. 15Ms Walsh stated the Procedures involved the following: (a)In Term 4 each year, a school is required to submit projected enrolments as shown on the Anticipated Organisational Returns (AORs) and Anticipated Enrolment Returns (AERs). (b)When AORs or AERs indicate a likely reduction in SAS Staff hours, the Principal is required to notify the affected employees in each classification in the following order: (i)Temporary employees (ii)Permanent part time employees (iii)Where there are two or more permanent part time positions, the employee with the least total service (iv)Permanent full time employees (v)Where there are two or more permanent full time positions, the employee with the least total service. (c)If an increase in hours is to occur, a similar process is followed: (i)The permanent part time employee will be offered the increase (ii)Where there are two or more permanent part time employees, the employee with the longest total service is offered the increase in hours. 16In relation to School Administrative Managers ("SAMs") Ms Walsh described the procedure as follows: (a)The position to be affected by a reduction in hours or downgrade of level is placed on review from the beginning of term 2 to the end of term 1 the following year. The current salary and level is retained for 12 months. During that time the employee may apply for appointment to another school. (b)If numbers do not increase at the end of the review, the Administrative Manager can accept reduced hours or lower level and remain at the school. (c)If at any time the student enrolments increase, to take the position to a higher level, the Administrative Manager is automatically elevated to that level. This means the Administrative Manager can remain at that same school forever. This was agreed to in order to protect people employed in isolated areas. (d)If the employee chooses not to accept the reduction or lower level, they can apply for a nominated transfer for appointment to another position at another school, at the original hours or level. (e)Apply for priority appointment to a School Administrative Officer position. 17Ms Walsh further deposed: The principal is to advise staff of any likely reductions in term 4 and advise them to lodge an application for a nominated transfer.... An employee who has submitted a nominated transfer application is provided with absolute priority to be appointed into the nominated position over all other candidates. If an employee submits a nominated transfer but the Department cannot match the employee to a position within one term, the employee's service maybe terminated. However the Department has adopted a number of different approaches before terminating staff, for example in the 1980s some staff were kept on as supernumeraries. Currently I understand that staff are encouraged to take leave without pay to give them more time in which to obtain alternative employment. Often due to financial pressures the employees resign to take up other employment rather than waiting to be terminated. Whilst in theory an employee could have been terminated, I am not aware of a permanent SAS Staff who was a member of the PSA who was terminated without first being either kept on as a supernumerary or offered leave without pay. 18Ms Walsh referred to the "Advice for Principals Staffing Procedures for Term 1, 2012". The advice provides, in part: Reduction in Hours/Abolition of Position When the entitlement in a classification is reduced, the position(s) to be abolished or reduced in hours is determined as follows. Vacant position(s) in that classification occupied by temporary employee(s) are abolished or reduced in hours first. If a temporary employee is filling a position held by an absent permanent employee who has right of return to the position, the absent permanent employee's service is considered as indicated below. Positions held by permanent part-time employees in that classification are considered next. If there is more than one permanent part-time employee in the classification, the position of the employee with the least total permanent service is affected. The length of permanent service is reduced by leave without pay. Positions held by permanent full-time employees in that classification are considered next. If there is more than one permanent full-time employee in the classification, the position of the employee with the least total permanent service (as above) is affected. An employee whose position is abolished or reduced in hours may elect to accept the reduction by completing Section A of the Acceptance of Reduction in Hours form. Alternatively they may accept the reduction and apply to 'make up' the hours lost at another school as a nominated transfer (subject to available vacancies) by completing Section B of the Acceptance of Reduction in Hours form and submitting an Application For Transfer form. Priority for nominated transfer is given first to employees whose position has been abolished, and then to employees whose position has been reduced in hours. The employee may also apply for nominated transfer to another school by submitting an Application For Transfer form. Where a permanent employee's hours have been reduced (or position abolished) and the employee has requested either additional hours or another position at a different school, every effort will be made to accommodate these requests in accordance with the employee's transfer preference list of schools. Where it is not possible to offer additional hours or an alternative position, the affected employee's hours will be reduced from the commencement of term 2, 2012. 19In addition, Ms Walsh referred to "Guidelines for the Employment of Temporary and Casual Non-Teaching Staff in Schools in 2012". In section 1 it states: Early Cessation of Long Term Temporary Employment If circumstances change so that it is no longer appropriate to continue the employment of a long-term temporary non-teaching employee, the employee should be given as much notice as practicable before their services are ceased. As a minimum requirement, long-term temporary non-teaching staff should be given four weeks notice prior to cessation of their services. Ms Walsh stated she was not aware of any award, policy or legislation that provides for redundancy pay for SAS Staff. 20Ms Walsh next referred to "Every Student, Every School" and "Local Schools, Local Decisions", two policies that the NSW Government had implemented or foreshadowed implementing. Ms Walsh expressed the opinion the two policies would diminish the job security of SAS Staff. Ms Walsh noted the policies interact with the concurrent introduction of a new computer operating system - Learning Management Business Reform ("LMBR"), and a new Resource Allocation Model ("RAM"). 21In addressing "Every Student, Every School", Ms Walsh observed that students were previously funded individually on the basis of a diagnosis or assessed needs. The funding was tied to the individual student irrespective of the level of funding. In other words, the money had to be spent assisting the particular student. These funds were then used to employ SLSOs to work with these students. 22Ms Walsh expressed her concern about "Every Student, Every School" in the following terms: Under the Every Student, Every School policy funding will be provided on two bases. Firstly students who are assessed as "high needs" and attracting funding in excess of $6,400 per annum will continue to be funded under the old system. The funding will remain tied directly to the individual student. It is expected that this funding will continue to be used to employ SLSOs. For the majority of students who are not assessed as "high needs" attracting funding less than $6,400 per annum, school principals no longer have to apply for funding for students. Instead funding will be made based on a formula that combines the statistical prevalence of the disability or learning need in the community, the mental health resources based on NAPLAN results and a school's Index of Common Socio Educational Advantage ("ICSEA") score. The formula is applied regardless of the actual number of students in need of assistance. The money available to a school derived by this formula can be spent however the principal determines, provided it is used to support students with disabilities or learning needs in some way. Importantly this money allocated is no longer required to be spent directly on an individual student. The PSA is concerned that as the funds are pooled they will not be used to employ SLSOs. In particular it will probably now be more cost effective to employ a single teacher than a group of SLSOs. Indeed the PSA has already received reports from members that SLSOs are having their hours of work reduced or being told that they will no longer be required to work at the school as of next year. This policy is currently in the implementation phase. School principals are currently reviewing the employment of SLSOs and informing them that either their hours have been reduced or that their position is no longer required. The full impact of the introduction of this policy on PSA members will not be known until later this year. 23In respect of the "Local Schools, Local Decisions" policy, Ms Walsh stated: The Local Schools, Local Decisions policy decentralises decision making. Schools will make local decisions about teaching and learning and be accountable for the decisions they make. Schools will directly manage an increased percentage of the total education budget, including the budget for school-based staff.... Under Local Schools, Local Decisions the job security of SAS staff is under threat as the number of positions; their classifications; and the mode of employment for those same positions will no longer be determined in accordance with the existing staffing formula which links the number of students to staffing numbers. Under Local Schools, Local Decisions the PSA understands that principals will be able to fill vacancies without any regard to student numbers. For example, where a full time permanent school administrative officer retires, a principal may choose to change that position to a part time or temporary position. This undermines the existing transfer system upon which SAS staff currently rely for their job security as there will be potentially fewer positions to transfer into. In addition the decentralisation of decisions will mean fewer staff are required in the Office of Schools. Within that office is the Professional Leaning and Quality Assurance team which is responsible for ensuring that SAS Staff receive appropriate training and professional development. The Local Schools, Local Decisions policy may negatively impact on the training of SAS Staff further reducing job security. 24Ms Walsh's criticism of LMBR and RAM was expressed in the following terms: In October 2012 the initial implementation to 229 schools of an integrated finance, human resources and Student Administration and Learning Management computer systems will commence. All schools will have LMBR by the end of 2014.... LMBR will give principals the tools they need under Local Schools, Local Decisions to make changes to the staffing mix in their school, decide not to fill substantive vacancies with permanent staff, employ temporary or casuals to fill vacancies, decide who gets access to training and when, share SAS Staff across schools and hire and fire SAS Staff. With LMBR principals will be able to abolish or alter SAS staff positions as vacancies arise, and by doing so, the transfer system is diminished. ... RAM will give school principals control over 70% of the school education budget (up from 10%) It also alters the way funding is allocated to schools.... By term 1, 2014 all school principals will have control of 70 per cent of the budget irrespective of the status of the new RAM at their school. The RAM, enables the allocation of funding on the basis of three components: Base school allocation, Equity or complexity loading, Targeted to individual students. ... The base school allocation has within it a funding allocation based on the current staffing entitlement. However while there is a requirement to spend the staffing entitlement on staff, there is no requirement to spend this entitlement on the existing staffing mix where vacancies arise. While the department states that there will be no change to the current transfer system for SAS staff, this change to the way that funding is allocated undermines the transfer system in schools which is relied upon by staff for their job security. This is because when a drop in student numbers at a school triggers a reduction in the staffing entitlement, the affected staff member applies for a transfer to another school. As the number of principals who are able to alter the hours and status of a position in their school increases in accordance with the staged implementation of Local Schools, Local Decisions, SAS staff will have fewer positions to transfer into. The second component of the RAM, the equity or complexity loading, also impacts on the job security of SAS staff. It is comprised of a loading for what is now being referred to by the department as students with low level disability and learning support needs; a loading for Aboriginal students enrolled at the school; an English language proficiency loading; and a loading calculated using information on socio economic background. Previously many programs coming under such equity issues were considered central programs with tied funding, and as such, resources for implementing the specific programs were linked to this tied funding. This will no longer be the case. 25A further program that Ms Walsh contended would impact negatively on SAS Staff was the "Empowering Local Schools National Partnership". Ms Walsh stated: At the same time the Australia Government has committed $475.5 million over 7 years with an aim to empower schools to make decisions at a local level. There will be 229 schools in this program. Phase one includes enabling schools to make decisions about the workforce. This will include schools being able to vary the mix of permanent and temporary staff in the school as vacancies arise, being able to choose the number and roles of staff within their budgets, having greater access to local selection of staff once incentive transfers and Aboriginal employment applicants have been place and being able to share teaching and non-teaching staff with other schools or groups of schools. The Empowering Local Schools National Partnership will further undermine the nominated transfer system as there will be potentially fewer positions to transfer into. 26Finally, Ms Walsh referred to the "Labour Expense Cap": The Labour Expense Cap reduces employee related and contractor expenses by 1.2 per cent per annum. If the entirety of that reduction was through staff reductions then the Department would need to abolish approximately 2500 jobs over the next four years with approximately a quarter of these to take effect this financial year. Importantly as teachers in schools are exempt from this cut, but the overall expenditure of the Department must be reduced by 1.2%, there is more pressure on the Department to reduce the numbers of SAS Staff. 27Ms Walsh provided a supplementary statement in which she sought to address matters raised in the affidavits of Mark Philip and Peter Johnson to whom I will refer in respect of the respondent's evidence. Mr D'Adam 28Mr D'Adam addressed the affidavit of Glenn Bacic, an affidavit tendered by the respondent. Mr Bacic provided a history of redundancy provisions applying to the public sector and their development since 1982. Mr D'Adam took a different perspective on the history and in the concluding paragraphs of his statement said: I refer to paragraph 22 and say that on the 22 June 2011 Premier Barry O'Farrell issued Memorandum 2011-11 which superseded Memorandum 2008-22. The 2011 policy was announced without any prior notification of or consultation with the PSA or, to the best of my knowledge, any other public sector unions. The Memorandum indicated that the new policy for managing excess employees would commence on 1 August 2011. The 2011 policy effectively abandons the longstanding approach of government to redeployment as the principle means for managing excess employees. This is because the emphasis in the policy is on encouraging exit from the service through punitive incentives and because the long recruitment time frames that apply in the public sector make redeployment within the three month retention period in most cases impractical. Ms Jones 29Ms Jones worked at Kirrawee High School. She commenced working with the Department on 8 September 1986 as a Casual Teachers Aid Special. Ms Jones has worked at various schools including special purpose schools. In August 1989, Ms Jones gained permanency through merit selection as a Teachers Aid Special. In 1998, Ms Jones applied through Merit Selection for a position at Lucas Heights Community School as a SAM and was successful. 30Ms Jones said that in 2004 the school principal informed her that due to falling enrolments she would no longer be able to remain as a Level 4, and that if she was unable to obtain a nominated transfer, she would be reduced to a Level 3 SAM. Whilst she was aware she could get salary maintenance for a period of 12 months Ms Jones put in a nominated transfer. Ms Jones was offered and accepted a position as a level 4 SAM at Kirrawee High School, which she started on 31 May 2004. 31Ms Jones deposed that: As a single parent I rely heavily on the wage I receive from performing these duties to meet the financial commitments of our household. If a redundancy was made available should my job be abolished it would provide me with some financial security to give me extra time to find further employment. This is particularly the case as I do not qualify for the aged pension till I am 65. Ms Mitchell 32Ms Mitchell commenced as a long-term temporary in 2003 working five days per week. In August 2012, Ms Mitchell was made a permanent employee for two days per week with the balance of the week remaining as a long-term temporary. 33Ms Mitchell said that at the beginning of 2005 she was told there would be no work at Engadine School for her. She was given no payments and little or no notice that there would be no further employment. Ms Mitchell canvassed the schools in her area and said she was greatly assisted by her principal. Ms Mitchell was able to pick up one day a week at Waterfall Public School in Term 1. By the start of Term 3 Ms Mitchell was able to pick up the other four days work at Engadine Public School. 34During Ms Mitchell's time as a SLSO she has worked with students with physical and or intellectual disabilities including Cerebral Palsy, Down Syndrome, Autism, Spina Bifida, Mild Intellectual Disabilities, Tourette's Syndrome and emotional and behavioural difficulties. 35Ms Mitchell stated: I found it particularly stressful in 2005 when I learnt, late, that I did not have any hours of work at Engadine Public School. I was fortunate that I had the assistance in my principal to send out a memo to other schools but were reducing my hours to 1 day a week at another school which greatly affected my finances. If I had the benefit of a redundancy package it would have made the effect on my finances, and emotional well-being much easier. ... I see my appointment now as a permanent employee as an improvement in the security of my employment and recognition of the good work I have performed for the school and its students. I see redundancy as an important but missing aspect of my employment. I am 51 years of age and finding future employment at this age would be difficult. A redundancy payment would ease the stress of finding other work. Ms Dean 36Ms Dean is currently employed at the Penrith Adolescent Centre, which is under the control of the principal of Penrith High School. The centre caters for students who have behavioural or emotional issues making it unsuitable for them to be placed in mainstream schools. 37Ms Dean commenced working as an SLSO in 2006 at the Surveyor Creek Public School after working there for six years as a volunteer. She then worked as a School Administrative Officer at Orchard Hills Public School in 2007. In term two of 2008, Ms Dean transferred to the Penrith Adolescent Centre. Since 2009 she has worked three hours and nine minutes each day, five days per week. Until 2010, when Ms Dean was placed on the long-term temporary payroll, she was classified and treated by the Department as a casual. 38On or about 22 March 2012, Ms Dean was given notice that her employment was to come to an end on 19 April 2012. Ms Dean said: I have a mortgage to pay and I was ready to put my house on the market. I had this house for 14 years but the loss in my income would have made it impossible to continue meeting the re-payment obligations. I need this income to pay for the essential day to day cost of living. It puts the food on the table, petrol in the car and pays for the school fees for my children. I was fortunate that with the intervention of the PSA my employment has continued. 39In April 2012 Ms Dean lodged an expression of interest for permanent employment. On 4 April 2012, the principal of Penrith High School advised Ms Dean that there was no funding for the establishment of her position and that in 2013 her position will not exist. Ms Dean stated: If I have the benefit of redundancy pay it would provide me with some additional time to try and find other work. Ms MacAlpine 40Ms MacAlpine has been employed as an SLSO since 1988. She is 63 years of age. Ms MacAlpine was employed to work as a long-term temporary employee at Engadine Public School five days a week. She commenced as an SLSO after initially performing volunteer work with deaf students at Sutherland Public School for 12 months before accepting a position at Engadine Public School. 41During her employment with the respondent Ms MacAlpine has worked with students with physical and/or intellectual disabilities including Cerebral Palsy, Down Syndrome, Autism, Hearing and Visual Impairment, Brain Injury, Diastrophic Dysplasia, Spina Bifida, Diabetes, Tourette's Syndrome, Cystic Fibrosis, Muscular Dystrophy, emotional and behavioural problems, English as a second language and Aboriginal students. 42Until August 2012 Ms MacAlpine was employed as a long-term temporary five days per week. During this period of time Ms MacAlpine said: I was fortunate to always have hours of employment but I found the uncertainty as to my hours, particularly in the beginning, difficult. After the end of each year I would have to wait until school started again to know whether I was employed. I would take comfort from the fact that the higher need students I was working with still had some years left before they would leave the primary school but I never knew whether my hours were going to be increased or reduced. Indeed the lowest I ever worked was 10 hours per week. This was unsettling. 43Ms MacAlpine deposed: For the majority of my employment I have been lucky that my family was not dependent on my income for its financial stability. In 2007, however, my husband became very sick and was unable to work for approximately 3 years. During this time my family became dependant on my income. Fortunately, I did not have a mortgage at this time and my house was not in jeopardy but the uncertainty at the end of each year made it difficult to know whether I would be able to put food on the table. If I was given the benefit of redundancy pay should my position be abolished, I would consider it recognition for the many hours and years of hard work that I have put in to Engadine Public School and recognition that the loss of my employment did not relate to my performance. It would give me time to find other employment before I would be eligible for the aged pension at 65. Ms Knight 44Ms Knight was employed as a School Administrative Officer ("SAO") at Sawtell Public School. She is currently 58 years old. Ms Knight was initially employed in 1995 as an SLSO. Between 1995 and 2005 she was also employed as a temporary SAO and worked a nine-day fortnight. 45In 2005 Ms Knight was selected for a permanent position as an SAO. Ms Knight said that if she were made redundant it would be very unlikely she would find any future employment. She said if a redundancy package was available it would provide some "comfort" as it would give her more time to try and find other employment before having to sell her home. Ms Foley 46Ms Foley, 61, has been an SLSO employed at Bexley Primary School since 1994. She is employed as a long-term temporary employee. Ms Foley is currently working with a female student who has the life threatening condition, 'Mitochondrial disease', and is confined to a wheelchair. 47Ms Foley deposed that: In April of 2012 I applied to be made a permanent. At the time the school principal informed me "You cannot be made permanent as funding is not guaranteed for high needs students. They may not come to the school the following year." I was unsuccessful in my application but have appealed that decision. I am still awaiting the outcome of my appeal. I feel particularly insecure in my current position as the student that my funding is tied to, has a life threatening condition. She is currently 9 years of age but people with her condition unfortunately usually only have a lifespan of 5 to 15 years. If her condition deteriorates or she becomes unable to attend school there is no certainty that I will be given other work and my position be abolished. The knowledge that there may be some sort of redundancy pay should my position be abolished due to factors outside my control, would give me some comfort as to the protection of my future financial services. Respondent's evidence 48The respondent's evidence included five affidavits (two from Mr Philip) from the following persons: (1)Glenn Bacic, Director, Public Sector Industrial Relations, NSW Industrial Relations, in the NSW Treasury; (2)Greg Noonan, employed by the respondent as the Manager, Regional Coordination, Policy and Planning, Disability Programs; (3)Mark Andrew Philip, employed by the respondent as the Director, Industrial Relations; and (4)Peter Johnson, employed by the respondent as Director, Staffing Services. Mr Bacic, Mr Philip and Mr Johnson were required for cross-examination. Mr Bacic 49Mr Bacic stated that redundancy has historically been regulated by way of policy in the NSW public sector. He outlined the history of regulation. Redundancy is presently regulated according to Memorandum M2011-11 and the attached Managing Excess Employees Policy (MEE Policy), which was issued by the Premier on 22 June 2011 and which superseded Memorandum 2008-22. 50Mr Bacic deposed that there are approximately 332,000 full time equivalent NSW Government employees (the public sector) as at June 2012. The MEE Policy applies to the Government Service (including the Public Service). On 30 April 2012, Health Services implemented a new excess employee policy that aligns with the MEE Policy (Managing Excess Staff of the NSW Health Service). These two policies cover approximately 58 per cent (192,000 FTE) of the public sector. 51Mr Bacic said that it is the Government's policy that management of excess staff continue to be regulated by way of policy rather than included in an industrial instrument. He referred to the NSW Public Sector Wages Policy 2011 at 3.1.7, which states "policies regarding the management of excess public sector employees are not to be incorporated into industrial instruments." 52Mr Bacic next referred to the Industrial Relations (Public Sector Conditions of Employment) Regulation 2011 (the Regulation), which was made pursuant to s 146C of the Act and which commenced on 20 June 2011. Mr Bacic referred to cl 6(1)(f) of the Regulation, which states "Policies regarding the management of excess public sector employees are not to be incorporated into industrial instruments" the terms of which he said reflected the intention and policy position of the Government. Mr Noonan 53Mr Noonan is responsible for statewide resourcing programs in schools to support students with disability and additional learning and support needs. 54Mr Noonan said that in March 2012, it was announced that the Australian Government would be providing an additional $47.9 million to NSW government schools over the 2012 and 2013 school years, under the national partnership agreement known as "More Support for Students with Disabilities." The funding is being used to support the implementation of the "Every Student, Every School: Learning and Support initiative in NSW government schools". This initiative, Mr Noonan said, provides a learning and support framework for the 90,000 students with disability and additional learning and support needs in government schools. 55Mr Noonan deposed that: The Every Student, Every School: Learning and Support initiative was implemented into all government schools in Term 3, 2012. A specialist teacher and flexible funding allocation was provided to every regular government school. Those students in regular classes with moderate or high learning and support needs with intellectual disability, mental health disorder or autism, and students with physical disability or sensory impairment will continue to be supported through the Integration Funding Support program. 56In describing the initiatives Mr Noonan said Integration, Funding Support is a targeted program for students in regular classes with moderate or high learning and support needs. It is designed to maximise participation in the range of school programs for students with a disability enrolled in regular classes. To be considered for support, students have to be enrolled in and attending a regular class on a full time basis and have an identified disability as defined by the NSW Department of Education and Communities disability criteria. These identified disabilities include moderate or severe intellectual or physical disability, and mental health disorders, autism, hearing and vision impairments. 57Mr Noonan further deposed: Principals have responsibility for determining the most appropriate ways of using the total annual funding allocated to the school to meet the identified needs of the targeted students. As the allocations for individual students are indicative only, there is some flexibility in the way schools can use funds to support students with additional teacher and/or school learning support officer time. Schools have the capacity to determine the most effective support "package" for each student using the funding provided and other resources and services. Approved use of the funding includes: Related professional learning activities; Additional teacher time; School Learning Support Officer (SLSO) time; Teacher release; Transfer of duty; and Program co-ordination time. Funding can only be used for salary purposes to provide additional staffing support. The funding is not allocated for administrative purposes, to purchase resources or technology, to make properties modifications, to provide therapy or clinical support. A school's allocation of funding is made to cover a full school year and is generally made in two payments at the commencement of each semester. When an SLSO is employed to assist a student the principal determines the number of hours of work to be allocated to the SLSO taking into account the needs of the student and the funding available. In exceptional circumstances the school's learning support team may agree to provide assistance at a more intensive level earlier in the year and then reduce support as a student gained skills and independence. Although this is an option, schools are cautious about the amount of funds committed in this way because if the expected improvement does not occur it could leave the school at risk of not being able to provide essential support later in the year. Further, in the event that the student changes schools this would require a transfer of funds to the new school in proportion with the original grant. The school manages and monitors the resources to support the student from within the allocated funding. Where a funded student transfers to another Departmental school after funds have been deposited, a cheque for the unused funds is sent to the new school along with the student's transfer papers. Where a student transfers out of the system or moves into a support class in a regular school or in a school for specific purposes, remaining funds are returned to the Disability Programs Directorate. 58Mr Noonan proceeded to describe the Every School, Every Student: Learning and Support resources allocation. He stated it has two components: a specialist teacher component, which is determined for a 3 year period, and an annual flexible funding component. Within each component there is a base allocation determined by a school's enrolment and a supplementary allocation determined by the student learning need within each school. The specialist teacher component is fixed for 3 years while the flexible funding component is reviewed each year based upon the school's enrolment and the number of students identified with additional learning and support needs. In this model every student in every regular class generates a component of the school's base allocation, with or without disability. The objective of this approach is to ensure that the needs of students with lower level support needs disability are properly supported regardless of whether such needs had previously been formally recognised. The first component, being the specialist teacher allocations, includes a base allocation calculated on the school's total enrolment of Preschool - Year 12 students in regular classes (0.1 FTE for less than 160 of 0.4 FTE for 160 or more) and a further possible specialist teacher allocation based on the school's student learning need index (SLNI). The SLNI is constructed around the number of students in regular classes in the school who perform in the bottom 10% through the national testing program (NAPLAN). The particular data is drawn from each school's previous 3 years of longitudinal NAPLAN results. For example the 2012 allocations were drawn from 2009, 2010 and 2011 NAPLAN data. The second component, a flexible learning and support funding, also comprises a base calculated on the school's total enrolment of Preschool - Year 12 students in regular classes. The SNLI is then applied to compile a school's total annual learning and support flexible funding resource. While the first component is for specialist teacher staffing, the second component is flexible funding and can be used to employ teachers or SLSO's. There have been no reductions in funding to support students with special needs in public schools across NSW. The flexible funding allocation comprises the former funding provided to schools for the Learning Assistance Program (LAP) for students with learning difficulties - $7.6 million annually. A further $31.8 million has been drawn from the Integration Funding Support Program that previously supported students with autism or mental health issues who have lower level support needs who in 2012 each attract less than $6,400 to their school. Principals, through school learning and support teams, have responsibility to determine how each school's allocated learning and support resources are used to respond to local needs and priorities. This may be through additional teacher or school learning support officer time. There is no change in the way eligible students with moderate or high learning and support needs that are enrolled in regular classes are funded through the Integration, Funding Support Program. These include students with intellectual disability, mental health disorder or autism, and students with hearing or vision impairment as well as those with physical disability. In 2012 more than $72 million will be directly allocated to schools to support these students through the Integration, Funding Support Program. Mr Philip 59Mr Philip's evidence in his first affidavit was that SAS Staff included those employees classified as Aboriginal Education Officers, School Support Officers, School Administrative Officers, School Administrative Managers, School Learning Support Officers, School Learning Support Officers (Braille Transcriber), School Learning Support Officers (Sign Interpreter), School Learning Support Officer (Ethnic) and School Learning Support Officers (Pre-School). 60Mr Philip said that under the Award, SAS Staff could be employed either full-time or part-time on a permanent basis, a long-term temporary basis (employed for a period in excess of one school term) and a short-term temporary basis (for a period of one term or less). Further, that SAS Staff are employed on a temporary basis to: (a)backfill leave or higher duties vacancies; (b)fill substantive vacancies awaiting recruitment action; and (c)provide support in specific programs where funding is not ongoing. 61Mr Philip also said that given the various State and Federal funding programs operating in schools, and the fractional allocations deriving from formula driven allocations, many temporary staff work part time. It was not uncommon, he said, for staff to be employed at multiple schools. The number of hours a temporary SAS Staff member worked could also be varied up or down depending on school and student needs and changing circumstances. 62Mr Philip described how the respondent had sought to facilitate the employment of long-term temporary SAS Staff, who met certain conditions, in permanent positions. Mr Philip noted that: In January 2011 the Department and the Association agreed to vary temporarily the appointment procedures for SAS staff to facilitate the employment of certain school learning support officers in permanent positions. This process was not concerned with filling existing vacant permanent positions, but with determining whether: (a)the educational needs of the students and the delivery of educational programs required the employment of a permanent SLSO at the school; and (b)there is ongoing work for the employee and funding for the permanent employment and then determining if long term temporary SLSOs at the school meet the eligibility criteria. Data from the Staffing Services Directorate shows this process has resulted in more than 1,200 SLSOs receiving permanent appointments. Appeals for SLSOs who were unhappy with the outcome of the process are still being finalised. Prior to the hearing of the Association's application to vary the award, the Association withdrew the proposal to increase the loading for short term temporary SAS staff and the parties agreed to develop a consent variation, supported by a Director-General's Determination, to facilitate the permanent employment of long term temporary SAS staff. Both the variation and the determination were drafted by the parties in consultation over a period of several months. On 15 December 2011 the consent variation was made by a full bench of the Industrial Relations Commission. The Director-General signed the Determination on 23 January 2012. 63Mr Philip described relevant departmental reforms and initiatives including: The Learning Management and Business Reform (LMBR) program commenced in 2008 and is intended to replace finance, human resources, payroll and student administration systems for schools, TAFE colleges and Education and Communities staff; The Local Schools, Local Decisions reform seeks to increase school level decision making and authority including giving principals greater control over staffing and budget of the school. The Empowering Local Schools National Partnership is a Commonwealth Government initiative which is providing funding to support increased school autonomy reforms. The Every Student, Every School reforms have altered the way funding for students with low level additional support needs is allocated to schools. Prior to term 3 2012, funding to support students with additional support needs (both high and low level) was allocated directly to the school at which a student was enrolled based on an assessment being made that the student needed support. Support provided may have been through engaging a SLSO or a teacher. 64In relation to redundancy provisions for SAS Staff, Mr Philip stated: The Department's position is that redundancy provisions should mirror, with some practical amendments relating to the operations of schools and the SAS staffing procedure, the provisions applying across the state for the public sector (i.e. the Managing Excess Employees Policy) and that these provisions should similarly be enforced by way of policy. 65In relation to government savings initiatives Mr Philip deposed: The NSW Government's 2012/2013 budget introduced a whole-of-government Labour Expense Cap limiting employee related and contractor expenses to save 1.2% per annum. This is in addition to Government set efficiency savings targets for the whole public sector, as well as further procurement and program savings. On 11 September 2012 the Director-General of Education and Training announced a range of savings measures to help the Department meet its budget. Over the next four years the Department will need to reduce its staff numbers by around 1,800. By 2015-16 the equivalent of around 400 school administrative staff positions will be made in employee related savings as a result of efficiencies from the Learning Management and Business Reform (LMBR) program. The previous Government and the Association agreed to use $21M of future savings arising from the LMBR program to offset salary increases already paid to school administrative and support staff. Given this potential for job losses for SAS staff the Department considers that SAS staff require a formal policy to cover redundancy provisions and that SAS staff should be accorded the same protections as apply to other public sector workers in NSW. 66In his second affidavit, Mr Philip deposed to the following: At the meeting of 18 September 2012 between officers of the Association and the Department, the Association made a number of proposals in relation to the draft policy. Following consideration of the Association's proposals, and incorporation of new subclauses into the draft policy to address some of those issues, the Department finalised the policy. On 26 October 2012 the Department wrote to the Association, providing in marked up version the final version of the policy showing the amendments to the version of the policy dated 31 August 2012 that were made in response to the issues raised by the Association. This letter further advised the Association that the policy was now finalised and would be issued to commence operation from Monday 29 October 2012.... The Policy will be issued by the Department to commence operation from 29 October 2012. 67The key features of the Policy are as follows: (a)the Policy applies only to permanent employees; (b)an employee will be declared excess by the Department when they no longer have a substantive position; (c)provisions dealing with procedure and timing for SAS Staff to be declared excess; (d)options for employees declared excess, being voluntary redundancy or pursuit of redeployment; (e)provisions dealing with forced redundancy; (f)written advice to be provided to employees on being declared excess; (g)voluntary redundancy payments; (h)re-employment or re-engagement in the NSW public sector; (i)excess employees who decline the voluntary redundancy offer are entitled to a three month retention period where they will be considered for direct appointment; (j)exit during the retention period and at forced redundancy; and (k)payments when exiting during the retention period and at forced redundancy. Mr Johnson 68Mr Johnson is responsible for the recruitment of teaching and non-teaching staff for all New South Wales public schools. Mr Johnson sought to respond to the affidavit of Ms Walsh by clarifying matters or correcting what Mr Johnson regarded as misconceptions or errors on Ms Walsh's part. Consideration Absence of redundancy protection 69In the event of redundancy, employees in the general public sector, employees of State Owned Corporations, police officers, school teachers in the teaching service, fire fighters and employees of RailCorp, all have the protection of an award, legislation or a government policy. Until 29 October 2012, that has not been the case for SAS Staff. 70As the evidence shows, since 1996 the Government has made provision for the treatment of employees in the general public sector who no longer have a substantive position. This has been done through the following policies: (i)Premier's Memorandum 96-5 Managing Displaced Employees. (ii)PEO Circular 96-40 Services for Displaced Employees. (iii)Premier's Memorandum 97-27 Managing Displaced Employees. (iv)Premier's Memorandum 98-24 Managing Displaced Employees - Relocation of Employees to Available Work. (v)Premier's Department Circular 98-62 Managing Displaced Employees - Salary Maintenance Provisions. (vi)Premier's Department Circular 99-37 Direction to Take Leave - Displaced Employees. (vii)Premier's Department Circular 99-51 Managing Displaced Employees - Job Search Leave. (viii) Premier's Department Circular 2005-17 Redeployment System Changes, (ix)Premier's Memorandum 2008-08 Managing Displaced Employees. (x)C2008-47 Voluntary Redundancy Payments. (xi)M2011-11 Managing Excess Employee Policy. 71As the applicant submitted, SAS Staff have never had the benefit of these policies including the current policy, Premier's Memorandum M2011-11, Managing Excess Employees Policy. This Policy applies only to employees in the NSW Government Service identified in the Public Sector Employment and Management Act 2002: see clause 3.1 of the Policy. This definition does not include SAS Staff. 72There is also no existing award or legislative provision which provides protection for SAS Staff in the event of redundancy. The Crown Employees (School Administrative and Support Staff) Award ("the Award") currently contains no employment protection provisions. The definitions of "employee" and "employer" in the Employment Protection Act 1982 make clear that Act does not apply to an "employee of the Crown" or the Crown or a public authority as an employer. 73SAS Staff are employed pursuant to the Education (School Administrative and Support Staff) Act 1987 ("SASS Act"). Section 4 of the SASS Act makes provision for the employment of SAS Staff as follows: 4 School administrative and support staff (1) The school administrative and support staff of the Department consists of the permanent employees and temporary employees who are for the time being employed under this Act. (2) Chapter 1A of the Public Sector Employment and Management Act 2002 does not apply to or in respect of the appointment or employment of a member of the school administrative and support staff. SASS Staff may be employed as permanent employees (s 8) or temporary employees (s 21). Sections 8 and 21 provide respectively: 8 Employment of permanent employees The Director-General may appoint persons to be employed in the service of the Crown on a permanent basis as members of the school administrative and support staff of the Department in any classification. ... 21 Employment of temporary employees (1) The Director-General may appoint persons to be employed in the service of the Crown on a temporary basis as members of the school administrative and support staff of the Department in any classification. (2) A temporary employee may be employed for a period not exceeding 4 months, but may, from time to time, be employed at the end of that period or any subsequent period for a further period not exceeding 4 months. (3) A person may not be employed under this section for: (a) a continuous period of 12 months, or (b) 2 or more periods that together are in excess of 12 months in any period of 2 years, except with the concurrence of the Minister. (4) The services of a temporary employee may be dispensed with at any time by the Director-General. 74Section 18 of the SASS Act provides the Director-General with the power to dispense with the services of a permanent employee: 18 Excess permanent staff or excessive remuneration (1) If the Director-General is satisfied that a number of persons are employed as permanent employees in excess of the number that appears to be necessary in connection with the efficient, effective and economical management of the Department or that a person is in receipt of greater remuneration as a permanent employee than the maximum fairly appropriate to the work performed by the person, then: (a) subject to paragraph (b), the Director-General shall take such steps as are practicable to transfer any such person to another position, whether in the same or a different classification, and whether in the same or a different location, and (b) if any such person cannot be usefully employed in any other position as a permanent employee, the person's services shall be dispensed with by the Director-General. (2) The remuneration of a person transferred under this section shall be that appropriate to the position to which the person is transferred. 75Under the Award a permanent employee is defined in cl 2.14 to mean "a member of the School Administrative and Support Staff employed on a permanent basis by the Director-General in the service of the Crown under section 8 of the Act." In cl 2.12 a long-term temporary employee is defined to mean "a member of the School Administrative and Support Staff employed by the Director-General on a temporary basis, either full-time or part-time, under section 21 of the Act, for a period in excess of one school term." In cl 2.21 short-term temporary employee is defined as "a member of the School Administrative and Support Staff employed by the Director-General on a temporary basis, either full-time or part-time, under section 21 of the Act, for a period of one school term or less." 76I note that in respect of paid leave entitlements and other matters under the Award long-term temporary employees are treated the same as permanent employees. 77It was Ms Walsh's evidence that a significant number of temporary employees as defined in the SASS Act were employed for more than 12 months and in some cases in excess of 10 years. The longest period found by a 2007 survey was 29 years. It was also Ms Walsh's evidence that in 2011 it was agreed that the Department would make a Determination providing for a process of conversion from long-term temporary employee to permanent employee. This process resulted in more than 1,200 SLSOs receiving permanent appointments. Appeals for SLSOs who were unhappy with the outcome of the process are still being finalised. 78 However, Ms Walsh said the Determination only partially resolved the concerns of the PSA. In particular, in relation to SLSOs, the school principal must be satisfied that there is ongoing work for the employee and funding for the establishment of a permanent position at the school. 79The reason for this absence of redundancy protection for SAS Staff seems to be that it was not seen to be required. The PSA has generally been satisfied with the arrangement whereby the number and classification of SAMs and SAOs and the number of SLSOs in schools for special purposes and dedicated units in mainstream schools were explicitly tied to student numbers through agreed staffing formulae. When the respondent determined to reduce the hours of a SAS Staff, or abolish a position, the agreed Procedures were to be followed. These Procedures were described in Ms Walsh's evidence. Ms Walsh stated that whilst in theory an employee could have been terminated, she was not aware of a permanent SAS Staff who was a member of the PSA who was terminated without first being either kept on as a supernumerary or offered leave without pay. In short, employees would usually be eligible for priority transfer to another school. Changed circumstances - increased potential for job losses 80In recent times, however, circumstances have changed. During 2012, the New South Wales Government announced a number of policies that, according to Ms Walsh's evidence, are affecting, or will affect in the immediate future, the job security of SAS Staff, including, it may be accepted: (a)Every Student, Every School: which alters the mechanism for providing funding with respect to students with disabilities. (b)Local Schools, Local Decisions: which decentralises staffing decision-making to schools and abolishes the staffing formulas which at present determine the level of SAS staff. (c)Learning Management Business Reform (LMBR): which allows principals to alter the staffing mix in their school, decide not to fill substantive vacancies with permanent staff and change the mix of temporary and permanent staff. (d)Empowering Local Schools National Partnership: which, in partnership with the Federal Government, provides funds to empower schools to make decisions at a local level, including with respect to workforce composition. (e)Labour Expense Cap: which imposes a labour expense cap requiring a 1.2 per cent reduction in labour costs per annum inevitably leading to staff reductions for SASS staff. 81I accept the submission for the applicant that the implementation of the foregoing policies will inevitably have the effect of reducing the job security of SAS Staff and undermining the efficacy of the nominated transfer system that had protected SAS Staff in the past. 82In any event, Mr Philip accepted there was a potential for job losses for SAS Staff. He said that consequently it was decided SAS Staff required a formal policy to cover redundancy provisions and that SAS Staff should be accorded the same protections as apply to other public sector workers in New South Wales. Hence, the Policy promulgated on 29 October 2012. Issues for determination 83The essential difference between the parties is that the PSA contends enforceable award provisions should regulate redundancy protection for SAS Staff, whereas the respondent contends that consistent with the Government's approach to general public sector employment, redundancy protection should be according to non-enforceable policy promulgated by the respondent from time to time. That issue contains a threshold question, namely, whether the Commission has power to make an award in the terms sought. 84If the Commission determines there is power to make an award, the next issue is whether it should exercise its discretion to do so. 85The third issue, if the Commission determined to make an award is the content of that award and that, in turn, requires a determination as to those matters where there is disagreement between the parties, namely, whether: (a)redundancy provisions should apply to long-term temporary employees; (b)there should be a three months redeployment period in the terms proposed by the PSA; (c)employees should be made forcibly redundant after the three months redeployment/retention period; (d)there should be a lower scale of payment for employees made forcibly redundant than the scale that applies to voluntary redundancy; and (e)the arrangements dealing with redundancy for SAS Staff should provide for the consultation provisions proposed by the PSA. Power to make an award 86It is undoubtedly the case that matters relating to redundancy fall within the definition of industrial matter in s 6 of the Industrial Relations Act and there was no issue in that respect. The Commission's primary power to make an award is derived from s 10 of the Industrial Relations Act and the power to vary an award is derived from s 17. 87Section 21 of the Industrial Relations Act requires certain conditions to be provided in awards. One of them is employment protection provisions: 21 Conditions to be provided in awards on application (1) The Commission must, on application, make an award setting any of the following conditions of employment: ... (c) employment protection provisions, ... (2) Those conditions are to be set: (a) in accordance with any relevant requirement of this Division and any other provision of this Act, and ... (3) Those conditions may be set in a new award or by the variation of an existing award. ... 88The respondent contended, however, that there were limitations on the Commission's power to vary an award in the terms sought by the PSA and these particular limits were to be found in s 146C of the Industrial Relations Act and the Industrial Relations (Public Sector Conditions of Employment) Regulation 2011 ("the Regulation"). It was submitted that s 21(2)(a) of the Industrial Relations Act made s 21(1)(c) subject to s 146C of the Act. 89Section 146C relevantly provides: (1) The Commission must, when making or varying any award or order, give effect to any policy on conditions of employment of public sector employees: (a) that is declared by the regulations to be an aspect of government policy that is required to be given effect to by the Commission, and (b) that applies to the matter to which the award or order relates. (2) Any such regulation may declare a policy by setting out the policy in the regulation or by adopting a policy set out in a relevant document referred to in the regulation. (3) An award or order of the Commission does not have effect to the extent that it is inconsistent with the obligation of the Commission under this section. ... (7) This section has effect despite section 10 or 146 or any other provision of this or any other Act. In this section: award or order includes: (a) an award (as defined in the Dictionary) or an exemption from an award, and ... (d) anything done in arbitration proceedings or proceedings for a dispute order under Chapter 3. conditions of employment-see Dictionary. public sector employee means a person who is employed in any capacity in: (a) the Government Service, the Teaching Service, the NSW Police Force, the NSW Health Service, the service of Parliament or any other service of the Crown, or (b) the service of any body (other than a council or other local authority) that is constituted by an Act and that is prescribed by the regulations for the purposes of this section. 90The relevant provisions of the Regulation are as follows: 4 Declarations under section 146C The matters set out in this Regulation are declared, for the purposes of section 146C of the Act, to be aspects of government policy that are to be given effect to by the Industrial Relations Commission when making or varying awards or orders. 5 Paramount policies The following paramount policies are declared: (a) Public sector employees are entitled to the guaranteed minimum conditions of employment (being the conditions set out in clause 7). (b) Equal remuneration for men and women doing work of equal or comparable value. 6 Other policies (1) The following policies are also declared, but are subject to compliance with the declared paramount policies: ... (f) Policies regarding the management of excess public sector employees are not to be incorporated into industrial instruments. 91The cardinal rule of statutory interpretation nowadays is that the process of construing statutory provisions "begins with a consideration of the ordinary and grammatical meaning of the words of the provision having regard to their context and legislative purpose": Australian Education Union v Department of Education and Children's Services [2012] HCA 3; (2012) 285 ALR 27 per French CJ, Hayne, Kiefel and Bell JJ at [26]. See also Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 per French CJ and Crennan J at [41] and the cases referred to. Furthermore, s 33 of the Interpretation Act 1987 provides: Regard to be had to purposes or objects of Acts and statutory rules In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object. 92Section 146C requires the Commission, when making or varying any award or order, to give effect to any policy on conditions of employment of public sector employees that is declared by the regulations to be an aspect of government policy that is required to be given effect to by the Commission, and that applies to the matter to which the award or order relates. 93It was not contested by the PSA that the definition of public sector employee in s 146C was broad enough to cover SAS Staff given it included a person who is employed in any capacity in "...any other service of the Crown...." It follows that in respect of SAS Staff the Commission is required to give effect to any policy on conditions of employment that is declared by the regulations to be an aspect of government policy. 94In my opinion, cl 6(1)(f) declares, for the purposes of s 146C of the Act, a policy. That policy is that "Policies regarding the management of excess public sector employees are not to be incorporated into industrial instruments." 95There is in existence a policy for managing excess SAS Staff. The Commission is constrained by cl 6(1)(f) of the Regulation from incorporating that policy into an award. The applicant contended that it was not seeking to incorporate the policy into an award, but rather appropriate employment protection provisions in respect of SAS Staff. 96However, I think it is reasonably apparent that the legislative purpose of cl 6(1)(f) is to ensure that the long-established practice of managing excess employees through the medium of government policy rather than award prescription is maintained. As Mr Bacic said in his evidence, redundancy has historically been regulated by way of policy in the NSW public sector. Further, Mr Bacic's evidence was that it is still the Government's policy that management of excess staff continue to be regulated by way of policy rather than included in an industrial instrument. He referred to the NSW Public Sector Wages Policy 2011 at 3.1.7, which states, "policies regarding the management of excess public sector employees are not to be incorporated into industrial instruments." Mr Bacic said the terms of cl 6(1)(f) of the Regulation reflected the intention and policy position of the Government. 97To accept the applicant's contentions and make an award in the terms sought would render the policy ineffective where it was inconsistent with the award. Indeed, the whole policy, which is effectively a package of measures, would probably be rendered ineffective. To do so would be contrary to the purpose of cl 6(1)(f). 98The applicant submitted that if the respondent's construction of cl 6(1(f) was to be accepted it would mean the Commission was excluded from dealing with disputes regarding the management of excess employees and unfair dismissals. I do not think that is so. The limitation on the Commission given the purpose underlying cl 6(1)(f) is that it may not make an award or order inconsistent with the provisions of the Policy. That does not prevent the Commission exercising its conciliation and arbitration powers in a dispute situation provided no award or order is made inconsistent with the Policy. An order under the unfair dismissal provisions of the Industrial Relations Act would not be inconsistent with the Policy, which is limited to managing excess SAS Staff. It does not deal with the subject matter in Pt 6 of Ch 2 of the Industrial Relations Act. 99I find that the Commission is precluded from varying the Award in the terms sought by the PSA. Two observations 100Having made that finding, I wish to make two observations. The first is that the exclusion of long-term temporary employees from the Managing Excess SAS Staff Policy would seem to be unreasonable if not discriminatory. I note that the respondent has maintained for itself a discretion outside of the Policy to grant redundancy pay for long-term temporary employees, but no information of any utility was provided as to how that discretion might be exercised. 101The evidence was that these employees may have many years of continuous service and in most respects the Award treats them as indistinguishable from permanent employees. Both classes of employees receive sick leave, recreation leave, study assistance, special leave, travelling compensation and long service leave, but long-term temporary employees do not receive a redundancy payment if they are made forcibly redundant or take voluntary redundancy under the Policy. I find it difficult to understand why a permanent employee with ten years service will be entitled to redundancy pay under the Policy but a long-term temporary employee with the same length of service will not. 102The respondent submitted that long-term temporary employees could not have any expectation that their employment will continue beyond the period of their current temporary employment contract (despite the fact that Ms MacAlpine, for example, has been continuously employed since 1988). 103However, the purpose of a redundancy payment is not based on expectation. It is to compensate for the loss of transferable benefits and for the hardship and inconvenience of losing employment: Westfield Holdings v Adams [2001] NSWIRComm 293; (2002) 114 IR 241 at [144]. I cannot imagine the loss of employment by a long-term temporary employee is any less of a hardship or inconvenience than it is for a permanent employee. 104I would recommend that the respondent review its Policy and extend the coverage to long-term temporary employees. 105The second observation is in relation to consultation. The Policy does not impose any obligation on the respondent to consult with the PSA or employees in the event the respondent contemplates a change to the Policy. During the course of the proceedings the respondent indicated it was amenable to consulting with the PSA in the event any changes to the Policy were mooted. 106I note that the Award does not contain what might be regarded as a standard award provision regarding the introduction of change, which was inserted in many awards following the seminal decision of the Australian Industrial Relations Commission in the 1984 Termination, Change and Redundancy Case: (1984) 8 IR 34 and (1984) 9 IR 115. 107It does not seem to me that an inconsistency necessarily arises between such a provision, perhaps suitably modified, and the Policy. The Policy simply does not deal with consultation and given the respondent's apparent acceptance that consultation may occur it would not appear to have been the respondent's intention in promulgating the Policy, to shut the door on consultation. 108I would recommend that the parties confer on the terms of a suitable consultative provision to be included in the Award. Orders 109The Commission orders that the application to vary in this matter is dismissed. ********** 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: 16 November 2012