Industrial Relations Commission New South Wales Medium Neutral Citation: Australian Education Union, NSW Teachers Federation Branch v Department of Education [2019] NSWIRComm 1039 Hearing dates: 21 June 2016, 22 June 2016, 28 June 2016, 20 July 2016, 27 July 2016, Submissions: 1 September 2016 Date of orders: 19 June 2019 Decision date: 19 June 2019 Jurisdiction: Industrial Relations Commission Before: Tabbaa C AM FRSN Decision: 1 Recommendation that the Department of Education give preference in employment to applicants with dual qualifications in psychology and teaching. 2 Recommendation that the Department of Education engage with the Federation and other stakeholders in consultation over any proposed change in allocation of school counsellors. Catchwords: INDUSTRIAL DISPUTE-, qualifications of employees-school councillors- recommendation for preference to be given to employees with dual qualifications Legislation Cited: Industrial Relations Act 1996 (NSW) Government Sector Employment Act 2013 Teaching Services Act Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award 2014 Crown Employees (Public Service Conditions of Employment) Award 2009 Cases Cited: Public Service Association and Professional Officers' Association Amalgamated of NSW v Director of Public Employment (2012) 87 ALJR 162; (2012) 293 ALR 450; (2012) 228 IR 316; [2012] HCA 58 at [43]; Re Corrections Health Service Nurses' (State) Award (1999) 90 IR 235 @ 245; Health Services Union & Ors. v Director-General, NSW Department of Health (2010) 193 IR 359 at [40]; Crown Employees (Teacher Staffing Entitlements) Award (2008) 181 IR 253 at [102]-[106]; Child Protection (Working with Children) Award 2014 (2015) 249 IR 420; State Wage Case 2010 (No 2) (2011) 206 IR 218; Re Cram; ex parte NSW Colliery Proprietors' Association Ltd (1987) 163 CLR 117; Kellogg (Australia) Pty Limited v National Union of Workers (1998) 89 IR 391 Category: Principal judgment Parties: Australian Education Union, NSW Teachers Federation Branch - Notifier Department of Education – Respondent Representation: Counsel: M Gibian (Applicant) Mr M Easton (Respondent) File Number(s): 2016/65492 DECISION Background 1. School Counsellors have been employed in public schools in New South Wales for many years to provide assistance in relation to student academic and personal development and welfare. 2. School Counsellors are currently employed under the Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award 2014 (the award) which commenced operation on and from 1 January 2014. 3. It was not disputed that the Australian Education Union, NSW Teachers Federation Branch (the Federation) has for many years campaigned to increase the staffing allocation of school counsellors in primary and secondary schools in New South Wales and to improve attraction and retention of teacher-trained school counsellors. The Federation contended that it has, for many years, adopted the policy position that the ratio of school counsellors to students should be 1:500. 4. On 8 March 2015, the then Premier of NSW, Mr Baird, and the Minister for Education, Mr Piccoli, announced the introduction of various measures to implement and enhance wellbeing services in NSW public schools. Those measures included an additional $167 million over four years to fund the Supported Students, Successful Students (the SSSS) initiative which was designed to, inter alia, drive a 30 per cent increase in the size of the school counselling workforce thereby increasing its size from 790 full time equivalent to 1026 full-time equivalent. 5. The stated purposes of the initiative were to: 1. Proactively develop student wellbeing and mental health wellbeing; 2. Help create safer school environments; 3. Counter inappropriate behaviours, such as bullying and cyber-bullying; and 4. Help schools to more effectively engage all students, including vulnerable students, in completing compulsory schooling. 1. During 2015, the Federation accepted an invitation from the Department of Education (the Department) to participate in a forum referred to as the Stakeholder Advisory Group on the implementation of the Wellbeing Framework for Schools, a new Behaviour Code for Students and the SSSS package. The Stakeholder Advisory Group met on a number of occasions during 2015. 2. In or around October 2015, the Federation was advised by representatives of the Department that consideration was being given to removing the requirement for school counsellors to have teaching qualifications as well as qualifications in psychology. The Federation indicated that it opposed any reduction in the qualification requirements for school counsellors and remained committed to improving the recruitment of school counsellors. 3. The Department wished to employ 236 new staff to provide psychology and counselling services in schools. It was contended that the Secretary of the Department, without informing the Federation, made a determination on or around 12 October 2015 under section 51 (1) of the Government Sector Employment Act 2013 (the GSE Act) providing for the employment by the Department of persons without teaching qualifications in positions to be known as School Psychologists and Senior Psychologists. 4. In October 2015 the Department undertook a national recruitment process to fill those 236 School Counsellor positions, inviting applications from persons with dual qualifications. 5. Only 20 appointments were made from that initial recruitment. Of those 20, only eight were new recruits. The remaining 12 appointments were existing departmental School Counsellors who were seeking appointments to different locations through the merit recruitment action. 6. In early December 2015, the Department commenced advertising to recruit new employees to positions as School Psychologists without the need for teaching qualifications. 7. The role description for the role of School Psychologist was described as follows: School Psychologists apply their psychological expertise to support students to achieve academic success, psychological health, and social and emotional wellbeing. School Psychologists provide counselling services and psychological assessment of students. They complement and enhance the work of teachers to strengthen student learning and wellbeing outcomes. School Psychologists provide psychological counselling services to allocated schools from Preschool to Year 12 across a range of metropolitan, rural and remote locations. 1. During the period December 2015 to February 2016, representatives of the Federation met with the Department and reiterated the former's position that it opposed the employment of persons who have no teaching qualifications as School Counsellors and, in particular, it opposed the replacement of school counsellors with school psychologists with no teaching qualifications. 2. The Federation, on 22 February 2016, notified a dispute pursuant to section130 of the Industrial Relations Act 1996 (the IR Act) to the Commission relating to the proposed employment of School Psychologists without teaching qualifications. The Federation advised that the dispute was about the following: 1. The Department proposed to employ staff without appropriate qualifications, in particular, 236 School Psychologists; 2. The Department would be in breach of the Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award 2014 (the Award); 3. The Federation had worked with the Department in good faith following the announcement by the Premier of the creation of 236 new positions; 4. The Department's actions in filling those positions with persons who have no teaching qualifications will have an adverse effect on student learning outcomes and the general operation of schools; and 5. As a result of having different working hours and conditions to School Counsellors, the rights of School Counsellors will be undermined in relation to transfers to other schools as per the Staffing Agreement. 1. Conciliation attempts before Murphy C failed and the matter proceeded to hearing before the Commission as currently constituted at which time evidence was obtained from the following witnesses on behalf of the Federation: Maurie Mulheron President, AEU Michael Sciffer School Counsellor Philip Casper von Schoenberg Learning & Support Teacher Belinda Margaret Wall Principal, Woonona High School Craig Kevin Austin District Guidance Officer/Senior Psychologist, Education Danielle Lauren Kempton School Counsellor Gemma May Ackroyd Principal, Lane Cove Public School Julie Anne Ross Acting Principal, Chatswood High School 1. The following witnesses gave evidence on behalf of the Department: Clare Archibald Director, Industrial Relations Brian Smyth King Executive Director–Learning & Wellbeing Graham Kahabka Executive Director-Public Schools NSW Daryl Peter Currie Principal, Hurlstone Agricultural High School, Wagga Wagga Pauline Kotselas Leader, Psychology & Wellbeing Services 1. Briefly, the Federation's position is that, in addition to the fact that employment of persons without teaching qualifications to undertake the role of school counsellor is, in its view, inconsistent with the award, any attempt to substitute School Psychologists without teaching qualifications for school counsellors would not only reduce the level of support for student learning and student wellbeing but will also increase the workload of teaching staff in schools. The Federation contends that a provision should be inserted in the award to protect a minimum staffing allocation for school counsellors. 2. The Federation's primary position was opposition to the engagement of psychologists within the Department's counselling service where such psychologists do not also possess teaching qualifications and are therefore not eligible for engagement under the Teaching Services Act. School Psychologists are and will be employed pursuant to the Government Sector Employment Act 2013 as public service employees with their rates of pay and conditions of employment governed by the Government Sector Employment Act 2013 and the Crown Employees (Public Service Conditions of Employment) Award 2009 respectively. 3. The practical disagreement between the parties narrowed during the course of the hearing: 1. The Department conceded that it would be better if counselling services which are to be provided in schools were provided by dual trained school counsellors; 2. The Department indicated that, in future, it would advertise for a dual trained school counsellor to fill any vacant school counsellor position and would only seek to recruit a School Psychologist in the event that the position could not be filled by a candidate with teaching qualifications; 3. The Department admitted that it had not intended to create a new position of School Psychologist to fill the existing allocation of school counsellors. The position was created because of the need to fill the additional 236 positions announced as part of the SSSS package; and 4. The Federation has grudgingly accepted that the additional 236 positions funded under the SSSS package could be filled by non-teacher trained School Psychologists to supplement the work of school counsellors. 1. In its submissions, the Federation described the dispute has having morphed into a dispute primarily about the refusal of the Department to guarantee any level of dual trained school counsellor time will be dedicated to any particular school despite the fact that it recognises that the engagement of a non-teacher trained School Psychologist is an inferior arrangement and would permit a situation whereby a school is allocated no support from a teacher trained school counsellor. 2. In an amended application filed on 10 May 2016, the Federation now seeks the following: 1. A determination that the Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award 2014 requires that employees appointed to work in schools with responsibility for providing advice and support in matters relating to student academic and personal development, welfare and discipline and providing psychological and other testing as required are to be employed as School Counsellors as defined in clause 2.52 of the Award. 2. Variations to the Award: 1. Inserting a requirement that employees appointed to work in schools with responsibility for providing advice and support in matters relating to student academic and personal development, welfare and discipline and providing psychological and other testing being a requirement the Federation insists is already present in the Award (clause 37A.2); 2. Freezing minimum staffing of School Counsellors as at 27 January 2016 levels (clause 37A.3); 3. Requiring any changes to the minimum staffing levels to be "negotiated in good faith" between the Federation and the Department (clause 37A.4); and 1. A recommendation that would apply to any change to the allocation of School Counsellors and mandate consultation irrespective of the size or type of change proposed. 1. The Department argued that the Federation was calling on the Commission to adjudicate educational outcomes rather than industrial matters by seeking the imposition of new award conditions on the basis that better educational outcomes will be achieved if persons appointed to work in schools with responsibility for providing advice and support in matters relating to student academic and personal development are dual-qualified teachers. 2. The Department contends that the union's dispute notification, firstly, seeks to stymie the SSSS initiative by imposing award limitations which, it is aware, are impossible of compliance; and, secondly, calls upon the Commission to adjudicate educational outcomes rather than industrial matters. 3. The Department, in reality, accepted the general proposition that a person with dual qualifications is preferable over a person with single qualifications. Nevertheless, it refused to guarantee that any level of dual trained school counsellor time will be dedicated to any particular school. It considered that the engagement of school psychologists is a proper and appropriate course of action in its own right and maintained that trained psychologists can, and do, provide valuable and important counselling and psychological services within the education system. It submitted that the labelling of their engagement as an "inferior" option was offensive towards those performing those tasks. 4. The Department pointed out that the predominant tasks performed by dual qualified School Counsellors and by School Psychologists are not teaching work yet the Federation was seeking to place significant obstacles in the path of the engagement of these School Psychologists. 5. The Department concluded that there was no proper basis for the Commission to intervene in the SSSS initiative and urged the Commission to reject each of the matters contained in the amended claim. submissions The Award Provisions 1. The Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award 2014 contains the following relevant definitions: "School Counsellor" means a teacher with an equivalent of four years training and a major in psychology who has responsibility for providing schools with advice and support in matters relating to student academic and personal development, welfare and discipline and provides psychological and other testing as required. "Teacher" means a person or officer employed permanently or temporarily in a full-time or part time teaching position under the provisions of the Teaching Service Act and appointed to a school. Unless otherwise specified in the award, a teacher shall include a school teacher in training. Historical Background 1. The Federation submitted that the agreed Award definition of "School Counsellor" has been consistent since at least 1993. It also submitted that the Department, in its School Counsellor Manual, published in August 2009, described the role of School Counsellor in a manner consistent with the agreement of the parties: School counsellors are qualified teachers who have a degree in psychology and post graduate qualifications in school counselling. They complement and enhance the work of teachers by strengthening schools' student welfare provisions and providing counselling and psychological assessment of students with specific needs. 1. The Manual goes on to identify the tasks required to be undertaken by School counsellors as follows: * Provide counselling to students, individually and in groups, including appropriate short term therapeutic intervention undertaken within the constraints of their training, experience and supervision; * Work in consultation with the principal, school executive staff and regional student support services to improve student learning and wellbeing outcomes and implement current departmental priorities; * Work collaboratively with learning support teams, parents and caregivers, and other agencies, to develop appropriate school based support for students; * Carry out cognitive, social, emotional and behavioural assessment of students referred by the learning support team, report the results of assessments and interventions to parents and teachers, and collaborate to improve learning and wellbeing outcome; * Contribute to the social, emotional, and academic development of students by participating in student welfare committees; * Contribute to the development of and planning for students with special needs by assisting review committees in the design and/or delivery of educational plans; * Respond, as part of a team, to schools experiencing emergencies; * Provide long suspension reports to principals with recommendations for future management; * Assist and support parents and caregivers in addressing the social, emotional, and educational development of their children; and * Refer students and/or families and caregivers to other agencies that will support the development of student health and wellbeing outcomes. 1. The Federation concluded that, in view of the above definition and allocated tasks, the award clearly does not contemplate or permit the Department to employ persons who do not possess both teaching qualifications and qualifications in psychology in such positions. The Federation urged the Commission to make the said determination. 2. The Department argued that the Award does not have comprehensive and exclusive coverage of all persons who may be employed in a school. It does, however, apply almost exclusively to teachers employed under the Teaching Services Act. The Department identified tasks which are provided to schools but not by teachers. It also gave examples of support services in relation to welfare, discipline and the like which are currently provided to schools by officers who are not teachers. 3. The Department argued that the award, by definition, clearly intended for "School Counsellors" to be a subset of "Teachers" and therefore the Award only applies to School Counsellors who are also teachers. 4. The Department argued against what it termed as the Federation's process of reverse engineering. The Department argued that it is only when a teacher has a dual qualification and has responsibility for providing advice and support in matters relating to student academic and personal development that they are classified as School Counsellors under the award. Consultation 1. The Federation pointed out that the Commission, in considering an application for award variation, is required to consider in this instance the process undertaken in the Department in introducing school psychologists. It was submitted that the introduction of non-teacher trained school psychologists was not only undertaken by the Department without consultation with the Federation but was implemented in a manner that involved "deliberate deception by the Department in relation to its intentions". 2. In support of that submission, the Federation relied on the following evidence. Firstly, the acknowledgement from the Department's own witnesses that the only conclusion that could be drawn from the Premier's announcement was that 236 additional teacher positions as school counsellors were to be funded: Gibian: You'd accept that anyone reading the announcement the Premier made would draw the conclusion that what was being announced was 236 additional teacher positions as school counsellors. Correct? Smyth King: That's correct. 1. Secondly, the Premier's announcement had not resulted from any submission by the Department nor had the Department contemplated engaging other than teacher-trained school counsellors: Gibian: Are we correct in also understanding that prior to March 2015, and at least as at March 2015, the department hadn't put forward any proposal to employ non-teacher trained psychologists in schools? Smyth King: That's correct. Q: And wasn't contemplating doing so? A: That's correct. 1. Thirdly, the Federation, on 20 July 2015, formally approached the Department for talks on the Government's initiative and sought "information on the action being taken by the Department to establish and fill the 236 school counsellor positions and to implement the graduate scholarship program". Those talks occurred on 27 July 2015 at which time Mr Smyth King suggested that the Department might give consideration to the employment of non-teacher trained psychologists if it was unable to fill the new positions with teacher-trained counsellors. Mr Smyth King, in cross-examination, confirmed that no such concrete decision had been made at the time the meeting was held as the Department still hoped to recruit sufficient teacher-trained school counsellors to fill those funded positions. That suggestion had been rejected by the Federation at that meeting. Its opposition was later confirmed in writing on 2 September 2015. 2. Fourthly, the Department, in the knowledge of the Federation's opposition, took steps to have a Determination made under the GSE Act for the position of School Psychologist. A determination was made on 12 October 2015 setting the remuneration for that position. A position description for that position was approved on 4 December 2015. 3. Fifthly, the Federation, unaware of the existence of the Determination creating that position, met with the Department on 16 October 2015. Messrs Smyth King and Mulheron were both present at that meeting. Mr Smyth King gave evidence confirming that the Department had unequivocally confirmed to Mr Mulheron that it would be recruiting additional school counsellors with dual qualifications: Gibian: If you can just go back to my question. You knew at the time, at the meeting of 16 October, that the federation was concerned about any move and would wish to know about any move by the department to employ persons without teaching qualifications? Smyth King: Yes. Q: And you understood that that was why Mr Mulheron was asking you the question, correct? A: Yes. Q: And you told him that that was – that you were going to advertise dual trained positions? A: Yes. Q: And you didn't think it appropriate to inform him that you'd already in fact had made a determination for a new position of a school psychologist not requiring teacher qualifications, correct? A: And in hindsight we should have talked to them about that, yes, that's correct. 1. Sixthly, still allegedly ignorant of the existence of the Determination, the Federation wrote to the Department on 9 November 2015 seeking information on the development of a comprehensive recruitment strategy to meet the need for an adequate supply of school counsellors. The Department responded on 30 November 2015 providing information on the recruitment of dual qualified school counsellors. The Department chose not to disclose the existence of the Determination nor the fact that it was developing a position description nor that it was days away from advertising for the new position. It was concluded that it was a deliberate decision of the Department not to disclose that vital information to the Department despite the obvious interest of the Federation and its members in the provision of school counselling services. In stark contrast to the treatment of other positions, there was no consultation in relation to the development of the position description for School Psychologist. 2. The parties were not in agreement as to when the Federation was eventually advised of the Department's actions in this regard. Mr Smyth King believed that he advised Mr Mulheron during a telephone conversation in the week commencing 7 December 2015. The Federation submitted that it was advised at a meeting held on 16 December 2015. Nevertheless, the advertisements had already been placed, causing the Federation to advise the Department that it considered the latter's actions to be "counter-productive, provocative and illogical and could lead to profound disruption". 3. In conclusion, the Federation submitted that the Department's action in replacing teacher-trained school counsellors with School Psychologists was not the result of any considered policy decision, it contradicted the obvious intent of the Premier's announcement of the SSSS package, was made in the absence of any meaningful consultation with interested parties (that is, the Federation, Principals, teachers or parents) and was implemented in a manner that involved deliberate deception in relation to the Department's intentions. The Commission was encouraged, for all the above reasons, to set aside any consideration of "managerial prerogative" and intervene to ensure an appropriate outcome. 4. The Department submitted that the Federation's submissions in this regard had no basis in fact pointing out that there had been extensive consultation about the SSSS initiative. It had established a Stakeholder Advisory Group which included the Federation, the Primary School Principals Association and the Secondary Principals' Council. That Advisory Group had finalised and supported the methodology for the allocation of core school counselling services to all public schools across the State for the period 2016-2018. 5. It was also pointed out that the Federation had been consulted separately and consideration given to the various settlement proposals made by it both before and during the dispute notification to the Commission. 6. It was submitted that the allegation that the making of the Determination was "hidden" from the Federation was disingenuous. It was pointed out that the evidence of Mr Smyth King in cross-examination made it abundantly clear that the Federation was on notice that the Department would have to consider the recruitment of psychologists if it could not obtain enough dual qualified counsellors. In cross-examination about the July 2015 meeting, the following exchange took place: Gibian: You indicated that, well, in the first instance, there would be recruitment of school counsellors, that is, teacher trained school counsellors? Smyth King: That's correct. Q: But I think you've said you suggested that if you were unable to fill the positions through that route, consideration might be given to non-teacher trained counsellors? A: I advised Mr Zadkovich and the others at the meeting, yes, that would be the case. 1. The Department pointed out that the possibility of having to recruit psychologists remained a live issue since that time. For example, the Federation's Mr Dixon wrote to the Secretary of the Department on 2 September 2015. Mr Smyth King confirmed in cross-examination that the Federation had expressed concern in that correspondence that "… the department is considering relinquishing the requirement for school counsellors to have tertiary education requirements, both teaching and psychology, …". 2. Also, in October 2015, the Department agreed to recruit for only dual qualified School Counsellors but that was obviously unsuccessful resulting in advice to the Federation, in December 2015, that it was going to expand its recruitment and invite applications from psychologists. Finally, in January 2016, the Department acquiesced to a request from the Federation not to employ any new psychologists until the start of term 2 of 2016. 3. It was also submitted that the allegation that the Department did not adequately consult was bizarre for the following reasons – the making of the Determination was a preparatory internal step; the Federation had made it clear that it opposed the appointment of School Psychologists and therefore it was ridiculous to suggest that any consultation with the Federation over a position description would have achieved any useful purpose; and, finally, the Federation was under the mistaken belief that the Department was obliged to secure the agreement of the Federation in relation to the employment of psychologists. No Further Claims Provision 1. The section 130 dispute notification advised that the Department was in breach of the award as it proposed to employ staff without appropriate qualifications into the newly funded positions titled "School Psychologists". 2. The Federation held the view that the award did not contemplate nor permit the employment of persons to school counsellor positions without them possessing dual qualifications in teaching and psychology. 3. The Federation is seeking an award variation to remedy a situation where the current award does not deal with the employment of School Psychologists. 4. The Award contains the following award No Further Claims provision: 32.1 Except as provided by the Industrial Relations Act 1996, prior to 31 December 2016, there shall be no further claims by the parties to this Award for changes to salaries, rates of pay, allowances, or conditions of employment in relation to matters expressly contained in this Award. 1. The Department argued that the Federation's claim involved new claims and were therefore excluded by the no further claims provision in the award. 2. In addition, the Commission is duty bound (per s. 146 C(1)) in any proceedings before it to give effect to any declared policies on conditions of employment of public sector employees as part of the body of law which needs to be considered in any proceedings before it: Public Service Association and Professional Officers' Association Amalgamated of NSW v Director of Public Employment (2012) 87 ALJR 162; (2012) 293 ALR 450; (2012) 228 IR 316; [2012] HCA 58 at [43]. 3. The Department relied on Clause 6 (1)(d) of the 2014 Regulation which states: (1) The following policies are also declared, but are subject to compliance with the declared paramount policies: (d) Awards and orders are to resolve all issues the subject of the proceedings (and not reserve leave for a matter to be dealt with at a later time or allow extra claims to be made during the term of the award or order). However, this does not prevent variations made with the agreement of the relevant parties. For the contention that to grant the Federation's application would result in the grant of an extra claim during the term of the award in contravention of the no further claims undertaking and the Regulation. 1. It was submitted that the Federation's propositions remained internally irreconcilable – to state on the one hand that the award intended that only dual qualified teachers can be employed as school counsellors and then to seek, on the other hand, a variation to the award on the basis that a material change had occurred which had not been contemplated at the time the award was originally made. 2. The Department pointed out that the Federation was required to make out a case pursuant to the Special Case provisions of the State Wage Case Principles to demonstrate that the variation is necessary to establish fair and reasonable conditions of employment and to demonstrate that the matter has special attributes. It was submitted that the application has not met this test because there are no special attributes that would allow the variation sought to be approved. 3. The Federation pointed out that the Department was ignoring the limited wording of the no further claims provision of the Award. 4. The Federation submitted that the injunction that "there shall be no further claims…" was subject to two limitations – a claim is not excluded if it is made as provided in the IR Act and it does not prevent claims being made with respect to matters not expressly contained within the Award. It was pointed out that the Department was ignoring the limited wording of that clause. The Federation warned against applying such a strict approach to the construction of the clause so as to ignore the actual words of the provision, or to ignore an attempt to limit the terms of the commitment, or to construe the provision so as to extend it beyond the intention of the parties. In that regard, the Federation relied on the following authorities: Re Corrections Health Service Nurses' (State) Award (1999) 90 IR 235 @ 245; Health Services Union & Ors. v Director-General, NSW Department of Health (2010) 193 IR 359 at [40]. 5. It was submitted that the Commission would be satisfied that it is appropriate to vary the Award during its nominal term, pursuant to section 17 (3)(C) of the Act, as the proposal by the Federation was not contrary to the public interest and there are substantial reasons to do so. 6. The employment of non-teacher trained School Psychologists did not become an issue until after the Award was made, it did not arise until the second half of 2015 and it did not relate to matters expressly dealt with in the award. In other words, there was a material change of circumstances which was not known or contemplated at the time the award was originally made. Therefore, the Federation concluded, it cannot have been thought to be covered by the no further claims provision. 7. In addition, the Federation noted, firstly, that while the Award describes the role of a School Counsellor, it does not deal with their staffing levels nor does it contemplate the employment of School Psychologists. In other words, the intention of the current award did that, only dual qualified teachers can be employed to provide advice and support in matters relating to student academic and personal development, welfare and discipline. It was concluded that, in any event, a provision of the award could not prevent the Commission from varying the Award with effect from 1 January 2017: Crown Employees (Teacher Staffing Entitlements) Award (2008) 181 IR 253 at [102]-[106]; secondly, Clause 6 (1)(d) of the Regulation does not constrain the powers of the Commission as currently constituted as it has no application to these proceedings. It does not address matters which are not subject of the proceedings nor an earlier order. On the contrary, it requires the Commission to resolve issues subject of the proceeding. The application that resulted in the making of the 2014 Award did not involve any consideration of the subject matter of this dispute, the subject matter of this dispute did not arise until late 2015 and therefore was not extinguished by the making of that Award and, finally the principal purpose of that award was to provide for a periodic variation in salaries. Thirdly, as held by the Full Bench in Child Protection (Working with Children) Award 2014 (2015) 249 IR 420, clause 6 (1)(d) of the Regulation does not apply to a claim which does not touch upon employee-related costs. The variation sought in these proceedings seeks to do no more than retain the existing allocation of school counsellor time in public schools and would not increase employee-related costs at all. 8. The Federation submitted that, insofar as its proposed variation makes provision for, or changes to, staffing allocation, it was required to be considered pursuant to Principle 8.4 of the Wage Fixing Principles: State Wage Case 2010 (No 2) (2011) 206 IR 218 at 230-231. 9. Having taken the Commission through the principles required for making out a special case, the Federation concluded that the Commission can be well satisfied that the evidence had made out a case with special attributes. 10. The Federation cautioned against taking the view that interference in the Department's decision would be classified as encroaching on management prerogative. It was pointed out that the proposition that conditions in the workplace can be compartmentalised under the headings of matters concerning management and matters concerning employees was dated: Re Cram; ex parte NSW Colliery Proprietors' Association Ltd (1987) 163 CLR 117. In this instance, the evidence is abundantly clear that teachers and executive staff in schools have an interest in the engagement of school counsellors. CONSIDERATION 1. School Counsellors have been employed in public schools in New South Wales for many years to provide assistance to schools in relation to student academic and personal development and welfare. 2. School Counsellors are currently employed under the Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award 2014 which commenced operation on and from 1 January 2014 (376 IG 421). 3. The award definition of School Counsellor contains a requirement for anyone employed under that classification to have teaching qualifications as well as qualifications in psychology. 4. The Federation has campaigned for many years for an increase in the number of School Counsellors in primary and secondary schools all over the State aiming for a policy ratio of 1:500 school counsellors to students. 5. The NSW Government of the day announced a new student support package known as Supported Students, Successful Students (SSSS) on 8 March 2015 which included funding for the employment of 236 additional school counsellors in public schools. 6. A Stakeholder Advisory Group was formed, which included the Federation, to advise on a methodology to allocate core school counselling staffing to every public school. That methodology was finalised for the period 2016-2018. 7. By July 2015, the Department had formed the view that if it could not obtain enough dual qualified counsellors, then consideration would be given to the removal of the requirement to have teaching qualifications in addition to the qualification in psychology. It provided evidence that its resolve was communicated to the Federation about that time and it remained a live issue between the parties. 8. The Federation insisted that it did not become aware of it until about October 2015 when it registered its opposition to the appointment of School Psychologists. The Federation, at that time, was unaware that the Secretary of the Department had made a determination pursuant to section 51 (1) of the GSE Act 2013 providing for the employment of persons in positions of School Psychologists and Senior Psychologists without teaching qualifications. The Department described that determination as "a preparatory internal step". On 12 October 2015, a determination was made setting salaries for the position and on 4 December 2016, a role description was approved for the position. 9. Despite the determination providing for the new position, the Department agreed to recruit for only dual qualified school counsellors. In October 2015, the Department embarked on a national recruitment process to fill the 236 positions with persons holding the award required dual qualification. In view of the number of positions to be filled, the response was a dismal failure as only 20 appointments were made. Of those 20 appointments, only eight were new recruits from outside the Department. The remaining 12 were applications were for transfer to other locations within the State. 10. The Department acquiesced to the Federation request for any new psychologists to not commence employment until term 2 of 2016. 11. In early December 2016, the Department commenced a recruitment drive for School Psychologists without the need for teaching qualifications. The effects of the determination are: 1. School psychologists who do not possess teaching qualifications will not be employed as members of the Teaching Service; 2. The provisions of the Award will not apply to them; 3. They will be classified as Public Service employees, will be employed pursuant to the provisions of the GSE Act 2013; 4. They will be remunerated in accordance with the Determination made on 12 October 2015 pursuant to s. 52 (1) of the Government Sector Employment Act 2013 and their conditions of employment will be governed by the Crown Employees (Public Service Conditions of Employment) Award 2009. 1. The Federation has reluctantly accepted that the additional 236 funded positions can be filled by non-teacher trained School Psychologists to supplement the work of school counsellors. 2. The outstanding issue between the parties is the refusal by the Department to acquiesce to the Federation's demand for it to guarantee any level of dual trained school counsellor time to be dedicated to any particular school. 3. I do not accept that consultation did not take place between the parties. The Federation was not consulted on the making of the Determination nor the remuneration of the School Psychologist but there is no requirement for it to do so. 4. I accept that the Department did attempt to recruit dual qualified applicants and the recruitment drive was a dismal failure in the circumstances. 5. Whilst not denying that trained School Psychologists can and would provide valuable and important counselling and psychological services within the education system, it also cannot be denied that a person with dual qualifications would be an advantage in a school environment and would be preferable, all things being equal. 6. The Federation initially sought the insertion of a new clause 37A to the award in the following terms: Clause 37A. School Counsellor Staffing Arrangements 37A.1 The provision of advice and support from a School Counsellor with qualifications in teaching and psychology assists teachers and schools to enhance the educational and wellbeing outcomes of all students. 37A.2 Employees appointed to positions in a school or across a number of schools to provide advice and support in matters relating to student academic and personal development, welfare and discipline and to provide psychological and other testing as required are to be employed as School Counsellors and have the qualifications described in clause 2.52 of this Award. 37A.3 Subject to clause 37A.4 below, the minimum staffing entitlement for School Counsellors in schools be maintained as it existed on 1 January 2016. 37A.4 Any change to the minimum staffing entitlement for School Counsellors shall be negotiated in good faith between the Department and the Federation and shall be determined taking into account the following matters: 1. Student enrolment numbers; 2. Student with a disability who have significant support needs; 3. Data on student disadvantage indicators; and 4. Workload implications of any change to the allocation of School Counsellors. 1. On 18 May 2016, the Federation amended its application to seek the following: 1. A "determination" that the Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award 2014 ("the Award") requires that employees appointed to work in schools with responsibility for providing advice and support in matters relating to student academic and personal development etc. be teachers; 2. Variations to the award: 1. Inserting a requirement that employees appointed to work in schools with responsibility for providing advice and support in matters relating to student academic and personal development etc. Being a requirement the Federation insists is already present in the Teacher's Award (clause 37A.2); 2. Freezing minimum staffing of School Counsellors as at 27 January 2016 levels (clause 37A.3); 3. Requiring any changes to the minimum staffing levels to be "negotiated in good faith" between the Federation and the Department (clause 37A.4); and 1. A "recommendation" that would apply to any change to the allocation of School Counsellors and mandate consultation irrespective of the size or type of change proposed. 1. In its submissions filed on 18 August 2016, the Federation sought in addition, or in the alternative, a variation to the award, or a direction or recommendation in arbitration of the dispute in the following terms: That, in recognition of the workload implications for teachers, in the event of any change to reduce or replace the allocation of School Counsellors occur subject to: 1. The Department and the school concerned shall give genuine consideration to the workload implications of any change to the allocation of School Counsellors and shall implement any change only if satisfied that the workload implications can be managed appropriately; 2. The Department shall consult with the Federation in relation to any proposed change to the method of allocation of School Counsellors, the reasons for the proposed change, the workload implications and measures to be taken to ameliorate the effects of the proposed change to the allocation; and 3. The Principal of any school affected by any proposed change to the allocation of School Counsellors shall consult with affected teachers in relation to the reasons for the proposed change, the workload implications and measures to be taken to ameliorate the effects of the proposed change to the allocation. 1. Simply put, the Federation contends that: 1. The no further claims provision does not preclude this proposed variation as the clause does not prevent claims being made with respect to matters not expressly contained within the award; 2. Section 17 of the Act permits the Commission to vary an Award during its nominal term if there are substantial reasons to do so and if it is in the public interest to do so; 3. Clause 6(1)(d) of the Regulation has no application to these proceedings as the variation would not result in an increase in employee-related costs: Child Protection (Working with Children) Award 2014 (2015) 249 IR 420; 4. A case has been made out in support of the matter being given special case considerations pursuant to Principle 8.4 of the Wage Fixing Principles as the evidence demonstrates that the case has special attributes: State Wage Case 2010 (No 2) (2011) 206 IR 218 at 230-231; 5. Management prerogative does not play a part in this matter as teachers and executive staff in schools have an obvious interest in the engagement of school counsellors. In addition, the concept that conditions in the workplace can be neatly compartmentalised under the separate headings – matters of concern to management and matters of concern to employees – is dated: Re Cram; ex parte NSW Colliery Proprietors' Association Ltd (1987) 163 CLR 117; and 6. There are public interest considerations in granting the application. 1. The Department opposes the grant of the declaration for the following reasons: 1. The relief sought by the Federation cannot be pursued by way of a s.175 notification. It is a matter which belongs exclusively within the declaratory jurisdiction of the Industrial Court as it involves an alleged breach of an industrial instrument considering that the Department has already employed persons without teaching qualifications to undertake the work: Kellogg (Australia) Pty Limited v National Union of Workers (1998) 89 IR 391 at 392; 2. The Federation's interpretation of the award is erroneous. It was pointed out that the Award does not have comprehensive and exclusive coverage of all persons who may be employed in a school. Not every person who performs the functions described in paragraph 81 (a) above must be a teacher. The Federation's interpretation would result in other workers, such as Student Support Officers, who are not teachers but provide support in matters of welfare, discipline and so on, being prohibited from employment unless they are classified as teachers; 3. The determination requires persons appointed to do the work to be employed as "school counsellors". The requirement creates a difficulty in that School Psychologists have been appointed, and will continue to be appointed, to do some of the work referred to in the determination; 4. To grant the claim would be to allow extra claims to be made during the life of the award; 5. The Federation has changed its submission a number of times during the proceedings. Initially, it stated that the current award prohibits the employment of persons as school psychologists in the absence of teaching; in pursuit of the award variation, the Federation contended that the current award does not deal with the employment of school psychologists; and the final position of the Federation is that the employment of school psychologists is "inconsistent" with the current award; 6. The Federation will not be able to pursue a variation pursuant to the Special Case principle as there are no special attributes able to be demonstrated. 1. With respect to the proposed award variation, I accept that: 1. Subclause 37A.1 serves no useful purpose; 2. Subclause 37A.2 cannot apply to School Psychologists unless they hold teaching qualifications. It is noted that the Federation's president, Mr Mulheron, gave evidence in cross-examination which appeared to abandon any application for a provision that would impose the requirement in that subclause. The Department argued that the provisions of that subclause significantly interfere with management prerogative and seeks to have the Commission arbitrate educational outcomes; 3. Management prerogative would be severely affected by any restriction on the Department's capacity to respond to demographic shifts and changes in the need for school counselling service given the constantly changing nature of student needs, school and community needs, natural attrition, enrolments and the like. I accept that the term in subclause 37A.3 would not be capable of compliance. 4. In light of the rejection of subclause 37A.3, it follows that subclause 37A.4 has no useful role to play. 1. The evidence of a large number of vastly experienced teachers, principals, and school counsellors has been taken into account as have the lengthy and detailed submissions filed by the parties. 2. I accept that there is a difference between the role of a school counsellor with teaching qualifications and a school psychologist. I also accept that the preferred option for the parties and the school community generally is to engage persons with dual qualifications to the position of school counsellor. 3. The effect on the Federation and its members is undoubted. The evidence speaks for itself. Nevertheless, the harsh reality is that there are not enough applicants with dual qualifications for appointment to the additional positions and it is incumbent on the Department to take action to provide a service to all public schools across the State, particularly when funding becomes immediately available. It does not necessarily follow that a school psychologist cannot perform the role nor does it mean that the school psychologist cannot attain specialist skills albeit with experience gained from working in schools and with teachers in the long term. 4. For the above reasons, the Commission is not prepared to vary the award or to make any directions. The Commission, however, is prepared to make recommendations with respect to preference and consultation. 5. Firstly, the Department, quite rightly, advertised the positions seeking dual qualified applicants before opening up the vacancies to persons qualified as psychologists but without a teaching degree. Advertisements can, in the future, advertise the vacancies with the added proviso that a teaching degree would be an advantage. All things being equal, preference can then be given to those with dual qualifications. 6. Secondly, I accept that consultation is a crucial element in improving outcomes particularly when it involves those directly affected by change. As there is expected to be jockeying for allocation of school counsellors with dual qualifications by schools throughout the State, any proposed change to their allocation ought to be made in consultation with the Federation and teachers in order to ameliorate the effects of the proposed change to the allocation. Successful consultations ensure that the outcomes are supported by all concerned. The right to be consulted, however, is not to be considered, in the absence of consensus, to mean a licence to veto any final determination by the Department. RECOMMENDATION 1. That the Department of Education give preference to applicants with dual qualifications in psychology and teaching. 2. That the Department of Education engage with the Federation and other stakeholders in consultation over any proposed change in allocation of school counsellors. 3. Matter No 2016/65492 is hereby concluded. I Tabbaa AM FRSN COMMISSIONER 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: 19 June 2019