T2964
|
TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Secondary Colleges Staff Association and The Minister Administering the State Service Act 1984
Transfer of teachers REASONS FOR DECISION This matter concerns a dispute notification by the Secondary Colleges Staff Association (SCSA) pursuant to Section 29 of the Act. The basis of complaint by the SCSA was that three teachers were involuntarily transferred from secondary colleges, "in contravention of the decision reached in resolution of the dispute T.982 of 1987". In the matter referred to, Commissioner Gozzi was dealing with a major dispute involving strike action by secondary college teachers over the question of their terms of appointment and conditions relating to transfers. The issues in that matter were complex. The SCSA and the Director-General of Education had been party to "tenure" provisions published in the Education Gazette on 21 May 1987. The dispute in matter T.982 involved an alleged breach of the agreement only one month later. However the Director-General of Education relied upon subsequent legal advice that the tenure agreement could no longer continue as it was contrary to the State Service Act - a view contested by the SCSA. That file indicates (by Exhibit W3) that Cabinet then authorised the Director-General of Education to enter into negotiations with the relevant teacher organisations in order to resolve the situation. The dispute in T.982 was resolved as a result of private conferences between the parties and the Commission, and in the result the basis for settlement appeared to involve the following elements:
"Mr Kenny said, inter alia: `A great deal of emphasis has been placed on consultation in terms of the future. I'd like to place on record the fact that the consultation has been promised, and that promise will be maintained ...' and later: `The point I'm making, Mr Commissioner, is that the process of consultation went on - has begun - and continued, and I have given my commitment privately to you and to the Association and to the TTLC, and do that publicly.'
The SCSA also alleged that the manner in which the three recent teacher transfers occurred was out of order in that, inter alia, the subject matter of staffing and teacher transfers is now an agenda item placed before a Full Bench of the Commission1 dealing with still to be resolved structural efficiency measures which are to be considered as part of "Special Case" proceedings. In short, the SCSA case relied upon the precedents established in earlier dispute proceedings in T.982 of 1987 and the fact that attempts to change established procedures in relation to teacher transfers has been put on hold pro tem by the Full Bench dealing with "structural efficiency" and "special case matters" still to be decided. More particularly there are two categories of preconditions which attach to teacher transfer. Established policy in respect of Staffing Status "A" (applying to teachers granted permanent status in 1987 and permanent teachers appointed to an ongoing position in a secondary college in 1988) provides, inter alia that: "Involuntary transfer of these teachers to a secondary college in another region or to other schools or sections of the Education Department will occur only where exceptional circumstances exist. Consultation with the teacher concerned will take place prior to the transfer. REVIEW MECHANISM There shall be an exchange of letters between the parties indicating redress to private arbitration in accordance with section 61 of the Industrial Relations Act 1984 in the event of a dispute over the proposed transfer of any of the above categories of secondary college teachers." Mr Elliott said that there was a clear understanding reached in matter T.982 of 1987 concerning the meaning of the expression "exceptional circumstances" as it related to teacher transfer policy. And in this regard reference was made to transcript of that matter on 15 October 1987, at pages 93 and 94, where Mr Elliott said: "From discussions yesterday the association is proceeding on the basis that the overwhelming or the overriding cause of involuntary transfers in the secondary college area will arise from a situation where jobs have disappeared. In other words, where there is not a full workload for that particular teacher. We accept the department's assurances that there will be no capricious transfers and that it will be business as usual in the secondary colleges. I'm gratefully heartened that whatever is in the document or whatever is not in it that the consultative mechanisms and review mechanisms, which Mr Kenny has alluded to, will serve to take the heat out of future relations between the association and the department." He adverted to the fact that there are other references on transcript which support this contention which were placed on record by the Tasmanian Trades and Labor Council as an intervener in that case. The SCSA produced as an exhibit, (SCSA3) a letter from Mr Jon Price who as a category "A", permanent full-time teacher appointed as such in May 1988. Mr Price was involuntarily transferred from Elizabeth College and complained that he was given very short notice of transfer, being told at lunchtime on Monday, 11 February (the first day back from leave) that he would be transferred back to the Montagu Bay Primary School. Mr Elliott submitted that from the information supplied that Mr Price's transfer occurred even through there is a full teaching load for him. By taking his college classes from him and redistributing them to other teachers who already have full loads, the latter will have to compulsorily work "excess hours". It was alleged by the SCSA that the involuntary transfer of Mr Price had not been preceded by meaningful consultation as was promised in the original dispute settlement in case T.982 of 1987. Mr Elliott argued further that, in the view of his organisation, the Education Department had failed to observe any of the Review Mechanisms; had failed to properly consult the SCSA; had failed to observe the status quo pending resolution of the dispute; and had therefore failed to observe the terms of the agreement accepted by both parties in matter T.982 of 1987. And particular emphasis was placed upon that section of the Policy Statement which provides in A3 that: "The review mechanism will remain in place until variation by mutual consent of the parties." The SCSA said that in all of the circumstances I should rule that Mr Price's transfer infringes the agreement arising out of matter T.982 of 1987 and order that he be returned to his place at Elizabeth College. Then the SCSA dealt with details of the involuntary transfer of the two other teachers, i.e. Ms Sheenagh Neill and Mr Duncan How. Ms Neill was transferred from Claremont College to Rosetta High School and Mr How was transferred from Rosny College to Rose Bay High School. Both persons had full teaching loads and have expressed concern at the way they were treated. Mr Elliott said that in each case their teaching load was forcibly given to reluctant colleagues to work as "excess hours". Again it was claimed that there was a breach of the earlier settlement of dispute provisions, and in particular there was not meaningful dialogue or consultation with the SCSA. And similarly it was requested of the Commission that the transfers be reversed. In replying to the SCSA's complaint Mr McCabe for the Minister administering the State Service Act 1984 denied that the Department had contravened the decision reached in T.982 of 1987 in respect of any of the three named teachers. He pointed out that the three transfers in question are the only transfers of secondary college teachers to other areas of the education system. Whilst it is generally acknowledged that teachers in colleges prefer to stay where they are, operational needs sometimes dictate that transfers are necessary. Mr McCabe alleged that the need to transfer Mr Price was discussed at some length with him by his Superintendent Mr Salier. During those discussions Mr Price was offered a transfer to Alanvale College in Launceston, but Mr Price decided he would prefer to stay in Hobart, and then asked to be transferred to a primary school in Hobart. As a result he was transferred to Montagu Bay Primary School. Before the final decision was made in this regard Mr Salier contacted Mr Elliott of the SCSA to ask if the Association could suggest any other teacher who might be moved instead of Mr Price. According to Mr McCabe, Mr Elliott declined to discuss any such alternative along these lines. Mr Elliott was then advised by the Department that if he wished to contest the transfer he would need to write to the Department on Mr Price's behalf, in accordance with the Review Mechanism which involved use of Section 61 of the Act (Private arbitration). However Mr Elliott chose to bring the dispute directly to the Commission. In the case of the other two teachers, Mr McCabe stated that they too had been involved in prior discussion with the Department's representative in accordance with the transfer provisions of Part B2 of the "Policy Statement". It was pointed out that there is a "Review Mechanism" for category "B" teachers which enables them to, first of all submit a written case to the Director of Personnel (or his equivalent), and then exercise rights of appeal pursuant to Section 66(2) of the State Service Act. However in this instance those prerequisites have not yet been followed. Mr McCabe said these arrangements were agreed to by the SCSA in matter T.982 of 1987. This "Review Mechanism" is still in place because it has not been reviewed or overtaken by "Special Case" considerations. Mr Price addressed the Commission in euphonious terms to support the submission by Mr McCabe. He rejected the imputation by the SCSA that the Department had in some way acted in contravention of any advice given by the Full Bench dealing with salary and structural efficiency matters in relation to various teacher awards. Rather the Department had followed existing staffing policy (Annexure "A") and had acted with the best of motives and followed established procedure. Matters yet to be decided in relation to future transfer which constitute agenda items as part of "Special Case" proceedings had in no way been acted upon by the Department. Rather the Department had strictly adhered to existing policy positions which were established in conjunction with the reaching of certain earlier understandings or agreements. Mr Price quoted from the existing policy document (already referred to) to illustrate that what had been done was totally consistent with such established policy. He said the SCSA had used selective quotes to support its case, rather than reading the whole of the document to ascertain its true meaning and intent. It was reiterated that there had been consultation between the Superintendent responsible and individual teachers who were to be transferred and that was done in a professional and responsible way. But the first advice that the Department had of any disaffection or concern by the individual teachers was the notification of this dispute hearing. Then followed an attempt to resolve the dispute by the conciliatory process by putting the parties into conference and speaking with them separately. Regrettably this process did not succeed and it was acknowledged that I must arbitrate. Decision There are a number of factors involved in this dispute which set it apart from most other typical Section 29 matters which are brought to the Commission for resolution from time to time. First and foremost the transfer of employees is not presently covered by award prescription, but instead is a matter regulated by separate statute, being specifically provided for in the State Service Act 1984. Section 42(3) of that Act provides as follows: "(3) The Head of an Agency may, on the application of an employee or otherwise, transfer an employee employed in that Agency to another position of similar classification or salary in that Agency, the duties of which the Head of the Agency considers the employee is capable, competent or qualified to perform." The same Act also provides that the Commissioner for Public Employment has as part of his function the determination of practices and procedures relating to transfers [10(1)(b)]. Notwithstanding this the Commission, as differently constituted, was earlier called upon to settle a serious industrial dispute involving the question of involuntary transfer of teacher in the public sector system (T.982 of 1987). The terms of settlement agreed to in that dispute are clearly set out by Commissioner Gozzi in his "Report of Proceedings" dated 2 December 1987. Simply put the dispute was settled firstly upon the expressed undertaking by the appropriate Department to make a commitment to the Commission, the SCSA and the TTLC to properly consult in the future and secondly there was the adoption of an agreed "Policy Statement" in relation to teacher transfers. A further distinguishing factor relevant to this dispute is that a Full Bench2 of this Commission currently has before it an ongoing agenda of items which arose as part of "Structural Efficiency" proceedings. That agenda includes matters relating to:
In its "Reasons for Decision" of 23 August 1990, the Full Bench3 referred to these particular agenda items and ruled at page 13 that:
The SCSA see the transfer of the three teachers concerned as contrary to the Full Bench's* expressed views, adding that in its view the status quo should remain. Whilst only a Full Bench can finally decide such a question, I regard the status quo so far as teacher transfers is concerned as being that which is contained in and attached to Commissioner Gozzi's accepted terms of settlement in dispute T.982 of 1987. Whether or not the Department concerned and the SCSA applied the agreed terms of settlement in current circumstances is a fundamental issue. There can be no doubt that where any two parties accept the terms of an agreement they should observe the strongly held convention that "a deal is a deal", regardless of any other factor. Neither party provided more than non specific and largely hearsay material going to the extent of meaningful consultation which preceded transfer of the three teachers. In some instances the assertions from each side in this respect were contradictory. Whilst I can make no firm findings under such circumstances, the very existence of the present dispute can lead to no other conclusion other than that regrettably little, if any, mutual goodwill pervaded that discussion which did take place at various levels. That is not to say one or more individuals concerned did not act entirely properly. That is a problem the parties need to work at solving themselves. Part "A" of the "Policy Statement" provides that in 3, "Review Mechanism", there shall be an exchange of letters between the parties indicating redress to private arbitration in accordance with Section 61 of the Industrial Relations Act 1984 in the event of a dispute over the proposed transfer of category "A" college teachers. However this has not been done by any party, either before or after the transfer of Mr Price, who falls into this category. Under these circumstances the Commission can have no dispute settlement role at this time. Regardless of any procedural requirements contained in the "Policy Statement" relating to category "B" teachers, the whole of that part of the document relates to the Director-General's power of transfer under Section 42(3) of the State Service Act. Similarly the "Review of Transfers" rest not upon the use of Section 61 of the Industrial Relations Act 1984 but those mechanisms which give teachers right of appeal to the Commissioner for Review under Section 66(2) of the State Service Act 1984. It can only recommend that the parties follow through the review mechanisms which, by agreement, rely upon use of Section 61 of the Industrial Relations Act 1984 in the case of Mr Price and Section 66(2) of the State Service Act in the case of category "B" teachers.
A. Robinson Appearances: Date and Place of Hearing: 1 T.2457 and T.2609 of 1990 |