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T3545

 

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s29 application for hearing of an industrial dispute

Minister administering the Tasmanian State Service Act 1984
(T3545 of 1991)

and

The Secondary Colleges Staff Association

 

DEPUTY PRESIDENT A ROBINSON

HOBART, 12 November 1991

Level 2 and 3 internal marks, predictions, moderation

REASONS FOR DECISION

This matter concerns an application by the Minister administering the Tasmanian State Service Act 1984 for a hearing to settle an industrial dispute pursuant to the provisions of Section 29 of the Act.

The application to the Commission followed a meeting of the Committee of Management of the Secondary Colleges Staff Association (SCSA) on 29 October 1991 which decided that teachers should not continue to do certain work in respect of excess load classes once "excess hours" payment was arbitrarily withdrawn by the Education Department from Friday, 1 November 1991. The SCSA advised its members by special bulletin issued on 30 October 1991, that, in its view, "this does not constitute industrial action as when payment for extra duties has stopped the teachers concerned should revert to their normal full load".

The instruction issued to members by the SCSA was that:

"Teachers who took excess hours classes this year are hereby instructed that they should not carry out the following activities relating to those classes after the date payment ceases, i.e. 1st November 1991:

1. Level two and three internal marks.

2. Predictions.

3. Moderation."

The Minister emphasised the seriousness of the action being taken by secondary college teachers at this time and reinforced this view by tabling a letter from the Secretary of the Schools Board of Tasmania which detailed the reasons why the prompt receipt of supporting assessment material from teachers is of vital importance. In particular the Board said it needs to have all internal assessments for Level III subjects in to the office by 9.30 am on Tuesday, 12 November 1991. This is the first day of written examinations and internal assessments and predictive marks are required before they take place - if they are not received they could be considered invalid by the Board. If this was the case students whose results were not received would get no result in that subject on their Higher School Certificate (HSC).

It was said that if the Board were to accept that results in any particular subject would be accepted up to the date on which that subject has its external assessment students would get their results but because the processing procedures of the Board require that all assessments from a given college in all subjects are entered before processing takes place all results for a given college would be delayed and might well not be able to be issued by 8 January 1992.

A further consequence is that the results Statewide in any particular subject cannot be processed until the Board assumes that it has all the results that it is going to deal with. The Board said it must therefore decide in the next two or three days at what date it will draw the line on assessments received and proceed with developing awards. Once it does this other students' results could not even be considered until after the main batch of results had been processed. Students whose results had not been forwarded from colleges or whose teachers had not taken part in moderation in Geography or TD would not get those subjects on certificates issued in January.

Any subsequent results that might be accepted by the Schools Board would have to be added to the certificate later and a subsequent replacement certificate issued. Students in this position might well fail to get entry to the University of their choice on first application. The Board could not allow delay of all students' results in all subjects because of the failure of teachers to provide this information. The time line is therefore very short; results for all by Tuesday next or some students in some subjects will probably fail to get complete certificates in January.

Finally the Board said that any action it might take to try to ameliorate the situation for the students concerned could only be done with considerable additional staffing expense and there will be a far greater risk of inaccuracy in results because of the way in which they would have been processed.

The Minister's representative pointed out quite correctly that the general question of the payment of "excess hours" is currently included in an agenda of items currently before a Full Bench of this Commission and has yet to be considered. Accordingly it would be inappropriate for me to become involved in the merit of that subject matter at this time.

It was complained that the SCSA had decided to embark upon its current action without warning or proper prior notification to the relevant Department.

Mr Payne said that as at 4 November 1991 teachers in secondary colleges had no formal teaching of classes duties as students were on "swot vacation" preparing for examination. And because "excess hours" payments only apply to the teaching of extra classes, there can be no entitlement to continued payment of "excess hours" once timetabled student contact time ceases. This is set out more succinctly in a letter from the Department of Education and the Arts to the Secretary of the Tasmanian Teachers Federation (TTF) dated 30 October 1991, which provided as follows, inter alia:

"Dear Mr Reidy

PAYMENT OF EXCESS HOURS - COLLEGES

Thank you for your letter dated 28 October 1991 concerning the above matter.

As you are aware, access to the payment of excess hours requires that a teacher, as a prerequisite, has completed:

(a) Three lines of timetabled student contact time equalling a period of 15 hours; and

(b) Three hours of pastoral care and associated activities.

Once the above has been met and additional timetabled student contact time is required of a teacher by the college, then payment at the appropriate penalty rate is made.

Over the past seven to eight years payment of excess hours has ceased on the last day of the timetabled contact time preceding the commencement of the students' "swot vac".

Given the above prerequisite it is, therefore, inappropriate for the payment of excess hours to continue beyond the last day of timetabled contact time which precedes the commencement of the student "swot vac"."

Mr Payne also sought some comfort from the Interim Decision of the Full Bench dated 23 January 1991, which dealt with teacher contact hours in secondary colleges and the requirement for Teachers, Senior Masters and Deputy Principals to accept additional classroom teaching duties, with additional payment.

Although not referred to the relevant part of that decision provides as follows at page 4:

"In all the circumstances therefore we have decided to accede to the application by the SCSA, as amended, and we are prepared, on an interim basis, to vary the Teaching Service (Teaching Staff) Award by providing that:

(1) Teacher contact hours in secondary colleges remain at 15 scheduled classroom teaching for a teacher, and that a further 3 hours required to make up a teacher's normal load consist of those components specified in Standing Order No 1, Clause 6. In the case of Senior Masters and Deputy Principals the corresponding teaching hours be 10 and 2 respectively; and

(2) Teachers, Senior Masters and Deputy Principals may be required to accept additional classroom teaching duties, but will qualify for additional payment on the same basis as now applies in the case of working "excess hours" when other teachers are absent or cannot be recruited, etc.

    PROVIDED THAT

    (a) Preference of selection of personnel to perform these additional classroom duties will be given to those who volunteer, and

    (b) In the event that there are insufficient volunteers, reasonable notice of the requirement to work additional contact hours must be given.

This interim arrangement is to remain in place pending the completion of the Special Case. The parties should note clearly that this arrangement will conclude upon the finalisation of the Special Case proceedings and is without prejudice to the resolution of all matters."

It was argued that for any teacher to qualify for "excess hours" payment they must at all time have completed 15 hours of timetable teaching, plus a further 3 hours of classroom time devoted to pastoral care and the like as specified in Standing Order No 1. In this case there are no such teaching duties.

Accordingly the Commission was asked to direct the SCSA and its members to lift their present bans on specified work and that the matters in dispute at this time be decided by the Full Bench dealing with "special case" wage rates and conditions of employment.

Finally the offer was made by the Minister to apply any decision of the Full Bench in relation to this particular dispute issue retrospectively if it is favourable to teachers.

The SCSA responded by saying that its members who are following the directive are not in breach of the award as they are working their full quota of hours as per the award, and more, since formal classes ceased in secondary colleges. It also pointed out that the full range of duties are being performed in respect of their normal 3 lines, and that since they are no longer being paid for duties associated with the fourth line they are within their rights in not performing such extra duties.

More particularly teachers required to teach a fourth line have in the past been paid excess hours payments:

(a) At the beginning of the year before schedules class teaching began.

(b) During midyear when classes were not being taken because internal assessments were being carried out.

(c) At the same time last year (1990) after class teaching had ceased.

Furthermore temporary teachers who are employed in secondary colleges at any time during Term I are paid up until the last day of the college year notwithstanding the fact that formal classes are not taught during part of that time. If personal commitments prevent their involvement in other activities when they are rostered during the last 2 weeks then their appointments are terminated at the end of the 38th week.

For those temporary teachers appointed after the end of Term I and the appointment is for the remainder of the year, then that appointment terminates at the end of the 38th week of the college year.

The SSA also produced and relied upon:

(a) The Education Department's Standing Order No 1, dealing with hours of duty of secondary college teachers; excess hours; and part-time employment.

(b) Extracts of transcript in the current Full Bench matter going to evidence given in relation to the workload and duties of teachers during "swot vac" times.

(c) An exhibit (4) detailing Colleges and teachers who were paid excess hours beyond the end of formal classes in 1990. Fourteen teachers names were supplied from three named colleges.

The list was said not to be exhaustive because of time constraints.

Argument by the SCSA in justification for the right to continue payment of "excess hours" beyond November included the fact that circumstances have drastically changed over the last 12 months in particular.

Teachers once performed extra load duties voluntarily, but subsequently teacher numbers have been cut and some 700 extra pupils enrolled, and because of this they are no longer volunteering their time without payment.

Mr Lane of the TTF supported the SCSA submissions and tabled copies of correspondence between his organisation and the Department concerning the decision to cease "excess hours" payments from 1 November 1991. He too included in his arguments against the Department's decision the fact that a precedent was established in 1990 when the "excess hours" payment was continued beyond the time that classes finished.

The Minister initially refuted the evidence produced by the SCSA concerning "extra hours" payments being made to teachers last year beyond the time when formal timetabled classes ceased.

The Commission contemplated adjourning proceedings and to require the calling of witnesses to establish the truth or otherwise of disputed facts relevant to the contested issues. However the SCSA produced two further exhibits (8 and 9) which related to the specific details of payment of excess hours to four teachers at Hobart College in November 1990.

The Minister's representative concluded that two of the four people would be entitled to excess hours payments beyond the time when formal timetable teaching ceased because they were relieving other teachers absent on leave of one kind and another - and accordingly had a continued extra load after formal classes ceased.

Decision

My task is to find a prompt solution to a dispute when has potentially serious ramifications if not resolved quickly. That imperative exists notwithstanding the added complication of the general question of contact teaching hours and entitlement to "excess hours" payment being before a Full Bench of this Commission.

In my attempts to find a solution to the current impasse the avenues of conciliation were explored to the full, but the parties would not accept any common ground.

Regrettably therefore I have no choice but to arbitrate.

Whilst the parties frequently averted to the extent of duties teachers in secondary colleges must perform during "swot vac", including the extent of contact time with pupils, this goes directly to the question of merit and the justification or otherwise of paying extra hours payment during such time. And even though I encouraged and condoned an inspection at Rosny College, that was part of the conciliatory process only.

I make it quite clear therefore that nothing in my decision can be construed as determining one way or another the merit of "extra hours" payments either during ordinary formal class teaching periods or subsequently. My reasons for refusing to consider merit are that:

(a) The matter is currently before the Commission differently constituted, and

(b) Such a determination may be beyond jurisdiction in a Section 29 matter.

In the alternative I rely upon both consideration of past precedent, equity and the words used by the Full Bench in its interim decision of 23 January 1991. At page 4 the Full Bench said, inter alia:

"Teachers ... will qualify for additional payment on the same basis as now applies in the case of working "excess hours" when other teachers are absent or cannot be recruited, etc."

It is beyond question, that "excess hours" payments have been made in the past to teachers with an extra class load after teaching finished, but only if they were designated as relieving another teacher who was on leave.

There is also indicative evidence that other teachers were also paid "excess hours" payment at the same time last year, despite the controlling authority's denial that this was so.

I believe therefore that a precedent was established in 1990.

Accordingly, in settlement of this particular dispute, I recommend in the strongest possible terms that:

1.  The SCSA and the TTF forthwith instruct their members employed in secondary colleges to carry out the full range of duties required of them.

2.  Teachers employed in secondary colleges who were previously instructed by the TTF and the SCSA to not carry out the following activities relating to "excess hours" classes in fact now carry them out, i.e.:

         (a)  Level two and three internal marks.

         (b)  Predictions

         (c)  Moderation

3. Teachers in secondary colleges who qualified for and were paid "excess hours" payment immediately prior to 1 November 1991, and who still have responsibility for an extra line after that date be deemed to continue to qualify for such payment and be paid accordingly.

Should the parties be unable to agree as to the duration of such excess payments beyond 1 November 1991, leave is granted to refer this question back to the Commission for resolution.

 

A Robinson
DEPUTY PRESIDENT

Appearances:
Mr G Payne with Mr P Radcliffe and Mr H Price for the Minister administering the Tasmanian State Service Act 1984.
Mr D Elliott with Ms P Moran for The Secondary Colleges Staff Association.
Intervening - Mr C Lane for the Tasmanian Teachers Federation.

Date and place of hearing:
1991:
Hobart
November 7, 8