T4253 andT4255
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 The Secondary Colleges Staff Association Tasmanian Teachers Federation and Minister administering the Tasmanian State Service Act 1984
Industrial dispute - transfer of teachers REASONS FOR DECISION These matters concern applications by The Secondary Colleges Staff Association (SCSA) and the Tasmanian Teachers Federation (TTF) for a hearing to settle an industrial dispute pursuant to Section 29 of the Industrial Relations Act 1984. Both organisations were in dispute with the Minister administering the Tasmanian State Service Act 1984 concerning the involuntary transfer of six college teachers - claiming that such transfers were effected without regard to the terms and conditions of the "Secondary Colleges Staffing Policy". The Minister refuted the allegations contained in the applications and said exceptional circumstances existed and that the staffing policy had been followed in all respects. At the commencement of proceedings and subsequently the Commission encouraged the parties to enter into meaningful discussions concerning the individual circumstances relating to each of the teachers involved in involuntary transfer. The parties participated in such an exercise but regrettably no settlement was achieved through the conciliatory mechanism. As a consequence the Commission was left with no alternative other than to invite the SCSA and the TTF to prosecute their cases and allow the Minister to respond. Both teacher organisations relied upon the existence of an agreed "Policy Statement" as giving rights of tenure to all permanent secondary college teachers who were appointed up to and including 1988. They pointed out that on 6 January this year the Minister then sought to alleviate the concerns raised in proceedings before the Full Bench dealing with the Government's "economic incapacity to pay"1 application in relation to preservation of conditions of employment for teachers pro tem. At that time the Full Bench was told that the Minister gave an unequivocal commitment that the employing authority would not change the status quo relating to conditions for teachers until the outcome of that application was determined and Orders were brought down. The Minister's statement to the Full Bench went on to specify that status quo meant conditions and details attaching to them that applied in 1992, and more particularly, were the hours of duty as contained in the award currently; the subject of contact hours; the subject of the teacher year; the subject of excess hours; the senior staff configuration for post-primary sectors; and the question of teacher transfers both for the secondary college teachers and for all other teachers. The applicants in these matters pointed out that the six teachers concerned were all "staffing status A" and that the agreed "Policy Statement" provided 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." It was said that "exceptional circumstances" had always been accepted in the past as meaning that there existed no teaching load for the teacher concerned in the college in their usual teaching area. Both the SCSA and the TTF said that in no case presently involved did exceptional circumstances exist and dealt at length with the individual circumstances of each of the six teachers in this regard. In each instance it was asserted that a teaching load could be found to exist. It was further asserted that in most, if not all cases, there were some known "non-category A" teachers (and probably others) who could teach the same subjects as teachers transferred but who were left in the relevant college or district and should not have been. Similarly it was asserted that there were instances of temporary teachers and teachers working excess hours who were receiving preferential treatment to the disadvantage of "category A" teachers now transferred. The complaint against the Department of Education and the Arts (the Department) included the alleged non-observance of that part of the agreed "Policy Statement" which provides that: "Consultation with the teacher concerned will take place prior to the transfer." The SCSA and the TTF alleged that teachers were simply told after a decision had been made that they were to be transferred. This caused those teachers to be stressed, and in two instances the teachers concerned were absent from duty due to stress-related illness, with one claiming workers' compensation. Finally the submissions of both teacher organisations claimed the Department refused to abide by that part of the agreed "Policy Statement" which provides as follows: "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." The Commission was told that following discussion and negotiations and the failure to resolve the dispute by this mechanism a letter in the terms expressed by Section 61 of the Act was prepared and presented for signature but the Department refused to sign. Section 61(1) of the Act provides: "Where the President is of the opinion that it is desirable to do so for the purpose of resolving an industrial matter concerning 2 or more parties, he may, at the written request of all those parties, appoint a Commissioner to conduct an arbitration in respect of that industrial matter, subject to the parties agreeing to accept the Commissioner's decision on the arbitration as final." No witness evidence in support of submissions by the two applicant organisations was provided. However a number of exhibits consisting of letters to a newspaper; correspondence between various parties; unsworn statements, and a decision in matter T.982 of 1987 were relied upon. The Minister responded by making submissions, calling two District Superintendents as witnesses and providing exhibits consisting of a newspaper report and a letter from one of the college Principals involved. Mr Payne acknowledged the fact that each of the six teachers whose involuntarily transfers gave rise to the dispute enjoyed "staffing status A", and that the agreed "Policy Statement" continues to have application. Emphasis was given to what was claimed to be exceptional circumstances arising out of an unprecedented reduction in college student enrolments for 1993 over and above that anticipated. This had occurred at all colleges except Rosny College and gave rise to the need to reduce teacher numbers proportionately. The measures taken included advising a number of temporary teachers that they would not be required for this year and then consulting permanent teachers at each workplace in relation to how best deal with the changed circumstances. Mr Payne pointed out that transfers of teachers within the college and school system were allowable and unavoidable in some circumstances. He said that in this regard "staffing status A" teachers were not exempt from involuntary transfer where exceptional circumstances exist. Whilst there was compliance with the terms of the agreed "Policy Statement" in each instance primacy had also to be given to the educational needs of students in colleges and schools throughout the State. Both District Superintendents, Mr Turner and Mr Salier, gave sworn evidence to the effect that the six teachers had been consulted prior to transfer and every avenue explored to see if alternatives to transfer existed. Both persons presented as highly professional men who were well equipped to explain in detail aspects of alternatives to transfer which were raised either in evidence in chief or through sometimes intensive cross examination. Some of the evidence given was hearsay and related to things done and said by college Principals who were not themselves called as witnesses. Nevertheless both Superintendents became directly involved in the issues and gave highly credible accounts of the relevant facts. It was stated that in some instances teachers tended to exaggerate the full extent of their suitability to teach some subjects which were available in their preferred college or locality, and their views in this regard may be contrary to those held by their Principals who were responsible for their college or school as a whole. Whilst the primary issue before the Commission concerned the question as to whether or not six named teachers were properly transferred in accordance with the agreed "Policy Statement" or were entitled to be reinstated to their previous college, other questions arose during the course of proceedings. Firstly the agreed "Policy Statement" refers to "exceptional circumstances" which are not defined. Through my involvement in other disputes and award matters relating to the same subject matter, and having regard to the submissions of the parties in this matter I am able to conclude that variation of student enrolments in schools and colleges from year to year is not of itself exceptional. Obviously extreme variations in numbers, either upwards or downwards (particularly if not predicted) cause administrative difficulties which must be faced. The agreed "Policy Statement" is in relation to all permanent secondary college teachers appointed up to and including 1988 and recognises that such teachers are entitled to preferential treatment when transfers are being contemplated. In this context therefore the policy would be meaningless if "status A" teachers could still be involuntarily transferred on the same basis as teachers not entitled to be similarly recognised. It follows therefore that "exceptional circumstance" can logically relate only to circumstances where there is not a teaching load for a teacher in the same college or district. The parties also argued at length as to whether the actions carried out constituted "prior consultation" which is to take place before an involuntary transfer. I will return to the question of whether certain facts were proven or not shortly, but meanwhile accept that "consultation" requires an input by two or more persons to enable all relevant facts relating to an issue to be revealed, then properly weighed and assessed before a final outcome is reached. Obviously contemplation of the taking of any action will arise before consultation occurs, but this should not be confused with the making of a firm decision and then advising the person to be affected of the result. The third matter which requires comment is whether or not the "review mechanism" contained in the agreed "Policy Statement" was followed. This mechanism is an important dispute settlement procedure which contemporary industrial practice recognises as being an integral part of any fair regulation of industrial affairs. The wording of that mechanism warrants being here repeated: "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." The simple fact is that the Minister refused to comply with that part of the agreed "Policy Statement" notwithstanding the fact that such provision forms part of the conditions of employment for teachers and notwithstanding the giving of an unequivocal commitment to a Full Bench that the status quo would not be changed for a specified period. It must be acknowledged however that subsequently during the course of the hearing the Minister gave in the alternative a verbal assurance that any recommendation I made in relation to the settlement of the dispute would be accepted. I now return to the issue of the appropriateness of the transfer of the six teachers concerned vis-a-vis the agreed "staffing policy". I point out that in any contested matter the onus is upon an applicant to prove the case. As a lay tribunal the Commission does not prevent the introduction of hearsay, or other second best material, in either the presentation of a claimed situation or as part of a response. However the Commission relies upon the production of best evidence to assist it in establishing facts which are at issue. In the present matters both the SCSA and the TTF presented a strong, detailed and compelling case for the reinstatement of their respective members to the places they occupied prior to being transferred. Even though the two teacher organisations may have satisfied themselves as to the reliability of what they had been told and were no doubt genuine in the allegations and assertions they made in their submissions to the Commission, no witnesses were called to give sworn evidence and face questions and cross-examination. A partial explanation was offered in that two of the teachers involved were absent from work suffering from stress- related conditions. However no reasons were advanced for not calling the remaining persons even though it should have been obvious that some witness evidence may have been indicative of a general situation. In contrast the Minister produced two witnesses who presented as reliable and truthful and who contradicted all that had been alleged by the SCSA and the TTF. This type of evidence is best evidence where it related to matters within that person's direct knowledge. Hearsay evidence which was also presented carried less weight. There is an uncontested prerogative right of the Department to manage schools and colleges to make the best use of human and other resources to achieve optimal educational outcomes for students under often difficult circumstances. After considering all of the evidence and material before me I cannot conclude that, on the balance of probabilities, it has been shown that teachers were denied their rights as "status A" teachers when being required to transfer. It follows that I am not prepared to recommend any disturbance to the present arrangements made by the Department of Education and the Arts.
A. Robinson Appearances: Date and Place of Hearing: 1 T.2457 and T.2609 of 1990; T.2884, T.2887, T.2888, T.2991 and T.2993 of 1991; T.3741, T.3791, T.3792 and T.3862 of 1992. |