T5493
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Australian Education Union and Minister for Public Sector Management
Industrial dispute - alleged breaches of agreements REASONS FOR DECISION The Australian Education Union, Tasmanian Branch (AEU) made application pursuant to Section 29 of the Act alleging that the Minister for Public Sector Management had breached subclause (6)(b) of the State Service Wages Arrangements Department of Industrial Relations, Vocational Education and Training - Australian Education Union (Non Teaching Staff) Agreement and subclause (6)(b) of the agreement applicable to Teaching Staff. The agreement for Non Teaching Staff was registered by the Registrar on 3 June 1994 and the one for Teaching Staff on the same date. The agreements were the subject of applications T5068 and T5069 of 1994 respectively. For the purposes of this decision the two separate agreements, as subclauses 6(b) of each agreement are the same, will be referred to as the Agreements. Subclauses 6(b) in the Agreements state:
Mr Evans appearing for the AEU submitted that the Minister had unilaterally altered conditions of employment for employees subject to Technical and Further Education Staff Award. The actions taken by the Minister were stated in Attachment 1 to the application in the following terms:
Mr Willingham appearing for the Minister informed the Commission that the conditions of employment issues in contention were addressed in negotiations between representatives of the Minister and the AEU. He contended that in the negotiations which had occurred some 19 issues were discussed including those subject to this dispute. Mr Willingham submitted that the negotiations resolved approximately two thirds of the matters of concern to the AEU. It was made clear by Mr Willingham that the 19 issues would be dealt with in toto. He said:
Having regard to the submissions of the parties it is obvious, to put it mildly, that a significantly different view was held by them in respect of the outcome of the 19 point negotiations. The AEU contemplated that the Grievance Procedure in the Agreements would be activated whilst the Minister saw the negotiations concluding on the basis of a package outcome relating to all 19 points. The Commission is not prepared to offer any comment in respect to the marked disparity in the understandings of the negotiation parameters held by the respective parties Additionally submissions were put by Mr Evans and Mr Willingham concerning the applicability of the Agreements. Mr Willingham submitted that the 19 points in issue stood outside the processes of those Agreements whilst Mr Evans submitted equally as strongly that they were within it. For my part the misunderstanding between the parties on that issue was also very regrettable or worse. However that may be I have formed the view that the Agreements provide in accordance with Stage 2 the capacity for "existing claims" to be dealt with. Whilst Mr Willingham argued that reference to "existing claims being progressed under stage 2" related to Special Cases only, the Commission accepts the AEU'S position that this constraint or limitation was not specified in the Agreements. In any event it is beyond question that there is a dispute which requires resolution. In the circumstances common sense suggests the adoption of an orderly process for that to happen. An orderly process is contained in clause 6 - Grievance Procedure of the Agreements. The Commission accepts that unproductive negotiations on the issues in question were held. Accordingly the requirements of subclause 6(a) for the parties to hold discussions has been satisfied. The next step in the Grievance Procedure requires the matters in dispute to be forwarded to the Tasmanian Industrial Commission for arbitration. In that regard Mr Evans requested an order for breach of Agreements to be issued against the Minister and that the conditions of employment in question be reinstated back to when they were altered. In my opinion that would do nothing to resolve the dispute. As I have said I accept that negotiations in accordance with subclause 6(a) of the Grievance Procedure have been exhausted. Mr Evans made that quite clear. Therefore it seems to the Commission that the issues in question should be brought forward for determination which after all is the approach set out in the Agreements. The Commission is aware that the introduction of a teaching load reduction of 7 hours per week for permanent teachers undertaking teacher training and teaching hours credited when teachers are on approved paid leave are impacting on teachers already. In that regard and in accordance with the normal conventions that apply in matters of this kind where the Grievance Procedure is invoked, the Commission requires the employer to now revert to the arrangements that existed prior to the introduction of those changes. In my view it is not practical to invoke the status quo back to when the changes were first made. That may be a matter for determination in respect of operative date following the hearing on merit of the matters in dispute. In the interim the status quo should be reintroduced from 3 July 1995 and to remain subject to the outcome of any determination that may be made by the Commission. At this point the Commission declines the AEU's request to issue on order. However the Commission has an expectation that the requirements outlined above will be observed and that a suitably framed application will be brought forward no later than 10 July 1995.
R K GOZZI Appearances: Date and Place of Hearing: |