T7589 and T7629 - 17 April
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 The Community and Public Sector Union Australian Education Union, Tasmanian Branch and Minister for Public Sector Administration
Industrial dispute - decision made by employing agency, Department of Education, Community and Cultural Development, affecting the terms of employment for Teacher Aides and Clerical Staff employed for school terms - payment sought for days in excess of school terms - 20 April and 4 September 1998 found to be part of school holidays - recommended Minister honour undertaking to engage employees for 40 or 42 weeks per annum as per past custom and practice - applications dismissed - circumstances of individuals to be considered if discrimination occurs REASONS FOR DECISION Application T No. 7589 of 1998 was lodged by the Community and Public Sector Union (State Public Services Federation Tasmania) (the CPSU) pursuant to section 29 of the Industrial Relations Act 1984, for a hearing in respect of an industrial dispute with the Minister for Public Sector Administration regarding a decision made by the Department of Education, Community and Cultural Development affecting the terms of employment of all Teacher Aides and Clerical Staff who are employed for 40 to 42 weeks per annum and including both temporary and permanent employees. Mr Elliott, for the Australian Education Union, Tasmanian Branch (the AEU) sought and was granted leave to intervene. Mr Gourlay accepted service of the notice of dispute on behalf of the employer, the Minister for Public Sector Administration, notwithstanding the application had been made out citing the Department of Education, Community and Cultural Development as the employer. As a preliminary point Mr Gourlay sought clarification as to the details of the alleged dispute and the remedy sought. Ms Strugnell, representing the applicant union, then provided a statement of particulars setting out the circumstances of the dispute and the desired remedy. She said these issues had been discussed with other Departmental staff during the preceding weeks. Mr Gourlay acknowledged the details of the claim had satisfied his preliminary enquiry. The revised Statement of Particulars reads as follows:
Ms Strugnell estimated that approximately 800 employees would be affected by the Agency's decision. She submitted that the core of the dispute was whether the two days in question were school holidays or student free days. To provide background to the dispute the Commission was provided with a copy of a Circular1 from the Tasmanian Secondary Assessment Board (TASSAB) dated 29 April 1997, which indicated that the Minister for Education had requested the Board to alter moderation dates to minimise disruption to schools and colleges as well as make it more convenient and predictable for parents. The Minister, the Circular stated, had "particularly requested that (the Board) investigate the possibility of holding moderation days which are `end-on' to existing holidays". On 2 September 1997 a Circular Memorandum from the Department's Acting Director (Human and Personnel Services) was sent to Principals of All Schools and Colleges and Senior Officers to be brought to the attention of all staff, parents and the community, providing information about dates of attendance of students and teaching staff for 19982. The term dates for students were set out as:
Teaching staff were advised to return to work on 2 February 1998 for colleges and 9 February 1998 for primary, special and secondary schools. Teaching staff were not required "to attend for duty on the three working days during the Easter break, i.e. 15 - 17 April 1998". The circular informed staff that new arrangements were to apply in respect of the professional activity days required under the Teaching Service (Tasmanian Public Sector) Award of the Federal Commission in that:
On 14 November 1997, a further Circular Memorandum3 was issued to Principals of All Schools and Colleges and Senior Officers "to be brought to the attention of all teaching staff with a copy to be placed on staff notice boards". The circular contained information relating to the "official commencement and finishing dates for all school/college based staff for the 1998 school year". The Easter Break - 15 to 17 April 1998 for teaching staff - was dealt with in the following way:
The circular confirmed the previous advice in respect of "professional activity days" and noted that the additional three professional activity days not for the purpose of TCE subject moderation, were to be scheduled for whole of school professional activities throughout 1998. Advice in respect of non-teaching staff dealt with the starting and finishing dates for the school year for teacher aides viz. 2 February 1998 to 11 December 1998 for colleges and 9 February 1998 to 18 December 1998 for schools; the same dates were to apply for all administrative/clerical staff employed on a school-term-only basis and for those administrative/clerical staff, i.e. administrative officers, who are employed for forty-two weeks per year in a school from 27 January 1998 to 18 December 1998. In respect of the Easter Break (15 to 17 April 1998) it was noted that all non-teaching staff working 40 or 42 weeks per year would be required to proceed on either annual leave or leave without pay during the three days immediately following the Easter holidays. Ms Strugnell submitted there was nothing in this circular which suggested that something different was to apply in respect of the two days in dispute. By letter dated 11 March 19984 the Department informed the CPSU, in response to that organisation's enquiries in respect of Teacher Aides only, that although the school term dates for 1998 were slightly changed to facilitate the moderation process of curriculum delivery in schools, arrangements for Teacher Aides would remain unchanged from previous years. The letter went on to inform the CPSU that "this year the easter break for students will extend from Thursday 9 April until Monday 20 April". Teacher Aides were to have the same break and would "have the option of accessing accrued leave for this period". The CPSU was advised:
It was accepted that the reference to 4 July should have been 4 September. Ms Strugnell said that on 16 March 1998 she had sought from the Department copies of the letters of appointment of all employees who could be affected by the "two pupil-free days" proposed for 20 April and 4 September; a copy of advice sent to those employees informing them of the proposal; and a copy of the authority which authorises the extension of two school breaks in 1998 (or authorises the reduction of two school terms - whichever applies). She said she had received no reply. On 24 March 1998 a Circular Memorandum No. HR 12/985 was issued to principals of All Schools and Colleges and Senior Officers, headed School Closure - Easter. All employees were to be made aware of the arrangements and a copy was to be placed on appropriate staff notice boards. The circular commences -
And further states -
An Easter 1998 Leave Advice form was attached and it was noted that "all employees concerned should be consulted as to the option of taking annual leave or leave without pay". The completed forms were to be returned to District Offices by 2 April 1998. Ms Strugnell tendered copies of a number of letters of appointment of what she termed 40 or 42 week employees, which seemed contain end of year dates at odds with those in the circular memoranda namely 17 December rather than 18 December. Most contained the condition that the employment period was "exclusive of school holidays". One letter of appointment dated 11 June 19966 concerned a clerk employed on a part-time basis whose hours were increased from 60 to 65 hours per fortnight. No reference was made in it to school holidays. That exhibit included a letter from the Department dated 21 March 1998 to the employee advising her that she had recently been appointed in a permanent part-time capacity and it acquainted her to her superannuation options. Ms Strugnell tendered generic position descriptions for a School Office Clerk (Exhibit 13), Clerk (Exhibit 14), Classroom Teacher Aide (Exhibit 15) and Technical Teacher Aide (Exhibit 16), all of which, she said, referred to tasks which would provide the employees with "ample" work for the two days in question even though teachers would be involved in the moderation process and no students would be present. She said the days were included in the school terms as per the circular memorandum of 14 November 1997, and teacher aides were not required to seek leave on those days until the release of circular memorandum of 24 March 1998, which was after enquiries had been made by the CPSU, after the school year commenced and after staff had received their letters of appointment. Ms Strugnell rejected the proposition that April 20 and September 4 were school holidays; she submitted they were days which students were not required and teachers were required to undertake professional development. If that submission did not find favour with the Commission, Ms Strugnell said the Commission should not allow a disadvantage of an unknown quantity to be imposed on those employees. It was submitted that if a part-time employee did not work on either of the days, i.e. a Monday or a Friday, teacher aides would be completely unaffected by the changes and would be paid normally and not have to apply for leave. If an employee was due to work on both or either of the days there would be significant disadvantage, she said. Mr Elliott submitted that his organisation's purpose in intervening was to support the CPSU's application and the orders sought and to protect the interests of his organisation's members. Mr Elliott said the days in question were moderation days not school holidays and there were to be two pupil-free days, regardless of grade, whether teachers had moderation days or not. Where teachers were not involved in moderation (primary school teachers) they would engage in professional development. He said the AEU believed Teacher Aides could also participate in professional development on a whole-of-school basis, or with their Teacher Aide colleagues. That had been suggested to the Department, Mr Elliott said, and he referred to page 7 of the AEU exhibit which was a copy of a letter to the Superintendent of Bowen District from the Principal of a primary school dated 26 March 1998, seeking assistance in ensuring that all staff could attend professional development sessions involving "Teacher Assistants" on the two days. The letter indicated that the Principal had assumed that the allocated professional development days on 20 April and 4 September would apply to all staff and, due to restrictions in the school budget it was one of the few ways the school would be able to support professional development for all staff this year. Mr Elliott submitted the same number of teachers had attended moderation in the past and teacher aides and clerical employees had been employed and paid as normal on those days. On the first day of Term 1, he said, teachers are present and students are not, but teacher aides are present and paid. Mr Elliott submitted there were issues of equity involved because different groups of employees within the agency were being treated differently and there was an equity issue also between the group of employees. This was due to the fact that they were part-time employees. Mr Elliott pointed out that the TASSAB letter was dated 29 April 1997; the Circular Memorandum HR 50/97 was dated 14 November 1997, nearly a six months gap, and the employees had every right to expect that the conditions set out in that Memorandum were the conditions to apply to them in 1998. He said the Department had plenty of time "to sort the mess out" and if it had been the intention to require teacher aides to take leave on those days "it had six months to tell them". He said even if the days were school holidays it was inappropriate for the employer to unilaterally change the employee's contract after it had come into effect. He said it was poor industrial practice on the part of the employer to vary fundamental conditions of employment to the employee's detriment by sending out a circular which contradicted a previous circular. Mr Elliott claimed there was no consultation with the employees or the unions and that it was management by "decree and on the run". He submitted that it was most likely that months after the decision had been made to change the moderation days the question was asked "What are we going to do with T.A.'s?", and somebody also worked out that money could be saved if they were "stood down". Both Mr Elliott and Ms Strugnell submitted they had been told in discussions with agency representatives that it would cost the agency $100,000 to provide those employees with professional development on the days in question. They were unsure whether that amount included the cost of wages on those two days as well as other professional development costs. Mr Gourlay raised a jurisdictional issue in relation to the application of paragraph 31(2)(a) of the Industrial Relations Act 1984, and section 25 of the Education Act 1994 which is -
He cited particularly paragraphs (d), (e) and (f) which he said covered the major elements of the dispute and added that section (2) provided the Minister with the power to direct the Secretary to issue instructions in relation to those matters. Notwithstanding this reminder as to the Commission's jurisdiction, Mr Gourlay proceeded to deal with the merits of the dispute. He submitted the category of employees was referred to as "school term only employees". He said that the arrangements for these employees for 1998 were unchanged compared with previous years with the exception of the earlier commencement date for Term 1, and their attendance on two pre-determined dates during the 1998 school year. The outcome, he submitted, was they would receive the same terms of employment as they had in previous years and they would attend for work on the same number of days as they had in previous years. Mr Gourlay tendered Exhibit G.1 which set out in tabular form the number of weeks worked by school-term-only employees in each term, and in total, for each of the years 1996, 1997 and 1998. The document indicated that in each year a total of 40 weeks would be worked. He submitted that if those employees were to be permitted to work on the two days they would be employed for 40.4 weeks. Mr Gourlay acknowledged the 14 November 1997 circular did not make reference to the professional development days being non-attendance days for school-term-only employees. He said the agency should have done so as it was always the agency's intention. Mr Gourlay tendered circular memoranda, two for each year, issued by the Director (Human and Personnel Services) in 1995 and 1996 (Exhibits G2 and G3 respectively) which contained advice regarding "term dates for students" and "attendance time" for teaching staff. They also, in the later memorandum in each year, set out the employment arrangements for non-teaching staff. It was noted that either the Minister for Education or the Deputy Secretary (Education) had approved the term dates. Mr Gourlay argued that the Department paid these employees on a fortnightly basis having regard to the hours per fortnight they were employed to work. He said they were not paid on a timetable basis. Whether they worked on a Monday or Friday (the two days in question) was irrelevant; accordingly each employee engaged for 40 or 42 weeks per year would be paid for the hours for which they were engaged, not the hours they worked. Therefore he said they would not suffer any loss of pay over the year. He claimed that whilst there might be a loss of pay on the two days in question, that loss would be compensated by the two days which had been added to the start of the school year. He agreed that the contractual arrangement had been somewhat distorted in respect of the hours of work per fortnight specified in the letters of appointment because of the change in school holidays. In that respect he relied on section 25 of the Education Act. Mr Gourlay was then -
When the hearing resumed on 9 April 1998, an application7 lodged by the AEU on 1 April 1998, notifying a dispute with the Minister for Public Sector Administration in respect to the time limit of April 2 imposed on employees to apply for annual leave or leave without pay, was joined with the earlier dispute notification for the purposes of hearing. Mr Gourlay informed the Commission that following the adjournment on 1 April, and in accordance with the Commission's recommendation, the Department had "in good faith postponed the processing of leave for the employees concerned". He submitted that a school holiday is a day on which a school takes a break from the functions for which the school is established, that is "the education of its students". Such a break could include ordinary term holidays and special occasions, and it was now commonplace he said for two days each year to be set aside for professional activity or development. Whatever the reason, he said, the student community is on holiday and that holiday is a school holiday. The fact that teaching or other staff might be required to attend school for any purpose does not affect the character of the day as a school holiday, he said. There had been no objection to that process in respect of the three day break after Easter since it was introduced in 1994. He submitted there was no breach of contract or stand down involved. He said the employees had been requested to proceed on annual leave or take leave without pay which was a legitimate process provided for under the Tasmanian State Service Act and Regulations. He repeated that the overall term of employment was the same as in previous years and that no individual could take home less pay because the employees were not paid by timetable but on a fortnightly basis. In respect of the specific points made in the CPSU'S statement of particulars, Mr Gourlay submitted -
He submitted the applications should be dismissed on the basis of the merit of the Minister's argument and having regard to the restriction contained in section 31(2)(a of the Industrial Relations Act which prevented the Commission from making an order that is inconsistent with the provisions of any Act dealing with the same subject matter. Ms Strugnell submitted that whilst the provisions of section 25 of the Education Act entitled the Minister for Education to determine when a school is open for educational instruction and when it is to be open for the attendance of teachers, it does not give that Minister the power to decide whether or not certain groups of employees will be employed or not employed on those days. As to the question of the definition of school holidays which Mr Gourlay defined as days on which students were not present, Ms Strugnell argued that the days in question were student free days only and that a number of groups of employees were required to be in attendance. Ms Strugnell submitted that the provisions of section 25 of the Education Act did not appear to provide a power to declare a school holiday and on that basis the employees were entitled to be paid for the two days they were "purported to be stood down for the purposes of staff development" of teachers. Ms Strugnell did not accept the Minister's submission that simply because an extra two days was provided at the beginning of the year that all employees would be unaffected, given that their employment may not be on those days of the week, i.e. Monday and Tuesday. She claimed that the proposed change would impact in an uneven manner on the employees concerned. With respect to the Minister's submissions about the Head of Agency arranging annual leave, Ms Strugnell submitted that Regulation 40 of the Tasmanian State Service Regulations permitted the Head of Agency to make arrangements to allow employees to take annual leave and to prepare a roster of annual leave, at the commencement of each school year. She said this was a facilitative provision to ensure leave was available; it was not to make employees take leave at the direction of the Head of Agency. Mr Elliott drew the distinction between "pupil free days" as understood by custom and practice, and school holidays. He agreed that the three days immediately after Easter were school holidays as there were no students present and no teachers present. He said in 1994 three days were added to Easter and taken off the Christmas holiday period. They were therefore genuine school holidays. Mr Elliott said he considered a school holiday was a day on which the school was closed. The days in question had not been declared school holidays by the Minister; he said they are "officially regarded as moderation and professional development days". He submitted that the conditions in the letters of appointment had been unilaterally changed subsequent to them being signed or coming into operation. There was no explanation as to why the November circular did not warn these employees what was to happen to them. He said the employer must accept that the working year of these employees has been extended. Mr Elliott said the averaging arrangement proposed by the Department would fall unevenly on individuals. He said the letters of appointment were not dealt with in section 25 of the Education Act and therefore were not matters about which the Minister for Education had any authority. He said section 22 of the Education Act provided that the employment of persons is subject to and in accordance with the Tasmanian State Service Act 1984. This, he said, was acknowledged in the letters of appointment. He said whatever powers the Minister for Education had to close a school the Minister did not have the power to affect the pay and conditions of employees for whom that Minister is not the direct employer. He said the school term was not defined and that in the past employees had been paid for pupil free and professional development days. He submitted that the 20 April and 4 September were in that category and were not school holidays, and were in fact part of the school term. When asked why the student free days at the beginning of Term 1 were not regarded as school holidays in the same way that 20 April at least was being classified, Mr Gourlay submitted that traditionally school-term-only employees commenced one day earlier than the students. Mr Gourlay agreed there were three different term dates, one which dealt with the student year, one which dealt with the teaching year, and one which dealt with employees engaged to attend on a school term only basis. He said the two days in question were part of the professional development provisions which by award were to be undertaken in school holidays and that was what was now occurring. Mr Gourlay submitted that none of these employees would be disadvantaged compared with last year, that is that they would be employed for 40 or 42 weeks and he agreed that whatever action was taken by the Department would have to be in accordance with the employees' letters of appointment. Observations I am most concerned about the way in which the Department has managed the change to the days of attendance for these employees for the 1998 school year. Mr Gourlay admits that the information about the change should have been provided in a more timely fashion; this admission I think seriously understates the Department's responsibility in the matter. It seems to me that the Department had either not realised the impact of its decision on the 40 and 42 week per year staff or, if it had realised the implication, it had forgotten or decided not to inform these staff members in reasonable time. Either way the Department has treated these employees with scant regard. The implications of the change for these employees at the latest should have been made known to them by way of the November 1997 circular when the Term dates for 1998 were announced. Whilst I sympathise with the parties about the difficulty of finding a shorthand name for the group of employee categories which are the subject of the dispute, it would seem the Department has for some reason, since the November circular, adopted a new name. Until then non-teaching staff referred to in the circulars included categories of employees described as -
The first three categories now appear to be grouped as school-term-only employees. It seems to me that calling both 40 and 42-week-per-year employees "school term only employees" has a certain illogicality. However, whatever generic term is used to describe these employees their employment conditions should be described or identified in clear and unequivocal terms in their letters of appointment. It might for example be useful to define what school holidays are or use a different expression in the letters of appointment. Given the Department's reliance on the assertion that the days in question form part of the school holidays, it is interesting that the Department has requested these employees to apply for leave or leave without pay on those days. The reason for requiring leave applications of some sort for these days is, I presume, to overcome an administrative problem of the Department's own making in that it automatically pays employees their fortnightly wage based on the number of hours per fortnight contained in their letters of appointment and the only way it can recoup payment for the two days in question is to deduct the equivalent from any accrued annual leave payments. If this is so, and everything I have had put to me seems to suggest it is, the Department needs to carefully review its personnel and pay policies and practices to ensure it pays for the services it receives as they are received. Further if the days in question are school holidays, using the Department's definition, no employee whose letter of appointment excludes school holidays should be required to apply for annual leave or leave without pay for those two days. For employees whose letter of appointment does not exclude school holidays or does not refer to employment during term time only, there might well be a different argument which would need to be resolved on the merits and circumstances of each case. Those employees would need to be able to demonstrate that they should be treated differently from the bulk of school-term-only employees whose employment contracts specifically exclude school holidays. Findings The parties to this dispute are agreed that the essential issue of difference between them is whether or not the two days in question, i.e. 20 April 1998 and 4 September 1998 are school holidays. There appears to be no official definition of the term "school holiday", nor is it used in the Education Act 1994, although it was used in the Education Act 1932 which was repealed in 1994. Section 25 of the Education Act 1994 gives the Minister for Education power to determine the days on which a school is to be open for educational instruction and to determine the hours during which a school is to be open for educational instruction and other activities. The Minister may direct the Secretary of the Department to issue instructions in relation to those and other matters referred to in Section 25. Notwithstanding the submissions of the applicants on this point, in the absence of an official definition of "school holiday", I consider it reasonable to conclude, as was submitted by the Minister's representative, that a day when a school is not open for educational instruction is a school holiday. This conclusion is valid, I believe, no matter how many categories of employees are employed and present for work on such a day. Notwithstanding my concern about the administration of this matter by the Department, I am satisfied on the material put to me that for teacher aides, and administrative and clerical employees engaged for 40 and 42 weeks per year, the 20 April 1998 and 4 September 1998 are part of school holidays. It follows from this finding that I do accept the applicants' submissions that these employees are being stood down. However, these findings bring into relief the inconsistency in the Minister's argument that a school holiday is a day when students are not in attendance. If that definition is precise then on the days immediately prior to Term 1 these employees are being engaged and paid on a school holiday. This is inconsistent with the letters of appointment of a substantial, but unknown, number of employees. However, I consider the arrangement to employ and pay these people on those days is entirely reasonable. In the circumstances I recommend that the Department conduct a review of all letters of appointment of these so-called "school-term-only" employees to ensure they more accurately specify their conditions of employment. Having regard to these findings, I am not prepared to make the order sought by the CPSU and that part of Application T7589 is dismissed and I so order. However with regard to the possibility that some employees might suffer a loss of pay for their 40 or 42 weeks' engagement, or a reduction in accrued holiday pay, and having regard to the possibility that the Department's changes might impact unevenly on individuals, I strongly recommend that the Minister for Public Sector Administration honour the undertaking given during the proceedings to ensure that these employees engaged on a 40 or 42 week basis, and I add, those engaged for less than those periods, are paid for the 40 or 42 weeks of the contract of employment or part thereof for those engaged for lesser periods, and that they are paid for all accrued annual leave for those periods. Since the Minister has removed the deadline for submitting leave applications in respect of 20 April 1998, Application T No. 7629 of 1998 lodged by the AEU is dismissed and I so order. The Commission can be approached in due course in respect of individuals if it can be shown that they have been disadvantaged compared with the 1997 school year by the Department's re-arrangement of school term dates for 1998.
F D Westwood Appearances: Date and place of hearing: 1 Exhibit AEU.1, page 2 |