T13328 recommendation
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TASMANIAN INDUSTRIAL COMMISSION
Industrial Relations Act 1984
St Patrick’s College, Launceston
and
Independent Education Union of Australia, Tasmania
RECOMMENDATION
[1] This dispute concerns the application of the Hours of Work clause in the Tasmanian Catholic Education Salaries, Allowances and Conditions Industrial Agreement 2005 [the Agreement]. [2] In the case of full-time teachers, Part V, Clause 5, provides for an average working week not exceeding 35 hours. This in turn is broken into the following components:
[3] Currently full-time staff are timetabled to teach for 46 periods per fortnight. Commencing term 1 2009, the employer proposes that this increase to 47 periods per fortnight. This equates to 19 hours 47 minutes per week, which is less than the maximum prescribed 20 hours per week. [4] Proceedings before the Commission were by way of an informal conciliation conference. The Commission did not have the benefit of formal submissions/evidence and hence the observations and recommendations that follow must be viewed in that context, and not as a formal arbitration. Indeed the Independent Education Union of Australia, Tasmania (IEU) did foreshadow jurisdictional issues which would need to be determined before the matter proceeded to the arbitration stage. However both parties did indicate a preparedness to accept the recommendation of the Commission. [5] At the heart of this dispute is Clause 5 [b] [v] and [vi] which reads:
“[v] The configuration but not the number of hours at the school will be arrived at via the consultative mechanism in each school established in accordance with Part V11 –CONSULTATION AND DISPUTE RESOLUTION Clause 2 –Enterprise Flexibility, subclause [e] – Structural Efficiency , paragraph [ii] of this agreement.
[vi] In the event of this configuration not being resolved by a majority of the Consultative Committee the matter will be referred to the Tasmanian Industrial Commission for resolution.” [6] The employer contends that the proposed change relates directly to the number of hours and does not constitute ‘configuration’. It follows that the formal approval of the consultative committee is not required. I was advised however, that the employer had consulted directly with the staff affected. [7] The IEU contends that the proposed change is embraced within the ‘configuration’ concept and therefore the designated consultative process must be followed. [8] The term ‘configuration’ is not defined and neither party could throw any light on the history of this clause. [9] It seems to me that the expression, “but not the number of hours at the school,” must be included for a reason. If I accept the contention of the IEU, those words would be superfluous, as I can envisage no other circumstance whereby the expression would have application. [10] I conclude therefore that the issue of total teaching hours is a matter which, pursuant to the agreement, and subject to the upper limit of 20 hours, is a matter which may be determined by the employer without the necessity to gain the formal approval of the consultative committee. [11] St Patrick’s College, Launceston (the employer) has taken a decision to implement the proposed change in term 1 2009. I conclude that, under the agreement, this is a course of action open to the employer. [12] Having said that, I am very firmly of the view that any decision that has a significant impact on the workload of staff and/or the conditions under which work is performed, should as a matter of course be the subject of the widest possible consultation open in practical terms, whether or not such consultation is required by an industrial agreement or other industrial instrument. [13] I have no doubt that the proposed change, coming on top of an increase in teaching load from 45 to 46 in 2005, squarely fits into this category. That is, broad consultation is an industrial imperative, notwithstanding that is not formally required under the terms of the agreement. [14] Whilst the justification for the change was not widely canvassed in the conference, I gather it is largely driven by economic considerations. Whatever the justification, it is in my view incumbent on the employer to candidly detail the reasons for proposed change to those who are affected by the outcome. It is also incumbent on the staff representatives to seriously take on board the justification provided, even if it ultimately leads to something other than the preferred outcome in a perfect world. [15] The concept of consultation has been widely debated. I provide the following observations of Smith C in CPSU v Vodafone PR911257[1], with which I concur, for the guidance of the parties:
“In deciding whether or not to make the orders sought I have considered the importance of consultation. Consultation is not perfunctory advice on what is about to happen. This is common misconception. Consultation is providing the individual, or other relevant persons, with a bona fide opportunity to influence the decision maker. Section 170GA(1)(b) of the Act speaks of measures to avert or minimise terminations or to mitigate the adverse effects of the terminations. Consultation is not joint decision making or even a negative or frustrating barrier to the prerogative of management to make decisions. Consultation allows the decision making process to be informed, particularly as it may effect the employment prospects of individuals. The opportunity to seek to avoid or mitigate the effects of a termination can not be underestimated by those who wield power over those and their families who will be the subject of the exercise of that power.” [16] In the knowledge that the employer will in all probability be putting in place mechanisms for a term 1 2009 start, I make the following recommendation.
Recommendation 1 At the earliest possible opportunity, the employer is to initiate an appropriate consultative mechanism. Noting the constraints imposed by school closedown during January 2009, this may not necessarily mean the consultative committee, but must include appropriate representation from IEU Tas. 2 This consultative process will embrace, but not necessarily be limited to the following issues:
[17] The Commission is available to reconvene at short notice on the request of either party. The file will remain open pending advice from the applicant.
Tim Abey
Appearances:
Date and Place of Hearing: |