TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s23 application for award or variation of award

The Minister administering the State Service Act 2000
(T13857 of 2011)

TEACHING SERVICE (TASMANIAN PUBLIC SECTOR) AWARD

COMMISSIONER JP MCALPINE
HOBART, 16 May 2012

Award variation – leave and holidays with pay – introduction of four-term school year – public interest – precedence of an Act over an award – no jurisdiction to mandate number and length of school terms – decision on substantive application to follow - recommendation

REASONS FOR DECISION

[1] On 16 December 2011 the Minister administering the State Service Act 2000 (the Minister) applied to the President, pursuant to Section 23(1) of the Industrial Relations Act 1984 (the Act), for a hearing before a Commissioner in respect of a variation to the Teaching Service (Tasmanian Public Sector) Award (the Award).
 
[2] The amendment seeks to vary Part VI-LEAVE AND HOLIDAYS WITH PAY, Clause 4(a) Recreation Leave: Teaching Staff, specifically to vary the annual leave provision.  The amendment has become necessary as a result of the Minister for Education and Skills proposing to change the school academic year from three terms to four terms from the commencement of the school year in 2013.

[3] The Australian Education Union, Tasmanian Branch (the Union) opposes the introduction of a 4 term school year and consequently the proposed amendment to the Award.

[4] The hearing of this matter has spanned an inordinate amount of time.  Argument was first presented on 14 February 2012 at a conciliation conference and subsequently on 29 February, 8 and 27 March, 23, 26 and 27 April and on 3 and 4 May.

[5] On 27 March the Union sought the matter be referred to the President under s24(4C) of the Act.  In her rejection of the referral the President at paragraph (11) wrote:

“The AEU have also asserted that the introduction of the 4 term year was of such public interest it should be referred to a Full Bench.  The introduction of a 4 term school year is a decision of Government and is not the matter before the Commission.”

[6] I concur with her statement; the matter before the Commission is an application to amend the Award as described above.  However, argument to date has concentrated on the introduction of the four term school year and its effect on a range of parties, one of which, teachers, is subject to the Award.  In my view it is in the public interest that I make the position of the Commission clear with respect to the introduction of a four term year.

[7] It was argued by Mr Watson, for the Minister, that the Minister for Education and Skills has the authority under the Education Act 1994 (Education Act) to determine the number and timing of school terms.  The Education Act prescribes at clause 25. Administrative and financial matters:

“(1) The Minister (being the Minister of Education and Skills)[my note] may determine the following matters in relation to the administration and organization of a State School:

…

(d) the days on which the school is to be open for educational instruction;

(e) the days on which the school is to be open for attendance by teachers;

(f) the hours during which the school is to be open for educational instruction and other activities;

…”

[8] It is evident that the Minister for Education and Skills has indeed the power under the Education Act to prescribe the number and length of school terms.

[9] The Minister for Education and Skills proposed to issue a Ministerial Direction which would conflict with the Award as it stands at this time.  The Act provides for the precedence of an Act over an award. At s42 it states:

 “An award has effect subject to the provisions of any Act dealing with the same subject-matter.”

[10] It follows that the content of an award must be in concert with the intent and detail of an Act when dealing with the same subject-matter.  To the extent of any inconsistency, the Act would prevail.

[11] Mr Watson provided an insightful authority which very closely mirrors the instant matter.   The outline of the matter is that due to the cyclical vagaries of the Gregorian calendar, teachers in the Northern Territory were directed to attend school for an extra week.  This occurred every five to seven years.  Similar to the situation in Tasmania, the minister responsible for education was not the employer of the teachers.
 
[12] The employee representative argued that because the length of the school year determines the number of weeks a teacher works, it was integral to their working conditions and therefor a matter for the Commissioner.

[13] Cohen J at page 5 of her decision poses a question which could well, in its intent, be asked of the instant matter:

“The issue in this case is, ‘what is the real subject of the dispute before the Commission? Is it the requirement for teachers to be present at school for forty one weeks or is it the fixing of the dates for the school year.’'

[14] She continues with an observation with which the Tasmanian community is currently struggling:

“The setting of the school year has ramifications beyond the conditions of employment of teachers.  Not only are there some 600 other employees who work in the school based system who are involved, but the determination of the school year affects matters such as the usage of school buildings, public transport arrangements, the convenience of parents and touches on many other areas of community interest.  It must be for these reasons, be a proper exercise of the Minister’s powers under section 6 of the Education Act.”

[15] Without belabouring the arguments proffered, Cohen J’s summing up is relevant, she said at p5, paragraph (c) of the decision:

“The Minister is not the teachers’ employer and cannot be bound by an award of the Commission.  This inevitably leads to the conclusion that the real subject of the dispute is the setting of the school year and that is not an industrial matter within the meaning of the Conciliation and Arbitration Act. This Commission therefor has no jurisdiction to make a finding of a dispute.”

[16] A major point of difference between the authority cited above and the instant matter is that the Minister has assured the parties to the Award that the quantum of leave would remain the same.  Appendix 14 of the Advisory Group Report  is explicit at point 2:

“There is no diminution of or addition to existing total holiday length for students or teachers”

[17] Part I s(3) of the Act, Interpretation, defines “industrial matter.”  The definition offers exclusions:

“but does not include a matter relating to

…

(c) the opening or closing hours of an employer’s business premises;”

[18] Although this may be read with reference to retail outlets or hospitality venues it has the same effect across all industries.  The fixing of school terms relates to the opening and closing times of schools and is therefore not an industrial matter. 

FINDING
 
[19] This Commission does not have the jurisdiction to mandate the number and/or length of school terms, I so find.

[20] This decision has been brought forward to remove an impediment to the necessary organisation which has to take place for the myriad of activities required to introduce the four term school year in 2013.

[21] The decision on the substantive application, that is the proposed amendment to the Award, will be handed down in due course.

RECOMMENDATION

[22] During the hearing a considerable number of issues were raised with respect to the introduction of a four term school year.  Some were obviously conjecture, other as a consequence of the particular position taken by the Union and yet others which do appear to require resolution.  Although the Union was party to the development of the Advisory Group Report  no evidence was adduced as to whether these issues were raised or not within the Group.  For the sake of the peace of mind of the employees I would strongly urge the Union and the Agency to come together as a matter of urgency and address the concerns raised.

James McAlpine
COMMISSIONER

Appearances:
Mr Mark Watson Mr P Turner for the Minister administering the State Service Act 2000
Mr C Lane with Mr Malcolm Upston for Australian Education Union, Tasmanian Branch

Date and place of hearing:
February 14, 28
March 8, 27
April 23, 26, 27
May 3, 4
Hobart