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, 30 March 2012

Award variation – contested – directions

DIRECTIONS

[1] On 16 December 2011 the Minister administering the State Service Act 2000 (the Applicant) 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 3 terms to 4 terms from the commencement of the school year in 2013.

[3] The Australian Education Union, Tasmanian Branch (the Union) opposes the amendment to the Award.

[4] On 14 February 2012 the application was listed for a conciliation conference. At that conference the Union raised threshold matters concerning public interest and the absence of bargaining. The matter was relisted for hearing on 29 February. At the hearing, the Union gave its position in detail. At a further hearing on 8 March the Applicant responded. Subsequently there were further written submissions from both parties, mainly on legal interpretations.

[5] On 23 March the Commission handed down its decision regarding the Union’s threshold matters, rejecting them and confirming the original date of 27 March to hear the substantive matter.

[6] At 4:58pm on 26 March 2012 the Union applied to the President under s35(1)(c) of the Act to have the matter heard by a Full Bench of the Commission. The application was denied. The matter proceeded on 27 March at which point the Union sought to have the matter referred to the President under s24(4C) of the Act. The Commission, under this section is obliged to refer the matter to the President, which was done.

[7] It should be noted that during the hearing of 27 March the Applicant sought and was granted leave to amend the original application to read:

1. Vary Part VI – Clause 4 (a), by deleting the existing Clause 4 (a) and replacing with the following:

4   RECREATION LEAVE
TEACHING STAFF

(a) The annual recreation leave for teaching staff in every school/college is:

(1) leave commencing at the end of the third term in 2012 and at the end of the fourth term each year thereafter and ending on the last Friday in the month of January the following year or the first Friday in the month of February the following year; and
(2) two weeks leave at the end of Term 1 in every year; and
(3) two weeks leave at the end of Term 2 in every year; and
(4) two weeks leave at the end of Term 3 in every year.

Provided that the above variation will not result in a diminution or addition to total holiday length for teaching staff.

2. The above variation shall take effect from the date of decision.

[8] At 5.47pm on the same day the President responded to the Union. She said that given that there will be no diminution of leave afforded to teachers, she would support the application by the Minister administering the State Service Act 2000 to amend the Award. Further that the introduction of the 4 term year in schools is a decision of Government and is not a matter for this Commission. She formally rejected the Union application.

[9] Subsequent to the President’s second decision the parties sought a directions hearing which took place on 28 March 2012.

[10] The Commission’s position is clear, given that the instant matter came into being as result of a decision of Government, any argument around the benefits or otherwise of a 4 term school year will not be heard. It is not the Commission’s position to critique political decisions.

[11] In order to facilitate the timely progression of this application, the following directions are issued pursuant to 21(2)(n) of the Act:

• Argument must focus on the impact the proposed amendment to the Award would have on those reliant on the Award. Further argument needs to illustrate what aspects of public interest would be offended by the adoption of the proposed amendments, if any.

• Both parties agree to exchange their list of prospective witnesses. The Union provided their list on the day of the Directions hearing. The Applicant undertook to provide their list by close of business on Tuesday 3 April 2012.

James McAlpine
COMMISSIONER

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

Date and place of hearing:
2012
March 28
Hobart