IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

In these matters the Tasmanian Teachers Federation (TTF) sought the variation of the Teaching Service (Teaching Staff) Award and the Teaching Service (Non-Teaching Staff) Award to give effect to the second instalment structural efficiency adjustment.

In respect of the Teaching Service (Teaching Staff) Award the variation was requested to be made on an interim basis pending the outcome of Special Case proceedings as contemplated in Anomalies Conference findings in TA62.

Similarly the Teaching Service (Non-Teaching Staff) Award was designated Special Case status in TA63 in respect of Laboratory Technicians only. The remainder of the award to reflect the second structural efficiency adjustment pending the finalisation of the public sector general award restructuring exercise.

The application by the Secondary Colleges Staff Society (SCSA) was also for the variation of the Teaching Service (Teaching Staff) Award on an interim basis in light of foreshadowed special case proceedings.

On 31 July 1990 the TTF was given leave to amend its Teaching Service (Teaching Staff) Award application to bring under one application all the award variation matters subject to the above TTF applications. Additionally the amended application sought the variation of the Teaching Service (Directors and Superintendents) Award on an interim basis, ahead of special case proceedings as determined in TA67.

In hearing these matters on 16 July 1990 we were informed by Mr Lane for the TTF that there was a great measure of agreement between the TTF and the Minister administering the Tasmanian State Service Act (the Minister) which he believed would facilitate the processing of the applications before the Bench.

The position of the SCSA was that it had not reached agreement with the Minister because, as Ms Moran put it, the SCSA was being asked to give up conditions of work rather than receive the benefits of structural efficiencies.

Ms Moran requested that the Bench create a separate section in the award for teachers in secondary colleges. We went to some lengths to explain to the SCSA that the Teaching Service (Teaching Staff) Award was before us in toto and that structural efficiency measures must apply to the award in its entirety. Accordingly the suggestion by the SCSA was not an available option.

Subsequently Mr Lane proceeded to outline award restructuring proposals applicable to teaching staff. Those particular proposals were drawn from a document, handed to the Bench and marked "For Information".

Whilst that particular document was titled "Award Restructuring Agreement', we were informed by Mr Willingham appearing for the Minister that the document was not complete in that some wording changes may still be required to be made. Also nominated parties still had to sign the signatory page.

It is not our intention at this point to canvas the structural efficiency initiatives contained in the document. Suffice it to say that Mr Lane, at that stage of the proceedings indicated that the position of the TTF in respect of issued concerning the Extension of the School Year and Changes to Conditions of Employment, matters identified in the "For Information" document as items 9 and 11, was that it did no more than to acknowledge that the Minister may seek to bring about changes in these areas.

The specifics of items 9 and 11 were as follows:

"9. SCHOOL YEAR

The parties acknowledge that it is the intention of the Government to extend the school year by ten days. This will be achieved by changes to Regulations as follows:

(i) Term I will be increased by five working days at the commencement of the term prior to the first school day for students.

(ii) The additional five working days are nominated to be three working days prior to the commencement of Term II and two days prior to the commencement of Term III.

It is intended that these student-free days will be utilised for school planning, curriculum development, professional development or other purposes as determined by the principal. The time will be applied at the discretion of the principal of each school/college in consultation with the Regional Office, excepting that the five days nominated in point (ii) may be accounted for by the school/college principal against the time expended on professional activities undertaken outside the normal operational hours of the school/college.

11. CONDITIONS OF EMPLOYMENT

The unions acknowledge Government's intention to rescind the following agreements, understandings, standing orders and associated policies:

• Staffing agreement (1976) between the Tasmanian Teachers Federation and the Minister for Education.

• Secondary College Standing Order No. 1 (1987/7).

• Secondary Colleges Staffing Policy (Annexure A).

• Memorandum of Understanding (June 1989) re Common Administrative Structure.

• Primary Staffing Policy and Formula (October 1989).

This Award, therefore, makes provision for a uniform process of allocating teachers to schools and colleges. This process is to be achieved through the application of formulae that incorporate both contract and non-contract time."

Mr Lane said on 31 July 1990:

"If any move is made to interpret the word `acknowledge' as meaning that the Federation has agreed or will accept such changes then I must make it quite clear that the Federation will withdraw from the proposed Agreement."

Transcript pp 28-29

On resumption of proceedings on 2 August 1990, Mr Willingham tendered Exhibit W3 which was an amended copy of the "For Information" document referred to above.

Exhibit W3 was put forward as a Memorandum of Understanding, not as an Agreement, between all of the parties with the exception of the SCSA.

The SCSA were steadfast in their view that Secondary College Teachers were subject to excessive demands by the Minister in return for the second instalment structural efficiency adjustment.

We feel it is not necessary to deal with all of the SCSA objections to the Memorandum of Understanding. However principal among them was the suspicion that the Minister would unilaterally change existing arrangements in respect of the length of the School Year, Transfer Provisions and Conditions of Employment. We have set out the details in relation to School Year (item 9) and Conditions of Employment (item 11) previously. The specifics of the Minister's proposals in respect of Transfer Provisions (item 10) were as follows:

"10. TRANSFER PROVISIONS

10.1 The parties acknowledge that it is the intention of the Government to give effect to the transfer of teachers in all positions K-12 to provide for the movement of teachers between schools and colleges and between sectors in order to respond to changes in the nature and number of the student enrolments, and to ensure satisfactory staffing of all schools.

10.2 Vacancies are to be filled on a basis that ensures that all educational needs are met and that at a time of varying enrolments maximum flexibility is maintained.

10.3 Teachers are able to apply for transfers between location, sectors and schools.

10.4 Transfer of teachers is authorised under Section 42 of the State Service Act and subsumes all previous policies on transfer.

10.5 Exemption

A teacher over the age of 55 years will be exempted from transfer to West Coast or Bass Strait islands except on a voluntary basis

Those teachers who have taught in isolated and non-preferred areas since the date of inception of the current transfer policy (1/1/98) will be given credit for that service. New transfer arrangements will incorporate current provisions regarding isolated service."

Ms Moran indicated that the SCSA considered that this Commission should deal with those particular issues (items 9, 10 and 11) as award matters in the Special Case proceedings which are to follow.

We totally support the SCSA in this view and urge them to make application in due course to have those matters and any others which fall within the definition of "industrial matter" as contained in Section 3 of the industrial Relations Act 1984, included in the award.

Also on 2 August 1990 we had the benefit of submissions from Mr Price, on behalf of the Minister, outlining the "Government's philosophical and educational position' in respect to restructuring the Teaching Service (Teaching Staff) Award.

We will deal with that particular aspect later in this decision.

It is appropriate at this stage to turn to the submissions of Mr Willingham on 6 August 1990 where he said that:

"... since this hearing was last on some significant misunderstandings have emerged in relation to ... certain features of the Memorandum of Understanding and in particular those issues which are covered by Sections 9, 10 and 11 of the Memorandum of Understanding."

and later:

"I would want to not minimise the importance of those misunderstandings and, indeed, it's the view of the Minister, if not the federation, that those misunderstandings have the capacity to bring undone all of what has so far been accomplished and at this stage presented to the Bench."

Transcript p.252

Mr Lane qualified the misunderstandings referred to by Mr Willingham. Mr Lane said:

"My understanding is that the government's problem with the proposed Memorandum of Understanding, especially sections 9, 10 and 11 revolve around the fact that the federation has stated that it will oppose the government's intention on these matters. It is my understanding that the government representatives are now saying that the federation's opposition is a new factor within these proceedings and I wish to make a statement refuting that and point out exactly what the federation's position is and calling into question the motives of the government on this particular issue."

Transcript p.253

Having regard to the earlier references we have made in this decision to the qualifications stipulated by the TTF in respect of these contentious issued (items 9, 10 and 11), we were concerned at the turn of events.

It appeared to the Bench that the concerns raised by the SCSA that the Minister would act to implement the changed in items 9, 10 and 11 without further process may have been well founded.

In any event it was extraordinary that this Commission should be apprised of such significant misunderstandings so long after the position of the TTF was clearly put and accepted by the Commission. Also it was surprising given that earlier in the proceedings Mr Price for the Minister outlined in eloquent terms the very real and persuasive benefits of the structural efficiency proposals and how these would impact in a positive and meaningful way on the delivery of education services in this State.

Given those latest developments we issued a Statement to the parties where we said that the contentious issues identified as items 9,10 and 11 in the Memorandum of Understanding were considered by us to be no more that an indication that the Government intended to pursue those matters at some time in the future. We agreed with the interpretation by the TTF of the word "acknowledge" and confirmed that those particular issues would be considered in the Special Case proceedings.

Certainly after the statement made by the Bench none of the parties could have been left in any doubt as to how we viewed the matters of concern to the Minister and how they may be resolved.

In that regard we said in our statement "that in the event of the issues in question are not resolved by negotiation we recommend that appropriately framed applications be brought forward by any one party".

We stated that those applications would be joined with the special case applications.

Given our comments and the guidance they were intended to provide, we anticipated that this would facilitate the reaching of an agreement between the parties.

However on resumption of proceedings on 14 August 1990 we were informed by Mr Lane that the Minister had made further proposals to the TTF and that a final position had not been reached.

Ms Moran also indicated that the SCSA was not prepared to be part of any agreement with the Minister. She said:

"And the reason centres on the matter of the acknowledgements and what is to become of the acknowledgements if that agreement were to be taken up."

Transcript p.268

We were extremely concerned that the parties were still not able to present an agreed position and that matters were in a state of flux notwithstanding the direction we provided.

It was patently clear to the Bench that the Minister wanted the TTF and the SCSA to accept the terms contained in items 9,10 and 11 which as we have indicated previously related to School Year, Transfer Provisions and Conditions of Employment, respectively.

The fact that our direction in our Statement issued on 6 August 1990 did not produce a supportive reaction was disappointing.

The Bench made its views known to the parties. This led to a brief period of adjournment following which Mr Lane informed us that the TTF had finalised its position and in support tendered Exhibit L2. This was titled "Award Restructuring Proposals" and was identical to the Minister's Exhibit W3 tendered three hearing days earlier. The exception being the contentious items 9, 10 and 11 were requested by Mr Lane to be dealt with by the Commission as part of the Special Case in the event a negotiated resolution was not able to be achieved.

Clearly the TTF heeded the lead given by the Bench on how these matters should be processed.

The SCSA was still not prepared to accept Exhibit L2 as reflecting its position. Its primary concern related to the transfer of teachers designated as Head Teachers to the new teaching structure.

Mr Willingham informed the Bench that fundamental to the award restructuring proposal before us was the acceptance by the teaching unions of items 9, 10 and 11 as issues that would be implemented as stated in Exhibit W3.

That it took so long for that position to be put, having regard to the guidance from the Bench in earlier proceedings, is difficult to understand.

In any event Mr Willingham's submission on behalf of the Minister was that the Government sought to withdraw from all of the elements contained in Exhibit W3 (which were repeated in Exhibit L2 with the qualification we have already referred to) and that the Bench should endorse the position that teachers should have access to their second instalment structural efficiency adjustment by medium of the general agreement covering other public sector awards.

Mr Willingham said that the operative date should be the first full pay period to commence on or after 18 July 1990. He proposed to the Bench that all other outstanding matters, i.e. structure, new rates of pay, and the contentious issues in 9, 10 and 11 be dealt with either through the vehicle of the Special Case when that comes to the Commission, or any other method which is appropriate to the circumstances.

In summary therefore, the position of the Minister was the total withdrawal from the Memorandum of Understanding identified as Exhibit W3, opposition to TTF Award Restructuring Proposals drawn from Exhibit W3 and identified as TTF Exhibit L2, and in lieu the adoption of the public sector package identified as Exhibit 3 in matter T.2399 of 1990.

We must indicate that the turn of events leading to the Minister seeking this Commission to adopt in these proceedings the public sector offsets in Exhibit 3 appeared to completely overlook our comments made in respect of that exhibit in the public sector hearing.

We indicated in essence that the offsets in Exhibit 3 in matter T.2399 of 1990 did not on their own satisfy the requirements of the Structural Efficiency Principle. We made it clear at that time that in addition to Exhibit 3 we wanted proposals on structural changes for the awards in question and timetabling. In that case those initiatives were contained in Exhibit W2.

To all intents and purposes the Minister's final position appeared to be cobbled together and to stem from the concern, as put by Mr Willingham that the proposals in Exhibit W3, tendered in this hearing, could not be justified unless the results from the offsets in items 9, 10 and 11 were immediately available. This totally overlooked the qualifications provided by the TTF on those matters and in particular the view of this Bench that those matters should be dealt with as part of the Special Case proceedings.

Following the submissions of Mr Willingham in support of the public sector package, we indicated to the parties that prima facie Exhibit L2 was acceptable to the Commission and that they were to include in a consolidated version of Exhibit L2 items from Exhibit 3 relevant to the Teaching Service. We directed the parties into conference for that purpose.

On resumption of proceedings on 16 August 1990 Mr Price, who appeared with Mr Willingham, addressed a new exhibit, Exhibit P1 which was an amalgam of the Minister's original Memorandum of Understanding identified as Exhibit W3 and the TTF Exhibit L2.

Whilst Mr Price submitted that Exhibit P1 was of the "pristine quality" of Exhibit W3 he did so on the basis that reference to items 9, 10 and 11 which had hitherto been fundamental to the Minister's overall position, were expunged from Exhibit P1.

Additionally Exhibit P2 outlined the Minister's offset proposals which were similar to those previously endorsed by this Bench as Exhibit 3 in matter T.2399 of 1990 (and others) and confirmed in its decision dated 6 August 1990.

Under questioning from the Bench however it was established that Exhibit P1 was not an agreed document.

In that regard Ms Moran indicated that the SCSA strongly opposed Exhibit P1. She said that it:

"... is astonishing to see the government come back to us know having forsworn the old W3 repudiated it entirely, pointed out that the elements contained in 9, 10 and 11 were absolutely central to its case, to have it then come back with a W3 which has been doctored to remove 9, 10 and 11, ... and which otherwise stands much as it was when the government last said it didn't want to know it."

Transcript p.343

Mr Lane said:

"... we oppose the document P1.

We do so for a number of reasons. Firstly, by taking out sections 9, 10 and 11, the government is trying to circumvent what I believe was the decision of the Commission by not having these matters referred to the special case and being able to therefore act upon them prior to the special case and prior to its finalisation."

Transcript p.332

Whilst Mr Willingham objected to the thrust of comments made by the TTF we believe that Mr Lane raised the very issues central to our opinion on those particular matters.

In all of the circumstances and given that an agreed document was not able to be placed before the Bench we will determine the matters before us having regard to the contents of Exhibits L2 and P2.

Before dealing with the specifics of those documents we indicate that we were impressed with the positive submissions made by the majority of the parties in respect of the benefits that would flow from the introduction of the new career structure for teachers. We recognise that a staggering amount of effort has been directed to the proposals leading to the new teaching streams. We consider it necessary not to let any of the parties retreat from what has been achieved over a long period of negotiation; albeit that the parties faltered at a crucial time.

Naturally we are mindful that the structural efficiencies envisaged in Exhibit L2 and the documentation provided by the Minister exceed the strict limits available under the second structural efficiency instalment. We make it clear therefore that where the increase in the new scale, in some cases, exceeds the available limit, and in order to maintain the integrity of the proposal before us, those elements are considered to be the first stages of the Special Case proceedings.

There is absolutely no impediment on any of the parties to request the Bench to reconvene at any time to continue the Special Case hearing and in that way resolve items 9, 10 and 11 that so frustrated the proceedings in this case.

We are sure that the parties recognise the worth of all of the work that they have done to achieve a significant rationalisation and improvement in the Teaching Service (Teaching Staff) Award. Whilst these proceedings were difficult, we nevertheless commend those involved for producing a notable outcome.

We turn to that outcome.

Mr Price submitted that the Government sought to apply the structural efficiency principles to effect beneficial outcomes to the delivery of educational services, to employees and to the community.

Mr Price said that the thrust of what had been developed was a new emphasis on classroom practice, which he said was the fundamental and major element in the teaching and learning process.

We were told in mellifluous terms that the new structure provided new opportunities for career progression for classroom teachers.

Mr Price said:

"... and if there is one fundamental change to the delivery of educational services that's been recognised worldwide, and I believe recognised for some time in Tasmanian education but not acted on in terms of the provision of a career structure, it is that that thing which is most fundamental to the opportunities that you give to children to develop in an intellectual and cognitive was is the position of the teacher responsible for the tuition and direction of that child's learning ... a much better, much espoused principle. And it almost has the validity of holy writ, but we never have been able in the past to get that into an award structure.

As has been referred to on a number of occasions earlier in this hearing, we have approximately 74% of teachers who are 4-year-trained. ... That percentage doesn't refer to the number of people sitting on top of the current 4-year scale, it is relative to the qualifications that teachers hold and, in addition to that, we have a large number of 3-year-trained teachers who are currently upgrading qualifications to 4-year-trained status.

Now, the department and government have, I believe, by providing for uniform classifications and enrolment as the sole determinant of the classification position of principal, has declared, probably for the first time, that the educational needs of a child are of equal importance at all stages of the developmental spectrum, from kindergarten to Grade 12."

Transcript p.230

Mr Price went on to say:

"... I believe that this document really says for the first time to Australia that we value the child, wherever the child is in the system, and we value the teacher wherever the teacher happens to be in the system. The current award doesn't do that. The current award stigmatises those who happen to be Senior Teacher I's, Senior Teacher II's or vice-principals in primary schools if those people will be similarly qualified, in some cases better qualified, than other teachers working in the secondary sector or senior secondary sector, who have a higher classification.

Transcript p.232

Also we were informed that the new structure would best facilitate equal opportunity as historically the primary school service has been where most women developed their careers. This would no longer be necessarily the case as an inherent feature of the restructured award was that it applied from Kindergarten to Grade 12.

Mr Lane was equally enthusiastic about the contemplated award restructuring proposals. He said that the propositions contained in, what later became Exhibit L2, subsequently agreed by all of the union parties in this matter, would, inter alia:

1. establish skill-related career paths;

2. provide an incentive for employees to continue to participate in skill formation;

3. eliminate impediments to multi-skilling;

4. broaden the range of tasks;

5. create new relativities in the award;

6. enhance flexibility and efficiency;

7. establish professional development as part of the criteria for progression and part of the merit principle in respect of promotable positions;

8. provide an appraisal system;

9. streamline inability procedures;

10. create career paths for classroom teachers;

11. rationalise salary scales leading to administrative efficiencies as well as providing an all embracing salary scale from Kindergarten to Grade 12.

Having regard to all of the material and submissions placed before us we are satisfied that the Award Restructuring Proposals in Exhibit L2 meet the requirements of the Structural Efficiency Principle.

We note that the restructuring document is premised on achieving increased efficiency, flexibility, productivity, training and staff development.

We do not consider it necessary to canvass every aspect of the documented proposals but we expect the programmed initiatives to be adhered to in accordance with the Implementation Time Frames submitted to the Bench as part of Exhibit L2 and which is attached to this decision as Appendix 1.

Given the significance of the new career structure we have also attached the new broadbanded definitions and career scale taken from Exhibit L2 as Appendix 2.

As indicated in the proceedings the career scale was to stipulate the method of progression through the various levels in each of the Bands, as well as progression between each of the Bands and this should be included in any new award.

Also we require the inclusion in the new award of the proposed enrolment-based classification system to determine Principal classification levels.

In respect of the new structure for teachers the Bench was made aware that it was the preferred national structure for the teaching service. Mr Lane said that adjustment of the structure would not be necessary should the move to national benchmarks occur as contemplated in the Special Case.

A major feature of the new structure is that it will implement, by the creation of the Advanced Skills Teacher classification, a definitive career path for classroom practitioners. That is, classroom teachers will be able to have a career path in classroom teaching rather than having to seek promotions which would take them further and further out of the actual classroom teaching.

Accordingly whilst the Advanced Skills Teacher I is available to be gained by all teachers subject to meeting the specified criteria including level of skill, performance in the workplace and the attainment of professional development, Advanced Skills Teacher 2 and 3 are promotable positions.

After careful consideration we have decided not to separate the Advanced Skills Teacher 1 from the remaining levels as the parties clearly indicated to us that this is the last level of the base career range.

Band 3 which applies to Principals is as near as possible to the amalgamation into one salary scale of existing differing salary levels for the primary and post-primary sectors. The result is that for the first time there is one salary scale for all Principals.

We endorse the review of the classification level within Band 3 for Principals of Special Schools. The outcome is to be reflected in the award.

Whilst the Bench agrees that Senior Education Officer and Principal Education Officer classifications be equated with salary levels contained in the broadbanded scale, we are of the view that suitably worded provisos should be included in the award specifying the appropriate salary Band and level applicable to the particular classifications.

The same rationale applies for Senior and Regional Guidance Officer. Further we consider that the Senior Guidance Officer classification should not at this stage be realigned with what was previously the salary level for Senior Master/Mistress. If that particular classification was not considered in a previous work value case, any rectification required should be processed as part of the Special Case proceedings.

With regard to Infant Mistresses, an appropriate savings provision is to be included in the new award together with a proviso which establishes the correct salary level for new appointees at Advanced Skill Teacher II.

During the proceedings the SCSA and TTF stated on many occasions that they intended to reflect in the award conditions of employment currently set out in regulations, standing orders and Agency instructions.

In respect of the matters going to School Year, Transfer Provisions and Conditions of Employment we reiterate the TTF, SCSA and TPSA proposals contained in Exhibit L2 which are identical for each of the aforementioned issues, i.e.:

"It is proposed that negotiations on this matter form part of the `Special Case Negotiations', and in line with the decision of the Full Bench of the Industrial Commission (6/8/90), if agreement is not possible the issue will be determined by the commission as part of the conclusion of the Special Case proceedings."

Items 9, 10 and 11

Exhibit L2

The only qualification we make is, as stated earlier in this decision, that it will be open to any party to initiate Special Case proceedings, in respect of these or any matter falling into the Special Case category, at any time.

This is considered to be a reasonable approach given that we have already in this decision endorsed elements which form part of the Special Case considerations.

With regard to Professional Development costs that may be incurred by employees we have decided that the following award provisions will apply in respect of reimbursement of costs:

1. Any costs associated with standard fees for prescribed courses and prescribed textbooks and materials incurred in connection with the undertaking of professional development shall be reimbursed by the employer upon production of evidence of such expenditure.

2. Travel costs incurred by an employee undertaking professional development in accordance with this clause which exceed those normally incurred in travelling to and from work shall be reimbursed by the employer.

The parties are directed to define the phrase "prescribed courses" and by whom they are to be approved.

The Minister's exhibit P2 is endorsed with qualification. That is the items specified: Hours of Duty, Holidays, Appeals, Recreation Leave, Redundancy and Consultative Mechanisms, are included on exactly the same basis as they are worded in Exhibit 3 and confirmed in the decision of the Bench in the public sector general matter dated 6 August 1990 (T.2399 of 1990).

Quantum of Increase

1. In respect of Teaching Service (Teaching Staff) Award the quantum of increase is to be in accordance with the broadbanded career scale identified as item 3.7 in Exhibit L2 and attached as Appendix 2 to this decision.

2. The remaining awards subject to the applications before us are to be varied in the following manner:

The parties are to prepare the necessary draft orders, to be settled by Commissioner Gozzi for the consideration of the Bench, in respect of the awards in question. These draft orders are to be submitted to Commissioner Gozzi no later that 17 September 1990,

Subsequently we will issue an order operative from 16 August 1990.

APPENDIX 1.

17.    IMPLEMENTATION TIME-FRAMES

The time frame for implementation of each element of the restructured award is as follows:

3.     BROADBANDING - DEFINITION OF TITLES

The parties agree to the following definitions: