Dec 1176/95 S Print M2054

AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Industrial Relations Act 1988

s.107 reference of an industrial dispute to Full Bench

Australian Education Union

and

The Minister for Education in the State of Victoria

(C No. 33143 of 1994)

Teachers Educational services

JUSTICE MUNRO SYDNEY, 23 MAY 1995

Conditions of employment - award - hours of work - hours of work referred to President for reconstitution of Full Bench - refrain hearing - action in pursuit of a s.170PD not a hindrance to settlement of industrial dispute - 1993 direction cannot be basis to refrain from hearing - no principle established to exercise discretion if it would intrude in bargaining process - no jurisdictional barrier to prevent AEU pursuing a safety net award at the same time as pursuing an enterprise agreement - Full Bench should consider maximum face to face hours, whether should be first award and operative date and savings clauses - no intention to set by award the duration of the year - clause designed to prevent excessive work load - board of reference provisions can exist - matter referred to President.

DECISION

This matter was listed before me following the decision of the Full Bench on 24 February 1995 [Print L8274] which stated:

The Australian Education Union (the AEU) lodged a draft order on 19 April 1995. That draft is entitled the Teachers Victorian Government Schools Conditions of Employment Award 1995. I listed the matter for hearing on 27 April 1995 when Mr M. Bromberg of counsel for the AEU and Mr G. Giudice of counsel for the Minister for Education in the State of Victoria and the Director of School Education (the DSE) each resumed their earlier appearances for those parties respectively. The hearing continued on 4 May 1995 when I adjourned with decision reserved. I have been asked to determine two "procedural" issues which arose from the submissions put to me, as well as a number of issues about points of detail in the order proposed.

1. Application for Reconstitution of Full Bench:

1.1 The submissions:

It was contended by the DSE that the Full Bench should be reconstituted to reconsider the decision made on 24 February 1995. It was submitted that the decision bears the construction that the Commission intends to make an award prescribing maximum teaching hours of 21 hours 45 minutes for teachers in primary schools. That maximum exceeds the level of 22 hours 30 minutes sought by the AEU for primary teachers. The DSE noted that the relative level of administration and preparation time to be allowed may have been a factor in the Commission's reasons for decision. Its submissions continued:

In reply on this question, Mr Bromberg submitted:

In a later development of the last sentence of that submission, Mr Bromberg proposed that the award should be settled and made without including provision for the maximum teaching hours for primary school teachers, pending further determination by the Full Bench.

1.2 Conclusion on question of reconstitution of Full Bench:

I have considered the submissions against the background of my understanding of the Full Bench's decision.

The Full Bench's primary determination is expressed in the following passages:

It was also the intention of the Full Bench that, if necessary, I should determine the content of the order to be made. The Bench may be taken to have been adverting to s.45(7)(c) as the basis of that intention. But it is not open to me to act in the manner intended because of the point that has now been taken. I do not consider I am at liberty to depart from a clearly expressed element of the determination expressed by the Full Bench as the outcome of its consideration of the merits of the case. It is appropriate that submissions by the parties on the question of whether an award prescription of 21 hours 45 minutes face to face teaching should be made for primary teachers instead of the 22 hours 30 minutes claimed by the AEU should be heard and determined at Full Bench level. In the circumstances I am obliged to exclude that question from consideration in the settlement of the order. Upon the publication of this decision I will ask the President to consider a reconstitution of the Full Bench to permit it to hear and determine the reserved question.

2. Application to Refrain from Further Hearing on Grounds of AEU's Conduct:

The second main issue was whether the Commission as now constituted should settle and make the award determined by the Full Bench. The DSE presented evidence of industrial action being taken or proposed by the AEU about claims which overlap with or are similar to claims heard and determined by the Full Bench. That evidence included a document that Mr Bromberg described as a draft discussion paper issued on about 27 March 1995 by Ms Bluett, the President of the Victorian Secondary Teachers association (VSTA). The VSTA is an associated body of the AEU broadly counterpart to the AEU No. 1 Branch in Victoria. That paper discussed a campaign of industrial action. A statewide strike on 3 May 1995 was scheduled as a prelude to a mass meeting to consider the campaign. Among other proposed industrial action were rostered 90 minute stopworks, and a ban on additional work related to government initiatives. A joint meeting of the Federated Teachers Union of Victoria (FTUV) and VSTA on 4 May 1995 had resolved to recommend that the Victorian AEU Branch executive pursue a certified agreement under the federal act, "backed up by an industrial campaign, in order to gain regulation of actual conditions of teacher workload". The meeting of members foreshadowed in Ms Bluett's discussion paper had been convened in association with a one day stoppage on 3 May 1995. The resolution of that meeting determined that a campaign of industrial action including bans and limitations will commence. Details of the campaign are similar to those outlined above from Ms Bluett's discussion paper.

2.1 The submissions:

Mr Giudice initially contended that, as a matter of discretion, the Commission should not make an order while industrial action of the kind involved was being taken. By the conclusion of proceedings, Mr Giudice had added to that submission an application relying on s.111(1)(g)(iv) and (v)(B) of the Industrial Relations Act 1988 (the Act). That application was to the effect that the Commission as now constituted should refrain from further hearing of the part of the dispute associated with the making of an award until such time as the AEU desisted from industrial action in breach of a direction or recommendation issued by the Commission constituted by Riordan SDP on 16 December 1993.

For its part, the AEU did not dispute that the Executive of the relevant State Branch had determined to accept a proposal from a stopwork meeting of members for a campaign of industrial action. The campaign is to be directed to securing a certified agreement with the DSE about matters related to workloads. The AEU conceived the award determined upon by the Full Bench to be a safety net award. The AEU had sought that the Full Bench make an award for comprehensive regulation of teacher workload across the State. The Full Bench had rejected that application. The Bench, he contended, had followed what it described as the clear policy of the Act to provide only a safety net of workload conditions. The AEU now seeks an enterprise agreement in respect of the actual conditions to apply at enterprise level. If the DSE did not resile from opposition to negotiations on actual workload conditions beyond the safety net provided by the Commission's decision thus far, then the AEU's officials were to provide an industrial response.

In fulfilment of that indication, the AEU on 8 May 1995 lodged notice of initiation of a bargaining period under s.170PD of the Act, (C No. 32782 of 1995). The agreement referred to in that notice as the objective of the bargaining period is described as one which will "stipulate actual (as distinct from safety net) workload conditions of teachers employed at each and every government school or like facility operated by the Minister". As might be expected, the particulars of the matters sought to be dealt with by the proposed agreement include several which correspond substantially with particular conditions sought in the original award application made by the AEU and refused by the Full Bench in its decision of 25 February 1995. Notice of commencement of industrial action pursuant to s.170PH was given by the AEU to DSE in relation to C No. 32782 of 1995 on 12 May 1995.

Mr Bromberg contended that the establishment by certified agreement of actual conditions for workload through bargaining is distinct from the exercise being pursued now of having the Commission finalise a safety net award. The AEU cannot be penalised by the Commission for taking industrial action. The action is not only sanctioned by the Act but may be protected action as well. Indeed, Mr Bromberg submitted, the Commission should not only refuse to refrain from completing its safety net award making exercise, it should hasten to complete it. The safety net award can and should underpin the enterprise bargaining now under way.

In developing his submission, Mr Giudice referred to the terms of a direction by Riordan SDP on 16 December 1993 associated with the making of the Teachers (Victorian Government Schools - Interim) Award 1993 [Print L0553 [T0426]]. That direction [reproduced at page 1 of exhibit DJ60] called upon the AEU, its officers and members to refrain from engaging in industrial action or the imposition of any bans on the performance of work covered by the Interim Award during its currency. Mr Giudice tendered extracts from AEU published material. The AEU membership had understood that the suspension of an industrial campaign waged in 1994 about various matters was a condition precedent to having the Commission hear and determine a claim for complete regulation three critical elements of teacher workload. Upon suspension of industrial action in mid 1994 the AEU had sought and secured the Commission's urgent assistance in having the issue heard. That original industrial campaign was now resuming even as the AEU contends that the Commission should make the award that the AEU has itself rejected. The AEU stopwork meeting resolution recorded in the "VSTA News" of 27 April 1995 had authorised 45 or 90 minute stoppages. Any timetabled teaching requirement of more than 18 hours in a secondary class may be the subject of an authorised stoppage. The Full Bench had determined that the proposed award should prescribe a maximum limit of 20 hours in line with a New South Wales award standard.

Mr Giudice submitted that the focus of the campaign was to resurrect in the field the substance of the draft award sought by the AEU and refused by the Full Bench. The campaign demanded a centralised determination of across the board conditions. The demand is inconsistent with the scheme envisaged in the Full Bench's determination for case by case resolution of grievances against a declared workload principle. Mr Giudice characterised the Full Bench decision as one in which the Commission had determined to regulate teaching hours. It expressed concern about the possibility of excessive work loads and intended to establish a procedure which did not involve industrial action. Rather, it required conciliation and resolution through a board of reference procedure. The union has now embarked upon an entirely different approach and wants to settle claims about workload by bargaining in the field. The Commission could not have foreseen the reaction now made by the AEU to the decision, or the perverse resort to segments of the decision to justify that reaction. The conditions of s.111(1)(g)(iv) and (v), Mr Giudice submitted, were clearly satisfied. The Commission should refrain from proceedings on the unions claim on the part of the dispute before the Full Bench.

Mr Giudice relied upon a further and independent ground for the Commission as now constituted to not make the order sought. He acknowledged, in relation to the bargaining objectives of the AEU, that the parties to industrial relations clearly have reciprocal rights to industrial action under the Act. He referred to passages from the decision in Asahi [Print L9800 at 40] and the ABC Case [Print L4605 at p.12]. He submitted those cases support the proposition that once a bargaining period is notified or in contemplation, the Commission should step back from intervention in the bargaining process. Having been made aware of the situation which has developed since the Full Bench decision in this matter, the Commission ought not hand down its award. For the award to be now made would set parameters for negotiations. Here the Commission has already arbitrated but the AEU has rejected the decision except for part. The AEU, he submitted, wants to achieve what it failed to gain through negotiation using the provisions of the Act in that regard. In the circumstances the Commission should not now make an award. For it to do so would amount to intervention in the negotiation and bargaining process. In the draft award submitted by the AEU as the order to be made in settlement of the Full Bench decision, the AEU had sought the inclusion of a clause declaring the award to be a paid rates award. The AEU had not persisted with that aspect of its submission. However the character of the provision determined by the Bench militated against conceiving the Full Bench's proposed award as a mere safety net award. Indeed a new standard could be established by the proposed award in one respect. The maximum face to face teaching hours for primary schools apparently intended by the Full Bench, if implemented, would have the effect of increasing administration and preparation time, in primary schools to 3 hours 15 minutes, an amount in excess of that being provided in any other State education system.

Mr Bromberg contended that the AEU did not consider that it had failed to establish its case to the Full Bench on the merits. The Commission took the view that actual conditions should be dealt with by the parties and become the subject of enterprise bargains. The AEU had failed in securing its preferred method of addressing the complaint, not as to the merits of the complaint. He accepted that the AEU did want both the benefit of an underpinning arbitration and bargaining as well. It should be allowed that. The Act mandated a scheme whereby the Commission provided a safety net award as underpinning for bargaining and the two were not mutually exclusive. The maximum face to face teaching hours for primary teachers had not provided for administration and preparation time; it had set a standard derived from the New South Wales level, and that level is an appropriate

benchmark in the context of the Commission's decision. That provision does not set the floor, it sets the ceiling. The Commission as now constituted, he contended, is not here asked to set the parameters for enterprise bargaining. It is asked to set the safety net. It has already arbitrated and its function is merely to settle the order. As to the application under section 111(1)(g)(iv), the industrial action being taken is sanctioned by the Act. The AEU could not in the circumstances be said to be impeding the settlement of any relevant dispute sought to be addressed by the certified agreement which is the object of the campaign. The direction of Riordan SDP relied upon by Mr Giudice had been issued in connection with and was coterminous with an interim award. That award was stayed five days later and subsequently effectively quashed.

2.2 Conclusion on s.111(1)(g) application to refrain from further hearing:

The lodgment by the AEU of a notice of initiation of a bargaining period in respect of its pursuit of a certified agreement appears to me to have a significant bearing upon the each of the grounds of the application put by Mr Giudice. The ground for refraining from further hearing referred to in s.111(1)(g)(iv) is that a party to the industrial dispute is engaging in conduct, that in the Commission's opinion, is hindering the settlement of the industrial dispute, or another industrial dispute. The conduct of the AEU complained of is the industrial action being taken around the issue of workloads. Some of that action anticipated the lodgment of the s.170PD notice. For purposes of the application made to me I attach no significance to any distinction based on the timing of the stopwork meeting. I am unable to accept that, given the provisions of Part VIB of the Act, in the circumstances of this case industrial action ostensibly taken in quest of a certified agreement can properly be conceived to be conduct that is hindering the settlement of the industrial dispute to which the certified agreement is sought to be directed as a part settlement. Indeed it seems an implicit paradox of the Act, and of a collective bargaining system, that such conduct may be construed as being directed to the settlement of a dispute, and not merely an indicium of one. The Act now unequivocally identifies bargaining as a means of settling industrial disputes, and protects from sanction certain industrial action in support of collective bargaining. It may perhaps be that the AEU's conduct hinders settlement of the dispute through the making of the award I am asked to settle. But I doubt that it is appropriate to treat the making of an award as being the same thing as a settlement of a dispute. Of course settlement of the dispute, at least in part, is the purpose of most awards. I have some reservation therefore about whether this ground might be available in application to a proceeding confined to the making of the award determined upon by the Full Bench. But I am not satisfied the ground has been made out as to the relevant part of the industrial dispute, and, notwithstanding s.111(2), it is to the dispute, not a particular proceeding about it, that the ground in s.111(1)(g)(iv) is directed.

The ground under s.111(1)(g)(v)(B) is that a party to the industrial dispute has contravened a direction of the Commission to stop industrial action. I am not satisfied this ground has been made out by reference to the direction on which Mr Giudice relied. The relevant direction was not given in relation to industrial action taken in connection with the proceeding before the Full Bench, although it may have been linked with the issues of teacher workloads. The direction was given a life coextensive with the term of an interim award. The particular interim award has had a chequered history. Without more, I am not satisfied that the failure of the AEU to observe in 1995 a direction issued in December 1993 should be elevated into a reason for not dealing with the part of the dispute in C No. 31325 of 1993 to which these proceedings relate. In the circumstances I dismiss the application insofar as it is based on either of the grounds under s.111(1)(g).

2.3 Conclusion on discretionary ground for not making an award covering matters subject to a notified bargaining period:

The remaining ground upon which Mr Giudice relied was put as a discretionary reason for the Commission at this point to decline to hand down its award. It was contended an award would be an intrusion into what is now the main arena for resolution of the overall dispute about workloads, namely the bargaining process and the associated negotiations. Mr Giudice did not claim that there was a jurisdictional barrier to the Commission exercising power to make the award proposed at a time concurrent with a bargaining period. Rather he contended that as a matter of discretion the award making power should not be used in a way which must have a constricting impact upon the negotiating position of parties subject to a bargaining period under Part VIB of the Act. The decisions in Asahi and the ABC Case, relied upon by Mr Giudice, do not in my view afford much assistance to him on the direct point. Both those cases were about what the respective Full Benches conceived to be the scope and character of orders appropriately made in exercise of the power in s.170QK of the Act. That section is not involved in this matter. Certainly, each of the cases supports the proposition that the parties to a bargaining period should be left free of interventions by the Commission in the bargaining process. Associated with that freedom is the recognition in Commission's Statement of Principles of a new legislative priority, limiting the Commission's role in arbitrating in favour of claims above the safety net [Review of Wage Fixing Principles August 1994 Print L4700 at p.8; Asahi Print L9800 at p.41] However the central tenet of those two cases is that the role of the Commission in the bargaining process should be facilitative rather than interventionist. In particular those decisions read the powers in s.170QK as appropriately to be exercised by making orders limited to the procedural aspects of the bargaining process.

Neither of the cases point to a discernible principle which should assist the Commission in exercising the procedural discretion I am asked to exercise in the matter. Of course the procedural character of the discretion to be exercised is not entirely divorced from the merits of the application before the Commission. Until an award is made, I do not understand the Commission, however it may be constituted, to be freed from having to consider and determine questions of merit that may arise. The timing of any exercise of the Commission's jurisdiction is procedural in character. But this is a jurisdiction dedicated to the prevention and settlement of industrial disputes. The procedures of the Commission and the processes required by it, together with the timing of Commission's action, are active ingredients in the mix of considerations which are taken into account in exercising the jurisdiction in accordance with the substantial merits of a case.

In this instance, I accept Mr Bromberg's contention that there is no jurisdictional barrier preventing the AEU from pursuing a safety net award at the same time as it may be pursuing an enterprise agreement covering a substantially similar range of conditions. However, I do not suggest that a simultaneous resort to the Commission's powers under both Part VIA and Part VIB must be accommodated without procedural obstacle. As already indicated, the Commission's wage fixing principles discourage resort to arbitration to achieve conditions in excess of safety net standards. In the absence of agreement as to what is a "safety net" standard there must be discretion as to when arbitration ought proceed concurrently with the initiation of a bargaining period directed to the negotiation of a certified agreement on conditions which complement or exceed award conditions being sought at the same time.

In this matter, in order to exercise discretion the DSE has sought to invoke, I am placed in the position of construing the Full Bench decision on a number of points. With respect to that Bench, of which I am a member, it is appropriate to record that its decision was prepared under the pressure of relatively unusual circumstances. The decision was finalised to meet a deadline which was operational also for decisions on a number of other matters of importance. However I am now asked to in effect rule upon the contention made by the AEU that the Full Bench is to be conceived as having determined no more than a safety net award which should properly be made in order to underpin the bargaining process now under way. A consequence of my upholding that contention will be that I, as a single member of the Bench, will have concluded that the Bench intended its determination to be either a safety net standard, or, in presumed furtherance of the wage fixing principles, a determination on a special case basis of a condition above a safety net standard. That distinction does not appear to have been directly addressed by the Full Bench. Indeed the AEU in the proposed draft award seeks the insertion of a clause declaring the award to be a paid rates award within the meaning of the Act. That part of the application was not pressed. But the inclusion of it demonstrates that the AEU must have conceived the Full Bench decision to have been consistent with a third option, namely that the award determined upon by the Full Bench is not a safety net award but a paid rates award establishing fair and enforceable conditions that are maintained at a relevant level [s.88A(b) and s.170SA of the Industrial Relations Act 1988]. There would appear to me to be some points of substance which may need to be addressed in determining which of those three options best describes the character of the award determined.

The unusual requirement on me as a single member of the Full Bench is compounded with another difficulty. It arises from the concurrent pursuit of certified agreement through a bargaining process directed to the same subject matter as that dealt with by the Full Bench decision. Mr Bromberg depicted the Full Bench decision as having accepted the merits of the AEU's case but having determined against the AEU's preferred means of implementing a remedy. I accept that characterisation of the decision as one within the limits of advocatorial licence. But the fact remains that the Commission's determination was essentially about a process to be established for fixing a teaching workload if it were to be contested in a particular situation, against the bulwark of a declared duty on the employer to not impose excessive workload. The text of the decision affords no explicit basis for my associating the process envisaged by the Full Bench with the adaptations of it now being pursued in the field. I am unable to accept that the Commission intended the process decided upon to become the channel within which could be directed an industrial campaign to achieve across the board workload limits not adopted by the Full Bench as appropriate award conditions.

The weight I give to each of those considerations is reinforced by the existence of a concurrent bargaining process and by the need for the Full Bench to be reconvened to determine the point raised about the maximum standard for face to face teaching hours for primary schools. For reasons which are developed in the next section of this decision, there are other points to which, in my view, the determination of the Full Bench and not a single member of it should be applied. In the circumstances, I have concluded that I should await the reconstitution of the Full Bench and the hearing and determination of matters with which it chooses to deal before deciding upon on making an order in implementation of the Full Bench's decision to this point.

3. Issues about Settlement of the Award:

The AEU and the DSE each offered a draft order for adoption (exhibits DB49 and DJ58). As may have been expected of these parties in the circumstances the competing drafts did not entirely overlap. It may be convenient to summarise the more significant points of difference and my view on the settlement of the order on those points.

3.1 Form of award:

The AEU draft was presented as an order made under s.111(1)(b) for a first award proper, whereas the DSE offered a variation to the Teachers (Victorian Government Schools - Interim) Award 1994 [Print L3637 [T0426]] under s.113. The Full Bench decision describes the application as having been made under s.113 for a separate interim award to be made [Print L8274 at p.2]. That description is plainly in error as to the section cited. The AEU's application in exhibit DB2 and DB5 was for a first award to be made as an interim award under s.111(1)(b).

I have examined the passages of transcript to which Mr Bromberg referred on this point, and other references in the transcript to the AEU's reliance on the first awards principle. My provisional view is that any order made should be in the form of a first award, and not in the form of a variation to the interim award. The AEU's case was certainly put on that basis. I am unable to locate in the transcript any submission or reference contradicting the award having been sought in that form. I am also unable to locate in the transcript any substantial debate or reference to whether the award should be conceived to be an award of a paid rates character, although the AEU did plainly contend the interim award it sought should be conceived to be a safety net award.

There is nothing in the Full Bench's decision to indicate that it intends the award to be made should be of an interim character. It might therefore be logical to conclude that a "final" award was intended. That conclusion accords with my understanding. However the decision does not indicate whether the Full Bench conceived the award to be a safety net award, or a paid rates award, or whether in formulating the terms of the award reliance had been placed upon the first awards principle. None the less it is clear that the Full Bench conceived the principle elements of the award to be those which would "create a proper basis for the determination of a reasonable workload" [ibid at p.20].

While that and other references suggest that the Full Bench sought to frame the elements of the award with attention to the provisions of Part VIA of the Act, I am unable to identify in the decision a direct indication that the Commission linked the award to be made with any particular provision within s.88A, or of the Commission's Wage Fixing Principles. The AEU's case to the Full Bench was that an award prescription of teachers' workload was justified as an award safety net condition of employment. It relied on s.88A(a) and the first award principle. But the AEU expressly denied that it sought the making of a "first award proper" as distinct from a first award made as an interim award. The written and oral submissions debated at some length issues about the import and application of the relevant statutory framework and the Commission's principles [Submissions of the AEU paras 102-104; AEU submissions in reply paras 26-34; submissions on behalf of the Minister for Education of the State of Victoria pp.22-26; 33-36]. Without going to the detail of that exchange, it is manifest that the DSE put in issue the question of whether the

"circumstances required the award to be made as an interim award" [Dr Jessup's closing submission at transcript p.1062]. Mr Bromberg submitted that they did. The reasons for the respective positions of each party have been overtaken since by the Full Bench decision which made no direct reference to the issue. The position put to me by Mr Bromberg and Dr Jessup respectively on the settling of the order is each a departure if not a contradiction of the respective position put by each of them to the Full Bench about the form of the award.

The Full Bench referred to me the task: "if necessary, to determine the order" to be made. It may be assumed that the requirement "to determine" was intended to provide me with scope to deal with issues between the parties that had not been resolved by the Full Bench's decision, or by the parties subsequent negotiation over the content and form of award. I do not shrink from the task of myself completing the findings and determinations of the Full Bench. However, the circumstances which have arisen now include a requirement for the Full Bench to be reconstituted to deal with one outstanding matter. I consider that it may be appropriate for the Full Bench to allow the parties to refresh their submissions on the issue of the character of the award, taking into account the elements of the award that the Commission has determined should be made.

3.2 Operative date or savings clause:

The Full Bench decision stated that:

In the course of submissions put upon settlement of the order the DSE sought that staffing and curriculum arrangements made from the commencement of the 1995 school year, especially in primary schools, should be preserved from disruption by either a savings clause or by variation of the operative date. In substance the provision sought would preserve existing arrangements until the commencement of the 1996 school year. The DSE undertook to produce a draft clause. The AEU opposed any such provision.

The prime reason for the DSE's application apparently derives from the potential duty to not require more than 21 hours 45 minutes face to face teaching in primary schools. I consider that any consideration of the DSE's application should be dealt with by the Full Bench in conjunction with the determination of the issue raised as to the prescription of maximum teaching hours for primary schools.

3.3 Leave reserved items:

3.4 Incidence and parties bound:

3.5 Definition of student contact hours:

3.6 Definition of school year:

not the intention of the Full Bench to directly or indirectly set by award the duration of the school year. However the award clauses provisionally settled will retain reference to the concept. The revised wording is intended to advance the intention behind the duty established by the award. The duty as proposed in subclause 6.1 is intended to prevent an excessive workload being imposed upon a teacher during the school year. Any assessment of what is excessive will not be precluded from taking into account as balancing factor the relative relief from normal work pressure in the residual period of the year not allocated to approved forms of leave.

3.7 Board of Reference:

4. Summary of Outcomes:

As an outcome of this decision, I shall consult forthwith with the President about the reconstitution of the Full Bench pursuant to s.34 of the Act.

As I understand the stage now reached, it will be necessary for the Full Bench to hear and determine:

(1) the question raised by the DSE as to the possible denial of natural justice involved if the Commission were to award a maximum face to face teaching standard of 21 hours 45 minutes for primary teachers instead of the 22 hours and 30 minutes claimed by the AEU;

(2) the question raised in settling the order as to whether the award to be made should be expressed to be an interim award, a variation to an interim award, and a safety net award or an award of a character requiring some further consideration by the Full Bench of the content and substance of the elements of the award determined in its decision of 25 February 1995;

(3) whether the provisionally settled award as set out in Attachment A should be made, with such changes as may be necessary to take into account matters determined under subparagraphs (1) and (2) above, including a question raised as to the date of operation of any award, or the inclusion of a transitional provision to prevent disruption of staffing arrangements based upon the face to face teaching hours in force prior to the commencement of the award.

Upon the reconstitution of the Full Bench it will be a matter for the Full Bench to fix the time when it will be available to further hear this matter. It may be observed, however, that the Commission is concurrently in receipt of applications by the AEU for a full first award, (or variation of the award settled in this matter), an application for a 4% interim pay increase to be applied to the Teachers (Victorian Government Schools - Interim) Award 1994 (C No. 32548 of 1995), and a notification of bargaining period (C No. 32782 of 1995) and of the commencement of industrial action in relation to that bargaining period.

To this point no final award is made in settlement of this matter about teaching workload. The parties and the Commission may wish to explore the possibility of progress toward a certified agreement, or at least the scope for effective conciliation of differences, before resuming arbitration. To assist in that exploration the notification of commencement of a bargaining period (C No. 32782 of 1995) will be listed for conference at a date convenient to the Commission and the parties.

Appearances:

M. Bromberg of counsel for the Australian Education Union.

G. Giudice of counsel for the Minister for Education in the State of Victoria and the Director of School Education.

Hearing details:

1995.

Melbourne:

April 27;

May 4.

ATTACHMENT A

AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Industrial Relations Act 1988

s.99 notification of industrial dispute

s107 reference of an industrial dispute to Full Bench

s.111(1)(b) application for an award

Australian Education Union

and

The Minister for Education in the State of Victoria and others

(C Nos 31325 of 1993 and 33143 of 1994)

Teachers Educational services

SYDNEY, 1995

PROVISIONAL FORM OF AWARD

Further to the decision of the Commission on 24 February 1995 [Print L8274] and on 23 May 1995 [Print M2054], the following award is made.

1 - TITLE

2 - ARRANGEMENTS

3 - INCIDENCE AND PARTIES BOUND

3.1 Her Majesty the Queen in Right of the State of Victoria in respect of all Her employees engaged as teachers, including principals and assistant principals, in the State of Victoria; and

3.2 The Australian Education Union, its officers and members in respect of persons who are members of the union employed as teachers, principals or assistant principals in government schools in the State of Victoria.

4 - DATE AND PERIOD OF OPERATION OF AWARD

5 - DEFINITIONS

5.1 "Face to face teaching" means, in relation to a particular teacher, regular rostered teaching sessions in a documented course of study (approved by either the School Council, Principal or Victorian Board of Studies) for which course the teacher has primary responsibility for educational delivery including preparation, correction, assessment and reporting, and includes sessions of direct student instruction rostered or required by the Principal for curricular or pastoral functions involving student supervision, student counselling and consultation, and for a teacher librarian includes student contact and consultation time in a library.

5.2 "Government school" means any school conducted by or on behalf of the State of Victoria.

5.3 "Primary school" means a government school for year levels in the range preparatory (P) to six and includes a Primary School, Special School, Special Development School or those year levels within the range preparatory to six of a P-12 College, Central School, Community School, Facility for Students who are Deaf, English Language Centre or English Language School.

5.4 "Secondary school" means a government school for year levels in the range seven to twelve and includes a Secondary College, High School, Technical School, Post-Primary School, Technical High School, High Technical School or those year levels within the range seven to twelve of a P-12 College, Central School, Community School, Teaching Unit, Facility for Students who are Deaf, English Language Centre or English Language School.

5.5 "School year" means the days that a school is open for student attendance.

5.6 "Teacher" means a person, including a principal or an assistant principal, engaged to carry out teaching duties in a government school.

5.7 "Union" means the Australian Education Union.

6 - TEACHER WORKLOAD

6.1 No teacher in a government school shall be required to perform an unreasonable or excessive workload during the school year.

6.2 A teacher may be required to teach, and shall not be required to teach in excess of, the maximum standard number of hours per week of face to face teaching.

6.3 The maximum face to face teaching hours for a primary school teacher will be .... hours .... minutes per week. The maximum face to face teaching hours will be 20 hours per week for a secondary school teacher unless the teacher supervises sporting activities of students on a structured basis for a period of two hours per week in which case the face to face teaching hours will be 18 hours 40 minutes per week.

6.4. Where a teacher is aggrieved about his or her workload, or the union is aggrieved about the workload imposed by the employer upon a teacher, the grievance procedure in clause 7 shall be followed.

7 - GRIEVANCE PROCEDURE

7.1 A grievance exists where the union or a teacher on the one hand or the Principal/Head Teacher/Officer-in-Charge of a work location or other officer of the employer on the other, is aggrieved about the class teaching load that the teacher is required by the employer to undertake.

7.2.1 The parties to the grievance shall attempt to resolve the grievance in the first instance. Where this fails the aggrieved party shall lodge a statement including details of the grievance, with:

7.2.2 Where the grievance is not resolved within two working days, the Principal shall inform the DSE of the grievance and supply as soon as practicable a copy of the statement required under paragraph 7.2.1 above, and thereupon one person nominated by the DSE and one person nominated by the union, shall be constituted to form a conciliation committee to establish the extent and nature of the disputation and to attempt to resolve the grievance. The nominees may seek assistance from the DSE or the union during the conciliation process, but it is the duty of each nominee to act as far as practicable not as representatives of the union or the employer but as individuals exercising in an independent and objective manner the functions of attempting to achieve a fair resolution to the grievance having regard to all relevant factors including the need for reasonable exigencies of the Teaching Service to be met.

7.3 A grievance shall be resolved where the parties to the grievance reach agreement. When a grievance is resolved the parties at the work location shall be informed in writing of the grievance agreement including an implementation timetable and method of implementation.

7.4 The implementation of these procedures shall take place without delay and be completed as soon as practicable. The employer and the union shall each as far as practicable avoid action which may exacerbate the dispute or predetermine the outcome of an attempt to resolve the grievance.

7.5 The employer or the union, being the parties to the industrial dispute in matter C No. 31325 of 1993, may refer any grievance unresolved after 5 days to the Board of Reference for resolution.

8 - BOARD OF REFERENCE

8.1 For the purpose of this award a Board of Reference, hereinafter called the Board, shall be constituted consisting of two persons to be from time to time nominated by the union and two persons to be from time to time nominated by the employer, and a member of the Australian Industrial Relations Commission as Chairperson. Where the employer or the union fail to nominate a representative or representatives within a reasonable period, the Chairperson shall nominate persons to represent that entity or entities.

8.2 The function of the Board, in accordance with the provisions of this award, shall be to allow, approve, fix, determine or deal with the matters or things referred to it under subclause 7.5.

8.3 Any person appointed as a member of the Board may appoint a substitute to act in his or her stead at any time, provided that a union nominee may only exercise this power with the consent of the union.

8.4 The Board shall sit at such time and place as the Chairperson may fix.

8.5 In the event of representative members of the Board being equally divided in opinion, the Chairperson shall cast his or her vote to give a majority decision.

8.6. A determination or other decision made by the Board shall be binding upon the parties to this award and the parties shall abide by any such determination or decision.

8.7 A decision of the Board may be reviewed and altered by the Australian Industrial Relations Commission on application of either party to this award, provided that notice of an application for a review of such decision or decisions is given to the other party to the proceedings within 7 days and that the application for review is lodged with the Industrial Registrar, and served on the other party to the proceedings within 21 days of the date of the decision but the Australian Industrial Relations Commission may, on application, extend the time for notice or lodgement of the application.

8.8 Nothing in this clause shall prevent any party from applying to the Industrial Relations Court of Australia for an interpretation of any clause of this award.

9 - LEAVE RESERVED

Printed by Authority by the Commonwealth Government Printer

<Price code F>

** end of text **