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T0426 Dec 597/94 M Print L2535

AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

JUSTICE BOULTON DEPUTY PRESIDENT HARRISON COMMISSIONER FRAWLEY MELBOURNE, 25 MARCH 1994

Industrial dispute - dispute finding - award - interim award - appeal - jurisdiction - appeal against decision finding existence of dispute and subsequent making of interim award raises issues relating to jurisdiction and the approach to be adopted by Commission in making interim awards - leave to appeal granted - AEU authorisation to serve log of claims, genuineness of dispute, whether teachers and principals employed in government schools are engaged in the administrative services of the State and the competence of the CPF to institute an appeal considered in appeal concerning dispute finding - appeals against dispute finding dismissed and decision and finding confirmed except in so far as they relate to members of the Principal class in the Victorian education system - limits of the dispute, the making and contents of the interim award, administrative services of the State considered in appeal against making of interim award - interim award to be varied as specified and to include terms and conditions of employment for teachers in the State Teachers Award - decision and order of Senior Deputy President confirmed.

DECISION

On 20 October 1993, Senior Deputy President Riordan determined that there was an industrial dispute within the meaning of the Industrial Relations Act 1988 (Cth) (the Act) between the Australian Education Union (AEU), formerly known as the Australian Teachers' Union, and the employers of government school teachers in South Australia, Victoria, Tasmania, the Australian Capital Territory and the Northern Territory [Print K9642]. The Senior Deputy President found that the subject matter of the dispute was the salaries and other conditions of employment of teachers, including principals and vice principals, as set out in a log of claims served by the AEU on various employers in June 1993. A formal finding of dispute to this effect was made by the Senior Deputy President on 26 October 1993.

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DECISION

The finding of dispute was later varied to exclude the State of Tasmania; however after further proceedings the Senior Deputy President decided on 15 November 1993 [Print K9861] to include Tasmania as an employer party to the dispute. Proceedings in relation to employers in the remaining States which were served with the log of claims are pending before the Senior Deputy President.

On 15 December 1993, Senior Deputy President Riordan decided [Print L0454] to make an interim award for the purpose of preserving the current terms and conditions of employment of teachers employed in the Victorian teaching service. An award known as the Teachers (Victorian Government Schools - Interim) Award, 1993 [Print L0553] (the Interim Award) was made by the Senior Deputy President on 16 December 1993. The Interim Award requires the Minister for Education for Victoria to accord employees eligible to be members of the AEU (other than school principals and deputy principals) all terms and conditions of employment applicable as at 20 October 1993.

The following appeals were filed against the aforementioned decisions of the Senior Deputy President and are the subject of this decision:

(1) Appeals by the State of Victoria, the Minister for Education for Victoria and the Minister for Tertiary Education and Training for Victoria (Victoria) and by the Victorian Principals' Federation (VPF) against the decision of 20 October 1993 finding an industrial dispute;

(2) Appeal by the State of Victoria and the Minister for Education for Victoria against the making of the Interim Award.

The appeals raise issues relating to the jurisdiction of the Commission and the approach to be adopted by the Commission in making interim awards. We have therefore decided to grant leave to appeal under s.45(2) of the Act.

(1) Appeals against finding of dispute

The main issues which arise for consideration in the appeals against the finding of the industrial dispute concern the authority of the AEU under its rules to serve the log of claims, the genuineness of the dispute, the question whether teachers and principals employed in government schools are engaged in "the administrative services of the State" and the competence of the VPF to institute an appeal.

Authority to make claims

Victoria submitted that the log of claims served by the AEU in June 1993 was not duly authorised under its rules.

Under the Rules of the AEU, the Federal Conference is "the supreme governing authority" of the union (rule 11). The powers and authority of the Federal Conference are specified in rule 13. The parts of rule 13 presently relevant are in the following terms:

DECISION

"Federal Conference shall be the supreme governing authority of the Union and shall have power to do all things necessary to achieve the Objects of the Union and upon registration of the Union as an organisation of employees under the Act shall exercise all of the powers therein conferred upon a registered organisation of employees and without limiting the generality hereof shall have power to: . . .

(10) Subject to sub-rule (11) of this rule submit industrial disputes to conciliation and arbitration in accordance with the policy and procedures of the Act.

(11) With the consent of the relevant Branch or Branches seek and obtain or oppose the making of Awards by the Australian Industrial Relations Commission or by any successor to that body by whatever name called as the interests of members may from time to time require."

Rule 17 provides that the "management of the Union shall, between meetings of Federal Conference, be vested in the Federal Executive which shall be the Committee of Management of the Union" (sub-rule 17(1)(a)). It is also provided that between meetings of the Federal Conference, the Federal Executive shall, subject to various important exceptions, have all the powers of Federal Conference (sub-rule 17(1)(b)). In particular there is a specific restriction relating to the making of federal awards in sub-rule 17(1)(c):

"(c) Federal Executive shall not exercise the power referred to in sub- rule 13(11) until that power has been exercised at least once by Federal Conference in relation to each and any Branch affected."

At the ninth annual conference of the AEU held on 14, 15 and 16 January 1993, the following decision was taken by Federal Conference regarding the service of a log of claims dealing with the wages and conditions of its members in government schools:

"1. The ATU is concerned to improve the terms and conditions of employment of its members and to represent their industrial interests and secure awards under the provisions of the Industrial Relations Act 1988 (Cth) to prescribe their terms and conditions of employment.

2. The ATU Annual Conference 1993 therefore supports serving a comprehensive Log of Claims applicable to the wages and conditions of members in school education systems in the States and Territories pursuant to Rule 13.11.

3. Federal Conference directs the ATU Federal Executive, pursuant to Rule 13.11, to:

(i) consider and approve the Log of Claims in consultation with Branches;

(ii) seek the finding of a federal dispute between the ATU and State and Territory employers; (iii) obtain award or awards of the Australian Industrial Relations Commission.

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DECISION

4. That in carrying out the decisions listed above, the Federal Executive shall consider the status of the appeal to the High Court by the States of Queensland, Western Australia and New South Wales against the Australian Industrial Relations Commission Full Bench decision in respect of Portability of Entitlements and other relevant public sector cases on appeal to the High Court."

At the Federal Executive meeting held on 24 and 25 March 1993 the Federal Secretary was authorised to serve the log of claims and seek an award of the Federal Commission. In March and April 1993, the various Branches of the AEU advised the Federal Secretary of their consent pursuant to sub-rule 13(11) to the seeking of a federal award. The log of claims was thereafter served on the various employers in different States and Territories and the Commission was notified of an industrial dispute.

The AEU later decided to withdraw the log of claims that had been served and the notification to the Commission and to serve a new log of claims. At its meeting on 16 and 17 June 1993 the Federal Executive reviewed the log of claims "in the light of requests from Branches and current case law on jurisdiction" and endorsed the service of a new log of claims. The new log was served on the relevant employers on 22 June 1993 and the notification of the alleged existence of an industrial dispute was filed with the Industrial Registrar on 14 July 1993. When the dispute notification came on for hearing before the Senior Deputy President it was submitted by Victoria that the claims in the log had not been made in accordance with the AEU's Rules. The Senior Deputy President considered the evidence before him and the provisions of the Rules and decided "that the demands contained in the relevant log of claims have been properly authorised by the decisions of the Federal Conference referred to earlier herein and the Federal Executive and that such demands are properly made." His Honour said that even if there was a defect with respect to the making and service of the claims, such a defect would be capable of correction.

In our view the service of the new log of claims was duly authorised under the Rules of the AEU. The Federal Conference in January 1993 directed the Federal Executive pursuant to sub-rule 13(11) to approve a comprehensive log of claims in consultation with the Branches and then to seek the finding of a dispute and the making of a federal award or awards. In carrying out the decisions the Federal Executive was directed to consider the outcome of various High Court cases. When the Federal Executive served the new log of claims it was acting pursuant to the decision of the Federal Conference taken in January 1993. The Federal Executive was given the task of implementing the Conference's decision and was directed to consider the "status" of various High Court cases. It would seem that the decision of the High Court in Re State Public Services Federation; Ex parte Attorney-General of Western Australia (1993) 67 ALJR 577 (Re SPSF), which was handed down in early June 1993, and/or other decisions of the Court may have played a role in the decision by the AEU to withdraw the first log of claims and to serve a new log. But however this may be, it was the decision of the Federal Conference which provided the authority for the actions of the Federal Executive in seeking to obtain the making of federal awards. This decision was taken by the Federal Conference pursuant to sub-rule 13(11) and each of the relevant Branches of the AEU consented to a federal award being sought in relation to its members.

DECISION

On the material and evidence presented, we consider that the authority given to the Federal Executive by the Federal Conference's decision extended to the service of the second log of claims. The second log, like the first, was directed to the implementation of the decision of Federal Conference, namely "to improve the terms and conditions of employment of its members and to represent their industrial interests and secure awards under the provisions of the Industrial Relations Act 1988 (Cth) to prescribe their terms and conditions of employment". It has not been shown that the second log was formulated otherwise than in accordance with the decision of the Federal Conference or was directed towards the achievement of objectives outside that decision. It also cannot be said that the authority given by the Conference's decision had been exhausted when the first log of claims was formulated as may have been the case had, for example, an award been made. The formulation and service of a log of claims was merely a step along the way in the implementation of the Federal Conference's decision to seek improved salaries and other conditions of employment and for these to be prescribed under federal awards.

In these circumstances we consider that the new log of claims was duly authorised under the Rules of the AEU and, accordingly, we reject the submissions to the contrary by Victoria. Having regard to the view we have taken of rule 13 of the AEU's Rules and the decision of the Federal Conference to seek federal award coverage, it is not necessary for us to determine whether the requirements for the independent exercise by the Federal Executive of the power under sub-rule 13(11) had been satisfied (see sub-rule 17(1)(c)). In our view the actions taken by the Federal Executive in the service of the second log of claims were directed at the implementation of the Federal Conference's decision and were not an independent exercise by the Federal Executive of the power under the Rules to "seek and obtain or oppose the making of Awards by the Australian Industrial Relations Commission" (sub-rule 13(11)). It is also unnecessary for us to deal with the additional material and submissions presented in the appeal proceedings relating to consents given by the various Branches in December 1993 to the service of the second log of claims and the decision of the Federal Conference in January 1994 to the effect that the actions and decisions of the Federal Executive regarding the second log were taken in conformity with the 1993 Federal Conference's decision and were authorised. These actions were taken by the AEU out of an abundance of caution and with a view to correcting any deficiency that may have been found regarding the authority for the service of the second log. However the AEU maintained that there was no defect in this regard and that the log of claims was authorised by its rules.

For the above reasons, we support the conclusion reached by the Senior Deputy President that the demands made in the second log of claims were authorised by the rules of the AEU.

Genuineness of dispute

It was submitted by Victoria before the Senior Deputy President that the demands made by the AEU in the log of claims were fanciful. The Senior Deputy President considered these submissions at length in his decision and, in so doing, referred to relevant decisions of the High Court including the decision in Re SPSF. His Honour concluded that the claims made by the AEU were genuinely sought and provided the basis for the finding of an industrial dispute.

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DECISION

We are not persuaded that the Senior Deputy President failed to deal with the totality of the arguments before him opposing the finding of the dispute on the basis that the claims made by the AEU were fanciful. In particular the Senior Deputy President dealt with the argument that the demands were served for the sole purpose of attracting the Commission's jurisdiction to make an award in respect of Victoria. Although numerous arguments were put by Victoria to the Senior Deputy President on the genuineness issue and the arguments were presented in multifarious forms, we are satisfied that the substance of the arguments was considered by the Senior Deputy President in reaching his decision.

Although the submission by Victoria regarding genuineness was not developed at any length on appeal, we have nevertheless had regard to the evidence and material before the Senior Deputy President with respect to the log of claims served by the AEU. We do not seek to repeat here what is said in the decision appealed against. It is sufficient for us to say that, from our examination of the material before the Commission, it is clear that the log was served as an ambit claim and deals with a wide range of matters. It is also clear that the employment of teachers in government schools is the subject of detailed and comprehensive regulation as set out in awards, agreements, legislation and statutory instruments and that there is considerable change occurring or under consideration in the education system which may have implications with respect to the conditions of employment for teachers. In these circumstances it is understandable that the claims made by the AEU in its log deal with a wide range of matters and make demands which would provide ambit for the AEU to pursue and achieve improvements and protections for its members through the making of federal awards. In the joint judgement of Mason C.J., Deane and Gaudron JJ. in Re SPSF, it is said: "To ascertain whether demands are 'genuine demands', it is sometimes asked whether the demands are seriously advanced [see, e.g., Caledonian Collieries Ltd v Australasian Coal and Shale Employees' Federation [No 2] (1930) 42 CLR 558, per Isaacs J, at 570-571; R v Blakeley; Ex parte Association of Architects &c of Australia (1950) 82 CLR 54, per Fullagar J, at 94; R v Ludeke; Ex parte Queensland Electricity Commission (1985) 159 CLR 178 at 181] or, in the case of demands by or on behalf of employees, whether they are advanced with a view to 'obtaining improved terms and conditions . . . within the framework of the claims made'. [R v Ludeke; Ex parte Queensland Electricity Commission (1985) 159 CLR 178, at 183.] This last formulation is one that takes account of the doctrine of ambit [R v Bain; Ex parte Cadbury Schweppes Australia Ltd (1985) 159 CLR 163, per Wilson and Dawson JJ, at 172-172, per Brennan and Deane JJ, at 176; R v Holmes: Ex parte Victorian Employers' Federation (1980) 145 CLR 68, per Mason J, at 76] and allows that a demand may be genuine

DECISION

notwithstanding that neither the union making it nor its members are 'intent on obtaining forthwith every item which is mentioned in the log of claims or the particular terms and conditions of employment in the form and in the amounts in which they are expressed in the log'. [R v Ludeke; Ex parte Queensland Electricity Commission (1985) 159 CLR 178, at 182-183.]

Given the doctrine of ambit and given that there is nothing inherently artificial about written demands, or 'paper disputes', it will not often be the case that a written demand with respect to the wages or conditions of employees will be other than a genuine demand. Generally speaking, and whether the question falls for decision in this Court or in the Commission, a demand, as to the wages or conditions of employees made by an organisation of employees and authorised by its rules and in accordance with its procedures, will be treated as a genuine demand unless it is plainly fanciful or unless it appears that the demand was made merely to dress up some other claim which, on its own, would not constitute a dispute as defined in s 4(1) of the Industrial Relations Act 1988 (Cth) ...

The question whether a claim is properly described as fanciful is one that can only be answered in the light of general industrial standards and general patterns of industrial regulation." (pp. 580-581)

The decision in Re SPSF confirms that industrial disputes may be generated by written demands and that the existence of ambit in a demand will not necessarily make the demand fanciful.

We consider that on the material before the Senior Deputy President there was sufficient to conclude, and it was proper to conclude, that the claims were made by the AEU with a view to obtaining improved terms and conditions of employment for its members. This is not to say that the obtaining of a federal award may not have been a consideration for the AEU in making its claims. It clearly was. However it was not the sole or overriding consideration.

On the arguments presented on appeal, we are not persuaded that the Senior Deputy President erred in rejecting the arguments that the claims made by the AEU were fanciful.

Competence of VPF to institute appeal

The AEU challenged the competence of the VPF appeal. Section 45(3)(d) of the Act provides that an appeal against a finding in relation to an industrial dispute may be instituted by "an organisation or person aggrieved by the decision or act concerned." The VPF is not an organisation registered under the Act. The AEU argued that it was not a "person" for the purposes of s.45(3)(d). That term is not defined in the Act but is in s.22(1)(a) of the Acts Interpretation Act 1901 (Cth) which provides, unless the contrary intention appears in an act, expressions used to denote persons generally, such as "person" include a body politic or corporate as well as an individual. Clearly, the AEU argued, the VPF was not an individual neither was it a body politic and, accordingly, it had no standing to bring this appeal. This is, we believe, placing too narrow an interpretation on the definition. It does not refer to a body politic or individual as exhaustive of any extended meaning of person, these references are to be inclusive only. It does not follow that an entity, not being a body politic or individual, cannot be a person. The Macquarie

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DECISION

Dictionary defines person as including any human being or artificial body of people having rights and duties before the law. The Shorter Oxford English Dictionary defines person as a human being or body corporate or corporation having rights or duties recognised by law.

The VPF represents principals and deputy principals. These persons were referred to in the appeal as "the Principal class". The VPF appeared as an intervenor in the proceedings before the Senior Deputy President and opposed the finding of a dispute. The subject matter of the industrial dispute as found includes the salaries and other conditions of employment of the Principal class. It would be unfair if members of the Principal class were not entitled to be heard on an appeal from that finding. They have chosen to do so through the VPF. We are of the opinion that, alternatively, they could have as one, or a number of individuals, lodged a notice of appeal and authorised the VPF to appear for them.

Mr Spicer argued that the practice of the Commission has, since at least 1959, been to allow a union registered under a State act to appeal, it having been consistently held to be a "person aggrieved". He referred us to a decision of a Full Bench in The Metropolitan State Passenger Transport Industrial Union v The Transport Workers Union of Australia (1959) 92 CAR 236. In their reasons for decision the Full Bench said:

"A preliminary objection was taken by Mr Brodney, on behalf of the respondent the Transport Workers Union of Australia, that neither of the appellants is qualified to make an appeal as 'a person aggrieved by the decision' (section 35 (4)(b) (iii)). After hearing Mr Murphy (for the appellants) on that objection the Commission as a matter of practical convenience allowed the hearing to proceed subject to the objection, but has since decided that it must be overruled. Both appellants have a substantial interest in the question whether the terms of employment of traffic employees of the Passenger Transport Trust should be prescribed by the State Industrial Authority or by this Commission, and in our view are clearly 'aggrieved by' the Commissioner's decision, within the meaning of the section. Upon this question the Commission is prepared to adopt and follow the decision of Kelly CJ., in the Professional Engineers case [(1952) 75 CAR 50, at 56]." (at p.244)

Inherent in the reliance by VPF upon the above decision is the assumption that VPF is a State registered union. It is doubtful whether, under the provisions of the Employee Relations Act 1992 (Vic) (a copy which was tendered in the proceedings), State registered unions exist. There is a concept of recognised organisations, but we have no evidence whether the VPF is one such organisation. Even if it is, we have heard no argument whether such recognised organisations should be given the same standing for the purposes of an appeal as State registered unions have traditionally been accorded.

Given that persons who are principals and deputy principals and members of the VPF are clearly aggrieved by the dispute finding (and the AEU did not seek to argue otherwise), and that they as individuals would have had a right to appeal, we are prepared to entertain the appeal lodged by the VPF. We do so on the basis that the VPF is a person for the purposes of s.45(3)(d). Alternatively, we are prepared to entertain the appeal by the VPF as if we were, in fact, entertaining an appeal by each of the members of that association who are in the Principal class.

DECISION

Administrative services of the State Victoria submitted that in the case of teachers the question of the precise limits upon the jurisdiction of the Commission over employees engaged in the administrative services of the State (and hence outside of the Commission's jurisdiction) was still a "live" issue before the High Court. Accordingly, it put what it described as a formal submission to enable this issue to be kept open. The submission was rejected by the Senior Deputy President. We are of the opinion, relying upon Re Lee; Ex parte Harper (1986) 160 CLR 431 (Lee's case) that school teachers are not part of the administrative services of the State, and are capable of being party to a finding of an industrial dispute.

Victoria submitted that, whatever the position may be with teachers, principals and deputy principals occupied a special position. In respect of this class, Victoria adopted the submissions of the VPF. The VPF argued that members of the Principal class have managerial and administrative responsibilities in schools and are, therefore, engaged in the administrative services of the State of Victoria. It followed, it was argued, that no dispute could be found that included such class. It was argued that Lee's case did not consider members of the Principal class and was concerned solely with classroom teachers, and as such that case was not conclusive on this issue.

In Lee's case three teacher associations (the Teachers' Association of Australia (TAA), the Independent Teachers Federation and the Australian Teachers' Union (ATU)) had applied for registration as organisations of employees under the provisions of the then Conciliation and Arbitration Act 1904 (Cth). The Commission had held that each association was eligible for registration. Prerogative writs were issued to prohibit further proceedings in the Commission and to quash the decision of the Commission. The broad effect of the rules of the three associations was described by Gibbs C.J. at page 437 of the decision from which description it appears teachers in administrative positions were included in the eligibility rule of at least two of the associations. In the case of the ATU the membership was described in the following terms: "Subject to some exceptions, membership of the A.T.U. (apart from office bearers) is confined to persons usually employed as teachers, or in similar positions, in governmental schools and other governmental educational institutions, and to teachers seconded to other governmental positions". At page 443 the Chief Justice noted that membership of two of the associations was open to persons "who may be seconded to positions in which they may be engaged in ordinary administrative service", but the fact that an association had some members that may not be subject to the power conferred by s.51 (xxxv) of the Constitution did not mean that the association could not be registered. His Honour said: "Therefore we are not now concerned to consider whether the wages and conditions of employment of teachers seconded to administrative positions could validly be determined by the Commission, and since we did not hear full argument on that question I think it better not to discuss it".

In the joint judgement of Mason, Brennan and Deane JJ. in Lee's case, their Honours observed that, although the precise limitations of the administrative services of the State were not easily identified, it was manifestly clear that classroom teachers were not part of that service. In concluding their decision, their Honours said that the members of the associations who are classroom teachers are employees employed in an industry for the purposes of registration. The precise position of principals was not considered. Justice Wilson, in his judgement, observed it was likely that some

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DECISION

members of the TAA and the ATU were not employed in classroom teaching but "occupy senior positions in government departments of education with responsibility either for the formulation of policy proposals to be considered by government or for the implementation of approved policies or perhaps for general supervisory or inspectorial functions". Such members his Honour said (at page 466), may fall outside the Commission's jurisdiction but whether that was so "it cannot mean that the interstate industrial dispute involving class- room teachers is also outside the power". Justice Dawson, at page 472, noted that membership of each of the three associations was largely comprised of persons engaged in ordinary teaching duties and found that the activities of teachers in the classroom do not constitute the administrative services of the State. His Honour did not consider members who were engaged in work outside the classroom which may be described as the provision of administrative services. In respect of these persons his Honour indicated that questions arising as to that group vis-a-vis the administrative services argument should be considered on another occasion.

On the basis of these observations, it is not clear, contrary to Mr Bromberg's argument, that members of the Principal class should automatically be treated by the Commission in the same manner as classroom teachers. We accept the argument of Mr Spicer that the question of the Principal class was not specifically considered in Lee's case. In these circumstances, we respectfully adopt as the correct course the approach taken by a Full Bench of this Commission in The State Public Services Federation v Clerk of the Legislative Assembly [Print K7459] when considering the issue of whether certain employees were in the administrative services of a State:

"The limits of the general class in respect of whom an industrial dispute might arise was again considered in Re Lee and another; Ex parte Harper, Minister for Justice and Attorney General for the State of Queensland [(1986) 160 CLR 430] ('Lee's case').

Employees of a state or state authority may be within that general class because either they were held to be so under the narrower test prevailing before 1983 (such as professional engineers and railway workers) or have since been held to be in that general class either expressly or by necessary implication (such as teachers and firefighters) or are reasonably clearly not in the class reserved for further consideration in the CYSS case or Lee's case. In our view it would be inappropriate for this Commission, in a matter relating to a dispute concerning employees in Victoria, to proceed to find a dispute or make an award if it is not reasonably clear that they are not within the class reserved for further consideration in the CYSS case or Lee's case. In the present matter it is unlikely that employees of public hospitals, health care agencies or related bodies fall within the reserved class though we are, to an extent, speculating on the nature of their employment. We would add the Commission has, for a number of years, exercised jurisdiction, albeit in a qualified manner [RANF case (1985) 297 CAR 337, at 361], over nursing staff in hospitals, nursing homes and like institutions including such institutions in the state public sector. We do not propose, therefore, to adjourn this matter on this ground. However if, in the unlikely event, a detailed analysis of the circumstances of the employment of any group of employees to whom this alleged dispute relates suggests they are likely to be in the reserved class then our decision not to adjourn these proceedings on this ground would have to be reviewed."

DECISION

The question for this Full Bench then is whether it is reasonably clear that persons in the Principal class are persons that fall within the reserved class category who are engaged in the administrative services of the State and arguably cannot be the subject of a finding of dispute. To form such an opinion, it is necessary to consider the evidence that was before the Senior Deputy President.

Mr Spicer for the VPF argued that there was no evidence or no adequate evidence upon which his Honour could have found that members of the Principal class carried out teaching duties. Exhibit S1 sets out the duties of members of the Principal class which duties included responsibility to implement government policies and guidelines. These were not classroom responsibilities, it was argued, but direct managerial responsibilities. Mr Spicer also relied upon the decision of the then Industrial Relations Commission of Victoria in which it was found appropriate to establish a new Conciliation and Arbitration Board in that State concerned solely with the Principal class, thus clearly signifying a difference between teachers on the one hand and the Principal class on the other. Mr Spicer submitted that over 400 members of the Principal class had signed employment agreements reflecting a package negotiated with the Government on their behalf by the VPF, which agreements were opposed by the Victorian Secondary Teachers Association and Federated Teachers Union of Victoria. In these circumstances it was argued that it was wrong for the Senior Deputy President to deal with principals and classroom teachers as one group. Becoming a principal was, he argued, not part of the career path of teachers as found by the Senior Deputy President, the classification of Advanced Skills Teacher (AST) was the end of that career path. It was wrong, therefore, to have found that progression to principal or deputy principal was part of the career path.

In reply Mr Bromberg for the AEU submitted that:

"Clearly teachers and principals carry out a mix of duties; some are common to both. The evidence is that classroom teaching is done by most. Just like most professions employees move along a continuum. Beginners teachers move into AST positions, move into vice principal positions, move into principal positions. Of course not everybody goes all the way, but that is the continuum, and just like all professions, as one goes up the hierarchy the job becomes less hands-on, as it were, and more managerial, but that in no way takes away from the fact that principals are involved in education, involved in providing educational leadership at a school level, and the fact that in their mix of duties they have more administrative tasks than teachers is neither here nor there."

We were not taken to any evidence before the Senior Deputy President to support Mr Bromberg's submission other than Exhibit S1. Exhibit S1, however, does not support a submission that principals are required to teach. Indeed there is no reference to teaching forming part of their duties, although teaching is on the list of deputy principals' duties.

The above evidence, it appears, was the only evidence before the Senior Deputy President concerning members of the Principal class in Victoria. We are of the opinion that that evidence did not provide an adequate basis for a finding as to whether members of the Principal class in Victoria are engaged in the administrative services of the State. It is appropriate therefore to vary the finding of dispute made by the Senior Deputy President so as to exclude the

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DECISION

Principal class. We consider that the position relating to the Principal class in the Victorian education system should be determined after the presentation and consideration of further and more detailed evidence. It would be appropriate for such evidence to be presented if application is made for the variation of the dispute finding to include the Principal class in Victoria.

Conclusion

For all the reasons set out above, we have decided to dismiss the appeals against the decision of the Senior Deputy President in which an industrial dispute was found and to confirm the decision and finding of dispute by the Senior Deputy President except in so far as that decision and finding relates to members of the Principal class in the Victorian education system. The finding of dispute will be varied to exclude members of the Principal class in Victoria.

(2) Appeal against the Interim Award

On 3 November 1993 the AEU applied to the Senior Deputy President for the making of an interim award to cover employees in the Victorian teaching service. In its application, the AEU sought that provisions to the following effect, dealing with conditions of employment for teachers in Victorian government schools, be included in the interim award:

· the terms and conditions of employment shall be as prescribed in the Teachers (Government Teaching Service) Award and the Principals (Government Schools) Award, being awards made by the Industrial Relations Commission of Victoria;

· the terms and conditions to include certain specific provisions with respect to administration and planning time in primary schools and to class sizes, teaching load, student supervision time and extra classes in secondary schools;

· "The employer shall accord to each and every employee all other terms and conditions of employment applicable to his or her employment as at October 20, 1993"; and

· there be no change to the terms and conditions without leave of the Commission.

When the application came on for hearing before the Senior Deputy President on 10 November 1993, the AEU sought a different form of interim award, namely an interim award in the following terms:

"In respect of persons eligible to be members of the AEU who are employed by the Minister for Education for Victoria in or in connection with education services in Victoria, the Minister accord to each and every employee all terms and conditions of employment applicable as at 20 October 1993."

The making of an interim award was opposed by the State of Victoria and others. The Senior Deputy President heard the evidence and submissions of the parties and then decided to make the Interim Award. The Interim Award made by the Senior Deputy President is in the following terms:

DECISION

1 - TITLE

This interim award shall be known as the "Teachers (Victorian Government Schools - Interim) Award, 1993".

2 - TERMS AND CONDITIONS

In respect of persons eligible to be members of the Australian Education Union, other than school principals and deputy principals, who are employed by the Minister for Education for Victoria in or in connection with education services in Victoria, the Minister accord to each and every employee all terms and conditions of employment applicable as at 20 October 1993.

3 - OPERATION

This interim award shall come into force from 15 December 1993 and shall continue in force for three months.

The Interim Award does not apply to principals and deputy principals as the Senior Deputy President was stayed from further dealing with matters relating to those employees pending the determination of the appeals against the finding of the industrial dispute [see Print L0228].

In the appeal proceedings, counsel for Victoria submitted that the appeal against the Interim Award should succeed for the following main reasons: the Senior Deputy President failed to define the limits of the dispute as a whole before exercising the power to make an interim award; the approach adopted by the Senior Deputy President to the question of an interim award was fundamentally unsound; there is uncertainty as to the meaning and effect of the Interim Award; and the Interim Award constitutes an interference with the administrative services of the State of Victoria and/or imposes a special burden or disability on Victoria and therefore discriminates against it. In the course of the appeal proceedings, reference was made in detail to the submissions and material presented to the Senior Deputy President in relation to the making of an interim award.

Limits of the dispute

It was submitted by Victoria that the Senior Deputy President erred in law in not investigating, and making findings on, the limits of the dispute as a whole before exercising arbitral power. It was said that s.101 of the Act requires a dispute finding to be made prior to the exercise of substantive powers such as the power to make an award. In this regard, reference was made to the decision of the High Court in Re The Australian Bank Employees Union; Ex parte Citicorp Australia Limited (1989) 167 CLR 513, at p. 517 (Citicorp).

In the present case, the Senior Deputy President made dispute findings with respect to only some of the employers served with the log of claims by the AEU. In particular, the Senior Deputy President noted in his decision of 20 October 1993 [Print K9642] that the AEU did not press its claims at that stage against the employers in Western Australia, New South Wales and Queensland. The finding of dispute made by the Senior Deputy President therefore did not include employers in those States.

14

DECISION

In the decision of 15 December 1993 [Print L0454] the Senior Deputy President dealt at length with the argument advanced by Victoria that no award may be made until such time as the Commission has made a determination about the existence of an industrial dispute and identified all of the parties to that dispute. The Senior Deputy President referred to relevant decisions of the High Court and to the fact that it is "common practice" for the Commission in dealing with alleged industrial disputes to find the existence of an industrial dispute with respect to some respondents to a log of claims and to reserve for further consideration at a later date the position of other respondents. It is not necessary for us to repeat at length in this decision what the Senior Deputy President decided in relation to the argument put by Victoria. We consider that the course followed by the Senior Deputy President in dealing with the matter before him was open to him and did not involve any error of law.

Section 101 of the Act requires the Commission to make certain findings before it proceeds to exercise powers under the Act. Subsection (1) of that section provides:

Subject to subsection (2), where a proceeding in relation to an alleged industrial dispute comes before the Commission, it shall, if it considers that the alleged industrial dispute is an industrial dispute:

(a) determine the parties to the industrial dispute and the matters in dispute; and

(b) record its findings;

but the Commission may vary or revoke any of the findings.

It is provided in s.4(3) of the Act that, unless the contrary intention appears, a reference to an "industrial dispute" in the Act includes a reference to a part of an industrial dispute.

It is essential that the Commission make an appropriate finding as to jurisdiction before proceeding with the exercise of powers capable of affecting substantive rights and liabilities (see Citicorp). However this requirement was in our view discharged when the Senior Deputy President found that there was an industrial dispute within the meaning of the Act in existence in South Australia, Victoria, Tasmania, the Australian Capital Territory and the Northern Territory. The Senior Deputy President then proceeded to deal with the dispute or, at least, the part of the dispute which was considered to be of most pressing industrial concern, namely the matters relating to the Victorian education system.

In all the circumstances we consider that it was open to the Senior Deputy President, having made a finding as to jurisdiction, to proceed to deal with the dispute or part thereof concerning Victorian teachers. It was not incumbent upon the Senior Deputy President to define the limits of the dispute as notified by the AEU before so proceeding. This was not sought by the AEU and some States at that stage and was not necessary to provide jurisdiction for the Commission to deal with the issues then sought to be agitated before it.

DECISION

It is clear that the Commission has power to vary or revoke any findings made with respect to an industrial dispute and that an industrial dispute may be enlarged or altered during proceedings in the Commission. The variation of a finding of dispute may be necessary because the subject matter of the dispute or the parties thereto have changed. In Re Printing & Kindred Industries Union; Ex parte Vista Paper Products Pty Ltd (1993) 67 ALJR 604, Gaudron J. (with whom Brennan and Dawson JJ. agreed) said:

". . . it may be noted that an industrial dispute is not necessarily fixed and definite, either in terms of its subject matter or in terms of the parties to it; a dispute 'may be diminished or ended or enlarged or altered during . . . proceedings in the Commission' [R v Bain; Ex parte Cadbury Schweppes Australia Ltd (1984) 159 CLR 163, per Murphy J, at 168] or, for that matter, at any stage during the course of the dispute itself." (at p.613)

The variation of a dispute finding may also be necessary where as a matter of procedural convenience, often at the request of the parties, the Commission has deferred for further and perhaps more detailed consideration the question of the involvement of one or more persons or bodies in the dispute. The latter practice may be adopted because there is argument relating to the involvement of those persons in the dispute and it is considered that that argument ought not to delay the exercise of the Commission's powers in relation to the parties found to be in dispute.

In the present case the AEU did not press for a finding of dispute to be made with respect to all the employers served with the log of claims. The AEU only sought a finding of dispute with respect to employers in South Australia, Victoria, Tasmania, the Australian Capital Territory and the Northern Territory. This finding provided a jurisdictional basis for the Commission to deal with matters in dispute and, in particular, the matters considered most pressing in relation to Victoria. The AEU indicated, however, that it would seek a finding with respect to the other employers and requested that further hearing dates be set by the Senior Deputy President for that purpose.

In his decision of 15 December 1993 [Print L0454] the Senior Deputy President, quoting from an earlier decision relating to firefighters [Print K9915], said:

"The argument in this matter . . . is that the industrial dispute may be settled on a State by State basis but that the inquiry about its existence must be determined in its totality in the first instance. Such a contention requires an interpretation of the will of Parliament which would be unusual. Indeed it could mean that some industrial disputes which were in the process of being 'diminished or ended or enlarged or altered during the proceedings' could not be settled until the whole process had come to an end. Such a result would require an interpretation bordering upon absurdity and contrary to the clear guidance given by the High Court.

It is common practice for the Commission to find the existence of a dispute with respect to some respondents to a log of claims and to reserve further consideration of the position of other respondents to a later date. This procedure is necessary in order to deal with alleged industrial disputes in a proper and expeditious manner."

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DECISION

We consider that in the circumstances before him it was not necessary for the Senior Deputy President to define the limits and the parties to the alleged industrial dispute as notified by the AEU before proceeding to exercise powers in relation to a part of the alleged dispute which itself was an industrial dispute within the meaning of the Act and with respect to which the notifying organisation sought findings to be made under s.101 of the Act. If the argument by Victoria was accepted, the Commission could be restrained from exercising its powers under the Act even in circumstances where an industrial dispute was in existence as a result of a need to examine whether all persons named in a notification of an alleged industrial dispute were parties to the dispute. This would be to ignore the need for the Commission to perform its functions of preventing and settling industrial disputes quickly (see s.98) and the object of the Act "to facilitate the prevention and prompt settlement of industrial disputes in a fair manner, and with the minimum of legal form and technicality" (s.3(d)).

This is not to suggest that developments in other States may not be a proper and relevant consideration for the Commission in determining the final form of federal award regulation, if any, for government school teachers in different States. However this is a consideration which goes to the exercise of the Commission's powers in making awards and not to jurisdiction.

The making and contents of the interim award

It was submitted by Victoria that the Senior Deputy President's approach to the question of an interim award was fundamentally unsound in that he did not consider the merits or facts relating to the terms and conditions of employment sought to be preserved. It was said that the central point in the Senior Deputy President's decision appears to have been a conclusion that if there was a reasonable prospect of change to terms and conditions being likely to occur, prior to a full consideration by the Commission, the order sought should be made. The Senior Deputy President also concluded that the unilateral alteration of conditions by the employer would not be "fair, just and equitable" and should be prevented.

It was submitted by Victoria that the approach adopted by the Senior Deputy President had a number of implications with respect to the making of the Interim Award including: (a) the failure to consider the merits of the matter meant that the Interim Award was not made pursuant to the Commission's powers of conciliation and arbitration; (b) the Senior Deputy President did not exercise the caution which the Commission has traditionally recognised is required when an interim award is sought; (c) the Senior Deputy President failed to take into account various relevant considerations including the effects of his order upon staffing arrangements for 1994, the circumstances relating to face to face teaching hours in Victoria and the principles of wage determination; (d) the Senior Deputy President did not give proper consideration to whether there was a possibility that "conditions will be altered so as to render the Commission's decision irrelevant or so as to defeat its jurisdiction" (see Re Media, Entertainment & Arts Alliance; Ex parte Hoyts Corporation Pty Ltd (1993) 67 ALJR 723, at p.728); and (e) the Senior Deputy President did not take into account the likelihood of disputation and confusion arising as a result of uncertainty as to the meaning of the interim award and the status quo which was sought to be preserved.

DECISION

It was further submitted by Victoria that the award made by the Senior Deputy President is not a true interim award. It was said that the timing of the award meant that, if it had the effect of prohibiting changes in teachers' workloads, it would determine the basis for the provision of primary and secondary education in Victoria for the whole of 1994 and not just for the three months or more which the Senior Deputy President envisaged for the completion of the award proceedings.

The powers of the Commission to make interim awards have recently been considered by the High Court in Re Media, Entertainment & Arts Alliance; Ex parte Hoyts Corporation Pty Ltd (1993) 67 ALJR 723 (Hoyts). In that case the Court decided that the steps that may be taken and the orders that may be made in the course of arbitration are not necessarily coextensive with what may be done by way of a final award (see at p.728). The issue before the Court concerned the validity of clause 31.1 of The Hoyts Corporation Pty Ltd, Delarene Pty Ltd and Rampton Pty Ltd Interim Award 1992. The interim award contained specific provisions with respect to many conditions usually dealt with in awards of the Commission such as wage rates, hours of work, leave entitlements, termination of employment and matters relevant to the requirements of the cinema industry as well as including clause 31. Clause 31.1 provided that no Hoyts employee would have his or her employment conditions changed without leave of the Full Bench of the Commission.

In their joint judgement in Hoyts, Mason C.J., Brennan, Dawson, Toohey, Gaudron and McHugh JJ. said:

"So far as is presently relevant, the Commission has power to make provisional and interim awards and orders [s.111(1)(b)(i) and (ii) of the Act], power to vary its awards and orders [s.111(1)(f)] and a general power to 'give all such directions, and do all such things, as are necessary or expedient for the speedy and just hearing and determination of [an] industrial dispute' [s.111(1)(t)]. The claim of the Media Alliance for the preservation of existing conditions pending the making of a final award, even if it involved some reference to the powers to be exercised by the Commission, did not claim, and cl 31.1 does not assert, any power that the Commission does not have by virtue of the Act. Rather, cl 31.1 is merely concerned to ensure that existing conditions of employment are maintained unless and until the commission, in the exercise of the powers which the Act confers, decides otherwise.

Clause 31.1 is, of course, found in an interim award made in the course of arbitrating the various matters in dispute, some of the matters being the subject of definite award provision and others having been left at large pending the Commission's hearing and determination of them. Quite different considerations would arise if the Commission purported to make a final award having the same effect as cl 31.1. Prima facie at least, and leaving aside a demand by employers for the reduction of wages or conditions which might involve different considerations, a final award which purported to preserve the status quo generally and, otherwise, left matters to be determined ad hoc would not be an exercise of arbitral power. And, of course, if a final award provision purported to authorise the Commission to determine disputes between an employer and its individual employees, it might well involve the assertion of jurisdiction with respect to disputes that are neither interstate nor industrial in

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DECISION

character [See, as to the question of interstateness, R v Gough; Ex parte Cairns Meat Export Co Pty Ltd (1962) 108 CLR 343, and, as to individual disputes, R v Staples; Ex parte Australian Telecommunications Commission (1980) 143 CLR 614; 30 ALR 533]. But, again, that is not the case here.

The steps that may be taken and the orders that may be made in the course of arbitration are not necessarily coextensive with what may be done by way of a final award. So much is expressly recognised by s.111(1)(t) of the Act which, as has already been noted, confers a general power to 'give all such directions, and do all such things, as are necessary or expedient for the speedy and just hearing and determination of [an] industrial dispute'. Although there might be questions as to the validity of a final award having effect of the kind that cl 31.1 has in relation to matters not dealt with in the Interim Award, an interim provision of that kind may well be necessary or expedient for the speedy and just hearing and determination of a dispute, particularly if, as was suggested in this case, there is a possibility that conditions will be altered so as to render the Commission's decision irrelevant or so as to defeat its jurisdiction. And that is so even if the provision operates in a wider area than that to be regulated by the final award, for it may be necessary or desirable to consider all aspects of existing employment practices and arrangements before determining the provision that should be made with respect to the matters in dispute." (p.728)

The Senior Deputy President in his decision considered the statutory provisions relevant to the Commission's power to make an interim award and the guidance given by the High Court in Hoyts. The Senior Deputy President said:

"The question I have considered is what is a fair and reasonable procedure to adopt in the circumstances of this case in the light of the relevant statutory provisions, and also, what are the best means of ensuring that the issues between the AEU and the State of Victoria are ultimately resolved in a fair, just and equitable manner. If conditions of employment are to be unilaterally altered by the action of the Minister or his Department, without the AEU having any right in the matter other than to seek to redress the situation at some later stage, the situation could hardly be described as fair, just and equitable. By the time the matters are ultimately decided by the Commission in such circumstances the form of relief sought might no longer be appropriate or relevant.

It is significant to observe that neither the Minister, nor his Department, has made any offer to maintain the status quo pending the outcome of these proceedings. It is equally fair to observe that on the basis of the history of the matter so far it is more than likely that the proper hearing and consideration of all of the issues involved is likely to take some considerable time, as I observed earlier herein. A good deal of argument has been advanced already in these proceedings about the merits of changes which are likely to occur in the Victorian education system, with suggested consequential changes in the conditions of employment of teachers. I wish to emphasise, for the reasons stated earlier, that in this decision I am concerned with nothing more, and certainly nothing less, than the conditions of employment of teachers employed by the State of Victoria. The clear line to which I have referred earlier herein between the policy of the Government of the day, with respect to what education facilities and services it makes available

DECISION

to the people of Victoria, and the terms and conditions of employment of the persons engaged to provide those services is to be observed in a strict sense. The particular policy matters concerned with the type, quality or volume of education services are not matters which are within the jurisdiction of the Commission and nothing in this decision is intended in any way as an attempt to inhibit or hinder whatever intention the Victorian Government may have in that regard."

In his conclusion the Senior Deputy President indicated that he had considered all the arguments advanced and all the references supplied and had decided "as a matter of fairness and equity of treatment, that an award should be made as proposed by the AEU". At that time the Senior Deputy President also issued a direction to the AEU and its members to refrain from engaging in any industrial action and to desist from any current industrial action or the imposition of bans on the performance of work covered by the terms of the award.

We have considered the evidence and submissions before the Senior Deputy President and the powers of the Commission with respect to the making of interim awards. We have concluded that the decision of the Senior Deputy President to make an interim award was reasonably open in the circumstances and upon the material before him. The Senior Deputy President was aware of the history of industrial disputation in the Victorian education system and the industrial implications of moves by the relevant Minister unilaterally to alter the terms and conditions of employment of teachers. The Senior Deputy President was also aware of the history of proceedings in the Commission relating to the Victorian education system over more than a year. In determining the application before him, the Senior Deputy President considered "what are the best means of ensuring that the issues between the AEU and the State of Victoria are ultimately resolved in a fair, just and equitable manner." Taking into account the industrial disputation in the Victorian education system which had occurred and was likely to continue, the concerns of the AEU about possible actions by the Minister for Education to vary employment conditions, the changes taking place or proposed within the system and the approach which has generally been adopted by the Victorian education authorities in implementing changes without negotiation with representatives of the teachers affected, it was appropriate for an interim award to be made. The primary purpose and need for the making of such an award was to ensure that an orderly process is followed in the consideration of any changes in employment conditions for teachers and that the Commission is able to consider and determine the matters before it prior to changes being made. We consider that in the circumstances before the Senior Deputy President there were sound industrial relations reasons for the making of an interim award and that such an award was necessary for the just hearing and determination of the dispute which was before the Commission.

We now turn to consider the contents of the Interim Award.

The Interim Award requires the Victorian Minister for Education to accord to each and every teacher "all terms and conditions of employment applicable as at 20 October 1993". There was considerable debate in the appeal proceedings as to the meaning and effect of the award made and, in particular, as to what was covered by the expression "all terms and conditions of employment applicable". Much of the material and submissions presented in the appeal relate to the issues of teaching hours and class sizes and the extent to which these issues are covered or ought to be covered by the Interim Award.

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DECISION

On the material and submissions before the Commission and so far as relevant for the purposes of this decision, the general position relating to terms and conditions of employment of teachers in the Victorian education system may be summarised as follows. Some of the terms and conditions of employment for teachers were prescribed in the Teachers (Government Teaching Service) Award and amendments thereto (the State Teachers Award), an award made by the former Industrial Relations Commission of Victoria under the Industrial Relations Act 1979 (Vic). The State Teachers Award dealt with a range of matters normally found in awards of industrial tribunals including classifications, salaries, allowances, hours of duty, leave, promotions and transfers, travelling and removal expenses and part-time employment. The State Teachers Award expired on 1 March 1993 by virtue of the operation of s.172(6) of the Employee Relations Act 1992 (Vic). However under the terms of that Act employees would, unless a new award is made or the employee and the employer make an employment agreement, be covered "by an individual employment agreement with the same terms and conditions as those that applied to the employee and the employer under the expired award" (see s.24(3)).

The conditions of employment of teachers were also dealt with in a series of agreements on Conditions and Staffing in Victorian schools made between the Victorian Government and the two main teachers unions in Victoria, the Federated Teachers Union of Victoria and the Victorian Secondary Teachers Association. The agreements date back to 1983 and deal with a wide range of matters including staffing arrangements, participation and consultation, conditions of work, teaching hours, class sizes, and grievance resolution procedures. The most recent of the agreements, those applying to Conditions and Staffing for 1990, 1991, 1992 and 1993 in Primary Schools etc. and to Conditions and Staffing for 1991, 1992 and 1993 in Secondary Colleges, were certified by the Industrial Relations Commission of Victoria under Part IV of the now repealed Industrial Relations Act 1979 (Vic). In relation to teaching hours and class sizes, the agreement for secondary schools provided that teaching hours shall not exceed 18 hours per week and classes were to be organised on the basis of up to 25 students. In the primary schools agreement, teachers were provided with a minimum of 2.5 hours per week administration and planning time which, it was explained in the proceedings, resulted in primary teachers having a maximum face to face teaching load of 22.5 hours per week. The agreement provided for the allocation of classrooms in order to ensure that class sizes in primary schools need not exceed 27 pupils. The operation of many of the central clauses of the Staffing and Conditions Agreements (including clauses relating to teaching hours and class sizes) were terminated by the Victorian Government on 20 November 1992 pursuant to s.104 of the Public Sector Management Act 1992 (Vic). That section provides that the Governor-in-Council may by order appoint a day on which part of a certified agreement will terminate and cease to have any legal effect.

The conditions of employment of teachers employed under the Teaching Service Act 1981 (Vic) who commenced employment on or after 1 March 1993 are dealt with in Order No. 136 of the Teaching Service Orders 1993. The Order deals with a similar range of matters as dealt with in the State Teachers Award including classifications, salaries, allowances, qualifications, hours of duty, leave, promotions and transfers, part-time employment and dispute resolution. In common with the State Teachers Award, the Order does not make provision with respect to teaching hours or class sizes. We were advised in the course of the proceedings that the overwhelming majority of teachers in the Victorian teaching service were employed prior to 1 March 1993 and thus are not covered by Order No. 136. In any event the conditions set out in the Order are in many respects the same or similar to those in the State Teachers Award.

DECISION

We do not seek to refer in this decision to all the developments relating to changes in the employment conditions of teachers in the Victorian education system since November 1992 or to the industrial disputation that has taken place. It is sufficient to note that there has been considerable disputation and lengthy proceedings in the Commission regarding the various developments and that these developments were part of the background against which the Senior Deputy President decided to make the Interim Award. It is important, however, to note that, despite the termination of the major provisions of the Staffing and Conditions Agreements in November 1992, primary and secondary schools continued to be staffed in 1993 on a similar basis as provided under the agreements and, in general, that the pre-existing arrangements relating to teaching hours and class sizes were maintained during the 1993 school year. However the Victorian Government proposed that the arrangements for the 1994 school year would be different.

On 6 September 1993 the Director of School Education in Executive Memorandum 749 advised principals and others of the school staffing arrangements to apply in 1994. In the Guidelines for Principals on School Organisation attached to the Memorandum, it is stated in relation to secondary schools that the "average face to face teaching time will need to increase in order to maintain current curriculum programs and prevent unnecessary increases in class sizes" and that the expected increase in teaching time would be approximately 1.5 hours per week. It is clear that these proposed changes relating to the 1994 school year were relevant to the application made by the AEU for an interim award to be made.

On the submissions and material presented in the appeal proceedings, a number of issues arise for consideration with respect to the form and contents of the Interim Award made by the Senior Deputy President.

The Interim Award is expressed in general terms and refers to "all terms and conditions of employment applicable" as at 20 October 1993, the date of the finding of an industrial dispute by the Senior Deputy President. It was submitted by Victoria that the broad and general terms in which the Interim Award is expressed will lead to uncertainty as to its meaning and coverage and may result in further industrial disputation in schools.

The difficulties regarding the meaning and operation of the Interim Award are evident from the submissions in the appeal proceedings, especially the submissions relating to teaching hours and class sizes. It was submitted by Victoria that these issues are not within the concept of "terms and conditions of employment" and therefore are not covered by the Interim Award. Accordingly it was indicated that the Government would proceed with the planning and operation of schools in 1994 on the basis that teaching hours and class sizes were not frozen at 1993 levels. By contrast, the AEU submitted that these matters are covered by the Interim Award. However the AEU submitted that there was a need for an express provision to be included with respect to teaching loads having regard to the Victorian Government's interpretation of the Interim Award and in order to ensure that the intended effect of the award is observed. In this regard the AEU sought that the appeal bench vary the Interim Award to provide for a maximum teaching load of 18 hours per week for teachers in secondary schools and for administrative and planning time of at least 2.5 hours per week for teachers in primary schools. Other submissions were presented regarding potential problems and uncertainties arising from the terms

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DECISION

of the interim order made by the Senior Deputy President. For example, the VPF submitted that appointments to various administrative positions in schools might be frozen by the Interim Award and that schools may therefore be prevented from making any changes in these positions for the 1994 school year.

On the submissions presented in the appeal, we recognise the need for clarification of the scope and effect of the Interim Award. This is appropriate because of the uncertainty which has arisen regarding the meaning and operation of the Interim Award with respect to various important matters about which the parties were in dispute. It is also appropriate having regard to the history of detailed regulation of employment conditions for teachers in the Victorian education system and the advantages of having these matters dealt with in the Interim Award with precision. In these circumstances we have concluded that the terms and conditions of employment which are to be maintained by way of interim order should be specified with greater precision.

We now turn to consider the variations which should, in the light of this conclusion, be made to the Interim Award.

In all the circumstances we have decided that the Interim Award should provide for the terms and conditions which applied under the State Teachers Award to be maintained pending the outcome of the arbitral proceedings. The Interim Award shall therefore be varied to include the provisions of the State Teachers Award. We consider that this course is appropriate for the following reasons. It will provide a detailed prescription of the terms and conditions covered by the Interim Award and thereby remove some of the uncertainty and scope for argument which has arisen under the current provisions. It will also give effect in the making of the interim order to the established principles of the Commission applied in the making of first awards, namely that in awards regulating the employment of workers previously covered by a State award or determination, existing State award rates and conditions prima facie will be the proper award rates and conditions [see Print K9700]. The course we have decided to adopt is also generally consistent with an undertaking offered by the Victorian Directorate of School Education (DSE) in the proceedings before the Senior Deputy President. In written submissions to the Senior Deputy President, the DSE proposed the following:

"To meet any concern about reduction in award conditions the DSE undertakes that it will, so long as award proceedings continue, maintain conditions and salaries specified in the Teachers (Government Teaching) Award No. 1 of 1990 except when those conditions are or have been varied by the consent of the parties and the entering into of an individual or collective employment agreement."

In deciding to incorporate the provisions of the State Teachers Award into the Interim Award, we note that Victoria did not accede in the proceedings before the Senior Deputy President or on appeal to the making of an interim award based on the old State award or the abovementioned undertaking. Some of the arguments presented by Victoria against the making of an award in such terms related to jurisdictional issues and are dealt with earlier in this decision. It was also argued that there is no need for an interim award because there is an effective system of regulation operating now in Victoria with teachers being covered by individual employment contracts under the Employee Relations Act 1992 (Vic) which contain the same terms and conditions as under the old State awards. However in our view the circumstances and developments relating to the teaching service in Victoria, including the disputation that has taken place and the consequent disruption to schools and the

DECISION

dissatisfaction of many teachers with the existing contract-based arrangements as evidenced by the seeking of federal award coverage by the AEU, support the making of an interim award. It was also argued by Victoria that the making of an interim award would introduce de facto federal regulation into the State teaching area prior to a decision by the Commission that the area should be covered by a federal award. But in the circumstances of the Victorian teaching service and the proceedings before him, the Senior Deputy President determined that an interim award should be made. As decided above, this course was open to the Senior Deputy President on the material and submissions before him and in our view was appropriate. The making of the interim award does not determine the issue of federal award coverage for teachers in the Victorian teaching service or elsewhere. This issue will be determined when a decision is reached by the Commission on whether a final award should be made. The purpose of the interim award is to ensure that certain existing conditions of employment are maintained until the Commission, in the exercise of its powers under the Act and after hearing the evidence and submissions of the parties and any intervenors, determines the issues in dispute between the parties.

The main issue in the appeal proceedings concerned whether the Interim Award does or should apply with respect to teaching hours and class sizes. It is clear that the matters concerning face to face teaching hours, especially those relating to secondary teachers, were addressed at length by the parties in the proceedings before the Senior Deputy President. By contrast, relatively little was put in relation to class sizes as a separate issue or about the impact that the planned changes would have on class sizes in primary and secondary schools.

The submissions put by counsel for Victoria to the Senior Deputy President dealt in detail with matters concerning teaching hours. It was said that teaching hours per week were never a part of the State Teachers Award but were included in Staffing and Conditions Agreements which were terminated by the Government in late 1992. It was submitted in the proceedings before the Senior Deputy President in November 1993 that planning for the 1994 school year was well underway and that the introduction of an interim award dealing with teaching hours would cause severe disruption. It was further submitted that face to face teaching hours would, under Executive Memorandum 749, be no more in Victoria than the national average and that the overall working hours of Victorian teachers would not be affected. Finally it was submitted that class sizes and teaching loads were matters of management and that the AEU had not shown that the proposed changes were unreasonable.

The submissions put to the Senior Deputy President by counsel for the AEU were directed mainly at preserving the status quo and preventing the unilateral alteration by the Minister for Education of the terms and conditions of employment of teachers until the Commission had an opportunity to consider the main award claim in all its aspects. It was submitted to the Senior Deputy President in the proceedings in November 1993 that the issues relating to the 1994 school year needed to be addressed urgently and, having regard to the evidence and submissions which would need to be presented, that the Senior Deputy President was not able to address the merits of all the relevant matters at that time. In the appeal proceedings, the AEU submitted that if the Interim Award did not apply to teaching loads, there would be industrial disputation. Further it was said that there would be no incentive for the merits of the issues relating to teaching hours to be addressed within a reasonable time in the award proceedings. On the basis that the Interim Award continued and

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DECISION

applied to teaching hours, the AEU indicated its preparedness to assist in allowing the merits of the teaching load issue to be addressed by the Commission quickly. The AEU proposed as a practical solution to the problems relating to possible disruption at the commencement of the 1994 school year that, in the intervening period, the existing teacher hours should be maintained together with the timetables and curriculum offerings planned for 1994 by reducing the length of the periods of instruction in secondary schools and by the use of 'over-entitlement' teachers or by increasing class sizes in primary schools.

In view of the uncertainty with respect to the meaning of the Interim Award and the application by the AEU to vary the award, it is necessary for the appeal bench to consider whether the Interim Award should apply with respect to teaching hours and class sizes.

We consider that it is arguable that the Interim Award made by the Senior Deputy President does not apply to face to face teaching hours and class sizes. This is because the expression "all terms and conditions of employment applicable as at 20 October 1993" may not include matters dealt with in the Staffing and Conditions Agreements which were terminated in November 1992. Contrary to this, however, it was put by the AEU that, in view of the submissions and material presented in the proceedings leading to the making of the Interim Award, it was intended by the Senior Deputy President that the award apply to teaching hours and class sizes. These matters were, it was submitted, part of the custom and practice applicable at that time in relation to teachers' employment conditions.

In these circumstances we have given consideration to whether, on the material and submissions presented to the Senior Deputy President and on appeal, the Interim Award should contain provisions maintaining teaching hours and class sizes at the levels applying in the 1993 school year. As noted above, at the time of the making of the Interim Award these matters were not part of the existing State award conditions for teachers in the Victorian education system as the relevant sections of the Staffing and Conditions Agreements had been terminated in November 1992. Further the conditions in those Agreements would not, in any event, apply to the 1994 school year and thereafter as the Agreements are expressed to apply only to school years ending in 1993. More importantly we note that there was little put by the AEU before the Senior Deputy President or on appeal as to the appropriate number of teaching hours for teachers in Victorian schools and as to whether the proposed changes would result in unreasonable conditions being imposed upon teachers. This was despite the material and submissions presented by Victoria regarding face to face teaching hours and the need for change and the assertion that even with the planned changes the teaching load for teachers in Victoria would be less than the national average.

The making of an award dealing with and maintaining 1993 teaching hours and class sizes would, according to the submissions by Victoria, have a significant impact on the operation of schools in 1994 and on curriculum and timetable offerings. Although it was submitted on appeal by the AEU that this impact could be dealt with satisfactorily pending proceedings in the Commission on these issues, we are not persuaded that we should adopt the AEU's proposal as it would inter alia involve a reduction in instructional time for students and questions were raised regarding its practicality. Further we are not satisfied that the AEU's proposal would avoid the potentially serious disruption to the 1994 school year that the making of an interim award dealing

DECISION

with teaching hours in the manner sought would have. The AEU submitted that the Commission should be cautious to allow either party to move away from existing conditions pending full consideration of the merits of a matter and in support referred to a number of recent decisions of the Commission. In the Public Holidays Test Case [Print L0498] a Full Bench of the Commission said that "[i]n proceedings of an interim nature, weight is commonly given to the preservation of the status quo". Although both parties in that case relied upon custom and practice in support of their respective positions, the Full Bench took the view that the conflict between the opposing contentions deprived the status quo of the significance which it might hold in different contexts. In the present matter there is also disagreement about what the status quo is, namely, whether it is to be based upon legal entitlements or upon custom and practice.

In all the circumstances we do not consider that it would be appropriate to make an interim award dealing with teaching hours and class sizes without at least a prima facie assessment of the merits as to the respective positions of the parties. Such an assessment has not been possible largely because of the approach adopted in the proceedings by the AEU. The AEU sought an interim award to preserve the status quo simpliciter and this approach meant that the union did not address the merits of the relevant conditions. In the result there is not sufficient before the Commission to warrant the making of an order with respect to these matters which would, in effect, continue into the 1994 school year conditions which would not have been required by award or agreement to be applied. Accordingly we have decided not to include provisions relating to teaching hours or class sizes in the Interim Award.

This is not to say that these matters may not, after proper inquiry, be made the subject of regulation by way of an interim or final award. Further if it is alleged that proposed changes in conditions of employment will result in unreasonable or unjust conditions being imposed on teachers and appropriate application is made, this may be considered by the Commission on the merits in a prompt manner. Alternatively, an application may be made to the Commission for matters of major significance in an arbitrated case to be considered urgently by the Commission and in advance of other matters.

It would be preferable that, where changes to conditions and practices relating to teachers' employment are under consideration, the proposed changes be the subject of discussion and negotiation between the education authorities and the industrial representatives of teachers. This approach would ensure that the interests of all concerned are taken into account in the decision-making process. It would also allow issues to be resolved by negotiation and, where possible, agreement between the education authorities and relevant unions and without industrial disputation and disruption to schools. We strongly urge the parties to consider the advantages of the adoption of such an approach in addressing concerns and proposals for change in the Victorian education system.

Administrative services of the State

It was submitted by Victoria that the Interim Award made by the Senior Deputy President is an interference with the administrative services of the State of Victoria. In particular it was argued that the award prevents the Minister for Education and the Government from exercising powers under ss.11 and 78 of the Teaching Service Act 1981 (Vic). Section 78 of that Act empowers the making of regulations on, inter alia, "any matter which relates to the organisation, management or discipline of the teaching service". In addition, the Minister is empowered by s.11 to make orders on employment matters. It was

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DECISION

submitted that the Interim Award would prevent the implementation of staffing and curriculum programs for 1994 and thereby affect employees in each of the relevant managerial levels responsible for ensuring that Victoria is able to provide a viable primary and secondary school education system in 1994 consistent with the achievement of the budget reductions imposed by Treasury. Moreover it was put that because the Interim Award made by the Senior Deputy President is not prescriptive of terms and conditions but rather is a blanket prohibition on changes in conditions, the order renders the statutory authority of the Minister and the Government ineffective. Alternatively, it was put that the Interim Award would impose a special burden or disability on Victoria and thereby discriminate against it.

Submissions by Victoria in relation to the administrative services of the State were considered by the Senior Deputy President in his decision of 15 December 1993 and were rejected. In that decision reference is made to the judgement in Re Australian Nursing Federation; Ex parte Victoria (1993) 67 ALJR 377. In that case McHugh J. at page 384 said:

"The power of the Commission to make awards binding State governments in respect of public servants engaged in industry or industrial occupations has been upheld for more than 70 years, notwithstanding that such awards impinge on State finances [Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129]. In Ex parte Professional Engineers' Association [(1959) 107 CLR 208], this court held that the federal arbitration power extended to the making of awards binding State governments in respect of the employment of professional engineers employed by a State or department or agencies of a State. The effect of the court's decision in Re Lee; Ex parte Harper [(1986) 160 CLR 430; 65 ALR 577] is that the federal arbitration power extends to making awards binding State governments in respect of the employment of school teachers."

We have decided in this case to make an award which reflects only the terms and conditions of employment which applied under the State Teachers Award. Further, such an award is being made on an interim basis only. In these circumstances we do not consider that the award will have the effect contended by Victoria in relation to the 1994 school year or the operation of the Victorian education system. The award will only operate against the State of Victoria in its capacity as an employer of teachers and impose employment conditions which previously applied under State awards in Victoria. It is only to this extent that the award will affect the powers of the Minister and the Government under the Teaching Service Act 1981 (Vic).

In the present case there is an interstate industrial dispute and the powers of the Commission have been exercised to make an interim award having regard to the special circumstances applying to the Victorian teaching service. The award is directed against Victoria only in as far as it is an employer and does not seek to treat the State differently from other employers (see Re SPSF at pp. 596-598 per Toohey J. with whom on this point Mason C.J., Deane and Gaudron JJ. at p.582 agreed). The award has been made having regard to the "first awards" principle in the currently applicable wage fixing principles and, like any award, will to a relevant extent override powers or rights that an employer might otherwise have in setting or regulating employment conditions for its employees.

DECISION

In these circumstances and having regard to the guidance given in the decisions of the High Court we do not consider that the Interim Award as determined in the appeal interferes with the administrative services of the State or imposes a special burden or disability on Victoria. Accordingly the submissions of Victoria must fail.

Conclusion

For the above reasons we have decided that the Interim Award should be varied so as to delete clause 2 and to include, pending the final outcome of the proceedings before the Senior Deputy President or further order of the Commission, the terms and conditions of employment for teachers in the State Teachers Award. Apart from the variations we have determined should be made to the Interim Award, we have considered all the arguments and submissions presented in the appeals and we have decided to confirm the decision and order made by the Senior Deputy President.

The AEU should prepare a draft order to give effect to this decision and submit the draft order to the Registrar within seven days. The variations to the Interim Award will be settled by Commissioner Frawley.

Appearances:

Dr C. Jessup Q.C. with G. Giudice and N. Green of counsel for Her Majesty the Queen in right of the State of Victoria and the Minister for Education for Victoria.

R. Spicer of counsel for the Victorian Principals' Federation.

M. Bromberg of counsel for the Australian Education Union.

P. Hicks for the Victorian Affiliated Teachers Federation (intervening).

Hearing details:

1993. Melbourne: December 20.

1994. Melbourne: January 12, 13, 14, 25.

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