Education Queensland v Queensland Teachers Union of Employees & Ors [2003] QIRC 117 (2003) 173 QGIG 800

800 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 4 July, 2003 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 149 – arbitration if conciliation unsuccessful Education Queensland AND Queensland Teachers Union of Employees and Others (No. B731 of 2003) DEPUTY PRESIDENT SWAN COMMISSIONER BECHLY COMMISSIONER THOMPSON 19 June 2003 DECISION (as edited) Application B731 of 2003 is an application made by the Queensland Teachers’ Union of Employees (the QTU) for Interim Orders (pursuant to s.149(2)(b) of the Industrial Relations Act 1999 (the Act)) to be made by the Full Bench to grant an interim wage increase of 8% back-dated to 1 March 2003. The claim is supported by The Queensland Public Sector Union of Employees and opposed by Education Queensland. Having heard the claim on 30 May 2003, the Commission issued a decision on 6 June 2003, requesting that the parties specifically address s. 150 of the Act. That further hearing occurred on 12 June 2003. At that time, the Full Bench delivered a decision from the Bench. Published hereunder is the decision: “We have considered the submissions from both parties on the substantive application (B731 of 2003) and upon the questions raised by the Full Bench stemming from that earlier hearing. In terms of the issues raised on today’s date (i.e. those relating to a consideration of s. 150 of the Industrial Relations Act 1999) we find the thrust of the submissions made by Education Queensland to correctly reflect the position of the parties vis a vis that Act. We will, of course, publish reasons for having reached that determination in due course. Having made a determination on that point, it leads us to state that we have now formalised our position with regard to the substantive application (B731 of 2003). With regard to that matter, we advise that we will not grant that application for reasons which will be published in due course. Having made those findings, we now request that the parties confer upon the programming of the case proper. At this stage, we have no view to express with regard to the correspondence received from Education Queensland, dated 3 June 2003, on the possible time frames for progressing application B481 of 2003. We encourage an expeditious finalisation of this matter. Having said that, however, we would not wish to place pressure on any party to constrain their case. Appropriate time will be scheduled to ensure that the parties’ interests are duly considered and accommodated, within reason. Order accordingly.”. In effect, there are two issues to be considered by the Commission. The issues can be put into two categories – one being in effect a “merit” issue and the other a “legal” issue. Clearly, if there was a legal impediment to granting the application, then, under normal circumstances, that would obviate the need to consider any merit argument. However, in this instance, we state that, notwithstanding the possibility of any legal impediment to granting the application (and we have accepted the legal “thrust” of Education Queensland’s submissions), we did not find the general application made by the QTU to be meritorious. The application as considered at the first hearing. The Department of Education Teachers’ Determination 2000 (the 2000 Determination), although it has reached its nominal expiry date on 28 February 2003, continues to be the primary source from which public sector teachers gain their wages and conditions. The QTU is in effect seeking an 8% interim wage increase payable from 1 March 2003 until such time as the Full Bench of the Commission determines the outcome of application B481 of 2003. When the 2000 Determination was made by a Full Bench of the Commission (B458 of 2000), a mediated decision of the Commission had determined that the first pay increase awarded to teachers would be paid as from a specified date. That date was 10 April 2000. When that case was finalised in the Commission towards the end of that year, and wage increases were granted, the first increase was back-dated to 10 April 2000. There has been no like agreement or mediated decision in the matter now before us. -- 1 of 3 -- 4 July, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 801 The QTU’s claim for the interim order goes to a number of issues. These, although not exhaustively, include: • The last increase of wages paid to teachers occurred on 10 April 2002 although a 1% increase was paid to teachers in promotional positions in Bands 4 to 7 on 1 July 2002. • Teachers face a further extended delay in payment of any wage increases pending arbitration. • Reference was made to B458 of 2000 and the back-dating of the first pay increase to 10 April 2000. Comparisons were made with what were viewed as, comparable provisions contained within the Workplace Relations Act 1996 to s. 149 of the Queensland legislation and outcomes of recent cases within the Australian jurisdiction – most notably the granting of an interim award in the Australian Nursing Federation (Queensland Branch) and Queensland Department of Health and Mater Misericordiae Health Services Brisbane Limited on 1 October, 2002, (PR 923504), 28 October, 2002 (PR 924112) and 31 October, 2002 (PR 924214). • In the previous two sets of enterprise bargaining for Queensland public sector teachers, interim increases have effectively been paid. • Notwithstanding increases paid to public sector teachers in 1997 and 2000, Queensland public sector teachers are still paid less in real terms since 1976 and in relative terms since 1982. • Analysis of Real Teacher Salaries for Selected Classifications 1976-2003 were relied upon. The salaries were scaled using weighted average Consumer Price Index (CPI) statistics. • Relying upon that analysis, teachers were still paid less in real terms than in 1976 for far more demanding work. • To restore teachers’ salaries to their 1976 values would require substantial increases for example: 4 year trained starting 7.5% Year trained maximum 2.4% Grade 1 Principal 0.29% • Current inflation rates based upon the CPI increases were provided. For the December 2002 quarter the increase was 3%. • Average Weekly Ordinary Time Earnings (AWOTE) statistics were also provided. Those statistics showed real declines in teacher salaries for the abovementioned categories of teachers. • The declines in relative teacher salaries represents a significant factor in the capacity to attract the highest quality of teacher entrants and to retain quality teachers. • Enterprise bargaining outcomes since 1994 were produced in evidence. The response (although not exhaustively) from Education Queensland (the Department) can be best categorised as follows: • The Department has sought a speedy resolution of the matters in dispute between the parties. • It is not the usual practice of the Commission to make an interlocutory order for an across the board wage increase. • The interim order sought seeks to fundamentally alter the status quo by creating new rights and entitlements. No existing rights and entitlements of the applicant’s members are under threat. • Reference was made to the differences between the Federal and State industrial legislation. • The onus was on the applicant to demonstrate to the Commission that an immediate increase was warranted. • The issues that QTU seek to ventilate are matters more rightly determined in the arbitration of the matter. • “Should the Commission consider awarding 3.5%, it should not lose sight of the fact that the balance of the claim is yet to be arbitrated. Key elements of the QTU’s claim in matter number B481 of 2003 are for wage increases significantly in excess of increases gained by bargaining in other public sector areas and for decreased class sizes and fewer contact hours (amongst other claims). In these circumstances the employer faces a considerable detriment should the application in B731 of 2003 succeed without reference to these costs and hearing the totality of the Department’s arguments. On the other hand there is no risk to employees’ rights and entitlements should the application fail.”. • In light of these factors, cost considerations which might be imposed upon the Department would need to be considered. • “There are technical difficulties in resolving in favour of the QTU claim. The Education Queensland Teachers’ Determination 2000 continues to operate until revoked and cannot be amended.”. • The Department canvassed the proposition that even were the Commission to accept that an interim increase was warranted, then there were no grounds upon which to grant an interim increase equating to 8%. • Public sector teachers have received significant wage increases in the most recent past. • The Department challenged the question of “delay” in teachers receiving a wage increase. The Department referred to the fact that some 73,000 public sector employees had received their wage increases through successful enterprise bargaining. • The Department argued that it was not the usual practice for the Commission to grant retrospectivity in such matters. -- 2 of 3 -- 802 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 4 July, 2003 Evidence was also drawn from witnesses for the Department and went generally to questions of financial implications flowing from the type of claim being pursued by the QTU. We have duly considered all submissions. There can be no “precedent” taken from the making of the 2000 Determination to the extent that this Full Bench should follow the approach taken by the former Full Bench upon the merit argument concerning any “interim” increase. The facts are discretely different. One example being that there is no pre-determined date from which any increase will operate. We are conscious of the scope of the claim being made by the QTU. There are major issues to be considered by this Full Bench in the arbitration of the matter. These go to issues, for example, such as a claim for decreased class sizes and fewer contact hours. These claims could arguably result in significant cost implications for the Department were more teachers to be required. Being mindful of the type of issues to be arbitrated, we believe the more appropriate course to be adopted is to await the arbitration of the claim in toto. By doing that, all possible cost implications can be carefully considered by this Full Bench. On those grounds alone, we reject the claim made by the QTU. The QTU believes that it would not be able to do justice to the breadth of its case were it to be constrained within a short hearing. The Department, on the other hand, believes that the matter could be dealt with expeditiously. The Full Bench has provided, at the commencement of the hearing of these matters, dates upon which the matter can be heard. It is up to the parties to determine how they present their respective cases to the Full Bench. We now turn to the submissions made around s. 150 of the Act. Notwithstanding any questions around s. 150, this claim has failed on merit. Therefore, were it to be correct that one could legitimately make the type of claim sought by the QTU, the merit argument (as it might be called) has already been heard and it has been dismissed for the reasons outlined. We stated at the hearing around this discrete point that we accepted the “thrust” of the Department’s submissions on this point. We have previously detailed the propositions put to the parties on this point (see Decision from Bench on matter B731 of 2003 released on 6 June 2003). The 2000 Determination, is the primary source for wages, amongst other things, for public sector teachers. The claim currently before the Commission is for an interim wage increase of 8%. A Determination is unable to be amended (see s. 150(1)(3) of the Act). What is being requested represents no more than a de facto attempt to amend the Determination. We reject that proposition and make no further comment on that at this point in time. Were our views on s. 150 to constitute the sole reason for determining not to grant the application, then greater commentary on the point would be required. Upon the release of the final decision on this matter, those considerations may be addressed further. The parties have been advised of available hearing dates. We will hear the parties further on the progression of the substantive case. The parties will be notified by the Registry of the date for the next Preliminary Hearing in due course. We order accordingly. D. A. SWAN, Deputy President R. E. BECHLY, Commissioner J. M. THOMPSON, Commissioner Appearances: Ms J. Carberry for the State of Queensland. MR P. Whitehouse for Education Queensland. Mr G. Moloney and with him Mr K. Bates and with them Dr J. McCullow for the Queensland Teachers Union of Employees. Hearing Details: 2003 30 May 2003 12 June Mr J. Spriggs for the Queensland Independent Education Union of Employees. Mr K. Cudihy for the Catholic Education Employing Authorities Queensland. Mr J. Redsell for Grammar Schools and Lutheran Education Queensland -- 3 of 3 --