Education Queensland v Queensland Teachers Union of Employees & Anor [2000] QIRC 129 (2001) 166 QGIG 47

12 January, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 47 ######################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 149 – arbitration if conciliation unsuccessful Education Queensland AND Queensland Teachers Union of Employees and Another (No. B458 of 2000) COMMISSIONERS EDWARDS, SWAN AND BROWN 21 December 2000 Arbitration – Teachers – Enterprise Bargaining – Negotiations – Mediation – Interim Order – Salaries – Beginning Teachers – Paid Maternity Leave – Inspections – Evidence – Principle Objects of the Act – Determination – Wage Increase Granted – Paid Maternity Leave Amended – Beginning Teachers Classification Structure Unaltered. DECISION On 20 March 2000, Education Queensland (EQ) sought the assistance of the Queensland Industrial Relations Commission (the Commission) pursuant to s. 148 of the Industrial Relations Act 1999 (the Act) regarding a proposed Certified Agreement with the Queensland Teachers Union of Employees (QTU). The earlier Certified Agreement between the parties had expired in February 2000. After attempting to conciliate an outcome between the parties, the Commission (not as currently constituted) determined that the matter be referred to arbitration pursuant to s.149 of the Act as a consequence of stalled negotiations between the parties. With the concurrence of the parties (although not determinative in itself), the President of the Commission determined that the matter be referred to a Full Bench of the Commission. Prior to the Full Bench commencing hearings, EQ and QTU sought mediation by the Commission (not as currently constituted) around the question of an operative date from which the first wage payment should be made. This occurred and the operative date was determined as 10 April 2000. In terms of the overall position of the parties vis a vis the proposed Certified Agreement, certain issues between the parties were agreed. As a consequence of this agreement, the parties sought to have those issues incorporated into an Interim Order of the Commission. This occurred on 7 September 2000. The outstanding issues between the parties, were as follows:– • issue 1 – Salaries; • issue 2 – Beginning Teachers – (i) Existing Beginning Teachers Salaries; and (ii) Established starting Salary for teachers with two year pre-service post graduate teaching qualification; and • issue 3 – Paid Maternity Leave. These were the issues to be arbitrated by the Commission. We should state at the outset that this Full Bench was available to hear and determine the issues in dispute between the parties at a much earlier date than what eventually transpired. It was the parties collectively who were not in a position to proceed at that earlier date. Hearings continued into December 2000. The parties collectively requested of the Commission that its ultimate decision be issued before the end of the school year, even if the written decision was issued at a later date but prior to the end of 2000. The parties were advised that were this to occur, then any written decision delivered prior to the end of the year would be in a somewhat abbreviated format. All parties consented to this approach. Notwithstanding the fact that the decision is in this format, the Full Bench has duly considered all of the submissions and evidence produced during the hearing. On 7 December 2000, the Full Bench advised the parties as follows:– “In accordance with s.149 of the Act, we determine as follows:– On the first issue we determine that:– • as from 10 April 2000, teachers will receive a wage increase of 5%; • as from 10 April 2001, teachers will receive a wage increase of 4.5%; and • as from 10 April 2002, teachers will receive a wage increase of 4.5%. On the second issue we determine as follows:– • For beginning teachers and for teachers with two year pre-service post graduate teaching qualifications, those teachers will be considered in the same manner as all other teachers – i.e. the wage increase detailed above will be applicable to them leaving the existing classification structure unaltered. On the third issue we determine as follows:– • Maternity leave will be paid in accordance with the claim proposed by QTU.”. -- 1 of 4 -- 48 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 12 January, 2001 During the course of this hearing, the Full Bench undertook inspections at various schools. These included:– Eatons Hill State School; Bremmer State High School; Hatton Vale State School; Kentville State School; Woody Point State Special School; Hercules Road State School; and Redcliffe State School. During the inspections, the Full Bench was addressed by the various Principals of the schools and had occasion to speak to a range of teachers and to observe class room activities. These interactions do not constitute “evidence” per se before the Commission, however various observations were made by the Full Bench. These included, but not exhaustively, the following examples:– • issues such as Behaviour Management; • issues such as the inclusion of students with various disabilities within the classroom; • conditions generally of teachers at schools; and • issues such as the devolution of duties traditionally the responsibility of Principals as was noted at Eatons Hill State School, by way of example. We state that these observations were shared with the parties during the course of the hearing so that any further commentary might be made as required during submissions. In determining the issues as previously detailed, we state hereunder the rationale relied upon to reach such a conclusion. The State of Queensland has submitted that, in making our decision, the Full Bench should consider, amongst other issues, the following criteria:– • “The intent of the Government in promulgating the Industrial Relations Act 1999; • The role of the Commission under the Act; The responsibilities of the Commission in respect of the public interest and the Commission’s State Wage Principles; The nature of the consistent offers made in the Queensland Public sector; and The outcomes of the round of wages negotiations in the Public sector.”. For EQ, it was stated that the “key components” upon which it relied within its submissions related to:– “Queensland Government wages policy; Wages environment; Economic environment; The Queensland Teachers’ Union claim; The Agreement reached between the parties in June 2000; The interim order; and Previous rejected agreements between the parties.”. For QTU, it defined the following criteria as representing matters for consideration by the Full Bench:– • The fixed nature of the wages offer made by EQ and the State Government thereby ensuring that no negotiation could occur around the question of quantum between the parties. • Were the QTU’s claim of three wage increases of 8% per annum to be granted, Queensland teachers would still not regain the status quo relative to the situation as it existed in 1976. • Disparity between Queensland teachers’ wage rates and those of teachers in other States remained significant. The established linkage between Queensland teachers’ salaries and the salaries of teachers in other States through a range of decisions emanating from the QIRC. • For new entrants into the teaching profession, there exist a range of factors which required consideration by the Full Bench. These include:– • the pursuit of personal development; • work performed in rural, remote and non-preferred workplaces; • appropriate level of wages to attract quality candidates to the profession; • for teachers who have completed a two year post-graduate pre-service qualification, the Full Bench should consider the liability these people incur as a consequence of Higher Education Contribution Scheme payments; and • Concerning maternity leave, QTU asserts that:– “The school vacation periods should be excluded from the calculation of the periods of paid maternity leave for teachers in the same way that they are for long service leave”. • Matters evident after the Full Bench and parties visited various schools included the following:– Behavioural Management; Technology; Education of students with disabilities; Development of new courses; Legal responsibilities; Professional development; and Factors such as Community and Departmental expectations, amongst other issues. • The Full Bench should give consideration to the following programs which would be implemented by teachers over the next twelve months:– • new Basic Curriculum; • new Pathways for secondary students; -- 2 of 4 -- 12 January, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 49 • vocational Education; • P-12 Schools; • literacy; • new Financial management systems; • information technology applications in student management; • the retention of appropriately qualified teachers through offering attractive salaries; • a consideration of teachers and their responsibilities regarding students with disabilities. Currently, an allowance of $19.30 per fortnight is paid to certain teachers who undertake these responsibilities; and • a consideration of Senior Teaching positions. EQ and the State Government have made it clear that they entered into negotiations with QTU with a fixed view regarding quantum of wage increases over the life of the agreement. The offer “across the board to all employees” in the public sector by the State Government was a wage increase of 3% per annum over the life of the various agreements. EQ and the State Government explain in their submissions how they have reached that position. Primarily they state that the Government’s position in regard to wage increases is set by Cabinet and the Cabinet Budget Review Committee (CBRC). As a matter of fact, various Government departments and the “core” public service parties have accepted those increases. Their agreements have been certified by the Commission with the parties affirming during the course of those hearings that they have bargained in good faith. Those agreements expire at various stages within the next three years. We understand that through negotiations between the parties in this matter, whilst the quantum was “fixed” from the Government’s perspective, other matters were open for negotiation between the parties. We acknowledge that Governments are constrained in many respects through considerations of fiscal policy and accountability, amongst other significant matters. However, Governments, along with all other employers within the State, are equally under an obligation to bargain reasonably with their employees. The employer was entitled to put its offer on the table to its employees as it saw fit and employees were entitled to accept or reject the offer. The fact that the same wages offer was put to all public sector employees is not in itself unusual, but it is also not unusual that a particular grouping within the public sector (in this instance, teachers) chose to reject such an offer. We have accepted that teachers are a discrete grouping within the public sector and we have treated them accordingly. Their needs and concerns might reflect some element of those experienced by other public sector employees, but they have also demonstrated that they have needs and concerns peculiar to teaching which need to be addressed in isolation from other public sector issues. This decision should in no way be seen as representing a ‘benchmark’ for other public sector employees. Quite the contrary. It is a decision relating solely to teachers employed within the public sector. We have appropriately acted according to the prescriptive elements of s. 149(3) of the Act, but note that the sub-section does not dictate that the Commission must only consider the criteria as listed. We have determined to deal with the issues clearly identified to be in dispute between the parties, with one exception. The exception relates to matters surrounding the teaching of students with disabilities. Separate mention of this factor will be addressed later in this decision. We duly recognise and adopt the various provisions of the Act (particularly sections 3, 149, 230, 320 and other relevant significant sections of the Act) and the State Wage Principles of this Commission in making this decision. This case stands on its own particular merits. In forming our view to set the quantum of wages at the rates previously cited, we would state that the particular factors influencing our decision (amongst other more general factors) are as follows:– • We acknowledge that the needs of teachers in relation to their professional development do not remain static. There is an ongoing evolution of change occurring within classrooms, with students, with teachers, with educational authorities, with Government policy, with parents of students together with expectations of the community generally. Continual adjustments must be made over time to respond to altered social and economic dynamics within this industry. Against this background, whilst reference has been made to a range of considerations previously dealt with through enterprise bargaining outcomes, we are mindful of those factors, but do not feel constrained in terms of considering those outcomes, in relation to this decision. • Behavioural Management issues evident at the various schools visited together with a consideration of direct evidence on the point. Student behaviour with peers and teachers has clearly declined over the years. We acknowledge the very real efforts being made by all parties to address this problem, however the problem is real and we see this as a factor which causes teachers considerable anxiety. • Professional development. This Full Bench has been advised through direct evidence (unchallenged) that many teachers undertake professional development in their own time and, in so doing, stock and generally provide for their own libraries and resources. • Salary rates should be sufficiently appropriate so as to attract and retain suitably qualified employees. • We are mindful of the applicable wage rates for teachers in other Australian States and express a view that Queensland teachers’ wage rates should retain an appropriate relativity with those wage rates. This decision does no more, in part, than seek to retain that comparability. • Over time, Queensland teachers’ wage rates have declined in real terms. An adjustment of this type, at this particular point in time, is required to attempt to rectify this problem. It would arguably have been more palatable and appropriate had the adjustment occurred incrementally over time – however, this has not happened to any appreciable degree over time and with the employer’s current stance on quantum, the long term effectiveness of this approach seems remote. • The on-going nature of the development of new courses to be implemented by teachers. • The extensive unpaid hours worked by many teachers. • The requirements of teachers to adequately educate and facilitate students with disabilities. (Separate comment will be made on this point. The fact that a particular perspective is later proffered by this Full Bench around this issue, did not cause us to feel constrained in considering this factor within the general wage claim, at the very least). • The increased demands upon teachers by the community at large. In terms of s. 149 (3) of the Act, we would state as follows:– 149.3 (a) has been considered and cited in this decision; 149.3 (b) has been addressed in this decision; 149.3 (c) has been addressed in this decision; and 149.3 (d) we believe that the “public interest” requirements have been met by this decision. To ensure that the “public interest” is adequately considered by the Full Bench an appreciation of a range of factors. Is required. Within the context of this decision, it requires broader considerations than simply satisfying the needs of teachers and the employing body. Public monies are expended upon education, Governments have budgets to administer equitably across a range of interest areas, and the community has expectations of appropriate educational standards being met. These considerations have been duly weighed in this decision. -- 3 of 4 -- 50 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 12 January, 2001 A consideration of the Objects of the Act is another mandatory requirement for observance by this Full Bench in making a determination pursuant to s. 149 (3) of the Act. Section 3 “principle object of this act” is broad in its content, and, apart from some obvious exclusions (e.g. 3(k)) is relevant to all components of this decision and has been considered in making this decision. Rather than recite all of the elements of that section, we believe it appropriate to state that issues such as “economic advancement” and “social justice” for all parties have been duly considered by the Full Bench, amongst other issues. Regarding s. 3(d)(ii) of the Act, the Full Bench has received lengthy submissions from the Government on this point. There are obvious cost implications arising from this decision together with the possible “flow on” effect to other teaching areas within the State. Also cited was the fact that an outcome of the type proposed by QTU would cause disparity amongst other employees in the public sector. Within the framework of enterprise bargaining, it should not be a matter of surprise that different outcomes might occur within different sections of the workforce, whether they are within the public or private sector. The fact that most public sector employees, through their representative organisations, chose to agree with the Government’s perspective vis a vis wage increases is a decision of their own making. In no way do we attempt to disturb or unbalance those arrangements through this decision. We have previously expressed our concern regarding the method utilized by the Government concerning the “fixed” nature of its bargaining position around the question of quantum. Clearly, when an agreement could not be struck between the parties, and especially when EQ sought the assistance of the Commission, it was always possible that a different outcome than that proposed by the employer or QTU might occur. In terms of any “flow on” effect to other employees, we would state as follows:– Parties are free to enter into industrial relations arrangements as they see fit. It seems trite to state that parties reach their own agreement on terms suitable to themselves. Those issues are in the hands of the negotiating parties. Provided those agreements meet the requirements of the Industrial Relations Act 1999, then certification would follow. We see no “flow on” implications for other employees within the public sector as a consequence of this decision. This decision relates to teachers within the public sector only. In terms of any possible “flow on” implications for teachers within the private sector, we have duly considered the ramifications of this decision in that light. If the private sector is required to ‘flow on’ the outcome of this decision to its employees as a consequence of enterprise bargaining outcomes that have been entered into, then they do so in the knowledge that at no stage did they seek leave of the Commission to have their views expressed in this hearing (see s.329(b)(v) of the Act). Those enterprise bargaining outcomes within the private sector may have been made without the knowledge that the public sector teachers’ claim would come before the Commission for finalisation, however, given that this has occurred previously, it seems to us that it should have been a matter for consideration by these other bodies. In any event, the avenue was open for them to pursue and for reasons unknown to us they chose not to adopt that course of action. Clearly there would be a cost impost on the Government as a consequence of this outcome. However, we believe that the percentages granted in this case are heightened for reasons detailed in this decision but are not so markedly outside of the general range of wage increases Australia wide within the public sector. In the specific circumstances of this case, we believe that the increases granted are warranted for the reasons so cited. DEWRSB (Department of Employment, Workplace Relations and Small Business) Enterprise Bargaining September Quarter 2000 statistics show that federal public sector enterprise bargaining outcomes rose nationally from 3% to a percentage rate of 4.3%. We do not rely upon those outcomes to support this decision. They are provided for information only. The merits of this case determine the outcome. We propose to grant the maternity leave provisions as detailed by QTU in its claim. Transcript evidence would show that the scheme as it currently exists is inequitable for female teachers and is artificially being applied by female teachers to achieve a fair result for them. We have little difficulty in viewing the proposals proffered by QTU as being fair and reasonable in the circumstances. Teaching remains predominantly a female profession and the fundamental needs of women and families, we believe, have been addressed in this decision. With regard to teaching of students with special needs, we observed many classrooms where integration was evident. We are conscious of the allowances which are available to certain categories of teachers in this situation. Whilst it is not appropriate for us to comment upon the rationale for integrating special needs students into classrooms, we have not failed to observe the challenges encountered by teachers in these instances. We have sought further submissions from the parties around this general issue, but in a case of this magnitude, it has not been possible to fully educate ourselves upon problems inherently belonging to these teachers and classrooms. To this end, we have determined to inform ourselves more appropriately around these issues in the new year. The parties will be advised in due course of the process we would adopt to progress this issue in 2001. Other claims proposed by QTU are rejected. Order accordingly, K.L. EDWARDS, Commissioner. D.A. SWAN, Commissioner. D.K. BROWN, Commissioner. Released: 21 December 2000 Appearances:– Mr P. McKay and with him Mr D. Honor and Mr P. Casey on behalf of Education Queensland. Mr K. Bates and with him Mr G. Moloney, Ms K. Ruttiman and Mr S. Rose on behalf of the Queensland Teachers Union of Employees. Mr G. Coonan on behalf of the Department of Employment, Training and Industrial Relations. -- 4 of 4 --