TO
ALL PSA SSO, AEW, ECW MEMBERS
ENTERPRISE BARGAINING
ORDERS OF THE INDUSTRIAL COMMISSION
Following
on from the PSA brief dated 20th November, 2008, please
find below the Statement and Orders from the Industrial Commission.
These Orders are still in place from this morning.
SOUTH
AUSTRALIA C.C. 14/2008
INDUSTRIAL RELATIONS
COMMISSION
File No. 3670 of 2008
IN THE MATTER the South Australian Education
Staff (Government Schools, Preschools and TAFE) Enterprise Agreement
2006
and
IN
THE MATTER of a dispute between the Department of Premier and
Cabinet and the Australian Education Union and the Public Service
Association
IN
THE MATTER of a Compulsory Conference convened pursuant to
s.202(1) of the Fair Work Act 1994
BEFORE
COMMISSIONER MJ DOYLE
ADELAIDE,
21st DAY OF NOVEMBER 2008
STATEMENT AND
ORDERS
This matter was referred
back to me by the President following a lengthy period of mediation
before the President during September and October. The situation as
presented to me when this matter was listed for a voluntary
conference on 27 October 2008 was that the parties had reached an
impasse in their negotiations and industrial action had been
foreshadowed by the AEU on Thursday 30 October 2008.
On that occasion the
Commission issued recommendations to the Government urging them to
give serious consideration to improving its earlier monetary offer to
the Unions. It is a matter for the public record that the Government
made an improved offer on 29 October 2008, which was rejected by the
Union and as a consequence the proposed industrial action proceeded.
A further improved offer
was made by the Government on 10 November 2008 which was also
rejected by the Union. It is noted that during this period the AEU
amended its own demands on the Government, by reducing their overall
claim.
In rejecting the
Government’s most recent improved offer on 10 November 2008, the
AEU in correspondence to the Government stated that:
“In essence,
the Government’s revised offer is rejected on the basis that there
remains substantial dispute over key elements. It is the opinion of
the AEU (SA Branch) that there is no reasonable prospect of the
parties making an Agreement pursuant to the provisions of the Fair
Work Act 1994.”
In
a similar vein to the correspondence detailed above, the PSA
corresponded with the Government on 30 October 2008 rejecting the
initial offer made by the Government on 29 October 2008 in the
following terms:
“The PSA’s claim is for 7% pa pay increase, with
the first 7% to be paid from 1 October 2008. As there is no
reasonable prospect of the parties achieving agreement in the near
future, the PSA supports the interim award application which includes
the first 7% increase to be paid from 1 October 2008.”
Following the rejection of
the improved offers made by the Government, the AEU balloted its
members with a view to embarking on an industrial campaign commencing
with a 24 hour stoppage on Friday 21 November 2008, with
rolling-stoppages to follow in the weeks commencing 24 November 2008
and 1 December 2008. Against that background, the Government filed an
application for an award in settlement of this matter, with the
Industrial Relations Commission on 12 November 2008. It is noted that
the Government’s application does not include the TAFE sector.
Earlier, on 1 October 2008 the AEU had filed for an interim award
which claimed a 7% one off increase. The AEU’s application included
the TAFE sector.
In addition to filing its
application for a new award in settlement of this matter, the
Government has requested that the voluntary conference be enlivened
so as to deal with the impending industrial action proposed by the
Union. On reconvening the voluntary conference on the 17th
inst. the Commission recommended to the Government that it give
serious consideration to the granting of an interim increase in an
endeavour to resolve the impasse that had developed between the
parties. Given the seriousness of this dispute, I proposed to the
Government parties, that my recommendation be placed before the
Minister for Industrial Relations.
On reconvening the
voluntary conference on the following day ie: the 18th
inst. the Government parties advised that the Commission’s
recommendation had been rejected by the Minister for Industrial
Relations. Following further discussion and consultation with the
parties, both privately and together, the Commission proposed that
the Government give consideration to the granting of an interim
increase in the following terms:
It is noted that the issue
regarding scope is whether or not the TAFE sector were to be included
in any such considerations.
That recommendation was
initially rejected by the Government, but was ultimately agreed to on
the Commission’s strong recommendation that this position, at least
secured a date of operation for any increase to apply and at the same
time would bring to an end the prospect of further industrial action,
including the proposed stoppage set down for 21st inst.
Following the Minister’s
concession to allow the date of operation to be confirmed, the AEU
branch executive met on the evening of the 19th inst. to
consider the proposition. Upon return to the Commission later that
evening, the Commission was advised that the proposal had been
unanimously rejected by the branch executive. This in my view was
most unfortunate, as it appeared to meet a key demand promoted by the
Union to secure a retrospective date of operation. The decision taken
by the AEU was even more disappointing given the apparent difficulty
in securing such a concession from the Minister for Industrial
Relations.
On receipt of that advise
on the evening of the 19th inst. the Government requested
that the voluntary conference be elevated to a compulsory conference
pursuant to s 202 of the Fair Work Act 1994. The parties present were
advised that a compulsory conference would be convened the following
day at 10.00 am.
On convening the
compulsory conference the Commission advised the parties that after
giving reasonable notice I would be referring the subject matter of
the conference for determination by the Commission, in this case to
be constituted by myself. During the preliminary proceedings, counsel
appearing for the PSA indicated that he wished to propose an offer
that was capable of settling the dispute between the parties and at
the same time the proposed industrial action which was due to
commence on 21 inst. Throughout these proceedings the
Commission has been eager to pursue any avenue which may yield a
resolution to this long running dispute. The formal proceedings were
adjourned so as to allow the parties to appear before me privately
and also to allow the union parties to develop and articulate this
new development.
Essentially the proposal
submitted the Unions sought an interim increase in line with the CPI,
which they stated to be 5.1% with an effective date of operation of 1
October 2008. It left open the question of scope, ie as to whether or
not TAFE would be included, and was proposed on the basis that all
industrial action would be withdrawn. The proposition was not
supported by the Government for various reasons. Firstly, it required
the Government to concede the demand immediately in return for a
cessation of industrial action. It appeared to me that whilst the
Union parties were willing to vacate their industrial action
forthwith, such a concession was only available if the Government
were to agree to the proposition immediately.
The Commission indicated
to the parties that the proposition should it have been made much
earlier, may have been helpful in settling this matter. However, the
unsuccessful attempt on the previous day to secure agreement with the
Union party on an interim increase with a retrospective date of
operation, and with the quantum and scope to be determined by the
Commission sat most uncomfortably with the proposal put forward by
the Union parties in an endeavour to head off any orders as sought by
the Government.
Against that lengthy
background, the matter was put back to the parties in order for them
to present their formal submissions both for and against a proposal
by the Government for orders against the Union parties to withdraw
from the proposed industrial action. Not surprisingly the Union
parties to this dispute have urged upon the Commission to resist the
orders being sought by the Government. In particular, counsel
appearing for the AEU took the Commission through a lengthy
submission during which time various authorities were relied upon,
the overall effect of which was to question the Commission’s
jurisdiction to proceed to make the orders as sought by the
Government.
I am grateful for the
assistance provided by counsel both for the Union and Government
parties in highlighting for me where I should take this particular
dispute. On balance of those submissions, I have formed the opinion
that in the absence of a cooperative working relationship between the
parties, underlined by mistrust and suspicion, that short of a
complete capitulation by one side or the other, there is absolutely
no prospect of this matter being resolved by way of reference to
further negotiation between the parties.
I am also of the view that
the parties have developed a rather intractable position toward
resolving this matter, and as a consequence, I am of the view that
further industrial action, will, in this case, do little or nothing
to advance this matter one way or the other. In that regard, the
Commission notes the earlier references to correspondence forwarded
by the Union parties to the Government, both stating that there was
no reasonable prospect of the parties making an agreement pursuant to
the relevant terms of the Act.
The Commission notes that
there are currently two applications filed in the Commission, lodged
respectively by the AEU and the Government which will now be referred
to the President pursuant to s 212 of the Fair Work Act 1994.
On all the evidence before
me I am satisfied that further negotiation and industrial action will
not progress this matter any further from where it is today.
Accordingly I propose to exercise the discretion available to me
pursuant to s 202(1) and I indicate that this matter is referred to
the Commission as currently constituted by myself for determination.
In that regard the following orders are made pursuant to s 202(3):
ORDERS
-
THAT:
-
The Australian
Education Union (South Australia Branch) and its members employed
in the Department of Education and Children’s Services schools
and preschools and T.A.F.E.;
-
The Public Service
Association of South Australia Incorporated and its members
employed in Department of Education and Children’s Services
schools and preschools and T.A.F.E
not
implement or engage in:
-
A 24 hour strike
proposed for 21 November 2008;
-
Any half day rolling
stop-work action proposed between 24 November and 5 December 2008;
and
-
Any other industrial
action in pursuit of claims which are or have been the subject of
Enterprise Bargaining negotiations or have been claimed in relation
to the Award Application No. 7048 of 2008 or the Interim Award
Application No. 6327 of 2008.
-
This Order will apply
until further Order.
-
Liberty to the
parties to apply.
Dated this 21
day of November 2008
By
the Industrial Relations Commission
Commissioner
M.J.Doyle
PSA
WORKING FOR MEMBERS IN SCHOOLS
For further information please contact PSA Industrial Officer, Kerrin Martin
phone (08) 8205 3292 or email: kjm@cpsu.asn.au.
PSA WORKING FOR EDUCATION MEMBERS
24 November 2008
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