[2013] FWC 4405 |
FAIR WORK COMMISSION |
DECISION |
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 5, Item 6 - Review of all modern awards (other than modern enterprise and State PS awards) after first 2 years
Australian Council for Private Education and Training
(AM2012/75)
Educational Services | |
COMMISSIONER DEEGAN |
CANBERRA, 22 JULY 2013 |
Modern Awards Review 2012 - application to vary the Educational Services (Post-Secondary Education) Award 2010.
[1] This decision concerns an application to vary two clauses of the Educational Services (Post-Secondary Education) Award 2010 [MA000075] (the Award) made by the Australian Council for Private Education and Training (ACPET). Three additional applications to vary the Award made by other applicants were withdrawn prior to the hearing.
[2] The application by ACPET was made under Sch. 5, Item 6 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) as part of the review of all modern awards which the Fair Work Commission (the Commission) 1 is required to conduct after the first two years of all modern awards coming into effect (the 2012 Review).
[3] This decision also deals with two technical amendments to the Award proposed by the Commission.
Relevant legislation
[4] Schedule 5, Item 6 of the Transitional Act provides:
(1) As soon as practicable after the second anniversary of the FW (safety net provisions) commencement day, the FWC must conduct a review of all modern awards, other than modern enterprise awards and State reference public sector modern awards.
(2) In the review, the FWC must consider whether the modern awards:
(a) achieve the modern awards objective; and
(b) are operating effectively, without anomalies or technical problems arising from the Part 10A award modernisation process.
(2A) The review must be such that each modern award is reviewed in its own right. However, this does not prevent the FWC from reviewing 2 or more modern awards at the same time.
(3) The FWC may make a determination varying any of the modern awards in any way that the FWC considers appropriate to remedy any issues identified in the review.
(4) The modern awards objective applies to the FWC making a variation under this item, and the minimum wages objective also applies if the variation relates to modern award minimum wages.
(5) The FWC may advise persons or bodies about the review in any way the FWC considers appropriate.
(6) Section 625 of the FW Act (which deals with delegation by the President of functions and powers of the FWC) has effect as if subsection (2) of that section included a reference to the FWC’s powers under subitem (5).
[5] Provisions of the Fair Work Act 2009 (the Act) are also applicable and relevant to the 2012 Review. Sections 134 and 138 provide as follows:
134 The modern awards objective
What is the modern awards objective?
(1) The FWC must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account:
(a) relative living standards and the needs of the low paid; and
(b) the need to encourage collective bargaining; and
(c the need to promote social inclusion through increased workforce participation; and
(d) the need to promote flexible modern work practices and the efficient and productive performance of work; and
(e) the principle of equal remuneration for work of equal or comparable value; and
(f) the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and
(g) the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards; and
(h) the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.
This is the modern awards objective.
138 Achieving the modern awards objective
A modern award may include terms that it is permitted to include, and must include terms that it is required to include, only to the extent necessary to achieve the modern awards objective and (to the extent applicable) the minimum wages objective.
The Full Bench Decision
[6] In considering these applications I have been guided by the Full Bench decision of 29 June 2012 2 concerning the conduct of the 2012 Review. The Full Bench said:
[63] Under subitem 6(3) of Schedule 5, the Tribunal has a broad discretion to vary any of the modern awards in any way that it considers necessary to remedy any issues identified in the Review. However, subitem 6(4) provides that in making such a variation the Tribunal must take into account the modern awards objective in s.134 of the FW Act, and, if varying modern award and minimum wages, the minimum wages objective in s.284.
[7] The Full Bench also said:
[89] In circumstances where a party seeks a variation to a modern award in the Review and the substance of the variation sought has already been dealt with by the Tribunal in the Part 10A process, the applicant will have to show that there are cogent reasons for departing from the previous Full Bench decision, such as a significant change in circumstances, which warrant a different outcome.
[8] In relation to the application of s.138 of the Act to the 2012 Review: The Full Bench said:
[33] We are satisfied that s.138 is relevant to the Review. The section deals with the content of modern awards and for the reasons given at paragraph [25] of our decision it is a factor to be considered in any variation to a modern award arising from the Review. We also accept that the observations of Tracey J in SDAEA v NRA (No.2), as to the distinction between that which is “necessary” and that which is merely desirable, albeit in a different context, are apposite to any consideration of s.138.
[34] While s.138 is relevant to the Review there is still the question of the extent of its impact and the circumstances in which it will have on an application to a variation determination. The supplementary submissions revealed a diversity of views about these issues. We are not persuaded that these issues have been the subject of sufficient debate at this stage. The precise impact of s.138 is a question best considered in the context of a particular application. We agree with the RCAV’s supplementary submission that “the nature of the evidence and the facts as found arising from that evidence will condition the exercise of power and the ultimate outcome required to be determined by the review”.
The Review Process
[9] A directions hearing took place on 19 April 2013. Directions were issued on the same day requiring the applicant to file any submissions and evidence in support of the application by 2 May 2013 and interested parties to file any response by 16 May 2013. The matter was listed for hearing on 28 May 2013.
Application by the Australian Council for Private Education and Training (ACPET)
[10] ACPET did not file any further submissions in support of their application and advised that their position remains unchanged from the original submissions. A number of interested parties lodged submissions in response to the ACPET application.
[11] I will deal with each of the variation proposals separately. ACPET proposed variations to two clauses of the Award:
Clause 21.2 Ordinary Hours of Work - academic teachers
[12] ACPET sought to vary the current clause which provides that for each hour of face to face teaching an academic teacher is paid for three hours work to provide that a teacher is paid for the one hour of teaching, with a separate payment made for preparation and student support. ACPET suggested a minimum payment of one hour for photocopying and other like tasks. The variation was sought on the basis that there is a need to “distinguish the respective roles and duties of teaching and lecturing staff at Universities and that of other tertiary education providers”.
[13] The Council of Private Higher Education (COPHE) filed a submission giving qualified support to the proposed variation but suggested a 1:2 ratio. No evidence was brought by COPHE in support of their submissions and the organisation did not appear at the hearing of the application.
[14] The proposed variation was opposed by the Australian Education Union (AEU), the Independent Education Union of Australia (IEU) and the National Tertiary Education Union (NTEU) who variously noted that ACPET had not demonstrated that the variation fell within the scope of the 2012 Review, the variation was not supported by any evidence and the application dealt with a matter heard and determined during the award modernisation process.
[15] The subject of this variation was dealt with by the Full Bench in the Part 10A process. The applicant has shown no cogent reason for departing from the previous Full Bench position. Accordingly, the application to vary Clause 21.2 of the Award is dismissed.
Clause 10.6 Continuous Service
[16] ACPET sought a variation to the Award to alter the current provision that provides that one or more engagements as a casual or sessional teacher are deemed to be continuous unless more than 8 weeks has elapsed between engagements with a provision that defined continuous service by reference to the teacher having taught for 40 weeks over a 2 year period.
[17] The application was not supported by any further submissions or evidence. The AEU, IEU and NTEU, in separately opposing the variation, noted that the subject of the variation had been canvassed during the award modernisation process and that nothing advanced by ACPET or COPHE supported a finding that the Award was not operating in a manner consistent with the modern awards objective or that the variation met the Review Principles as set by the Full Bench.
[18] The subject of this variation was dealt with by the Full Bench in the Part 10A process. The applicant has shown no cogent reason for departing from the previous Full Bench position. Accordingly, the application to vary Clause 10.6 of the Award is dismissed.
Technical Amendments proposed by the Commission
[19] The Commission suggested two technical amendments to the Award for the purpose of providing a method for converting annual salary to a weekly rate to enable wage adjustments to be made as a result of the Annual Wage Review and to insert a formula in the Award to show how casual rates are to be adjusted following the Annual Wage Review.
[20] Notification of the suggested variations was published on the website as part of the Directions issued on 19 April 2013 and interested parties were asked to provide their views. No interested party opposed the variations which were supported by the NTEU and consented to by the Australian Higher Education Industrial Association (AHEIA).
[21] The Award will be varied to make the technical amendments proposed by the Commission. A determination to this effect will accompany this decision.
[22] This completes the review of the Award other than in respect of matters that have been referred to a Full Bench.
Appearances:
Mr A. Odgers for the Independent Education Union of Australia.
Mr D. Colley for the Australian Education Union.
Ms S. Kenna for the National Tertiary Education Industry Union.
Ms C. Pugsley for the Australian Higher Education Industrial Association.
Hearing details:
2013.
Melbourne:
May 28.
1 On 1 January 2013, Fair Work Australia was renamed the Fair Work Commission (the Commission). In this decision I have referred to the Commission which incorporates reference to Fair Work Australia as it was known prior to 1 January 2013.
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