T0652 Dec 806/96 M Print N2940

AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Industrial Relations Act 1988

s.113 application for variation

s.107 reference to a Full Bench

Australian Education Union

(C No. 32548 of 1995)

TEACHERS' (VICTORIAN GOVERNMENT SCHOOLS) CONDITIONS OF EMPLOYMENT AWARD, 1995

(ODN C No. 31325 of 1993)

[Print M3410 [T0652]]

Teachers Educational services

JUSTICE MUNRO

DEPUTY PRESIDENT ACTON

COMMISSIONER FRAWLEY MELBOURNE, 5 JULY 1996

Salaries and career structure; special case; award variation; settlement of order

DECISION

The Full Bench decision of 1 March 19961 determined an application for variation of the Teachers' (Victorian Government Schools) Conditions of Employment Award, 1995 (the Conditions Award). In doing so, the Full Bench refused the applicant's, the Australian Education Union (the AEU), claim for salary increases to be incorporated around an existing award classification structure. It adopted instead a modified form of the classification structure proposed by the State of Victoria and the Minister for Education (Victoria). In essence, the Full Bench decided to give award prescription to a career structure and salaries based upon a modified form of the Professional Recognition Program (PRP) structure unilaterally implemented by the State of Victoria. In addition, the decision provided for award prescription to be made for sabbatical leave and annual leave loading. The Bench concluded:

In accordance with that requirement a conference of the parties was convened on 22 March 1996 by Frawley C to settle the order. This decision on settlement of the order has been prepared by Frawley C in consultation with the Full Bench. The Full Bench has approved the terms of the decision and makes the orders attached in terms proposed by Frawley C.

The AEU and the Director of School Education (the DSE), on behalf of the State of Victoria and the Minister for Education (Victoria), each submitted a form of draft order. The formal classification structure and the scheme of translation of teachers employed as at 4 March 1996 to special salary points designed for the purpose is common to both drafts. Another point in common is that the order should vary both the Conditions Award and the Teachers (Victoria Government Schools - Interim) Award, 1994 (the Interim Award)3. This latter award was the subject of an earlier application by the AEU. However, save for those and some other machinery matters, there was a considerable divergence of views between the drafts submitted. Most of those differences were connected with the effect of superimposing provisions that give effect to the Full Bench decision in the Conditions Award upon conditions and arrangements derived from the Interim Award. Frawley C directed the parties to provide written comments in support of the clauses each contended should be included in the order to give effect to the Full Bench decision of 1 March 1996. We note and emphasise that some issues pursued by the parties with respect to the order relate to points of detail not canvassed in earlier proceedings leading to the 1 March 1996 decision.

However, we accept that, in the circumstances, the order may properly be applied to variation of both the Conditions Award and the Interim Award to give effect to the Full Bench decision. Although we do not determine all points in issue we have given consideration to each of the clauses in contention between the parties. For this purpose, we adopt the sequence set out in the DSE's document but generally use the clause reference as it will appear in the Conditions Award as varied.

1. Adult Migrant Education Service and School Support Teaching Service:

In relation to Adult Migrant Education Service (AMES) teachers, the DSE proposes to amend clause 3 of the Conditions Award to exclude those teachers from the application of the award. It contends they cannot be included because they are not employed in government schools and there are separate negotiations taking place between AMES and the AEU on a certified agreement covering the working conditions of those teachers. The DSE also contends that no argument was put in the hearings in support of a salary increase for AMES teachers and until a certified agreement is concluded they should continue to be covered by the Interim Award in its present form.

The AEU seeks to include AMES teachers for salary and allowance purposes only in the order. These teachers were covered by the previous State award, continue to be covered by the Interim Award, received the first and second safety net adjustments and the 1.8% interim increase, and should move with teachers to this award until such time as negotiations to create a separate AMES award result in a transfer to that award. In relation to the SSTS adjustment allowance, the AEU seeks to include the allowance in the amending order.

We are of the view that the AMES teachers employed as such should not be included at this stage in the order but should remain covered by the Interim Award. To achieve that, the deletion of Part 2 of that award will need to be qualified. To that end, we will make any deletion subject to a transitional provision in the order. The deleted provisions will apply and continue to operate in relation to teachers engaged in the AMES in the same manner and to the same extent as applied prior to the deletion of Part 2 of the Interim Award, subject to further order. We reserve leave to apply for a determination in respect of such teachers.

Regarding the School Support Teaching Service (SSTS), the DSE states that because the structure was abolished in 1995, the order should not refer to this structure apart from any essential translation arrangements and mechanisms are available separate from award prescription for the protection of any affected individuals.

We have included the translation arrangements agreed between the parties in the order varying the Conditions Award. We reserve leave for the AEU to apply for the Conditions Award to be varied to include the SSTS adjustment allowance should that be necessary.

2. Undertakings:

The second matter concerns undertakings by the AEU. The DSE's view is that the undertakings in relation to the safety net adjustments and the 1.8% salary increase be included and proposes a three part clause 9 to meet their concerns. The AEU opposes the inclusion of undertakings in the form proposed by the DSE. It considers the earlier undertakings to be inappropriate and redundant.

In addition, after a conference chaired by Frawley C, further representations were made to him by the DSE on 23 May 1996 and more recently on 13 June 1996 about threatened or actual bans with respect to VCE indicative grades. The DSE pressed for "fresh" undertakings by the AEU to be included in the order to give effect to our decision.

In awarding a 1.8% interim increase to teachers in Victorian government schools in November 1995, the Commission required and the AEU gave the following undertakings:

Our decision of 1 March 1996 indicated we were granting such teachers further wage increases due to the "implementation of the PRP in response to and as an agent of structural change in teaching work" which "change is linked with other changes to teaching arrangements and requirements in government schools in Victoria, particularly those associated with the Schools of the Future".

With one proviso, we have decided not to require undertakings to be included in the current order. However, we stress that the career structure and wage increases we have granted and which are included in the order are in response to the abovementioned work changes for teachers in government schools in Victoria. Accordingly, we expect such work changes will be implemented by teachers without any form of industrial action.

Should such industrial action take place, recourse is available to the State of Victoria and the Minister for Education (Victoria) under the Act.

The one proviso to which we have referred is that clause 9.1 will set out the statements associated with the first and second $8 per week arbitrated safety net adjustments as required by the Statement of Principles attached to the Third Safety Net Adjustment and Section 150A Review October 1995 decision4.

3. Casual Replacement Teachers:

Casual Replacement Teachers (CRTs) is the third area of disagreement. The DSE states that its proposed clause 9.4 reflects the employment arrangements currently in place. The clause allows payments of CRTs on a sessional basis with no other entitlements under the Conditions Award, or classification structure. The AEU proposes to transpose in effect clause 2.1.15 and Schedule 1, Part 1, 1.2 updated from the Interim Award. That clause applies to teachers engaged for less than two days per week or four days per fortnight.

In our decision of 1 March 1996, we said that we did not believe there was sufficient material before us to enable us to decide whether or not CRTs should be paid on an hourly basis as opposed to a longer period such as a half day or full day basis. We reserved leave to apply. We suggested the parties confer on the basis that if necessary the Commission would arbitrate the issue after more detailed submissions were made available.

Such submissions have not yet been made and so we continue to reserve leave to apply. In the meantime, the order varying the Interim Award will contain a provision preserving the status quo.

4. Leading Teacher

The next area of disagreement concerns the use of the designation "Leading Teacher". The DSE contends that the PRP structure was generally adopted by the Full Bench. In DSE's contention, it is essential to maintain the position title as some 1100 positions of Leading Teacher have been advertised. The DSE also states it has adopted a flexible approach to the specification of the term of appointment for these teachers (any period up to a maximum of five years) which is most likely to meet the needs of individual schools. The DSE states its proposed clause also reflects the PRP arrangements about a teacher returning to the top of the incremental scale (sub-division 12). The AEU considers the order should only specify Level 1, Level 2 and Level 3 and it is opposed to the Leading Teacher terminology.

In our view, adoption of the prevailing designation used by the employer is appropriate. We adopt the DSE's draft in clause 9.5. We have no good reason to depart from the term appointment system currently used. It was associated with the PRP system at the time of the decision.

5. Deferment of Increments:

The DSE considers the order should provide an appropriate "safety net" clause in circumstances where deferment of an increment is contemplated but that it does not need to be overly prescriptive. In its proposed clause 9(6), the condition for any deferment is a determination by a review process determined by the DSE. The AEU proposed clause 9.3.2 is more elaborate. It imports a broad reference to the performance standards relevant to the reviews for incremental advancement. It specifies the "due process" procedures currently operating in the PRP where deferment of an increment is contemplated.

Questions about incremental advancement and deferment of increment are, in our view, matters of importance in establishing enforceable rights to salary in a career service. We consider the formulation proposed by the AEU is appropriate for inclusion at clause 9(6).

6. Band 4 Teachers:

The DSE adopts the PRP regime whereby Band 4 teachers translate as teacher Level 1. The AEU proposes that they not translate but be designated as former Band 4 teachers. The AEU contends:

There is no disagreement now about the appropriate salary, being on translation sub-division 12I, not 12E. We consider there should be complete translation and therefore adopt the DSE approach.

7. Additional Provisions Sought by the AEU:

In addition to the above matters, the AEU wishes to have included in the order clauses relating to the following:

* Professional standards.

* Grievance process.

* Commencing salary ranges.

* Salary leave loading maximum.

* Recognition of prior experience and qualifications.

* Allowances.

* Community Schools and English Language Centres.

* Higher Duties.

* Salary on Promotion, Transfer or Appointment.

* Instructor Classification.

As to these matters, the comments supplied by the DSE and the AEU sufficiently indicate the respective contentions. We set out those comments, followed by our determination on the point.

7.1. Professional Standards and Accreditation Process:

The DSE commented:

The AEU's comment was:

The identification of the criteria as professional standards obscures their role as both performance indicators and the functional basis of the classification framework. The criteria usefully summarise the general elements and skills of teaching work. They supply an indication of the performance standards expected. Adoption of them in the Conditions Award is not designed to be a prescription of professional standards; rather it would be the use of existing standards to establish the basis of the award classification and the criteria to be applied for advancement within Level 1 and particularly for advancement beyond Sub-divisions 6, 7, or 8.

We consider it appropriate to include reference to the criteria in a manner that links them to the advancement process, including the hard barrier review. We note the AEU's attempted introduction of an award based peer review process for Leading Teacher accreditation. Having regard to the description of the accreditation process for the PRP, we have incorporated in clause 9.2(4) a reference to the accreditation being by experienced, specially trained peers. We have revised the DSE draft clauses 9.2(2)(a) and (2)(b) to include the current standards of performance.

7.2. Grievance process:

The DSE commented:

The AEU's contention is:

While there is some force in the AEU contention, in the absence of argument and submissions, and of a proper application for variation of clause 7, we are not satisfied we should change the grievance procedure by the order in this matter. It will be open for issues about the extension of that procedure to be raised in the course of the proceedings scheduled to deal with selection and review issues.

7.3. Commencing Salary Ranges and Extra Classifications:

The AEU contended:

The DSE responded on this and a related point about an Instructor classification:

We consider that the DSE approach to the level at which an appointee is placed is to be preferred having regard to the detailed nature of the provisions involved on a matter where there is a discretion of wide scope being exercised. As to the extra classifications, we are satisfied that the DSE's undertakings are sufficient in the circumstances, but reserve leave to the AEU to apply.

7.4. Salary Leave Loading Allowance (clause 9.3):

The AEU Proposed:

The DSE responded:

We reserve leave to the AEU to apply with respect to the Conditions Award specifying the quantum of the maximum Salary Leave Loading Allowance payable should that become necessary.

7.5. Recognition of Prior Experience and Qualifications:

The AEU proposal was:

The DSE responded:

We adopt the same view on this point as we have expressed in relation to prescribing differential commencing salary ranges by reference to additional qualifications held. The recognition of prior experience and qualifications involves recourse to criteria that are subject to evolution and other changes from time to time. We do not consider it necessary and appropriate to include the detailed provision sought in the Conditions Award. Should a particular issue arise, it may need to be resolved through a process that takes account of the established practice, and the Interim Award provisions.

7.6. Allowances:

The AEU's contention was that:

The DSE's response was that:

On the argument and material available to us, we are not disposed to express a concluded view on the issues raised about allowances. We note that a number of allowances in issue are the subject of award provisions that will be supplanted by the deletion of Part 2 of the Interim Award consequential to the orders made in this matter. The pre-existing position, and existing conditions might best be prescribed by leaving the Interim Award in force for the purpose of the relevant allowances. We have considered a possible means of implementing that option by reserving certain clauses from the deletions otherwise made to Part 2 and Schedule 1 of the Interim Award. However, in the circumstances we have not adopted that course. We consider the more appropriate course is to treat the DSE's position as an undertaking to maintain at least the status quo so far as the Interim Award rights are concerned. We reserve leave to the AEU to apply for relevant allowances to be prescribed on the basis that the deletion of such allowances from the Interim Award will be without prejudice to any such claim.

7.7. Community Schools and English Language Centres:

The AEU proposed:

The DSE responded:

On the cases presented and determined in the decision of 1 March 1996, and on the material now available, we are not satisfied we should make an award provisions. We reserve leave to the AEU to apply.

7.8. Higher Duties:

The AEU noted:

The DSE responded:

Provision for a higher duties allowance is one of the provisions deleted from the Interim Award (clause 2.1.13). We consider there to be a continuing need for such a provision. We do not accept that the presence of such a provision is inconsistent with a safety net standard. However, for similar reasons to those we have expressed about other allowances, we are not satisfied that it is necessary to make provision for a higher duty allowance in the Conditions Award at this point. Nor do we accept that the form of the existing Interim Award provision is self evidently appropriate to the changed circumstances of the modified PRP classification structure embodied in the Conditions Award. We reserve leave to apply on the same basis as applies to other allowances.

7.9. Salary on Promotion, Transfer or Appointment:

The AEU proposed the following clause (Refer clause 9.12 AEU Draft Order):

The DSE's proposed order makes no reference to `Salary on Promotion, Transfer or Appointment' provisions. It contended such provisions are inconsistent with the safety net approach.

It may ordinarily be expected that any position provided for in an award classification structure will have associated with it some identified process whereby a duty to pay the relevant wage or salary rates is given effect. We do not consider such a provision would be outside a safety net standard. The AEU's proposed provision is derived from clause 2.1.16 of the Interim Award. It would carry over to the PRP classification structure some principles framed for a different classification and promotional structure. Moreover, having regard to the term appointment and performance sensitive character of some promotional positions, the Interim Award provisions may need to be reconsidered in the changed context of the Conditions Award structure. The DSE proposal which we have adopted as clause 9.2(4) for the time being serves the purpose of establishing a right to the Leading Teacher salary rates upon appointment to those levels.

In the circumstances we do not consider that the AEU provision is necessary at this point. Nor is it, in our view, sufficiently specific to the promotional positions provided for under the PRP. We will therefore not include a provision to that effect at this stage, but reserve leave with respect to it.

8. Determination and Orders:

The orders which have the effect of varying the Teachers ( Victorian Government Schools - Interim) Award 1994 and the Teachers' (Victorian Government Schools) Conditions of Employment Award 1995 are published in conjunction with this decision as Prints N2897 and N2783 respectively.

They will come into force on 4 March 1996 and shall remain in operation for a period of 12 months.

BY THE COMMISSION:

COMMISSIONER

Appearances:

K. Bell with A Lawrence, of counsel, for the Australian Education Union.

C. Jessup QC with G. Giudice and N Green, of counsel, for the State of Victoria and the Minister for Education.

R. Fenton for the Victorian Affiliated Teachers Federation, intervening.

K Heaney with N Green for the Commonwealth

B Schwab, of counsel, for the Victorian Principals' Federation

J Cairns for the Australian Council of Trade Unions

R Jones, of counsel, for the State of Queensland and the Director General of the Department of Education of Queensland

J Prickett, of counsel, for the State of Western Australia and the Minster for Education in Western Australia

M. Evans with J Hankin, of counsel, for the State of South Australia

Hearing details:

1995.

Melbourne:

August 1, 10-11;

September 1;

October 9;

1996.

Melbourne:

February 8-9;

March 22.

Wage rates - classification - settlement of orders - teachers, educational services - parties submitted conflicting draft orders - Bench required to determine content of order - issues include; AMES teachers, undertakings, causal replacement teachers, leading teacher, deferment of increments, Band 4 teachers - union sought additional matters be included in award - orders made retrospectively.

Printed by Authority by the Commonwealth Government Printer

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1 Print M9746

2 Ibid @ pp.16-17

3 Print L3637 [T0426]]

4 Print M5600