Dec 372/97 S Print P0289
AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.107 reference to a Full Bench
s.113 applications for variation
Federated Australian University Staff Association
(C No. 37277 of 1989)
UNIVERSITIES AND AFFILIATED INSTITUTIONS ACADEMIC RESEARCH SALARIES (VICTORIA AND WESTERN AUSTRALIA) AWARD 1989
(ODN C No. 36840 of 1989)
[Print J0106 [U0011]]
Union of Australian College Academics
AUSTRALIAN POST COMPULSORY AND HIGHER EDUCATION ACADEMIC SALARIES (CONSOLIDATED) AWARD 1989
(ODN C No. 00368 of 1987)
[Print H7350 [A0399]]
(C No. 31129 of 1990)
AUSTRALIAN UNIVERSITIES ACADEMIC AND RELATED STAFF
(SALARIES) AWARD 1987
(ODN C No. 02710 of 1986)
[Print G6954 [A0378]]
(C No. 31130 of 1990)
SOUTH AUSTRALIAN INSTITUTE OF TECHNOLOGY ACADEMIC
(SALARIES) AWARD 1988
(ODN C No. 00363 of 1990)
(C No. 31131 of 1990)
Academic staff Educational services
JUSTICE MUNRO
DEPUTY PRESIDENT WATSON
COMMISSIONER FRAWLEY MELBOURNE, 18 APRIL 1997
Casual pay rate for academic staff - casual loading - work descriptors
DECISION
The matter for determination in this decision arises from separate applications by the National Tertiary Education Industry Union (the NTEU) and the Australian Higher Education Industrial Association (the AHEIA) under section 113 of the Workplace Relations Act 1996 (the Act). Each application seeks variation of the Australian Post Compulsory and Higher Education Academic Salaries (Consolidated) Award 1989 (the Colleges Award) and of the Australian Universities Academic and Related Staff (Salaries) Award 1987 (the Universities Award). The variations sought in each instance seek the replacement of existing provisions concerning rates of pay and descriptors of categories of non continuing employment with a new set of descriptors and pay rates for various classes of casual academic employment in Australia's higher education institutions. The substantive provisions of each application as it applies to the Universities Award are set out in Attachment A to this decision.
The matter for determination originated from applications by the academic unions that existed in 1989 and 1990. Those applicant unions have since amalgamated to form the NTEU. On 21 November 1990 the then President referred five matters under section 107 of the Act to a Full Bench. The matters referred were matters C Nos 37277 of 1989, 31126, 31129, 31130 and 31131 of 1990, each being an application to vary one of the then three awards applying to academic salaries.
Pursuant to a direction from the President, Frawley C reported on the matters referred to a Full Bench comprised of Marsh DP and Moore DP and Frawley C. In a decision dated 23 July 1991, that Full Bench applied the structural efficiency principle declared in the August 1989 National Wage Case decision1 to the relevant awards. The decision was framed around an agreement between the unions and the AHEIA. One item in that agreement provided for "ongoing negotiations for the restructuring of the casual salary regime"2. Negotiations conducted in accordance with that undertaking were directed to developing a structure for casual academic rates based upon the new full time rates structure introduced through award restructuring under the 1991 Full Bench decision. On 6 December 1991 the same Full Bench dealt with a number of issues outstanding from the structural efficiency principle exercise. Among other points dealt with, the Full Bench required the parties to report to Frawley C on the issue of casual rates at a conference to be held on 6 January 1992, and directed Frawley C to report to the Full Bench on the issue.
It appears from the submission of the NTEU in this matter that, having failed to agree upon a new casual rates structure, the parties agreed that each should approach the Commission with an application to vary the relevant academic salaries awards.
There are currently two awards regulating academic salaries. The Universities Award regulates salaries for academic staff employed by universities. The Colleges Award regulates salaries for universities that formerly were Colleges of Advanced Education. With respect to full-time salaries, the two awards are identical in their terms. Casual rates, or part-time non-fractional rates as casual rates are also known, are dealt with in clauses 5 and 6 of the Colleges Award which read:
" 5 - PART-TIME (NON FRACTIONAL RATES)
(a) Except for academic staff employed at the Australian Film, Television and Radio School who shall be paid according to Schedule C, the salaries paid to academic staff employed on a part-time basis other than as fractional employees shall be:
Classification Per hour
$
Specialised Lecturer 127.95
(per one hour lecture)
Lecturer 89.57
(per one hour lecture) 76.77
51.18
Tutor 56.46
(per one hour tutorial) 51.84
Demonstrator 18.82
(per hour) 17.28
Supervisor 34.56
17.28
(b) The rate for a repeat tutorial in the same subject matter within a period of seven days shall be two-thirds of the rate for the initial tutorial.
Marking Per hour
$
(c) (i) Marking requiring a significant
exercise of academic judgement
usually as a supervising examiner 26.25
(ii) Routine marking 18.82
(iii) Simple marking such as multiple
choice examinations 17.28
6 - LIMITS ON THE USE OF PART-TIME (NON-FRACTIONAL) RATES
A part-time academic staff member who is engaged for lectures, tutorials or demonstrations for 60 per cent of the time or more of the teaching contact hours expected of a full-time staff member of similar designation for one term (or semester) or an indefinite period beyond one term (or semester) shall be regarded as a fractional employee."
The corresponding provisions in the Universities Award are clause 4 and clause 7 which is in similar terms to clause of the Colleges Award. Clause 4 differs in substance from clause 5 of the Colleges Award only in that the casual rate classifications provided for in the first subclause are:
"Classification Per Hour
$
Lecturer 52.50
(per one hour lecture) 78.75
105.00
131.25
Tutor 56.45
(per one hour tutorial) 51.84
Demonstrator 18.82
(per hour) 17.28"
Each application to vary the awards was foreshadowed when these and other outstanding matters between the parties were called on for mention before the presiding member a reconstituted Full Bench on 28 March 1996. On 2 April 1996 Munro J directed the NTEU and the AHEIA to each lodge a draft order setting out the form of variation proposed to each of the awards in respect of rates of pay and descriptors to be applied to casual employment covered by the awards. Frawley C was directed to hear evidence and report thereon and to report on the issues requiring determination by the Full Bench.
Frawley C reported to this Full Bench on 27 September 1996. A copy of that report, excluding Appendix B, is set out as Attachment B to this decision. In concluding his report, Frawley C listed the matters for determination as being the resolution of the conflicting views of the parties on:
"(i) the appropriate hourly rates and the categories which should be identified by classification in the awards;
(ii) minimum call out of three hours;
(iii) subject coordination;
(iv) preparation time;
(v) repeat lecturing and repeat tutoring rates;
(vi) the casual loading;
(vii) the 60% rule;
(viii) marking and student consultation; and
(ix) appropriate descriptors."
Although full written submissions had been put by each party to Frawley C, the parties sought an opportunity to put oral submissions to the Full Bench on the matters in issue. Hearings before the Full Bench as now constituted took place on 3 and 4 October 1996. At those hearings, Ms L. Gale with Mr K. McAlpine appeared for the NTEU. Dr R. Blackford with Mr D. Shelton and Ms S. Long appeared for the AHEIA.
The presentations to us and the evidence before Frawley C went in substantial detail to the background, extent and variety of use of casual employment on a range of academic duties. Frawley C's report outlines the main sources of evidence and the points sought to be drawn from it by the respective parties. Munro J and Watson DP have also had the benefit of an examination of that evidence associated with cognate proceedings in matters C Nos 34925 of 1995, 34932 of 1995 and 22586 of 1996. Those matters concern categories of employment and were subject to an interim decision made on 9 December 19963.
In the hearing before us, it was common ground that the applications were to be determined by reference to the principles applied in the 1991 Full Bench decision and derived from the 1989 National Wage Case decision4. A datum point for work value changes of 7 November 1980 was canvassed in that decision. Despite the possible availability of that reference point, the AHEIA submitted that all major changes for work value purposes had taken place after the Dawkins reforms of 1987/1988, or were of a kind that could not have been properly assessed at the time of the 4% "second tier" salary adjustment in 19885.
We have considered carefully the very substantial body of evidence and evidential material that has been addressed and analysed in the cases put to us. One component of the NTEU's closing submissions was a written outline in which 10 issues for determination were identified6. The NTEU submitted that each of the applications for variation was a vehicle to enable the articulation of the issues in dispute and to indicate the general shape of regulation proposed by each party, but not an exhaustive statement of options that might be determined. The NTEU proposed that the Commission should issue a statement of principles indicating the manner in which the award regulation should be framed, leaving the parties to draft orders in light of the principles established by the statement. On this point, the AHEIA supported the NTEU, subject to the Commission making clear what the new rates should be and the circumstances in which they should be paid, and to consideration of the date of effect of any such increases to rates.
We have decided that such an approach is appropriate. In the circumstances, the issues agreed by the parties have become the main focus of this decision. We have not elaborated upon points of detail and a number of issues raised in the evidence. Although some questions of fact and emphasis remained in issue between the parties in their closing submissions, only particular points necessary to our determination in the matter are covered in the summary findings made in Section 2 of this decision.
Slightly recast, the issues identified by the NTEU were:
1. What categories of teaching work should have hourly rates specified?
The NTEU proposed that lecturing, tutoring, music accompanying, undergraduate clinical nurse education, marking, and "other duties" be specified and that award descriptors elaborate upon the kind of duties that fall within each category. The AHEIA proposed lecturing, tutoring, and "other activities" be specified but no descriptors be inserted.
2. Are descriptors required elaborating forms of work that fall within the hourly "teaching" rates set by the award, and forms of work that should be paid for separately? If so, are the descriptors proposed by the NTEU an appropriate basis from which to develop them?
The NTEU proposed descriptors for lecture, tutorial, undergraduate clinical nurse education, musical accompanying, "other duties", subject coordination and preparation time.
3. (i) Should the casual rates for academic staff be determined by reference to points in the full-time salary structure?
(ii) If so, which points?
Academic salaries classifications Level A: Step 6 and Level B, midpoint were proposed by the NTEU for tutoring and lecturing respectively. Level A: Step 2 and Level B, Step 2 were proposed by the AHEIA.
4. Should the casual loading be 25% as proposed by the NTEU or remain at 20% as proposed by the AHEIA?
5. Should there be a minimum "call-out" payment? And if so, should it 3 hours minimum payment for each day worked, as proposed by the NTEU?
6. (i) Should the amount of "associated duties" expected for any payment for a lecture or tutorial (or, in the NTEU's submission, for undergraduate clinical nurse education or music accompanying) be restricted by the award at all?
(ii) Should the award provision prescribe the amount of marking, subject coordination duties and student consultation to be accepted as unrestricted "associated duties" covered within the payment for a specified number of hours of teaching?
The NTEU proposed these duties be entirely separated from the hourly rate for teaching duties and be paid separately. The AHEIA proposed that no separate payment be required for such duties where they are associated with paid hours of teaching.
7. Should duties not encompassed within an hourly payment for teaching duties be paid at Level A and a rate at Level B as proposed by the NTEU or at a rate of Level A only as proposed by the AHEIA?
8. Should the award provision, known as the 60% Rule, be deleted?
That provision requires that a casual academic with an aggregate teaching load equivalent to 60% of a full-time lecturing load be deemed to be a fractional part-time continuing employee and paid as such (the 60% Rule)7. The AHEIA proposed that the Rule be deleted. The NTEU opposed any determination of that question prior to the hearing of the broader submissions relating to the regulation of non-continuing employment in the cognate proceedings (C Nos 34925 of 1995, 34932 of 1995 and 22586 of 1996).
The mode and terms of appointment of academic staff covered by the awards vary between the respondent employer institutions. Three main types of academic appointment have been distinguished in the evidence:
· continuing appointment associated with "tenure" or "permanency" on a full-time or part-time "fractional" basis;
· fixed term contract, or contract appointment with a specified finishing date, on terms and conditions similar to those available to continuing staff for proportionate classification rates, sick leave, long service leave, holiday pay and maternity leave for the full-time or part-time hours worked; and
· "casual" or "sessional" appointments paid on an hourly basis and carrying no entitlement to paid sick leave, long service leave or annual leave.
The classification rates covering the first two classes of appointment generally are established in clause 3 of the Universities Award prescribing minimum rates for Levels A to E academics. The award classification rates make no direct reference to the basis of appointment. The classification provisions are implicitly predicated upon a recognition that continuing and fixed term employees will be paid at a full-time rate or a part-time fractional rate. The third category of casual employment is implicitly identified with the "part-time (non fractional)" status alluded to in the heading to clause 4 of the Universities Award. It appears that employees not explicitly in one of the first two categories of employment are paid on an hourly rate basis under clause 4.
The number of casual employees and the proportion of the workforce of the respondent employers constituted by casual employment are subject to conjecture. There are institutional and other differences in nomenclature, the timing and format of data collection, and the unit of measurement. Those differences preclude any easy reconciliation of measurement issues. Of 40,280 reported academic staff in about March 1994, about 9,300 were indicated to be casuals. Because of numerous discrepancies in the data reported the figures are no more than broadly indicative and significantly understate the number of individual employees8. In 1976, casual academics, measured in full-time equivalent terms, were reported to constitute about 12% of the university workforce and about 8% of the workforce in colleges of advanced education. A study in 1991 reported the proportion of casuals in the academic workforce to be then about 14%. The evidence is consistent with the NTEU's contention that casual academics in 1993-1994 constituted upward of 40% of the numerical workforce. It would appear that casual academics now account for at least 10% and up to 20% of the workforce on an equivalent full-time (EFT) basis9. There has been some recent growth in the use of casual academic staff but there is no conclusive evidence of substantial or exponential growth.
It was also difficult to discern a clear consensus about the distribution or character of casual academic staff. However a broad pattern is clear enough from the evidence. Mr P. Wright, Associate Dean for the Faculty of Arts at Adelaide University, (a witness for the NTEU), subdivided the use of casual staff into three categories, the third being by far the preponderant use:
· specialist or "guest" lecturers engaged from a class constituted of persons with a high degree of professional or other expertise and substantially employed outside academia;
· short term emergency and relief support (occasional casual staff); and
· academics employed to conduct a series of lectures, tutorials, demonstrations etc. over the course of a clear and identified period of time, usually one or two semesters, on a casual hourly paid basis rather than a fractional or part-time appointment for the expected period (sessional casual staff)10.
The characteristics of the work were analysed in detail in the NTEU's evidence and presentation. From that presentation and from the AHEIA's submissions and materials, we note in particular the following points established in the material before us:
· payment for the work performed by casual academics is a quasi piecework system based on different rates for different work that may be performed by the same employee. The scheme of payment in the current awards originated from the 1980 Academic Salaries Tribunal determination of Ludeke J. That determination included the following exposition of its rationale:
"...
40. The commencing point in the AVCC formula corresponded closely to the minimum proposed by FAUSA; using the sum of $18,846, being the average of the fourth and fifth steps on the lecturers' scale as at 1 January 1980, the formula assumed 52 working weeks of 37 1/2 hours and a 20 per cent loading for ancillary conditions. An hourly rate of $11.59 was thereby derived. At current values, after the national wage adjustment of 4.5 per cent of 4 January 1980, the rate is $12.12.
41. ... the AVCC proposed that each university should determine a rate for the task, allowing from two hours total for a repeated lecture to five hours for a particularly difficult subject; four hours total would be a normal assumption. ...
42. ... Two tutorial rates were proposed, the higher rate being reserved for those cases where there is a major responsibility for a tutorial sequence, or where autonomous academic judgment is required. This rate would be derived from the fifth step of the tutor salary scale by using the same reasoning as was applied for part-time lecturers; the result is $8.50 per hour on current rates. The lower rate was founded on the second step of the tutor salary scale, and amounts to $7.71.
...
44. The Commonwealth commented on several aspects of the FAUSA and AVCC proposals. It was put that because part-time staff do not perform the full spectrum of functions performed by fractional or full-time staff, any range of rates should be related to the minimum salary point of the full-time scale. I am unable to accept this submission. I consider that FAUSA's reason for nominating an approximate mid-point on the scale for lecturers to be correct; part-time staff provide an expertise not otherwise available, and their skills are not ordinarily possessed by those who may be attracted into full-time service at the lowest position in the lecturer range.
...
48. I consider that the determination of a rate for the particular task, with a limited number of rates from which to make the determination, is a more satisfactory means of resolving the problems presented by the existing diversity; the AVCC submissions incorporate these concepts and although it will be for the universities to determine the appropriate rate, this is the present position and it would have been continued under the FAUSA proposals.
49. With one exception, the AVCC proposals are an acceptable means of bringing order into the matter of remuneration of part-time staff in universities; the exception concerns the AVCC suggested guides for assessing the appropriate rate for a lecture by a part-time staff member. It would seem reasonable to assess a repeated lecture as attracting two hours total, but the justification for treating a normal lecture as requiring a total of four hours was by no means clear. This is particularly so when the position in New South Wales universities is examined; during 1979, the rate generally paid for a lecture was $36.25. It will be a matter for each university to determine the appropriate rate for the task, and on the New South Wales experience there may be many lectures for which a payment of $36.36 is "normal".
...
51. Both bodies suggested that separate payment for marking be provided. In FAUSA's proposals for part-time rates, payment for contact hours took cognizance of associated teaching -related duties, including marking, but when a part-time staff member's only function was marking, it was suggested that a rate for that duty be prescribed. The AVCC's recommendations involved three categories at separate rates:
Per hour | ||
(1) Marking requiring a significant exercise of academic judgment, usually as a supervising examiner |
$12.12 | |
(2) Routine marking |
$8.50 | |
(3) Simple marking such as multiple choice examinations |
$7.71 |
52. It follows from the adoption of the major proposals for remuneration put forward by the AVCC that this method of payment for marking should also be prescribed."11
· Employment of casual staff is carried out usually at head of department level or by course co-ordinators. The mode of recruitment is sub-optimal in relation to opportunities for job applications and merit selection. Casual employment assists budget flexibility. It relieves other staff of less attractive teaching tasks. There are strong incentives to employ casual staff because of a lower cost relative to other employees.
· A significant proportion of sessional casual staff and occasional casual staff are postgraduate students. The practice is driven by budgetary reasons but the employees are also often perceived to be the recipients of a benefit. The fact that a substantial share of the teaching is done by postgraduate students obscures the process which industrially exploits them. There is little or no monitoring of casual employment at either system or individual level. Consequently, employment data about casual employment is of a poor quality.
· Women academics are more likely to be employed on a casual basis than on any other basis. Women academics constitute a higher proportion of casual employment than they do of continuing or fixed term employment.
· No definitive indication of the average length of service of sessional casual staff is available. The evidence included individual instances of employment over many years. A significant proportion of casual academics bring substantial previous experience with their current employer, and corresponding skills and credentials to the work required of them.
· Casual academics generally do not carry out the full range of duties expected of ongoing and fixed term staff. In particular, research, faculty administration, and the government of institutions are within the duty range of ongoing staff and not expected of casuals.
· The current payment is organised around a set of assumptions and formulae about how much time is required to perform various functions. On the evidence, those assumptions and formulae underestimate significantly the amount of time worked in particular cases and therefore may not result in appropriate payment for some work regularly performed.
· Student examination and essay marking, subject coordination, and student consultation are areas in which the evidence points to a significant demand on sessional casuals for unpaid work in excess of the level assumed in the calculation of the rate.
· There is substantial evidence to support a conclusion that reasonable real preparation time required for many lectures is more than is allowed for by the current award standard rates. We accept that the amount of marking associated with a sessional lecture series will have increased proportionately to any increase in class sizes. Similarly, there is substantial evidence supportive of a conclusion that separate provision and payment for marking as a function separate from tutoring or lecturing would be more equitable than the existing system.
· There is of necessity an arbitrary element in the attribution to the lecture rate of payment for one hour of contact and two hours of associated work. No adequate foundation is established for declaring another arbitrary attribution of three hours of associated work to one hour of contact time. The awards currently prescribe lecturer rates by reference to one of three "contact hour" rates for an initial lecture; the rate is selected by the employer. Those rates were arrived at by a calculation providing for one hour of lecture delivery at a rate linked to the midpoint of the lecturer scale in force in 1980, and two hours of associated duties on the first level, and for three and four hours of associated duties at the next two levels12. Similar calculations underlay the tutor and demonstration rates built on a nexus with step 2 and step 5 of the then operative tutor pay scale.
· The differences between full-time and casual staff in relation to conditions and benefits were estimated by the NTEU to constitute a cost benefit to the employer of about 35.9%. Differential employer superannuation contributions accounted for about 9% of that total. The remainder of the estimate was derived from casual staff not having access to these benefits of a salary equivalent value:
· Entitlements to annual leave and public holidays |
· Entitlements to annual leave loading |
||
· Entitlements to sick and bereavement leave (estimated at five days per 261 working days) |
||
· Entitlements to paid maternity, parental and other leave (estimated at two days per 261 working days) |
||
· Lack of opportunity to access study leave and time release for study (estimated to average six months every 10 years) |
||
· Lack of opportunity to access conference funding (estimated to average $300 per annum) |
||
· Lack of opportunity to access other university funds (research, etc) (estimated to average $150 per annum) |
||
· Lack of opportunity to benefit from incremental progression within classification rate |
· The award provisions for casual rates are not predicated upon a recognition of there being casual Level A, or casual Level B academics. Rather, the casual hourly rates are framed to provide a rate of payment for particular functions: a lecture, a repeat lecture, a demonstration, a tutorial, or marking. Requirements to lecture or to tutor are evident at all levels of the current full-time academic classification structure. Work performed by sessional and other casuals on lecturing or graduate supervision functions is of a kind that is covered within the classification standard descriptions for Level A and Level B academics respectively. The most complex subject coordination, however, will not be carried out by Level A academics. The award provides that "full subject coordination", or work requiring a doctoral qualification by full-time staff be paid at a classification rate at or above point 6 of the Level A pay scale13.
· Casual academic pay rates received pay increases amounting to 14.7% between October 1989 and July 1991 based on the average adjustments to full-time academic pay scales over that period. However on a comparison of the real impact of the July 1991 award restructuring decision, casual rates benefited from a uniform 8.1% increase only. That level of increase is in contrast to increases of 18.6% and 25.3% for full-time tutors with one and four years' experience respectively, and 18.7% for a university lecturer with pre 1991 midpoint lecturer equivalent experience14.
· The estimated overall cost of actual pay increases for full-time academics associated with translation from the former structure to the current classification structure in 1991 was about 21%. In contrast, the total increase claimed by the NTEU for casuals for the standard lecture rate would be about 69% or an increase of about 47% above the current rate which includes the 14.7% adjustment for the 1989-1991 period. Adoption of the NTEU claim would distort the relativity between the academic 5 level structure and the Metal Industry professional engineering/scientist structure implicit in the 1991 Full Bench decision15. For properly set minimum rates to be established, the relevant rate should be matched on a proper work value comparison against rates in the full-time structure which were in turn benchmarked against the Metal Industry Award. After safety net adjustments, the current Level A rate is set marginally above Metal Industry Award C5 moving to a rate approaching C1A. The current academic Level B commences above Metal Industry Level C1B going in the last two salary points to 10% above Metal Industry Level C. Full subject coordination may be carried out at point 6 of Level A, currently $36,702 per annum or about $705.80 per week in contrast with Level C1(a) of $769 per week. Work required of tutors in demonstrating and similar work would be over rewarded if it were to be paid at that rate.
· The best fit of casual rates for particular functions normally performed within the full-time structure will take account of the minimum level within that structure at which the performance of that function may be required. However, we accept the NTEU's counter that it is proper to consider what is the minimum rate which should be prescribed for the work having regard to the skills and experience that the casual academic brings to the work.
· The AHEIA proposal for variation of the hourly rates for lecturer and tutor is based upon a single minimum hourly rate for lecturer of $79.30. That rate is the product of a formula deriving an hourly rate from step 2 academic Level B based on a 37 1/2 hour week loaded by 20% producing an initial rate for one hour's delivery and two hours associated duties. Apart from a repeat rate at two thirds of the initial rate, no provision would be made for alternative rates corresponding to the current specialised lecture rates. The use of step 2 Level B in that formula is arrived at by applying to the nexus salary points used by Ludeke J much the same translation process as was applied to full-time staff upon the coming into operation of the 5 level structure. That approach in effect would allow casual staff a benefit from work value changes to about the same degree as full-time academic staff. The AHEIA disputed that any evidential case had been made to establish that the jobs of casual academics had grown in work value relative to full-time academics. The AHEIA proposal for the lecturer rate is based on point 2 of academic Level B rather than the actual translation point 1 of Level A for the midpoint of the former lecturer scale. Similarly, the tutoring rate is based upon point 2 of Level A to avoid a reduction in existing rates.
· There are numerous instances of award loadings in excess of 20% for casuals. There is some basis for holding that it may reasonably be contended that the 20% loading does not compensate for the value of the differential conditions accorded to ongoing staff through award or over award entitlements. However it is doubtful that there is a standard casual loading. In the absence of test case ruling, there are strong grounds for not exceeding a 20% loading.
As already noted, we will adopt the approach supported by the parties of making a determination in principle of the issues put to us. In adopting that approach, we note that no party wanted us to depart in substance from the "rate for the task" approach that underlies the existing award provisions. No case has been made to associate casual work generally or directly with any particular full-time academic classification level. Rather, the full-time academic classification rates are essentially relevant to casual rates only to the extent that they are a component in the formula for arriving at an hourly rate to be applied to the purpose or work specified for the particular casual hourly rate.
As we have already noted, the parties did not agree about the activities that should be specified in the award, and whether the rates for some activities should cover more than a single minimum rate without allowing for alternatives as to the volume of work understood to be covered by the rate for the hour of student contact directly paid for.
In determining the issues, we intend to give effect to those changes to the existing award provisions as to which we have been satisfied on the balance of the cases presented. A precondition to any such satisfaction is that the relevant variation be consistent with the principles applied by the Full Bench in the 1991 rationalisation of the full-time academic structure.
It is convenient to frame our determination around the issues we have identified and listed at pages 6 - 7 above.
The first issue concerns the detail of the minimum rates prescriptions of the awards. The proposal put by the NTEU departs from the existing award provision by including a more highly detailed and prescriptive itemisation of rates for teaching work and other activities. The AHEIA proposal also departs from the existing award provision. It proposes the elimination of the two highest lecture hourly rates, the substitution of one hourly rate for tutor, the removal of a supervisor rate from the Colleges Award and the substitution of one standard rate for marking instead of the three currently in the award. In the AHEIA's proposal, the hourly rate for lecturing includes payment for associated non contact duties such as preparation, marking, and student consultation. Other activities not associated with tutoring or lecturing, (teaching work), are enumerated generally as attracting a minimum rate equivalent to the current routine marking rate.
The NTEU and AHEIA applications each involve a more detailed prescription of minimum rates than is effectively provided by the current award provision. We prefer, and will generally adopt, the NTEU's approach. We are persuaded generally on the case presented by the NTEU that the awards should prescribe minimum rates in a more prescriptive and exhaustive manner than is proposed by the AHEIA. We determine that the award shall include provision for the work of:
(i) lecturing;
(ii) tutoring;
(iii) music accompanist (requiring specialist educational function);
(iv) undergraduate clinical nurse education;
(v) marking;
(vi) other activities;
and be associated with descriptors designed to provide some demarcation of the work within those categories.
It follows that we determine in favour of descriptors being included in the award generally along the lines proposed by the NTEU. The final content of particular descriptors will be influenced of course by the determinations we make as to the rate or rates for each category of work. Our observations on the NTEU and AHEIA proposals are subject to that reservation in the sense that their rights are reserved to speak to any order that may be made:
(i) NTEU proposed clause 4.1:
We are not satisfied that any useful purpose will be served by including in the award a broad identification of casual (hourly paid) rates with academic Level A or Level B rates. Instead, we determine in favour of an explanatory provision along the lines proposed in the AHEIA draft clause 4.2 setting out the relevant formula based on our determination of the appropriate rate for the relevant tutoring or lecturing category.
(ii) Lecturing:
The descriptor proposed by the NTEU for lecturing is substantially derived from the 1980 Academic Salaries Tribunal model. It retains three rates framed around provision of one hour lecture contact plus two, three and four hours preparation time. We are satisfied that, in the circumstances of the industry, a minimum rates award should retain a differential covering the work demand differences between basic lecture preparation, delivery and associated duties and other lectures. We will provide also for "developed" or specialised lecturing plainly demanding a greater commitment of the employee's time. We determine in favour of the descriptor in the NTEU's proposed clause 4.2.1 recast as follows:
"Lecturing
4.1.1. A casual academic employee required to provide a formal lecture (or equivalent delivery through other than face-to-face teaching mode) of one hour's duration with directly associated non contact duties in the nature of preparation, reasonably contemporaneous marking and student consultation shall be paid at a rate for each hour of lecture delivered, according to the following table:
Type of lecturing and associated working time assumed |
Minimum salary per hour of lecture delivered $ |
Basic lecture (1 hour of delivery and 2 hours associated working time) |
- |
Developed lecture (1 hour of delivery and 3 hours associated working time) |
- |
Specialised lecture (1 hour of delivery and 4 hours associated working time) |
- |
Repeat lecture (1 hour of delivery and 1 hour associated working time) |
- |
4.1.2. The hourly rate in a repeat lecture applies to a lecture in the same subject matter within a period of 7 days and any marking and student consultation reasonably contemporaneous with it."
We have considered carefully the elaboration of the descriptors in the manner proposed in the NTEU proposed clause 5.1.1 definitions of "lecture", "basic lecture", "standard lecture" and "specialist lecture", and the definition and prescriptions as to "preparation time" in proposed clause 5.7. Those proposals may be found at pages 28, 30 - 31 in Attachment A. We favour the inclusion in the award of detailed descriptors designed to define with relative precision the class of teaching work intended to be covered within each teaching work hourly rate. For that reason, the substantive clause will contain the elaborations we have set out. However, in the absence of agreement as to the detail of additional descriptors proposed by the NTEU, we are not satisfied that we should introduce a high degree of demarcation by the use of terminology of relatively indeterminate reference. Should the parties agree on any additional definition, and we encourage them to attempt to do so, it may be added.
(iii) Tutoring:
Subject to importing similar modifications and the observations we have outlined in relation to lecturing work, we will adopt the substance of the descriptor proposed in the NTEU's proposed clause 4.2.2. We would adopt also the NTEU's proposed definition of "tutorial" subject, provisionally, to deletion of any reference to a definition of "lecture".
(iv) Music accompanist:
We are satisfied that the award should provide a minimum rate for the work of a musical accompanist provided that such work requires the casual academic employee to provide accompaniment involving educational expertise in repertoire development or expression for student concert or examination purposes. Otherwise, we would accept the NTEU's proposed clause allowing the student contact hour an equivalent preparation time loading and the application of the appropriate step of the Level A rate in the formula to each hour accompaniment as determined later in this decision. The definition of music accompanying in NTEU proposed clause 5.4 at page 29 is compatible with the narrower category of work we have in mind for attracting the relevant hourly rate, subject to the following words added after "in the course of teaching by another member of academic staff": "in circumstances where the accompanist deploys educational expertise in repertoire development or expression for student concert or examination purposes". We are satisfied a definition along the lines proposed should be included.
(v) Undergraduate clinical nurse education:
We are satisfied in principle that a descriptor provision of the kind set out in the NTEU's proposed clause 4.2.4 should be adopted and associated with the definition in NTEU proposed clause 5.3.
(vi) Marking:
The NTEU's proposed provision as to marking, (clause 4.2.5), distinguishes between a "standard marking" rate involving little or no exercise of independent academic judgment, and marking that does require such judgment. In circumstances where marking is to be paid for as a separate work category, we are not satisfied that a distinction expressed in that manner is necessary or appropriate. The substance of the AHEIA proposal is that a single rate be substituted for the current award provision for three rates.
We will adopt the NTEU proposal that two rates be preserved. The descriptor of the higher rate should be based upon the existing reference to "supervising marking" or marking requiring significant academic judgment appropriate to an academic at Level B status. "Standard marking" should be provided for at the rate linked with Level A work determined in this decision.
(vii) Subject co-ordination:
The NTEU's proposed clause 5.6 sets out a detailed regulation of the use of casual staff in subject coordination functions. For similar reasons to those we have already outlined in relation to lecturing descriptors, we are not satisfied that we should award a detailed prescription of how, and by whom subject coordination duties should be performed. Some subject coordination functions are required of staff within the Level A range. Clearly, the imposition on casual academic staff of subject coordination responsibilities could be onerous. In some instances it may be exploitative. The potential range of functions involved in subject coordination is wide. There is a similar width across the academic levels within which subject coordination may currently be undertaken. Against that background, and subject to a reservation we will later express, we are not satisfied that subject coordination ought properly be treated as a distinct work category attracting a distinct hourly rate for casual academic staff. In our view sufficient provision will be made by our including an "other activity" rate. Integral to that rate will be a provision that work required of a casual academic by a person acting as the employer, or on behalf of the employer of a casual academic shall be paid for at the prescribed "other required academic activity" rate.
(viii) Other activities:
For the reasons we have just touched upon, we consider the award should include provision for payment for all work "required". Such a prescription does not involve only the identification of a work category. It entails an obligation being imposed on the employer to pay for work that is required by the employer to be performed and demonstrably is performed. Plainly, there are tensions associated with any attempt to define and have paid work that is volunteered by part-time employees to augment the effectiveness of their paid work. We cannot resolve those tensions, but we accept that it is proper for the award to be framed in a way that may bring into sharper focus the distinction between work "required" by the employer, and work that is undertaken on the employee's own initiative. We consider that the types of work caught within the category might usefully be illustrated by a list of the kind set out in the AHEIA's proposed clause 4.1.3. We have modified that list to fit in with the determinations we have made.
The provision that we would determine in principle is to the following effect:.
"Other Required Academic Activity:
A casual academic employee required to perform any other required academic activity as defined in subclause ..... of this clause shall be paid at an hourly rate of $..... for each hour of such activity delivered as required and demonstrated to have been performed.
For the purposes of this clause, "other required academic activity" shall include work that a person, acting as or on behalf of the employer of a casual academic employee, requires the employee to perform and that is performed in accordance with any such requirement, being work of the following nature:
· The conduct of practical classes, demonstrations, workshops, student field excursions;
· The conduct of clinical sessions other than clinical nurse education;
· The conduct of performance and visual art studio sessions;
· Musical coaching, repetition, and musical accompanying other than with special educational service;
· Development of teaching and subject materials such as the preparation of subject guides and reading lists and basic activities associated with subject coordination;
· Consultation with students;
· Supervision; and
· Attendance at departmental and or faculty meetings as required."
The setting of particular hourly rates by reference to specific salary points within the academic salary classification structure and the application of a standardised formula was common ground between the NTEU and AHEIA. We are satisfied that it is appropriate to link the casual hourly rate to full-time salary points in that manner.
One point selected by the NTEU for the purpose of calculating the respective hourly rates was step 6 of Level A $36,702 or $22.58 per hour, including a 20% loading, for tutoring, marking, and work designated by it as Level A work. For that level of work generally, the AHEIA advocated the second step of Level A $30,757 or $18.93 per hour. The lecturing hourly rates claimed are derived by the AHEIA from the second step of Level B $42,955 or a loaded rate of $26.43 per hour. The NTEU claim is derived from the "midpoint" of Level B, a notional rate of $45,261 or a 20% loaded rate of $27.85 per hour.
We are persuaded by the submissions of the AHEIA, and in particular by the details of the 1991 salary translation scheme set out by Dr Blackford, that the nexus sought by the AHEIA is to be preferred. We consider that it is appropriate to adhere to the general rationale of the 1980 Salaries Tribunal determination. The linkage proposed by the AHEIA is, in our view, sufficiently consistent with the substance of the earlier regime to be retained in the changed context that we have determined. Those changes include the elaboration associated with the descriptors we have already determined in principle.
However, there is one further qualification we will require to be provided for in the order varying the award. Step 2 of Level A as the nexus salary point for the calculation of the hourly rate for tutoring work is not in our view an appropriate basis for work that involves what was described as "full subject coordination" or work at a level normally associated with the performance by a graduate PhD casual academic.
As we understood, Dr Blackford's submission, full subject coordination duties would not normally be performed or expected of an academic below step 6 of Level A. We have an open mind as to how to frame a prescription reserving such work to an hourly rate calculated by reference to at least that level of salary. One approach would be to include such work in a descriptor associated with the lecturing level rate of payment of $26.43 per hour. Alternatively, a proviso to the tutoring level descriptors for the student contact hourly rate of $56.78 might be expressed to require that:
"Any casual academic required to carry out full subject coordination duties as part of his or her normal duties, or who upon appointment holds or during appointment gains a relevant doctoral qualification shall be paid on a basis calculated on an hourly rate of not less than $22.58 per hour."
We reserve leave to the parties to put further submissions as speaking to the order should there be no agreement on the detail of a provision to that effect.
Otherwise the hourly rate of $26.43 shall be applied for the purpose of calculating lecturing rates, and the hourly rate of $18.93 shall be applied for the purposes of calculating the rates applicable to the descriptors and payments appropriate to tutoring, clinical education, musical accompanying, marking and other required academic activity.
We have considered carefully the submissions put about casual loading. The findings we have made in the preceding sections of this decision indicate some of the background to that consideration.
It is apparent that the loadings applied to casual work vary across industries. The recent examination made by the former Employee Relations Commission of Victoria demonstrates that point16. As that Commission noted, a Full Bench of the Australian Industrial Relations Commission observed in a 1996 decision:
"... On our understanding, whilst there is no standard casual loading, most awards prescribe a loading of 20% or more ..."17
However, in the circumstances of this case, we are not satisfied that we should revise the existing loading. In this respect, we note that the loaded rate is only part of the construct that results in the rate applied to casual academic work. The reservations that exist as to whether the loading adequately adjusts for differences between the entitlements of casual employees and ongoing staff is not a sufficient basis to set a new level of loading by the decision in this matter in the absence of a contemporary standard or an estimated approach to the principles to be applied in the current industrial regime.
We are not satisfied that a case has been made out for the introduction of such a provision in the circumstances of academic work.
The determinations already made as to descriptors and as to the introduction of a requirement to pay for marking and other required academic activity address this issue.
The AHEIA proposed that an hourly rate based on a loaded Level B salary point be applied to marking requiring the exercise of significant academic judgment. Subject to the alteration we have made to the description of marking involving supervising or significant independent academic judgment, the hourly rate for such marking will be the hourly rate linked with the second step of Level B $26.43 per hour.
The AHEIA's support of the level of hourly rates was in part justified by the benefits it foresaw from the removal of the 60% Rule. Independently of that consideration, we are satisfied that the rates proposed by the AHEIA should be adopted. However we are satisfied that the role of the 60% Rule and its retention in the award justifies review. That review is best associated with the still reserved decision of the Full Bench considering the categories of employment in universities and colleges. We reserve leave to the AHEIA to apply in relation to the deletion of that provision should it be appropriate upon the handing down of that decision.
The parties are directed to confer as to the implementation of the decision herein with a view to agreeing upon the terms of an order to vary the awards in the manner determined. The parties shall report progress in written form to Munro J by 2 May 1997. Leave is reserved to the parties to speak to the merits of the order or orders to be proposed by the parties through the NTEU, or by each party, by that date. We refer the matters to Munro J for the settlement of the order with recourse to this Bench if he deems fit. We intend that the date of operation of any increase resulting from the variations determined should be the first pay period commencing on or after 5 May 1997.
BY THE COMMISSION:
JUSTICE P.R. MUNRO
Wage rates - casual employment - classification - academic staff, educational services - applications to be determined by reference to 1989 National Wage Case principles - awards varied to prescribe more detailed itemisation of minimum rates for teaching and other activities - descriptors to be included in awards - decision outlines in detail the descriptors which will apply to lecturing, tutoring, music accompanist, undergraduate clinical nurse education, marking, subject co-ordination and other activities - casual hourly rates to be linked to full-time salary points - Commission not satisfied that existing casual loading should be revised - reservations regarding whether loading adequately adjusts for differences between the entitlements of casual employees and ongoing staff is a sufficient basis to set a new level of loading in the absence of a contemporary standard - inclusion of minimum call out payment rejected - link between rate for marking which requires exercise of significant academic judgment and second step of Level B - a review of the 60% rule and its retention in the award is justified - review is best associated with the still reserved Full Bench decision considering categories of employment in universities and colleges - parties directed to confer regarding orders - award to be varied with effect from first pay period commencing on or after 5 May 1997.
Appearances:
L. Gale with K. McAlpine for the National Tertiary Education Industry Union.
R. Blackford with D. Shelton and S. Long for the Australian Higher Education Industrial Association.
Hearing details:
1996.
Melbourne:
March 28;
October 3 and 4.
Printed by Authority by the Commonwealth Government Printer
<Price code I>
ATTACHMENT A
1. The NTEU proposed variation of the Australian Universities Academic and Related Staff (Salaries) Award 1987
A. That Clause 4. PART-TIME (NON FRACTIONAL) RATES and Clause 5. LIMITS ON THE USE OF PART-TIME (NON FRACTIONAL) RATES be deleted; and
B. That the following clauses be inserted:
Cl. 4. - Casual (hourly-paid) rates
4.1. The minimum salaries paid to academic staff employed on a casual basis shall be:
Classification |
Salary per hour ($) (includes 25% loading) |
Level A (calculated from Step 6 |
23.53 |
Level B (calculated from mid point) |
29.01 |
4.2. Academic staff employed on a casual basis shall be paid at the rates set out in 4.1 above, for all time worked, except that:
4.2.1. Lecturing (Level B)
For lecturing, the employee shall be paid for each hour of lecturing (or equivalent delivery through other than face-to-face teaching models) as well as for preparation time for each hour of lecture delivered, according to the following table:
Type of Lecturing (and preparation time assumed) at Level B $29.01 per hour |
Minimum Salary per hour of lecture delivered ($) |
Basic Lecture (1 hour of delivery and 2 hours preparation time) |
87.03 |
Standard Lecture (1 hour of delivery and 3 hours preparation time) |
116.04 |
Specialised Lecture (1 hour of delivery and 4 hours preparation time) |
145.05 |
Repeat Lecture (1 hour of delivery and 1 hour preparation time) |
58.02 |
4.2.2. Tutoring (Level A)
For tutoring, the employee shall be paid for each hour of tutoring (or equivalent delivery through other than face-to-face teaching modes) as well as for preparation time for each hour of tutorial conducted, according to the following table:
Type of Tutoring (and preparation time assumed) at Level A $23.53 per hour |
Minimum Salary per hour of tutorial conducted ($) |
Tutorial (1 hour of delivery and 2 hours preparation time) |
70.59 |
Repeat Tutorial (1 hour of delivery and 1 hour preparation time) |
47.06 |
4.2.3. Music Accompanying (Level A)
For musical accompanying, the employee shall be paid for each hour of accompanying, as well as for one hour preparation time for each hour of accompany delivered.
Music Accompanying at Level A $23.53 per hour |
Minimum Salary per hour of musical accompanying ($) |
Musical Accompanying (1 hour of delivery and 1 hour preparation time) |
47.06 |
4.2.4. Undergraduate Clinical Nurse Education (Level A)
For undergraduate clinical nurse education, the employee shall be paid for each hour of clinical education delivered, as well as for either thirty minutes or one hour preparation time for each hour of clinical education delivered, according to the workload involved, according to the following table:
Type of Clinical Education (and preparation time assumed) at Level A $23.53 per hour |
Minimum Salary per hour of clinical education ($) |
Little Preparation Required (1 hour delivery and 0.5 hours preparation time) |
35.30 |
Normal Preparation Required (1 hour delivery and 1 hour preparation) |
47.06 |
4.2.5. Marking
All marking other than that referred to in clause 5.7.1.(iii) shall be paid according to the following table, for all time worked:
Type of Marking (and skill level assumed) |
Minimum Salary per hour of Marking ($) |
Standard Marking, requiring little or no exercise of independent academic judgement (at Level A $23.53 per hour) |
23.53 |
Marking requiring the exercise of significant independent academic judgement (at Level B $29.01 per hour) |
29.01 |
4.3. Minimum Call Out
The minimum number of hours of employment for which any casual employee shall be paid in respect of any single day shall be three hours. For the purposes of this clause, any payment which includes payment for assumed preparation time shall count as payment for the delivery time and for the assumed preparation time.
Cl. 5. - Casual (hourly-paid) Descriptors
5.1. LECTURE
5.1.1. For the purposes of this Award, the term "lecture" means:
(i) any education delivery described as a lecture or as a seminar in a course or unit outline, or in an official timetable issued by the employer;
(ii) any class the primary purpose of which is the presentation of new subject material or the introduction of new ideas; and
(iii) any master class.
5.1.2. For the purposes of this Award, the term "basic lecture" means lectures with full resourcing and guidance from the subject coordinator, but in any case shall not include lectures to groups of more than thirty students, or at a level higher than second year undergraduate.
5.1.3. For the purposes of this Award, the term "standard lecture" means all lectures other than those specified in 5.1.2. above and 5.1.4. below.
5.1.4. For the purposes of this Award, the term "specialist lecture" means lectures conducted by those with specialist experience or expertise, which require significant preparation.
5.1.5. For the purposes of this Award, the term "repeat lecture" means a second or subsequent lecture in the same subject matter within seven days of the original lecture.
5.2. TUTORIAL
5.2.1. For the purposes of this Award, the term "tutorial" means:
(i) any education delivery described as a tutorial in a course or unit outline, or in an official timetable issued by the employer; other than a lecture as defined in clause 5.1. above; or
(ii) any undergraduate education delivery described as a workshop in a course or unit outline or in an official timetable issued by the employer; other than a lecture as defined in clause 5.1. above.
(iii) any one-to-one and small group studio teaching; other than a lecture as defined in clause 5.1. above.
5.2.2. For the purpose of this Award, the term "repeat tutorial" includes a second or subsequent delivery of the same tutorial within seven days to a group of students undertaking the same subject at the same year level.
5.3. UNDERGRADUATE CLINICAL NURSE EDUCATION
For the purposes of this Award, the term "undergraduate clinical nurse education" means the conduct of undergraduate nurse education in a clinical setting.
5.4. MUSICAL ACCOMPANYING
For the purposes of this Award, the term "musical accompanying" means the provision of musical accompaniment to one or more students or staff in the course of teaching by another member of academic staff, but does not include concert accompanying, vocal coaching or musical directing.
5.5. OTHER DUTIES
All duties other than those specified in 5.1, 5.2, 5.3 and 5.4 above, shall be paid in accordance with 4.1 above for all hours worked, including all preparation time, as evidenced by time sheets which shall be kept by the employer and completed by the employee.
5.6. SUBJECT COORDINATION
5.6.1. Staff employed on a casual basis shall not be required to coordinate other staff, or to supervise, organise or schedule the work of other staff.
5.6.2. Other than in exceptional circumstances, other subject coordination duties shall be performed only by employees employed on a continuing or fixed-term contract (full-time or fractional) basis. Where such duties are performed by employees employed on a casual basis, additional minimum hours of work with respect to each subject shall be paid at the Level B rate set out in subclause 4.1 above, in accordance with the following:
(i) |
Writing a subject syllabus |
- |
70 hours |
(ii) |
Preparation and administration of reading lists |
- |
10 hours in the first week and 2 hours each subsequent week |
(iii) |
Familiarisation with departmental and institutional policies relevant to subject coordination |
- |
3 hours per semester |
(iv) |
Consultation with students |
- |
1 hour per week for each 40 students or part thereof |
(v) |
Recording or otherwise administering assessment results |
- |
4 hours per semester for each 50 students or part thereof |
(vi) |
All other subject coordination duties, including but not limited to preparation or updating of subject handbooks or other subject materials, administering student evaluation of teaching, enrolment activities, subject accreditation duties, negotiating student appeals, administering student rolls, allocating students to tutorial or other groups, scheduling or timetabling duties, shall be paid for all hours worked. | ||
5.7. PREPARATION TIME
5.7.1. In this Award, the term "preparation time" includes, with respect to any period of student contact:
(i) research directly related to the preparation of content for the period of student contact;
(ii) preparation and production of materials for use by the staff member or by students in relation to the period of student contact;
(iii) marking or assessment conducted during the relevant lecture, tutorial or other class; and
(iv) practising for any activity required of the staff member during the period of student contact;
but in any case shall not exceed the duration allowed for in the assumed preparation time. Any preparation required in excess of the assumed preparation time, and any duties required other than those listed in this subclause, shall be paid separately at the appropriate casual rate for those duties.
5.7.2. In this Award, the term "preparation time" does not include:
(i) marking, other than marking specified in 5.7.1(iii) above;
(ii) attendance at induction or orientation programs;
(iii) participation in training or staff development activities;
(iv) attendance at lectures delivered by other staff;
(v) consultation with students;
(vi) attendance at meetings, examiners' meetings, or other participation in academic administrative activities;
(vii) research not directly related to the subject matter dealt with during the period of student contact.
2. The AHEIA proposed variation of the Australian Universities Academic and Related Staff (Salaries) Award 1987
1. By deleting clause 4 "Part-time (Non-Fractional) Rates" and inserting a new clause 4 as follows:
4 - PART TIME (NON-FRACTIONAL) RATES
4.1 The minimum salaries to be paid to academic staff employed on a part-time basis other than as fractional employees shall be as follows:
ACTIVITY |
HOURLY RATE | ||
4.1.1 |
Lecturing |
$79.30 | |
|
Hourly rate includes the provision of a formal lecture of one hour's duration and any associated non-contact duties such as preparation, marking, and student consultation |
|||
Repeat Lecturing |
$52.87 | ||
|
Hourly rate includes provision for a repeat lecture in the same subject matter within a period of 7 days and any associated non-contact duties such as preparation, marking, and student consultation. |
|||
4.1.2 |
Tutoring |
$56.78 | |
|
Hourly rate includes provision for a formal tutorial of one hour's duration and any associated non-contact duties such as preparation, marking, and student consultation. |
|||
Repeat tutorial |
$37.85 | ||
|
Hourly rate includes provision for a repeat tutorial in the same subject matter within a period of 7 days and any associated non-contact duties such as preparation, marking and student consultation. |
|||
4.1.3 |
Other Activities |
$18.93 | |
|
Hourly rate includes all other academic duties delivered on a part-time (non-fractional) basis and not associated with tutoring or lecturing in 4.1.1 and 4.1.2. Such activities may include, but are not limited to, the following: · The conduct of practical classes, demonstrations, workshops, seminars, student field excursions; · The conduct of clinical sessions including clinical nurse education; · The conduct of performance and visual art studio sessions; · Musical Accompanying, Coaching, Repetition; · Development of teaching and subject materials such as the preparation of subject guides and reading lists and activities associated with subject co-ordination; · Consultation with students; · Marking and assessment; · Supervision; and · Attendance at departmental and or faculty meetings as required. |
4.2 The above rates are derived from two base rates calculated using the following formula:
4.2.1 Lecturing Rate
The base rate is determined by reference to the second step of the full time Level B scale (presently $42,955), and calculated as follows:
$42,955/52 + 20% = $26.43
37.5
The rate of payment per one hour lecture is based on the assumption that each lecture involves one hour's face-to-face teaching and two hours' associated non-contact time.
Thus the hourly rate for lecturing is as follows:
$26.43 x 3 = $79.30
A repeat lecture in the same subject matter within 7 days is based on a rate 2/3 of that paid for the original lecture as follows:
$26.43 x 2 = $52.87
4.2.2 Tutoring Rate
The base rate is determined by reference to the second step of the full time Level A scale (presently $30,757), and calculated as follows:
$30,757/52 + 20% = 18.93
37.5
The rate of payment per one hour tutorial is based on the assumption that each tutorial involves one hour's face-to-face teaching and two hours' associated non-contact time.
Thus the rate for lecturing is as follows:
$18.93 x 3 = $56.78
A repeat tutorial in the same subject matter within 7 days is based on a rate 2/3 of that paid for the original tutorial as follows:
$18.93 x 2 = $37.85
4.2.3 Other Activities Rate
The rate of payment for all other casual academic activities is determined by reference to the second step of Level A as per the Tutoring rate above.
4.3 Where an activity payment for which is regulated by clause 4.1 is carried out for a period other than an exact number of hours, payment shall be made on a pro-rata basis.
2. By deleting Clause 7, "Limits on the use of Part-time (Non-Fractional) Rates" and re-numbering all clauses from Clause 8 onwards.
ATTACHMENT B
AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Industrial Relations Act 1988
s.99 notification of industrial dispute
National Tertiary Education Industry Union
and
Australian Higher Education Industry Union
(C No 37277 of 1989
C No 31129, 31130, 31131 of 1990
C No 34925, 34932, 34933 of 1995)
COMMISSIONER FRAWLEY MELBOURNE, 27 SEPTEMBER 1996
REPORT TO FULL BENCH
Background
On 12 June 1996 Munro J issued directions regarding applications by the NTEU and AHEIA to vary the Australian Universities Academic and Related Staff (Salaried) Award 1987 and the Australian Post Compulsory and Higher Education Academic Salaries (Consolidated) Award 1989.
Frawley C was directed as follows:
"2.2.5 So much of the matters as pertain to the variation or awards sought in respect of casual rates and descriptors is referred to Frawley C to hear evidence and to report thereon and on the issues requiring determination by the Full Bench on the basis that:
2.2.5.1 The matters will be listed for the presentation of cases before Frawley C, including any necessary cross-examinations to be completed within four hearing days in Melbourne from 18 - 21 June 1996 inclusive.
2.2.5.2 For the purposes of the part of the proceeding referred to him, Frawley C may have recourse as he sees fit to the Full Bench and shall consider whether further to the direction herein the time provided for presentation of cases before him should be varied or determined pursuant to section 110(3) or (4) of the Act.
2.2.6 The parties shall have the liberty to apply for variation of this direction, (not being a direction reserved to Frawley C under paragraph 2.2.5 above), upon application to Munro J setting out the terms of the direction sought, such application to be served on any other party or intervenor."
Following written representations by the NTEU and the AHEIA those directions were subsequently varied by me on 18 June 1996 as follows:
".... I have a letter from both of you actually setting those additional dates down. Well, I will set aside those dates, the 6 to 9 August and 12 to 13 August in Sydney, and 14 to 16 August in Melbourne and the 2nd and 3rd September in Melbourne."
As a consequence there were hearings in Melbourne and Sydney on a total of 15 days and 30 witnesses gave evidence. In addition 77 exhibits were tendered.
A list of the witnesses is attached to this report at Appendix A, and the exhibits are set out at Appendix B. The applications by the NTEU and by the AHEIA (respectively NTEU 27 and AHEIA 4) are not attached to this report but for all purposes form part of it.
The final submissions of the NTEU and the AHEIA in written form (Exhibits NTEU 44 and AHEIA 32 respectively) form part of this report although these Exhibits are not attached.
The Issues
The matters the subject of this report to the Full Bench may be summarised by reference to the applications of the parties:
(i) From the NTEU viewpoint
· the appropriate loading on casual (hourly paid) rates for academics: the NTEU seeks an increase from 20% to 25%;
· the acceptance of paid preparation time, for lecturing (Level B), tutoring (Level A), music accompanying (Level A), and undergraduate clinical nurse education (Level A);
· all marking, other than when marking and assessment undertaken during a lecture, tutorial or other class, to be paid for all time worked;
· minimum call-out equivalent to a minimum payment for three hours per day;
· descriptors for lecture, tutorial, undergraduate clinical nurse education, musical accompanying, other duties, subject coordination and preparation time;
(ii) From the AHEIA viewpoint
· hourly rates for lecturing and repeat lecturing, tutoring and repeat tutorials;
· hourly rates for other activities (all other academic duties) delivered on a part-time (non-fractional) basis and not associated with tutoring or lecturing including practical classes, demonstrations, workshops, seminars, clinical nurse education, performance in visual art studio sessions, musical accompanying, coaching and repetition, consultation with students, marking and assessment, supervision and attendance at departmental and/or faculty meetings as required;
· casual loading of 20% maintained.
Non-Continuing employment in Higher Education
During these proceedings there was some limited reference to the regulation of non-continuing employment which is a matter currently before another Full Bench of this Commission. For convenience the following is set out by way of clarification by the NTEU.
".... the NTEU intends to rely upon parts or all of the following evidence from the hearings on casual academic rates and descriptors, in the later hearings on the regulation of non-continuing employment in higher education:
Book 2: Background Reference Materials
(All Tabs except Tab 15: TAFE Teachers' Salaries Table)
Book 1: Witness Statements
(All Tabs except Tab 20: Terry Taylor)
We do not intend to recall any witnesses for further evidence except for those identified in the materials provided to you on 23 July (Ted Murphy, Christopher Holley, Tanya Castleman and Martin Rodger). In relation to all other witnesses, we will rely only on the transcript and exhibits from the current round of hearings.
As the matter is being heard in two parts, I can understand your concern to identify more clearly whether all the evidence presented in the first part of the case will also be relied upon in the second. Nevertheless, the Union is entitled to rely upon all transcript and exhibits from the first part in presenting our case for the second part.
Issues in the second part of the case include the excessive use and unfair and exploitative nature of casual and fixed-term employment. In this context, all evidence as to the incidence of casual and fixed term employment and as to the exploitative nature of that employment will be relevant to the second stage of the case.
I apologise that further particularisation is not possible, but as the issues in the case are broad and complex, it is not possible to exclude the relevance of any of the statements or exhibits from the casual academic rates and descriptors hearings from the main body of the case, at least in so far as they provide evidence of:
· the incidence of casual and fixed-term employment;
· the structural and organisational pressures to use non-continuing forms of employment when engaging or re-engaging employees;
· the extent to which such forms of employment are justified by institutional requirements for flexibility, etc;
· the fact that non-continuing employment is used in an exploitative manner; and
· the experience of employees engaged on a non-continuing basis of the employment practices of universities."
Submissions of the NTEU
Mr McCulloch's opening remarks for the NTEU are reported at pages 4 - 13 of the transcript. The main points of that submission are:
· the NTEU claim has two objectives, first to increase the rates of pay for casual academic staff and second to ensure those staff are paid the appropriate rate for the full range of teaching, marking, administrative, student consultation and preparation tasks;
· the increased rates of pay in the NTEU submission would be achieved by increasing the existing casual loading from 20% to 25% and by aligning the casual rates of pay to the mid-point of relevant full-time classifications in the 1991 structure;
· the grounds relied upon for the new rates are
· substantial changes in work value and nature of casual academic labour since last examined in 1979/80;
· those changes include class sizes, proliferation of alternative modes of course delivery, decline in the level of guidance of senior staff and a consequent increase in independent responsibility, increase in the incidence of casual employment and heavier work loads;
· the magnitude of the changes for casual staff were not fully comprehended by Commission decisions on full-time rates in 1991 which produced increases of between 9% and 15% for full-time staff but only 8% for casual staff;
· the Commission at that time expected the parties to address the issue of casual staff;
· the evidence will demonstrate the casual rates should be fixed at the sixth level of step A and the mid point of level B;
· rates should be struck which act as a disincentive for the use of casual staff at a time when costs of employing casuals are declining and the numbers of casuals is increasing;
· the casual loading established in 1980 by the Academic Salaries Tribunal to compensate for lack of benefits available to full-time staff should be increased to 25% because of access by full-time academics to a compulsory 14% employer non-award superannuation contribution since 1985 in addition to the three per cent award employer contribution since 1988 whereas casuals may only access a maximum 6% benefit and the lack of access to study leave, professional development, consulting opportunities and time release;
· the academic loading lags well behind like classifications in competing labour markets;
· the broad claim for increased rates is a continuation of the 1991 award restructuring process and seeks to maintain appropriate internal and external relativities and can be justified fully by reference to the wage fixing principles set out in the October 1995 decision (Print M5600);
· the claim for new descriptors is a very important safety net award matter and provides clear composite rates of pay for each of delivery, preparation and marking;
· the 60% rule is retained and a minimum call out of three hours is claimed which is a common provision generally;
· student consultation is an increasing activity and is not adequately comprehended by the current descriptors;
· the proposed NTEU descriptors will prevent exploitation and provide unambiguous national safety net award regulations in a context where enterprise bargaining has failed to deliver proper minimum standards;
· there is no technical impediment to the Commission making a national award which more tightly and in more detail regulates descriptors as an award safety net matter.
Regarding the AHEIA application, Mr McCulloch made these points:
· the proposal would reinforce existing exploitation;
· the increases are minimal and rates would be depressed relative to full-time rates by fixing them at the bottom of each level and not the mid point;
· the 20% loading is retained;
· student consultation is to be counted within the hourly rate;
· a new all-encompassing low rate of $18.93 would substantially cut pay rates for some existing employees such as clinical nurse and there is also a vast pool of unpaid work which remains and ever increases;
· the proposal to abolish the 60% rule will result in a massive acceleration in the substitution of full time for cheaper casual labour.
Ms Gale's closing remarks for the NTEU are recorded at pages 826 - 830 and pages 836 - 855. Her submissions included the following:
· the 60% rule (clause 6 of the existing awards) should be referred to the Full Bench dealing with the regulation of non-continuing employment as it does not relate to casual rates and descriptors;
· the only area of agreement between the parties is that the existing award needs to be changed and needs to be fixed to the full-time award structure;
· the NTEU claim is calculated (re tutoring and lecturing) using a two hour assumption but it also provides for extra payment if more than two hours are involved and the AHEIA assumes a two hour period and no extra payment if more work is done;
· the AHEIA approach to include all work associated with lecturing and tutoring in an hourly payment will exacerbate the level of exploitation and disputation;
· the fact that some casuals are post-graduate students and would like to have an academic career is not in itself a justification for exploitative conditions of employment;
· award regulation is an appropriate way to address the problems in casual academic employment and to provide a clear and enforceable award safety net;
· there is a lack of clarity in the existing regulation of casual academic rates and descriptors;
· enterprise bargaining has failed to address the problems effectively because there is not a clear and enforceable safety net award;
· the NTEU application would reduce the problems in the industry and it is not unworkable or an unreasonable impost on university managers;
The main points covered included the following in relation to the AHEIA written submissions (AHEIA 32) :
· the award restructuring decision of July 1991 had a two stage translation process and the casual rates were only adjusted with respect to the first stage of that translation;
· there was a compounded impact on casuals who have fallen further behind their full-time level A colleagues;
· the benefit received by full time employees from award restructuring is more than the 8.1% which was awarded to the casual rates as an interim measure at the time of the first stage of that translation;
· the Full Bench decision of July 1991 at page 2 recognised a need to restructure the casual salary regime;
· the NTEU seeks to have established appropriate relativities for the first time not to vary internal relativities as suggested by the AHEIA;
· step 6 of the level A structure is an appropriate reference point;
· the majority of tutoring currently being undertaken should be paid at the higher of the two existing tutor rates rather than the lower rate;
· contrary to the AHEIA contention at page 13 of Exhibit AHEIA 32 there was a lot of evidence given about workload and it was clearly shown that since 1980 class sizes and cultural composition in particular have resulted in more work and a more complex level of work for casuals;
· there is support for the NTEU view that a standard lecture requires three hours preparation from the evidence and the Vice Chancellors Committee view in 1980;
· the current practice is to pay for only two hours preparation at the normal rate and the evidence in this case indicates support for three hours;
· the award should be set on an assumption that casual academics are engaged as employees not as post graduate students;
· a master class lecturer rate on the evidence would not cause any difficulty;
· the three hour call out is intended to take account of the convenience of casuals and there was no evidence to support the AHEIA contention that many such employees are students within the relevant faculty or department;
· student consultation should not be included in the assumed preparation time but should be scheduled and paid for separately;
· where subject coordination is undertaken by casuals it should be paid at the level B rate or in the alternative at step 6 of the level A academic which is the minimum level in the full time structure for such duties;
· the evidence of Mr Cockburn is relied upon by the NTEU regarding subject coordination;
· there may be some debate about the exact quantum appropriate for subject coordination but casuals should be paid for that work and it should not be subsumed within the hourly payments;
· in setting an appropriate casual loading the Commission is entitled to look more broadly than award provisions including at conditions and entitlements generally available in the industry;
· the NTEU rejects any proposition that the casual loading claim should be the cause of some multi-industry test case;
· there was no reliable detailed information about the cost implications of the NTEU claim;
· the AHEIA notes that the majority of NTEU witnesses were drawn from the humanities and social sciences areas but that represents a big proportion of university employment;
· there was other evidence from music, information sciences, nursing and science; and
· the AHEIA application delivers a worse outcome for casuals than anyone else in the structure and perpetuates the widespread practice of extracting unpaid work from casual academics.
Ms Gale presented Exhibit NTEU 45 which documents in table form translation outcomes and in her submission is intended to support the Union view about appropriate reference points for fixing rates for casuals. (Mr Shelton reserved the AHEIA position and may wish to address the Full Bench on this subject).
Ms Gale's concluding remarks are reported at pages 871 - 874 of the transcript.
As noted earlier the NTEU provided a written submission (NTEU 44) on 10 September 1996 which develops in greater detail each of the arguments relied upon. There is a convenient summary of the contents of that document and I have not drawn out or highlighted particular aspects in this report.
Submissions of the AHEIA
Mr Shelton for the AHEIA covered these matters in his opening submission (transcript pages 543 - 546) :
· the AHEIA seeks to maintain internal consistency between the various rates in the award and the salary increases that have occurred under SEP;
· the salary steps chosen by the AHEIA are appropriate to create the nexus between casual and full-time scales;
· the NTEU claim for a 25% loading should not be considered in this case: if it is to be arbitrated it should be done in a way to allow each of the major parties in the industrial relations system to have an input;
· other parties should have an opportunity to intervene;
· any increases in the rates of pay for casuals should and must be consistent with the wage fixing principles set out in Print M5600;
· principle 3.2 sets out when and in what circumstances an award may be varied or made without the claim being regarded as above or below the safety net;
· work value changes would appear to be the only relevant way in which to justify a variation of the award;
· all work value considerations were exhausted in the making of new rates of pay for academics in levels A to E and by creating a nexus to those rates in the AHEIA application any work value for casual academics is also exhausted;
· the appropriate nexus on that basis would be somewhere between step 1 and step 2 of the appropriate scale;
· the AHEIA application therefore develops minimum rates of pay for casuals and institutions may pay more than those rates or enterprise bargains may be struck which modify the rates;
· any other salary reference point would go beyond the consideration and determination of the Ludeke 1980 review and the NTEU would be required to show there has been a differential increase in work value between 1980 and the 1991 decision;
· the NTEU would also have to show there has been an increase for work value for casual academics as opposed to full time employees or there has been an increase in work value for casuals only since 1991;
· evidence will show there has been no differential increase in work value for casual academic employees and as such the nexus cannot be set at any level higher than step 2 of either scale; and
· the 60% rule creates operational difficulties which would be solved by its deletion and the increase in the rates proposed by the AHEIA thereby compensate for that proposed variation.
Mr Shelton's final submissions are contained at pages 856 - 890. They compliment the final written submissions of the AHEIA (Exhibit AHEIA 32).
The following main points were covered:
· no work value change has been established (part 3 of the written submissions);
· there is no rate in the award for musical accompaniment, clinical nurse education, vocal coaching repetition;
· a formula is needed which has an appropriate nexus to full-time rates;
· the casual loading suggested by the NTEU is based on a CWJ argument (part 5 of the written submissions);
· there is no wage principle of deterrence to the notion that minimum rates should be struck overly high to discourage casual employment has no basis within the wage fixing principles;
· the increases which come by way of fixing the nexus can only be justified by a trade-off by way of deletion of the 60% rule;
· the 60% rule is limited to the AHEIA approach;
· the onus lies with the NTEU as the original applicant in these matters;
· the casual tutor rate should be struck at the lower level of a level A academic;
· a casual tutor or a casual lecturer does not perform other duties such as research, community duties or administration which are carried out by a full time academic: they perform a teaching role;
· the NTEU seeks to remove marking duties from the associated duties thereby creating a double dipping situation in that it also seeks a rate for marking;
· the notion of reduction for repeat tutorials is that the preparation as opposed to marking has already been done;
· the NTEU written submissions that the claim is not relevant to the wage fixing principles is at odds with Mr McCulloch's opening remarks at page 9 of the transcript;
· no argument was advanced by the NTEU as to why the nexus should now be struck several levels higher than that which was established in 1980;
· unless it can be shown that work value has increased for casual employees over and above ongoing employees the internal relativity should remain;
· there is no need for the Commission to determine that there has been an increase in work value because the NTEU has not led any argument or evidence in this regard;
· the effect of the NTEU application is to remake the standard lecture into a lecture requiring three hours of associated duties and where marking was paid separately an increase of 84%;
· a rate should be struck for lecturing and a rate for tutoring which takes account of all associated duties;
· the evidence and material would indicate an increase of some 30% for tutors if the rate is moved to step 5 and a 14.7% to 17.8% increase for lecturers: and overall an increase of 20%;
· the NTEU has avoided any rebuttal of the AHEIA view that the casual loading and three hour call out are simply based on comparative wage justice;
· the NTEU approach of taking out marking from associated duties carries no reduction in preparation time; and
· the AHEIA reserves its position regarding the material in NTEU 45 which was tabled that day and may wish to make further submissions at the Full Bench proceedings.
The AHEIA final written submissions are marked Exhibit AHEIA 32.
Matters for Determination by the Full Bench
There are competing views on:
(i) the appropriate hourly rates and the categories which should be identified by classification in the awards;
(ii) minimum call out of three hours;
(iii) subject coordination;
(iv) preparation time;
(v) repeat lecturing and repeat tutoring rates;
(vi) the casual loading;
(vii) the 60% rule;
(viii) marking and student consultation; and
(ix) appropriate descriptors.
In addition the AHEIA contends that the opportunity should be given to industrial parties generally to be heard in any arbitration of the casual loading.
B. FRAWLEY
COMMISSIONER
Hearing Details:
1996.
Melbourne:
June 18 to 21;
August 14, 16;
September 10.
Sydney:
August 6 to 9, 12, 13;
September 2.
Appendix A
LIST OF WITNESSES
Union Witnesses
Tanya Castleman - Associate Professor of Sociology at Swinburne University of Technology
(18/6/96 at p.15-50 transcript)
Belinda Probert - Professor and Head of Department of Social Science at RMIT
(18/6/96 at p.51-78)
Dr Adrian Ryan - Secretary of the National Tertiary Education Union (NSW Division)
(8/8/96 at p.500-506)
Jennifer Strauss - Associate Professor in the Department of English at Monash University
(19/6/96 at p.102-127)
Pat Wright - Associate Dean for the Faculty of Arts at the University of Adelaide
(19/6/96 at p.128-153 and 6/8/96 at p.365-395)
Christopher Holley - Senior Industrial Officer for the NSW Division of the NTEU
(12/8/96 at p.614-642)
Ted Murphy - Secretary of the NTEU (Victorian Division)
(20/6/96 at p.184-213)
Danielle Brown - President of the Council of Australian Postgraduate Associations
(19/6/96 at p.81-101)
Simon Vanderaa - Industrial Officer of the NTEU (Tasmanian Division)
(21/6/96 at p.252-271)
Tim Anderson - Doctoral student
(7/8/96 at p.438-466 and 8/8/96 at p.469-482)
Jon Cockburn - Part-time (casual) Lecturer at School of Art History & Theory UNSW
(8/8/96 at p.506-511 and 9/8/96 at p.514-540)
Rachel Cooper - Casual Associate Lecturer in the School of Industrial Relations and
Organisational Behaviour at UNSW
(7/8/96 at p.397-412)
Marie-Louise Harvey - Casual Lecturer in Life Management Studies at University of Sydney
(6/8/96 at p.321-351)
Bruce Lindsay - Education Officer, Swinburne Student Union, Mooroolbark campus
(20/6/96 at p.214-234)
Peter O'Brien - Casual Academic in the School of Accounting at UTS
(6/8/96 at p.352-364)
Kevin Power - President of the Accompanists' Guild and Music Teachers' Association of Qld.
(8/8/96 at p.484-500)
Martin Rodger - Casual Academic in the School of Nursing at Edith Cowan University
(21/6/96 at p.238-250)
Paul Ronfeldt - PhD Student in the Faculty of Economics at University of Sydney
(7/8/96 at p.413-437)
David McDowell - Casual Teacher
(21/6/96 at p.271-289)
AHEIA Witnesses
Ross Cornwell - Secretary, Institute of the Arts at Australian National University, Canberra
(2/7/96 at p.293-317)
Denis Feeney - Director, Personnel Services of the University of Queensland
(12/8/96 at p.593-613)
Geoffrey Gibbs - Director, WA School of Dramatic Arts
(16/8/96 at p.736-756)
Lorraine Gray - Chair, Department of Clinical Nursing at Edith Cowan University
(16/8/96 at p.758-788)
Don Napper - Professor of Physical Chemistry at University of Sydney
(12/8/96 at p.566-583)
Claudio Pompili - Head of Department of Music at University of New England
(9/8/96 at p.547-563)
Robert Robertson - Dean, Faculty of Business at University of Technology, Sydney
(13/8/96 at p.644-676)
Dr John Roddick - Head, Faculty of Information Technology at University of South Australia
(14/8/96 at p.711-732)
Jonathan Taylor - Dean of the School of Dance at the Victorian College of the Arts
(14/8/96 at p.710)
Bruce Wallace - Registrar of the Queensland Conservatorium of Music
(13/8/96 at p.676-708)
Prof. Mairead Brown - Dean, Faculty of Humanities and Social Sciences at Uni. of Tech. Syd.
(2/9/96 at p.792-825)
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4 Transcript, at pp. 893 and 895.
7 Clause 6 of the Colleges Award; Clause 7 of the Universities Award.
9 See in this context "Limited Access" Exhibit NTEU 2 at pp. 36-37.
11 Academic Salaries Tribunal: Part-time Academic Staff: June 1980 at pp.27-30, Ludeke J.
13 Proviso to clause 3 of Universities Award.
16 See ERCoV Decision E96/0437, 31 December 1996: Re Minimum wages for casuals, juniors and piece rate categories of employees in various industries.
17 Re Rope, Cordage, Thread Etc. Industry Award 1996 Print N6698 at p.3.