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Fair Work Act 2009                                                    






s.185 - Application for approval of a single-enterprise agreement


Application by State Of Victoria (Department Of Education And Training) T/A Department Of Education And Training





10.00 AM, TUESDAY, 5 JULY 2022


THE COMMISSIONER:  Good morning parties, it's Commissioner Matheson.  I'm going to start with the appearances, but I am going to do this in a less conventional way and I'm going to do it by way of a roll call, because I have quite a number of you on the line and I just want to make sure that I have confirmed everybody's appearance.


So, for the applicant, I understand the applicant is seeking to be represented by a lawyer today and Mr Howard, initial L is on the line, is that correct.


MR L HOWARD:  Yes, Commissioner, I seek permission to appear.


THE COMMISSIONER:  Thank you, and instructing you have Ms Connor, initial L, is that correct.


MR HOWARD:  That's correct.


THE COMMISSIONER:  And from the Department, I have Ms Hui, initial R, and Ms Lett, initial E.  Is that correct.


MR HOWARD:  That's correct.


THE COMMISSIONER:  Thank you.  I understand I have the union bargaining representatives on the line.  So, for the Australian Education Union, I have Mr McIver, initial M.


MR M MCIVER:  That's correct.


THE COMMISSIONER:  And with you is Mr Mullaly initial J.


MR J MULLALY:  That's correct.


THE COMMISSIONER:  And for the Australian Nursing and Midwifery Federation I have Ms Baldini, initial M.


MR M BALDINI:  Yes, Commissioner, thank you.


THE COMMISSIONER:  And Ms Brown, initial N.


MS N BROWN:  Yes, Commissioner.


THE COMMISSIONER:  And for the Australian Principals Federation I have Ms King, initial T.


MS T KING:  That's correct, Commissioner.


THE COMMISSIONER:  And from the CPSU, Mr Anthony, initial D.


MR D ANTHONY:  Correct, Commissioner, thank you.,


THE COMMISSIONER:  Thank you.  All right, I also have some other persons requesting to be heard today.  One of them is an employee bargaining representative Mr Spicer, initial C.  Are you there Mr Spicer?


MR C SPICER:  Present Commissioner, thank you.


THE COMMISSIONER:  Thank you, and an employee covered by the agreement, Ms Usher, initial C.


MS C USHER:  I am present, thank you.


THE COMMISSIONER:  We did have two other employees who'd requested to be heard, however they haven't attended the hearing today, but I trust that the submissions have been received by the respondent, because I did seek the consent of the parties to forward those on.


All right, now I have read the materials and submissions filed in relation to this matter, but as an initial matter, as I foreshadowed, the applicant is seeking to be represented by a lawyer for the purposes of today's hearing.  Does anyone object to that representation?


Mr Howard, I might just hear some brief submissions from you turning to why the applicant says I should grant representation.


MR HOWARD:  Certainly, Commissioner.  The matter is invested with some complexity.  At the outset, I note that 39 048 people have voted in favour to approve this document and it is of some importance.  In that context, the proper conduct of this hearing and the discharge of your task needs to proceed with care.  Issues of procedural fairness arise as do particular issues relevant to the tests to apply.  The Commission will be assisted by my involvement as I will be able to provide you with those principles of procedure and fairness and being furnished with those principles, Commissioner, you'll be able to conduct this hearing more efficiently.


THE COMMISSIONER:  Well, look, as I said, I have read the materials filed and submissions raised and I've also considered that we have parties raising a number of concerns, as well as the scale of this enterprise agreement and the size of workforce it covers.  Having heard the submissions, I'm satisfied that the matter involves complexity and that granting permission to the applicant to be represented, will enable the matter to be dealt with more efficiently.  So, I'll grant permission pursuant to section 596(2)(a) of the Fair Work Act.


So, there are four union bargaining representatives for the agreement, being as I said the Australian Education Union, the Australian Nursing and Midwifery Federation, Australian Principals Federation, CPSU.  There are also two employee bargaining representatives for the agreement and a Form F18 declaration has been filed by one of those bargaining representatives, the employee bargaining representatives, as well as Ms Levy at the union.  But relevantly, Mr Spicer who says he's a bargaining representative for a group of five principles, raises a number of concerns in relation to the agreement.


Before I turn to Mr Spicer and in terms of proposal, I'm looking to hear from Mr Spicer first.  Then we'll hear from Ms Usher.  Then what I'm proposing to do is have a brief adjournment, if necessary at that point, and hear from the respondent about that.  But before we do, having reviewed the form F18s filed by the union bargaining representatives, I understand there are no objections to the agreement that any union wishes to raise, unless I'm advised otherwise, and that the unions are broadly supportive of approval.


Does anyone have a different view to that?




THE COMMISSIONER:  Okay, well on that note, what I'm proposing to do, as I said, is hear from firstly Mr Spicer and then from Ms Usher.  Now, parties, in raising your issues, and in responding to them, please be mindful that there are particular considerations in the Act that I need to take into account when deciding whether I need to approve this agreement.  So, if you can indicate to me what the relevant section or consideration is that you're concerned or response to it relates to, that would be of assistance to the Commission and indeed, the other parties.  Does anyone have anything to raised before I hear from Mr Spicer?  Mr Howard, anything from you at this point?


MR HOWARD:  Can I, can I just address you on two sort of threshold matters as to the way the Department proposes to conduct its hearing today?




MR HOWARD:  Just as a matter of procedure, Commissioner, the task is to approve the agreement.


THE COMMISSIONER:  Yes, that's right.


MR HOWARD:  Under section 590 of the Act, you're empowered to inform yourself as to the way you see fit.




MR HOWARD:  Including submissions and information that I can provide you today to assist you in discharging that task.




MR HOWARD:  Now, if we get to the point in the course of today where the information I provide is not able to assist you to discharge your task, the proper course is to invite the Department another opportunity to go back and request more information.




MR HOWARD:  You'd be aware of the Full Bench authority of McDonalds at paragraph 21, where that of course is set out.




MR HOWARD:  With those two points identified, I don't need to address you.


THE COMMISSIONER:  Yes, I heard that's of assistance, Mr Howard.  I'm also conscious that the Form F18 discloses at the time of the vote we have 87 257 employees covered by this agreement.  So, it is not a task that I will approach lightly in the event that issues are raised and it's prudent that I give you the opportunity to respond to them.


So, without further ado, Mr Spicer, I have received your Form F18 declaration.  I understand you raise eight discrete concerns in relation to the agreement.  Now, I will give you an opportunity to speak to those and we will then hear from the other employee.  Thank you, Mr Spicer.


MR SPICER:  Thank you Commissioner.  As mentioned, I represent five principals who are all primary school principals.  Our concern, an anecdotally concern of may primary school principals that we've spoken to in relation to time in lieu, is the difficulty of the fact that primary school teachers teach to the final bell, and by that I mean they run all the way through until the very last day of the school year and are in front of their classrooms until that final dismissal.  That is not the case in secondary schools, where there is a significant amount of leeway in terms of students completing the school year earlier, and therefore staffing arrangements can be made so that time in lieu can be covered more comfortably in that particular environment.


So, from our point of view, the issue remains that it is far more difficult for a primary school to cover time in lieu.  That there is no clarify around the school holidays and where that sits in terms of that time in lieu, there is an additional 228 hours of school holidays that could well be held as time in lieu against such things as school camps, parent/teacher interviews and the like and there was no clarify provided throughout the course of the negotiations around what that would look like and there's been no guidance in the lead up to the agreement for people to vote on this particular matter, with any true understanding of how this affects schools.


Now, in terms of school budgets, primary schools don't have the leeway that a secondary school might have in terms of granting time in lieu and as such that will affect other programs as an knock-on effect.  So, I think this needs to be thought through in some respects.


The second part of that was in relation to again, the 220 hours that I've mentioned.  We have 152 hours of annual leave and a further 228 hours, or six weeks where staff are effectively on school holidays, for want of a better term.  I'd like to see clarity around how those 228 hours can be used to offset any time in lieu.


My third point was in relation to what constituted performing duties and what is on-call and available to perform duties.  There have been discussions with the Department's negotiating parties but no great clarify around this particular point, even when they've been asked directly to clarify.  For example, the camp issue, there is apparently an assumption that was going to be made that sleeping is not considered to be on-call or on-duty.


But if you're going on a school for four nights for argument's sake, and you are sleeping, I promise you, you sleep with one eye open and you are listening out for students at all times and you may be required to get up at any moment to go and supervise students, for whatever reason, attend to any particular issue.  So, there needs to be clarify around that so that people can actually operate this agreement appropriately and fairly.  I think it does affect schools with smaller budgets more significantly than it does larger school, who have greater flexibility, so that should be taken into consideration as well.


Moving along, I don't want to take up too much of your time if I can avoid it.




MR SPICER:  Looking at point four, I believe that the agreement should separate primary, secondary and special schools.  For too long, the agreements have been skewed in favour of secondary school outcomes and that is a historical condition that has arisen from the early 90s all the way through to today.  That is one that has been acknowledged by the negotiating parties on behalf of the Department of Education.  So, what that means is that some of the staffing arrangements, some of the consultation arrangements, some of the salary arrangements are skewed in favour of secondary schools and it disadvantages primary school staff.  I think that needs to be something that is explored further.


Continuing on to a salary point of view.  The work of a school principal is incredibly complex and difficult.  There are primary school principles in particular who are on a range two salary which is significantly lower than what the average would be.  I have been a range two principal working in a much smaller school than I currently work now, and without a doubt, the work is incredibly difficult, particularly in challenging social and economic circumstances, and they should not be disadvantaged purely because of the size of the school in which they lead.


I firmly believe that all principals should be afforded the respect of a range four salary.  I'm fortunate enough to be in the position of being on a range four salary at present. But yes, in all honestly, I wish to protect that particular position as well.  There is far too much work that goes into being a school principal to be remunerated less than this.  You talk about time in lieu, and I know that on an executive salary, under the current principal agreement, principals don't get time in lieu per se.


But there is no doubt that there are studies that show that principals are working in excess of 60 hour weeks continuously and suitable remuneration should be paid.  I do believe that small school principals work considerably more than 60 hours per week.  I would argue that they are potentially upwards of 70 in most cases.  So, therefore, they should be remunerated accordingly.


My sixth point was around cultural leave, section 26.  I believe that this might well have actually been addressed already via an amendment that the Department is agreeing to and that came via the Employment Act saying that there was all staff had to be provided leave to attend funerals of extended family members and not just the immediate family members.  So, from that point of view, if that is actually the case, I'm happy to accept that particular alteration.


School-based consultation.  Section 12(4)(d)(iii) dot point nine, refers to a blanket 30 hours of time for staff consultation, and it doesn't factor in school size.  So, you could be an AU sub-branch representative for a school of six people and have 30 hours to consult against the agreement and you could be an AU sub-branch president of a school with 240 staff members and have the same amount of consultation hours.  It doesn't seem to be remotely fair and there needs to be some sort of adjustment to allow for the differing hours.


I would argue that if you're in a school six, you don't need the 30 hours, and if you're in a school where you have 240 staff members, perhaps you need a little bit more.  I think that needs to be on a pro rata basis.


My last point was in relation to the salary increases, particularly in relation to teachers, where there is one per cent every six months over the life of the agreement and if I was to quote Governor Lowe, Reserve Bank Governor Lowe, who recently, in May, set the central forecast for headline inflation is around six per cent, and underlying inflation is four and three quarter per cent.  By mid-2024 the headline and underlying inflation are forecast to have moderated to around three percent and these forecasts are based on the assumption of further increases in interest rate rises.  So, even the Governor of the RBA, is saying that the current salary increases are nowhere near what the inflation rate is going to be and I think that also needs to be taken into consideration.


Thank you.


THE COMMISSIONER:  Thank you Mr Spicer.  Ms Usher is there anything you wish to say about your concerns at this point?


MS USHER:  I guess as a Departmental employee for the past 19 years, I've recently changed schools at the beginning of this year and consequently because of that change, I've had a lot of structural platforms that I've had to get used to, compass, continuous reporting, et cetera, et cetera and timetable changes.  So, those timetable changes went from a six period day down to a five period day.  So, I had to come up to speed very quickly with a lot of structural changes.


The last six months have seen me working 11 hour days which is very consistent, so on average on site, I've been working 55 hours for the past six months.  That's consistent with the state of our school survey that the AU had surveyed on average of 10 000 employees.  In our award it actually says that we're supposed to be working 38 hours.  That survey basically confirmed the actuality and the realism that teachers are working 55 hours.  That surplus and that holiday time, even when you deduct our holiday times of seven weeks, and I deducted week one and week two, based on 32 teaching weeks, we're in deficit of 278 hours of unpaid overtime.


I've made recommendations in my report saying that those recommendations that we either get penalty rates for the deficit or you deregulate how teachers work.  Our work is incredibly complex.  It is very sophisticated.  The 30 plus eight model does not work.  We are in worse situation, 36 years later than what we are from the 1986 agreement.  I have issues with the way the deed has been written.  It is not concrete.  It is subject to consultation on a local level.  That needs to be addressed.


If the AU and the government were serious about improving our working conditions, they would have been – those face-to-face reductions would have been enshrined in the actual agreement, simply and clearly written.  At the moment we have to cross-correlate two documents.  It's very complex.  It's written in a legal manner.  It needs to be simplified for teachers, it needs to be read, it needs to be fully understood and at present, it's a very – those two documents are incredibly – with all the inclusions that are in there, they are incredibly complex to decipher.


I have real issues with the way that modern teachers are working.  We're doing dual delivery at the moment.  That takes a lot of data entry and there's too much of a work spill-over in our jobs that we take home, and that's a real concern to me.  I love my job; I love working with kids 19 years later, however the system has been so over-structured and we have such a work deferment that goes that we do at home, and therefore, we do that work and that spill-over work unpaid.


It is really tiresome for teachers having two meetings a week under the eight model.  You go to work and I see teachers just looking bleary eyed.  They sit there, they're fuming privately and I can read it in their body language.  That's not appropriate in a professional forum.  The 30 plus eight model does not work.  It is too over-regulated and organisational duties also needs to be, as it was written in the 1986 agreement, it is finite.  Teachers need finite time in our jobs to get our job done, rather than taking it home.


I don't want to have to reduce my time fraction or leave my profession.  This needs to be seriously addressed if we're going to be a modern teaching system working with modern changes that the environment has thrown at teachers.  The Department needs to adjust to those environmental changes and it needs to modernise itself.  So, we've got a lot of complex issues that need to be addressed.  When you actually have a look at 2017 VGSA versus the 2022, they're identically written except for the deed.  So, really, those changes are not significant enough according to the BOOT test that is your yardstick for either approving or not approving.  Basically, I don't feel that it passes the BOOT test.


We are no better off 36 years later.  My teachers that taught me had far better deregulated conditions than what I'm working.  I'm as a superior teacher as what Kevin Thelen was, Glenys Peritan was.  All of those far superior teachers that I had at Avondale Heights High School that taught me.  I have got a right to the same conditions that those teachers worked under, all of those years ago at Avondale Heights High School and Keilor Heights High School.  I see absolutely no difference in my teacher work.  It's about passion, it's about enthusiasm and I want to be enthusiastic for the students that I present to every morning, every day that I go there and I do it, and I don't take many days off because I believe in continuity of teacher delivery.


I need you to fix the system so teachers are able to do their jobs, do it without angst, without stress.  Teachers these days they're becoming carers, they're taking sick days.  They're also taking sick days to take work home to catch up on work and this is also creating extras in a school environment at a time when we've got staffing shortages.  So, I don't think that this agreement as it stands, as it's been presented is fully understood and I don't believe, far worse off under current conditions than what we've ever been in history.


It needs to be reworked and I've given seven recommendations.  I've also given some rewording as well.  There's some exclusions and I would like those taken seriously.  Thank you.


THE COMMISSIONER:  Thank you, Ms Usher.  To the extent that your concerns relate to the better off overall test, what award or awards do you say are relevant to my assessment of that test?


MS USHER:  I sent that in an email where under a 2020 award and that's the award – I had sent that into an email to you.


THE COMMISSIONER:  I was just going to clarify, because the applicants identify the Victorian Government Schools Award 2016 as being the award that covers the employees covered by the agreement.  Do you have a different view to that?


MS USHER:  Yes, I will.  I'll just get it off my phone which is going to take me – I did send that through last night.


THE COMMISSIONER:  Let me just see.  I think I have the materials in front of me.  So, the award I think, that you referenced – just bear with me – yes go on.


MS USHER:  Let me – it's the Educational Service Teachers Award 2020.  It's got MAA000077#P235.


THE COMMISSIONER:  I think I've got it.


MS USHER:  And it clearly stipulates for a full time worker, on average teachers are working a 38 hour week and the state of the school survey commissioned by AEU found – and as their platform going into the campaign, found that teachers were working 55 hours a week.  When you minimise seven weeks' worth of – or when you deduct seven weeks of holidays, we're still in a deficit of roughly, conservatively, 278 hours of unpaid overtime.


My services aren't free; I'm highly skilled, highly trained within the Department.  I've worked extremely hard to develop my expertise and I've had excellent training within the Department during those years.  I, and my fellow colleagues across the state, as you're claiming Mr Charles Spicer, for principals, we deserve to be remunerated and that's in penalty rates.  By industry standards for other industries on a weekend, that should be paid a probably double rate or even time and a half.  Penalty rates have never ever been on the table.  It's always just through teacher goodwill and that doesn't cut the mustard anymore.  It's insufficient.


You want, you're expecting teachers to be professional to be energised.  We need to be compensated accordingly.  Either than or the 30 plus eight model needs to be eliminated.  I'm also proposing that schools only go down to one meeting per week.  Having that and plus yard duties are not factored.  All of those issues eat into teacher time during 38 hours and that's why there's a deferment and spill-over into our private lives where we've got excessive marking, excessive continuous reporting and that's why teachers aren't coping and that's why we have the level of attrition that we have in the system, where people are taking excessive days off to work from home to catch up from work, or they're simply too exhausted.


We have VICA audits that we have to do.  There's no time allowances given for those audits to do those and they can take up to two to three working days.  A colleague of mine recently took off two days to get his audit done and I was highly aware of that, and I'm aware of why people are taking sick days because I talk to those people.


So, as I said, we're at a point in time where by the time the VGSA, if it gets approved today, it's four years, maybe even five up to six years, the two years of lag time from last year and this year, saw us – that VGSA 2017 was effectively six years in the making.  Six years and two years in free.  So, four years originally and then two years free-fall, last year and this year, with no load relaxations.


At Mill Park Secondary College, those teachers, six on days and sometimes you could have in a fortnight, up to six, six on days.  That's contact face to face, and it's gruelling.  Six hours and having a full load on a full time, I'm maxed out.  It is gruelling.  At the moment, teachers are being asked due to the shortages to do above and beyond their 20 requisite hours and teachers are doing that; there's no compensation for that; it's a time in lieu.  Then you've got to fight to get your time in lieu.


So, as I said, there are a lot of complex issues that do need to be addressed and pushing through an agreement today is only going to serve to compound the level of attrition and those days off that are taken with the dedicated teachers that are remaining in the system.  As I said, people are taking the option to reduce their time fraction so they can free up their weekends.  So, as I said, I've made seven recommendations based on either basically saying that it's going to be the VGSA as it stands at the moment is going to be in a draft format, pending further reasonable adjustment, but I am going to strenuously push for the removal of the 30 plus eight model.


It is too restricted on the job and also in comparison to the 86 agreement, teachers – and it was enshrined.  A teacher does not, including organisational duties, work more than 18 and three quarter – it says 'The face-to-face teaching component of timetable duties shall not exceed 18 hours per week'.  And even with – we're doing a staggered formation next year of one hour and then it sees the next 30 minutes in 2025 and we still can't do that six years later, after working 20 hours a week contact of face to face.


So, yes, as I said for the BOOT test, and given that the AEU have confirmed in writing when they released that document, teachers on average are doing 55 hours a week, we are still in a deficit of unpaid overtime even when you deduct those seven weeks' worth of holidays, because we're entitled to four weeks annual leave anyway.  So, I'm going to call for a rejection today.


THE COMMISSIONER:  All right, thank you Ms Usher.  Just as a note the award that you have raised, there are some exclusions from that and I suspect that the applicant might address that from the coverage provisions.  But I think I've heard your submissions.


What I said I would do at this juncture is adjourn, briefly before hearing from the applicant to address the concerns that have been raised by those seeking to be heard today.  Are you still happy for me to take that course of action, Mr Howard and how long do you think you will need?


MR HOWARD:  I'm content to proceed, Commissioner.


THE COMMISSIONER:  You're content to proceed, all right?  Well, I'll let you respond then.


MR HOWARD:  Thank you Commissioner, and thank you Ms Usher and Mr Spicer, in particular for those submissions.


Commissioner, there has been a vote attendance of 63 194 employees to be covered by the agreement.  39 048 of those employees voted to approve the agreement which is approximately 62 per cent of the voting cohort.  Mr Spicer represents himself and five principals in the bargain that led to the agreement and Ms Usher was representing herself today.  So, it can be inferred today that a maximum of six employees could have been part of that cohort that voted against the agreement.  That's as high as it gets today.  Under section 182(1) of the Act, an enterprise agreement is made when a majority of employees cast a vote in support of it and that's the relevant task that we need to consider.


In terms of Ms Usher and Mr Spicer's criticisms of the agreement that was voted up by the 39 048, it's not a relevant question today.  We heard from those 39 000 employees.  The matter really stops there.  If I can assist the Commission any further, that's all I wish to say .


THE COMMISSIONER:  Yes, okay, all right.  Anyone else wish to raise anything before I adjourn?


MS USHER:  Well, I'm going to - - -


THE COMMISSIONER:  Ms Usher first, and then Mr Spicer.


MS USHER:  I'm going to interject.  Leigh I would assume that given that teachers have been tied up in working face to face hours both primary and secondary fully unpacking that deed document as well as the very complex VGSA 2022, teachers, those 60 per cent as it stands, I presume and I'm proposing do not fully understand the implications.  They were fully unaware that back in 86, my teachers were working on better conditions.  Had they been made aware of that very fact, they wouldn't have voted for it.  Had they been made aware of how complex the agreements are the exclusions in them, and the fact that those load reductions are not concrete, that they basically default to 20 hours, if there are staffing shortages, they wouldn't have voted for it Leigh Howard.


I think you know that, and I know that.  They made – the union presented a very skewed campaign.  When teachers were asking questions and myself last year, all of those questions were no, nothing was given in writing, you've got to attend the regional meetings.  That was difficult for staff to do; we were all tied up on our jobs.  So, I do not believe that that 60 per cent cohort who voted yes, it was a cursory vote based on incomplete information.  Those load reductions may not necessarily be granted at a school level, due to the staffing shortages that we're given, and I do come down to, and had teachers been made aware of that, to go oh look, have a look at 2017 versus 2022, the wording is absolutely identical bar a deed agreement.


If I'm going to be covered by a deed, I want the ability to sign that deed rather than it being an exclusive document between the AEU and also Jenny Atta from the Department.  I've got a right to sign that deed.  I've got a full right as a non-union member to be able to have access to those load reductions.  Those load reductions need to be put into – there shouldn't be a separate document.  Those loading reductions are face to face need to be enshrined in the body of the agreement and I think had that been communicated to teachers at the time, I do feel they wouldn't have voted for it.


THE COMMISSIONER:  All right, Mr Howard, I have received the form F17 and the supporting documentation.  Is there anything further that you wish to say about steps taken to explain the terms and the effect of the agreement?


MR HOWARD:  Well, one matter to respond, that's not a criticism of anybody, but no one can give evidence of what 63 000 people understood to be the terms of the agreement or its incorporated documents.  As you heard earlier, or as you mentioned to me, Commissioner, there are 87 000 approximately, to be covered by the agreement.  63 000 voted, that provided – came out at about 72 per cent which far exceeds by many percentage points, for example, democratic votes to elect the President of the United States – it's about 52 per cent.  The vote of participation is indicative of the understanding and support of the vote.


In relation to the steps to be taken to explain the agreement.  As Commissioner you have identified correctly, they are fulsomely set out in the form F17, in particular in the attachments.  So, I have nothing to add to the form F17 and what it states therein.


THE COMMISSIONER:  Thank you Mr Howard.  All right, Mr Spicer, you wanted to say something.


MR SPICER:  Thank you again, Commissioner.  In my discussions – I was part of the formal negotiations as the independent bargaining representative, so I, more than most principals, had a keen understanding of the facets of this particular agreement.  When I was actually able to speak to my staff about that in detail and discuss that as part of the voting process, even I wasn't able to provide them with answers to questions of my stuff I'm referring to here.  Answers to questions regarding the agreement, because it still was not clear to me as to whether or not, how some of these particular outcomes that I've raised, would work.


Now, if there is no clarity to a party to the negotiations, how can there be clarity to people voting on the agreement?  So, in terms of legal standpoint, I do understand Mr Howard's point in relation to the fact that a significant number of staff have voted and there was 61.9 per cent I believe, in favour of said agreement.  But I do believe that apathy and ignorance does not make a fair vote.  Yes, in a democratic process we do accept that, but in this particular occasion, staff have been trying to ask questions to seek clarity around this particular agreement and none was given.  There was no pathway for that clarity to be provided to staff who wanted to understand it and in terms of the procedure of the vote, it was rushed, it was a very very short timeline and there was no mechanism for staff to go back and say, before we vote, we would like to seek clarity on this point, this point and this point.


So, from that point of view, I think it's fair to say that staff were railroaded into a yes or no position and in the end, I think fatigue, process fatigue got the better of quite a few people and thought well, we'd just like to see this completed, so we'll just vote for it and get it over and done with, at the detriment to themselves.  So, I do think that there are fairness points around this particular agreement.  Whilst I do believe that our teaching staff work incredibly hard, I think they weren't given a chance to clarify their understanding and I think that's the key issue here.  Thank you.


THE COMMISSIONER:  Thank you.  Anything further from you on that, Mr Howard?


MR HOWARD:  Yes, if I may assist the Commission.  Attachment 3 to the F17, do you have a copy of that?


THE COMMISSIONER:  Yes, I do, bear with me.


MR HOWARD:  In relation to the statements about a lack of facility to explain, I'll point you to this document.  It's an email of 5 May notifying the vote, which as you know, has to occur within a seven day access period.


THE COMMISSIONER:  Yes, I have it.


MR HOWARD:  Now, you'll see, for example, on the second page of Mr Brugden's email, that he hyperlinks to the explanatory documents and a copy of the agreement.  Then he says 'Should you have any queries or require further information or assistance beyond what's provided in writing, you are able to contact the Policy and Workplace Relations Branch by telephone or by email' and this is a document that went to everyone to be covered by the agreement.


In addition to that, as you can infer from who's on the call, union members had their union delegates and officers, if they had any queries that they wanted to raise through that pathway.  As we'll probably address later in this hearing, there was a meeting convened at each of the 1500 schools to be covered by the agreement, whereby a principal and the union delegate, together presented on the meeting, conducted the ballot.  So, for those reasons, there was a fulsome opportunity to digest the agreement and raise questions, Commissioner.


MS USHER:  Leigh Howard, at my school, when we had that vote, there was regular school business for the first half an hour and then the second latter half of that half hour was devoted.  So, we didn't even – at my school, get the full hour to actually unpack some of those issues.  So, we didn't, as I said, half hour was devoted to regular school business in a meeting that my principal chaired, and that was regular school business, and it was the latter half that he had devoted to.  So, I will sincerely dispute that claim.


THE COMMISSIONER:  How many people at your school are there Ms Usher?


MS USHER:  Approximately 600 – 60 teachers approximately, but about 600 pupils.


THE COMMISSIONER:  All right, it was more the employees that I was interested in.  Thank you for that.  Look, just one – did you want to address the issue, Mr Howard of the voting, or how that was administered.  I know that you did provide a response to the Commission.  I just want to clarify with the bargaining representatives that there are no other issues with that, other than those that have been raised by Mr Spicer and Ms Usher?


MR HOWARD:  Yes, further to that, I've had very lengthy discussions with my AEU sub-branch president.  He and I have an excellent working relationship.  He had said to me that he had asked his – the AEU representatives various questions and at every turn, he was actually shut down and was not given clarity around some of the questions that he did indeed ask.  I raised this with Tony Brugden and he took that on notice and that's as far as that ever got from my point of view.  Whether or not that was then raised with the AEU, I could not say.  I hope that it was.  That was the intention – that was the inference that Mr Brugden had given to me and I do trust that he would have done so.  He has been very honest with me, I think.


So, I have a question about whether or not the AEU representatives that were visiting schools had an agenda and whether they were pushing that forward and perhaps the AEU staff can address that.  But from my understanding, and it wasn't just my school, but I've heard it anecdotally from other principals, that AEU sub-branch presidents were not necessarily given answers to questions when they asked them.


THE COMMISSIONER:  Up to you, whether or not you want to address that AUE representative on the line?


MR MCIVER:  Commissioner, communications between AUE representatives and others, is not a factor that's relevant to your consideration under section 186 of the Fair Work Act.  No issue is raised through and under section 188 or by sub (5) of the Fair Work Act.  I gave some submission in relation to the emails that have been received from Ms Frazer, Mr Brick, Ms Adam and (indistinct).  The focus of the task of the Commission is to consider the factors that Mr Howard has outlined.  Matters raised by Mr Spicer are simply irrelevant to your consideration.


THE COMMISSIONER:  Thank you.  I think Ms King from the APF wants to say something as well.  Ms King?


MS KING:  Thank you, Commissioner.  Just a couple of points I'd like to make.  Mr Howard are you able to provide a breakdown of the 63 000 plus employees who voted yes, what the breakdown was in terms of education support staff, teaching staff and principal class?


MR HOWARD:  The short answer to that is no.  The ballots are ballots.


MS KING:  Right.


MR HOWARD:  They were conducted at schools.  The second point is that it's not a relevant question to the assessment of the agreement today, Ms King.  The question for the Commission is whether a majority of employees that did vote cast their vote in a majority vote.


MS KING:  I guess the reason I raise the question, Mr Howard, is because as a bargaining entity that represents principal class going into this agreement, we bargained on matters pertaining to principals and assistant principals, yet however, we were completely blind-sided with some other elements that came out in the agreement, as Mr Spicer raised in terms of timing.  That of course, did have impact on the way the unions and the bargaining entities were able to communicate with the respective memberships because we were not privy to those conversations, so there were provisions in the agreement, in the absence of the Department being able to provide any information because it was deemed to be presumptuous prior to the endorsement of the agreement.  We had to unpack those areas as best we could.


MR HOWARD:  Thank you for that information but the question for the Commission is whether the agreement as voted up by a majority is made.  Perhaps it's something you can address separate to this hearing, but there is not dispositive of that today.


MS KING:  Thank you.


MS USHER:  Leigh Howard, if we were to say to teachers, can you fill out a logbook of your weekly hours and I could sign a statutory declaration today to say that on average Monday to Friday I worked 55 hours for the last 20 weeks, the Commissioner needs to make a decision about the BOOT test saying that teachers are going to be better off in this agreement.  We are not.  Our award and our agreements say we are supposed to be working 38 ordinary hours.  AEU Victoria confirmed that on average, teachers are working 55 hours a week.  If is a serious deficit.  I will reiterate teachers in the state of Victoria under the status quo, if this is approved today will be no better off than the teachers from 1986.


THE COMMISSIONER:  Bear in mind, I do have to assess it against the relevant instrument as well.  So, that's part of my consideration, parties.  All right, anything further on that, Mr Howard?  Actually, before I do that.  Ms King, are you raising a concern regarding any of the provisions of the Act that I need to take into account in assessing this agreement, just for clarification?


MS KING:  I'm not necessarily.  We've endorsed the agreement based from a perspective of principal class employees.  However, the concern relates to provisions within the agreement that were not party to the discussions and yet have impact on principal class workloads.  So, it is a conversation that we're pursuing with the Department.  So, I will rest it in terms of not pursuing this further with the Commission.


THE COMMISSIONER:  All right.  Now anybody - - -


MR SPICER:  Excuse me, Commissioner, I would like to concur with Ms King in relation to her comments.  In relation to the percentage of various staff who have voted on this, given that the EBA was discussed in isolation, as Ms King has said, the Department should be able to provide statistics in relation to who has voted for what and if they are going to specifically say that a principal can only discuss principal issues and yet, issues such as time in lieu, which is going to significantly weigh on teacher workload, is discussed in isolation and without transparency, once again, it goes to a flawed process.


The Department should, at least, be prepared to provide us with some transparency on those numbers, if not today, then in the future, for us to discuss in future EBAs, because there have been – I think there has been a complete lack of transparency.  But I am also happy to rest on that point.


THE COMMISSIONER:  Yes, thank you, because what I was going to say, the challenge that I have here, section 182(1) has the effect that the agreement is made when a majority of the employees cast a vote to approve the agreement.  So, it's taken as an aggregate vote and there may not be, as Mr Howard has identified, a break-down, but it's constructive feedback, I think, in any case.  Sometimes it's good to look at cohorts and how they're impacted for future bargaining and negotiations.  But I have to stick to the considerations that I need to take into account.


MS KING:  Thank you Commissioner, that's noted.


THE COMMISSIONER:  All right.  Anything further from any party?  Has anybody – my associate tells me that there's somebody who had joined on the line, who had wanted to be heard, potentially, in this application.  Is that the case?  Was it – anybody else?  No?  Potentially not.  Any other matters to raise before I adjourn by any party?  Mr Howard.


MR HOWARD:  Commissioner, that concludes Mr Spicer and Ms Usher's submissions they wish to make.  Mr Spicer does have a very important commitment to attend to at about - - -


THE COMMISSIONER:  I understand.


MR HOWARD:  Subsequent to the adjournment, I propose that we deal with the balance of the queries that you have raised, which are these populated issues table.


THE COMMISSIONER:  Yes.  I think that would be of assistance.  All right.  Well, look, we'll let you go.  Thank you, Mr Spicer, for your participation this morning.  I am going to adjourn and have a 15 minute adjournment, is that's amenable to the parties and then we'll move on to the Commission's concerns and go from there.


MR SPICER:  Thank you Commissioner; thank you all.


THE COMMISSIONER:  Thank you parties.


THE ASSOCIATE:  The Fair Work Commission is adjourned until 11.20 am.

SHORT ADJOURNMENT                                                                   [11.05 AM]

RESUMED                                                                                             [11.22 AM]


THE ASSOCIATE:  Parties, please be advised that the Commissioner has re-joined the hearing and the recording has recommenced.  The Fair Work Commission has resumed.


THE COMMISSIONER:  All right, thank you parties.  I understand the appearances aren't as broad as they were before, so we will resume.  Now, the Commission has raised a number of issues with the agreement and the applicant has provided responses to those, but I do want to go through them for completeness today.


The first one I'll start with relates to the areas in the agreement.  The applicant has identified that there are cost referencing areas in the agreement and seeks for the Commission to exercise its discretion under section 586(2) of the Act to make those corrections.  Now, a question perhaps for the parties on the line.  I have looked at those corrections that the applicant is seeking to make, and my provisional view is that broadly, they do appear to be typographical, or what would I call, cross-referencing sort of areas.


Now, does anybody take issue with that, or say that they are not errors, or otherwise take issue with the proposal that the Commission exercise its discretion to amend them pursuant to section 586(2) of the Act?  Maybe I'll hear from the bargaining representatives on that.  Any issues?


MR MULLALY:  (Indistinct) with those corrections, Commissioner.




MS KING:  APF endorsement Commissioner for the corrections.


THE COMMISSIONER:  Thank you.  All right, well moving forward to the balance of the issues.  So, I have seen the explanation provided in relation to the notice of employee representational rights.  There is a minor difference in the agreement title, but the explanation appears to address that concern.  The minor difference of course, being the date of the agreement.  Sometimes, I understand these negotiations go into a different year.  Do any of the parties have any concerns about that, or my provisional view is that it shouldn't impact genuine agreement?  Right, okay, thank you parties.


All right, so this one is a little bit more substantive, the next issue, which relates to the notification of the vote.  Now, I raise some issues around section 180(3) of the Act, but I understand there are 1542 schools that are impacted here.  So, obviously, I need to take a practical approach to this.  Now, did you want to talk through your explanation of that concern, Mr Howard?  Really, what I wanted to be satisfied of, is that parties obviously had the details regarding the vote.  Now, I would note as well, that it is a fairly strong turnout, the voting turnout, so that might carry some weight here.  But do you wish to say about the notification of vote requirements in section 183 of the Act, if anything, Mr Howard?


MR HOWARD:  Commissioner, we have, in our response in the table.


THE COMMISSIONER:  Yes, I have that.


MR HOWARD:  I have sought some clarification as to what might be needed.




MR HOWARD:  Today, I don't, unless you form the view to proceed in another way, I don't propose that you need anything further to approve the agreement in line with what I'm about to say, because you are correct in the sense that it is an involved workplace, probably wholly unique in a number of regards.  The first is that the employer, by the Act, which the Education training reformat, is the secretary of the Department.


So, the employer is one person which is the secretary of the Department but in practical terms, as you've already identified, there are 1542 schools who are all managed by principals, to use a probably inappropriate term, but a practical term.


In that context, the question for application is what does the secretary do, to take all reasonable steps to notify of the time and place of the vote?  The vote was conducted by a confidential ballot is sort of – just to pause there, confidential ballot, thus we don't have that data that was previously requested – in person, rather than electronic and there are sound reasons why that's the case.  That process has been the process since time immemorial for enterprise agreements in this enterprise under the Fair Work Act, so we've always done it that way and customer practice is such that we do it that way now.  But the reason why we do it that way is because it encourages voter turnout.


This round, we obtained about a 72 per cent participation rate and it usually oscillates in the 70s.  So, there's a very high participate by reason of conducting it in person and it's the preferred method for the employer and the bargaining representatives and it has been for a long time.  So, in that context, it's not possible for the secretary to notify of a place, in a blunt sense.  There are 1542 places is the first point.


The second point, it's not practical to notify of a time for the reason that there are 1542 different schedules, upon which this vote is to occur.  Every school runs to a different timetable; every school has a different commitment in relation to the teaching and care of children.  So, the question thus becomes, well what's an all reasonable step for the secretary to take and the only step to take that's reasonable is to direct the principals to administer the vote and notify the time and place.  That's the only step the secretary can take in that context.


Can I turn to attachment 3 of the F17 and I'll just leaf through the material before you, in order to make good the proposition that we did direct principals to do that?


THE COMMISSIONER:  Yes, I have that before me.


MR HOWARD:  Thank you.  You'll see Mr Brugden's email of 5 May at the third paragraph.  He sends this all staff email to notify employees that principals will be coordinating the time and place of vote between the access period.  So, by that notification, the step has been made to notify employees that the principals will be in touch about the time and place of vote.


If you just do a leaf through of attachment 3, the next document that appears is the internal link that's cross-referenced in the email to the intranet and you'll see it's a overview document and that web page cross-references to a number of documents which are also annexed, which follow.  The next document is the policy and guidelines where the ballot for non-school locations and the particulars of that note is set out.  Now, it's not what's – not that you can't alleviate your concern; your concern is about school-based, but that's just provided there for you.


The next document that's also hyperlinked in the website is the agreement explanation which is the pages that follow for, I think probably about 10 pages.




MR HOWARD:  Not currently relevant to the question I'm addressing you on.  The next document is.  It's called The Proposed Victorian Government School's Agreement 2022 – Approval Process of Frequently Asked Questions document, where procedure is set out.  If you turn through to three pages, you'll see a stepped outline.  There you see step one, step two.


THE COMMISSIONER:  Yes, the approval process outline.


MR HOWARD:  Yes, and step two sets out again for employees, the process of a meeting being held at each school to give employees the opportunity to vote, to approve or not approve the proposed agreement.  And employees will have received separate communication from their principal, that advises them of the date, time, and place of the meeting as relevant to their school, at least seven days before the meeting is to occur.


The meeting will be co-convened by the Principal and Union Representative.  During scheduled meeting employees in attendance will be provided with a ballot paper and invited to cast their vote for the proposed agreement by completing the ballot paper and placing in the ballot box provided.


MR HOWARD:  So, the employees to be voted, are given a notification that the principals will be directed to coordinate this vote.


Turning next to the balance of what's in behind annexure 3, there is a deed which is not subject to the issue before us now.  If we just pass through that deed, the next document is the principal guidelines.  Now, these are the directions to the principal that the secretary gave.  So, it completes the circle about the reasonable step.  This you'll see at about half way down the page, you'll see that the principals are being advised that Mr Brugden sent that email informing them of the approval process and from the second sentence, the direction is stated:


However, the assistance of principals is required to make sure the Department satisfies the requirements outlined above in relation to the approval of the proposed agreement.  In particular, principals are required to schedule an all staff meeting to occur at the school no earlier than 16 May, no later than 16 May 2022, for the purpose of conducting the ballot and advising employees of the date, time and place of that meeting no less than seven days before it is to occur.


So, that's the direction that's given to principals to give effect to this arrangement.


At the next paragraph, further directions are given to principals about contacting employees on leave and ancillary matters of that nature.  You'll see over the page of this agreement, Commissioner, that the stepped process is again set out for principals for their information, and the attachment is completed by the pro forma ballot paper.


So, what you have before you in relation to attachment 3 is a very clear fulsome direction to principals to coordinate the time and place for their school and an additional step notifying employees that the principals are to do this, and if there's any questions, please contact the workplace relations unit of the Department.  That is the step that is required in the circumstances of this particular employer.  It cannot notify that, like this is not a single enterprise, for example like a factory, where the place is known and a time can be organised in a shift, where everyone is there where there's shift coverage or shift changeover.


It's a completely different proposition and not possible to notify, for example, that the vote was going to occur on 30 May at one o'clock, because at one o'clock various schools have various complex demands in relation to the care and teaching of children, be that as yard duties, as we've heard this morning, teaching, critical appointments for children's care, et cetera, et cetera.  Setting a time sets about a number of risks in regards to the discharge of the duty of care.  For the employees, the most practical and safe thing to do is to arrange for the principal to organise the vote at a particular time that's known within the scheduling of that particular school.  Most obviously, it will be a staff meeting of the kind that we've heard about this morning.


So, it's unreasonable to do anything else other than direct the principals to do it in that way for the reasons I've explained.  Commissioner, would you be assisted by any authorities in relation to this?  I do have - - -


THE COMMISSIONER:  If you have them on hand, I can have a look at them.  I don't propose for you to go into too much detail, but I'll have a look.


MR HOWARD:  Certainly, well perhaps what I'll do is give you the citations, and you can take them away.


THE COMMISSIONER:  Yes, please.  Thank you.


MR HOWARD:  There are three Full Bench authorities on this question.  The first is McDonalds.




MR HOWARD:  That is referred at media neutral citation [2010] FWAFB 4602 McDonald's Australia Enterprise Agreement 2009.  The relevant paragraphs I draw you to are paragraphs 22, 24 and 25.




MR HOWARD:  The next Full Bench authority is Australian Municipal, Administrative, Clerical and Services Union v TAB Agents Association (SA Branch) Inc [2015] FWCFB 3545.  The relevant passages I refer you to are paragraphs 12 and 29.




MR HOWARD:  The third authority I refer you to is a Full Bench decision of Construction, Forestry, Mining and Energy Union v Australian Mining Supplies Co Pty Ltd [2017] FWCFB 2236, paragraph 14.


Commissioner, what emerges from those three authorities is four propositions in relation to section 183.  The first proposition is that the duty to take all reasonable steps does not extend to all possible steps and the secretary is not required to establish in a definitive way that all employees were, in fact, informed.  It's just an all reasonable steps obligation.  That's the first point.


The second point is the approach to ascertaining the all reasonable step's objective.  An objective assessment of the steps that were taken in the circumstances faced by the employer, which is the circumstance - - -


THE COMMISSIONER:  I understand.


MR HOWARD:  The third proposition is that the steps are looked at from the perspective of what a reasonable person would regard as reasonable in the circumstances.  The fourth proposition from these authorities is that it's relevant to also consider the materiality, that is if there's some failure to take a step, then the question would be whether that step would have materially affected the agreement.  That's something that you, Commissioner, have already identified yourself in relation to the voter turnout rates of this particular vote.


So, applying those four principles for the reasons I've explained, Commissioner, you can be satisfied that all reasonable steps were taken.  However, if you require anything further, beyond those principles and the information we have traversed, do let us know.


THE COMMISSIONER:  No, I think that's of assistance.  Do the bargaining representatives have anything to say in relation to that requirement or take any issues with the explanation?  Ms King.


MS KING:  Sorry, waiting to unmute.  Thank you, Commissioner.  If it may assist in your deliberations and if I may respectfully add to Mr Howard's response, as a bargaining entity that represents principals, we were consulted by Mr Brugden and this team in relation to the voting process, and also the content of the materials that were to be disseminated to all employees, and we provided endorsement on both those matters.


THE COMMISSIONER:  Thank you Mr King.  Any other bargaining representatives wish to say anything about this requirement?  No?  All right.  Well, thank you.  We'll move onto the next one.


So, the National Employment Standards, I had raised some issues, but as I had indicated, I had the provisional view that the agreement wasn't falling foul of the National Employment Standards, given the operation clause 73 with the agreement.  Does anyone have any different view about that?  No?  Okay.  We'll move on to the next one.


It's the classification matching, I can see has been addressed in the applicant's submission, so that's obviously sent to the Commission there.  So, I'll move onto the discrete BOOT issues in that respect.  So, I raise the issue of executive class employees that are purportedly linked to this issue of classification matching, which the applicant has confirmed that executive class employees are excluded from the coverage of the award and then looks at the parity or compares the pay relevant to the national minimum wage, which you'll see is substantively higher, the rates in the agreement.  Does anyone have any concerns about that?  No?  All right, and similarly, we look at supported wage system employees.


So, the issue that we have there is that the rates are in line, if you like with the rates in the award.  The Department's submitted that are the generous conditions in the agreement that go beyond the base-line award entitlements.  They've pointed me to those in the form F17 and my provisional view is that I'm broadly satisfied by that explanation as well.  Does anyone have a different view about that?


MS USHER:  I guess Commissioner Matheson, what are we going to do about the issues of paid overtime for teachers?


THE COMMISSIONER:  That's an issue that's a concern that you've raised, and so enabled Mr Howard to respond to that.  So, I'll have to take the overtime provisions into consideration of the assessment of better off overall test.


MS USHER:  Thank you.


THE COMMISSIONER:  Thank you.  This is just the concerns that the Commission has identified in relation to the agreement.  So, we're moving forward onto the reductions that I identified.  I understand, we've got the first aid allowance and the intensive care allowance now, so obviously the rates in the agreement are high enough to offset any changes in those discrete allowances, it would appear.  The one that I just want to perhaps hear from a little bit more, from the applicant, is the higher duties allowance.  So, I understand you say the other aggregate benefits in the agreement would have the effect that employees are better off overall, notwithstanding the difference that I've identified in the award.  Was there anything else that you wish to say about that, Mr Howard?  About perhaps circumstances in which higher duties might be worked her and its impact?


MR HOWARD:  Yes, can I just address the brief issues collectively?




MR HOWARD:  I'll turn to the higher duties allowance at the end.




MR HOWARD:  The relevant award to compare is the question that you asked this morning, is the Victorian Government Schools Award 2016 which applies to the employer being the secretary and is a higher of employees under the Education and Training reformat, under clause 4 to the exclusion of any other award.  So, we have provided a comparison in attachment one, to that award, to the F17 and I believe the Commission has also provided a wage comparison document which was circulated to the bargaining representatives which you have identified to us this morning, demonstrates that the base rates of pay far exceed what's provided in the award by a substantial amount.


In relation to the supported wage system issue, we don't see that as a BOOT issue.  I think there's been a misunderstanding in relation to that.




MR HOWARD:  The agreement provides $90 per week or such greater amount as provided for the Fair Work Commission's annual national wage decision.  You'll see, for example, in the national wage decision that was made last week that that was a $95 amount to reflect the five per cent increase.


THE COMMISSIONER:  Yes, it's moving.


MR HOWARD:  So, the intent is for the secretary to carry through those increases, so there's no BOOT question there.


I don't need to address you on the first aid allowance nor the intensive care allowance for the reasons I've explained in relation to wage rates.  In relation to the higher duties allowance I think that the matter stands and falls on that proposition as well, in the sense that the base rates of pay far exceed the award, and you can qualitatively conclude that, regardless of the minor difference in the application of the HDA, that in an overall sense there is a better off overall proposition for the employees to be covered.


Is there anything in particular that you had a question about in relation to the HDA, Commissioner?


THE COMMISSIONER:  It was more the practice.  I guess my concern was is it possible for someone to work for example, higher duties in perpetuity, for example, in another role, such that the difference between their ordinary rate of pay and other rate of pay that they might otherwise be entitled to under the award might be different.  But it might be a matter to be addressed through business practice or an explanation of what the business practices might be around that, which is challenging when we have so many schools, I appreciate.


MR HOWARD:  Yes, just one moment, I've got to - - -


THE COMMISSIONER:  I just note, someone working in higher duties, often connotes somebody working in a specific way for a set period of time, but - - -


MR HOWARD:  No, thank you for that Commissioner.  The question of higher duties in perpetuity is not one that really changes the proposition because the only difference is the trigger point for when higher duties kicks in.




MR HOWARD:  So, for example, if they're working in perpetuity, they just work in perpetuity.  It's just a trigger point when higher HDA comes in, that's different.




MR HOWARD:  So, it doesn't really qualitatively alter the BOOT assessment overall.  Now, in relation to Ms Usher's submissions about the BOOT, again, it's really a concern that Ms Usher is raising about the application of the provisions, rather than an assessment of what the award provides visa vie the agreement.  So, for example, the award in relation to hours of work that Ms Usher is raising and the practice of people working overtime and things.


The award provides, I think at clause 14 – just one moment – clause 13, that the ordinary hours of work for full time employees, will average 76 hours per fortnight.  That sort of entitlement flows into the terms of the agreement, and it's not a question of practice, it's really what the terms of the agreement provide.


Commissioner, is there anything else that I can assist you with in the BOOT assessment?


THE COMMISSIONER:  Not at this stage, as I've had a look at the agreement relative to the award already ahead of today, so the issues that I've identified are the ones that I am concerned about, I will, Ms Usher have another look at the overtime provisions in the award that does cover the employees, relative to this agreement.  But do the bargaining representatives have any other comments that they wish to make in relation to the issues identified by the Commission, or indeed, Ms Usher's broader concerns around overtime generally?




THE COMMISSIONER:  All right, well look on that note, I don't have any further questions for the parties.  Is there anything that anyone wishes to raised with me in finality before I adjourn?


MR HOWARD:  No, Commissioner.


MS USHER:  I guess, Commissioner, is that ultimately, we're in a state where we have teacher shortages and they're very acute at the moment.  Principals are taking over duties that are typically teacher duties.  I'm not sure with the implementation with this agreement that we will see over the potentially next six years, because the life of the agreement is going to be six years, that there's going to be an improvement in beginning teachers staying in the profession beyond five years and I am not sure that people will not retire early.  I mean, I'm turning 50 in a matter of days and I'm not sure whether I'm going to continue to work until the age of 65, the way things are going.


As I've just declared, for the last six months of 20 teaching weeks I've average 55 hours a week as a transitional school, that I made a decision to transition to a different school this year.  So, I'm not sure if, with the implementation as it stands, is actually going to address the broader issues that we have in education and that is, levels of attrition at the lower end and also at the upper end.  People reducing time fractions and people taking days off to do work from home.


They're the broader questions that I've got.  I am pushing for a deregulation in how teachers work and a reversion back to the 1986 working conditions that were far better than what we have 36 years later.  We're talking about semantics in the deed and those semantics should not even be on the table.  We need to simply how teachers are working in this state, because if we don't, I do feel that we're going to have a further exacerbation of those teacher shortages, which are going to impact ultimately on teaching and learning and the quality of education in Victoria.


That's my major concern is that our students are going to miss out on continuity of care and continuity of teaching in this state and they are part of the fundamental equation of the jobs that we do.  Our students don't currently have a voice, they don't currently have a say and I do feel that our students do need representation in this and I speak on behalf of the students that I've taught in the past and hopefully will continue to teach in the future, because they do have a right to continuity of teachers.  It's been very discontinuous this year due to COVID, due to the flu, due to all other extraneous circumstances.  I do think that on balance judgment that does need to be taken into consideration.


THE COMMISSIONER:  Thank you Ms Usher, I appreciate the challenges that might impact the sector.  Thank you for sharing your perspective.  So, my task now is to look at the sections of the Act that I need to take into account in assessing the enterprise agreement and I'll proceed to do so.  I don't foreshadow that I will require any further information from the parties at this point and am conscious of the timeliness of dealing with applications of this nature.  So, parties, I will now adjourn and reserve my decision.  But if my view on that changes, I will let you know accordingly.  Thank you, parties.


MR HOWARD:  Thank you, Commissioner, just one thing I forgot in relation to helping you with authorities.  In relation to the practice that you've adopted as substituting the corrections.




MR HOWARD:  There is an authority called Corrib Formworx Pty Ltd and CFMEU Act Enterprise Agreement 2019 at [2022] FWCA 1717 at paragraph 2, where this precise procedure has been adopted.


THE COMMISSIONER:  Yes, thank you.


MR HOWARD:  In relation to the NER, there is a decision of Commissioner Hunt in Hail Creek Coal Pty Ltd at [2020] FWCA 6201 at paragraph 4 where this precise exact issue is dealt with.


THE COMMISSIONER:  Yes, thank you Mr Howard.


MR HOWARD:  Thank you, Commissioner.


THE COMMISSIONER:  Thank you, parties.  I'll now adjourn and reserve my decision.


MR MULLALY:  Thank you, Commissioner.

ADJOURNED INDEFINITELY                                                          [11.54 AM]