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Fair Work Act 2009                                                    




AM2014/229 AM2014/230 AM2014/266


s.156 - 4 yearly review of modern awards


Four yearly review of modern awards


Educational Services (Teachers) Award 2010


(ODN AM2008/33)

[MA000077 Print PR988937]]











THE COMMISSIONER:  I wasn't expecting as many people here.  My understanding was we were only dealing with the teachers award matter today.


SPEAKER:  We had no intel, Commissioner, so ‑ ‑ ‑




SPEAKER:  We had no intel as to the specific basis for the ‑ ‑ ‑


THE COMMISSIONER:  Sorry, it was meant to have been made obvious in the notice of listing that I was only dealing with the Educational Services (Teachers) Award issues, so I am very sorry that you've all been inconvenienced.  Unless there's something that you want to talk to me about and we can try and resolve?  What did you think it was about?


SPEAKER:  We were not really aware, Commissioner.




SPEAKER:  We just assumed that there was something listed in the Commission before on the annual leave question.


THE COMMISSIONER:  I'm very sorry to have inconvenienced you.  What happened was that the model clause for the annual leave provisions, the issue about whether or not they are inserted into the teachers award has been referred to this very same Full Bench to deal with, so that's the only issue I'm dealing with today, so I'm very sorry to have inconvenienced you.  Maybe next time you sort of call my associate and say, "What's this about?"  I'm very sorry.


I'm sorry, who do we have in Sydney?


MR M ROUCEK:  Commissioner, it's Roucek, initial M, seeking leave to appear for Australian Business Industrial and New South Wales Business Chamber.


THE COMMISSIONER:  Yes.  Is this in relation to the correspondence that's come through just moments ago?


MR ROUCEK:  I appear today on behalf of clients who operate in the early childhood services sector who employ teachers, and I'm here today in regard to that portion of the teachers award.


THE COMMISSIONER:  Right.  I'm really only dealing with the annual leave issue today.


MR ROUCEK:  Yes, Commissioner, that's my understanding as well.


THE COMMISSIONER:  Very good.  We have reviewed the submissions and what is really the joint position of the employers and unions in relation to opposing the inclusion of the annual leave provisions in to the Educational Services (Teachers) Award 2010.  I just wanted to ask some more questions about that and tease it out just a little bit more, particularly in relation to the annual leave in advance issue.  The model clause says:


The employer and employee may agree in writing to the employee taking a period of paid annual leave before the employee has accrued an entitlement to the leave.


Some of the submissions seem to have suggested that the concern is that it might give rise to some expectation if that model clause was in the, what I'm just going to call, the teachers award, but it seems to me that that expectation or presumption in favour of getting the leave doesn't arise out of the model clause because it just says the employer may agree, it doesn't say that there's any presumption in favour of the employer having to agree to it.


So is the concern that it gives rise to an expectation or have I just read that wrong?


MR ODGERS:  Perhaps there is in a way a more fundamental concern.  If one looks at it from – and obviously we're looking at it from an employees' point of view.  You're asking for annual leave in advance.  I think necessarily any such request would be – and, I mean, our evidence is that we're not aware of such requests in the industry, but let's presume someone ‑ ‑ ‑


THE COMMISSIONER:  What if somebody got sick or they were registered for some elective surgery and they didn't have enough sick leave, and the elective surgery could only be done during term time and therefore, for their own financial circumstances, they'd rather have the annual leave in advance, is that not a possibility?


MR ODGERS:  It's not impossible.  The problem, and I'll let the employers talk, but the problem for the employer is that the leave would normally be taken during a period where effectively the employer's workplace is closed, and so it's easier to look at this industry in the context of other industries as if in fact it's seasonal work, and therefore the employee would have an obligation to present at the workplace at the time when the leave would have been ordinarily taken but there would be no workplace based work.


THE COMMISSIONER:  Yes.  Let's explore the sort of factual circumstance that I just spoke of.  Say, a teacher, the only time they could have a particular surgery is during term time, and they want to be paid for that time.  They don't have enough sick leave.




THE COMMISSIONER:  So they want their annual leave in advance so they can be paid for that time.  Why shouldn't that be permissible?


MS KNOPP:  We've never had a situation where annual leave can be taken in time other than during the non-term weeks.  So we're talking about a school here that, according to the award, has a maximum of 205 work days.  They are during term weeks.  So you've got about another 11 weeks of a year where teachers are not required to come to work, and so therefore that period of time is deemed to include the four weeks of annual leave which has always been in the case.


THE COMMISSIONER:  Annual – yes.


MR ROUCEK:  I'm sorry, in Sydney I just can't hear the input that's being provided.


MS KNOPP:  Okay.  Sorry.


THE COMMISSIONER:  Maybe start again.


MS KNOPP:  Hopefully – yes, okay.


MR ROUCEK:  Sorry about that.


THE COMMISSIONER:  No, no, that's all right.  We're just going to move some microphones.


MS KNOPP:  The situation we have is that a teacher works during term weeks.  Under the award, under this award and more previous awards they have only ever been required to attend for work during the term weeks which means that the non-term weeks include their four weeks of annual leave, and there isn't any provision to take annual leave at any other time.  So if you said, using the example, if someone wanted the last four term weeks of term 2 for annual leave then there's going to be four weeks during their non-term weeks where they'll have leave without pay because there is no work for them.  The other point I suppose that we have, that if you're operating a school you have the situation where the work gets done during term weeks.  The students are there during terms weeks.  They're not there during non-term weeks with the result that effectively the teacher can't do the job that they're employed to do if they're taking annual leave during term weeks and then having to have leave without pay during non-term weeks.


If the teacher had been at school long enough they would be able to have long service leave during non-term weeks, but they would have had to have been there for seven years in the particular school or in the particular system if that happened to apply.  Does that explain or does that help, or does it still leave a question?


THE COMMISSIONER:  It does.  I still, I guess, remain to be convinced that the factual circumstance that I described is not one that could arise, and should not be provided for in the award, in the modern award.  Are you just telling me, look, if teachers are having elective surgery they make sure they always have it non-term time?


MS KNOPP:  Or they have it in term weeks where they've got personal carer's leave.  Can I also point out that they get 15 days personal carer's leave.  No, sorry, they get 10 days per the national employment standards, but in most schools they have 15 days, so that's really irrelevant.


If you allowed annual leave to be taken at any other time, e.g., during term weeks, you would end up with a situation where someone would say, "I'd like to taka a day out of my annual leave next week.  I've got a wedding in Sydney".


THE COMMISSIONER:  The employer could say no.




THE COMMISSIONER:  Because they don't have to agree.


MS KNOPP:  But once you open the possibility that annual leave can get moved around you end up with a very different situation.  We think it would actually be a situation that would be difficult to manage.  So, for example, if a teacher was to become ill during a non-term week, and they then decided, "Well, I really want my personal carer's leave during the non-term week", the answer would be, "No, it was a non-term week.  You weren't required to attend for work.  We're sorry that during a non-term week you weren't well, but we don't require you to take your personal carer's leave during a non-term week because we don't require you to attend for work".




MS GILMOUR:  I think also it could raise the issue potentially of merely double dipping because in the example that you provided if you were to really move the period of leave without pay if you like ‑ ‑ ‑


THE COMMISSIONER:  Yes.  What would it be?


MS GILMOUR:  It wouldn't ‑ ‑ ‑


THE COMMISSIONER:  It would ultimately result in a deferral of the leave without pay to a different time, wouldn't it?


MS GILMOUR:  Yes.  But under the modern award the non-term weeks are only reduced by term weeks that have not been paid, so there's a formula in the award that kicks in to allow a reduction of non-term time based on payments during the term time, so if somebody was being paid their annual leave during those four weeks they would be seen as term weeks that they are paid for and therefore without redrafting, and Anthony, you tell me if you have a different opinion there, I don't think that there would be – the formula would not kick in to then reduce the non-term weeks, so it wouldn't necessarily just be a moving of leave without pay when it falls.


MR ODGERS:  I suppose from an employees' point of view the award itself applies to somewhat less than five per cent of schools in the industry.  The remaining 95 per cent are covered by agreements.


THE COMMISSIONER:  Are agreements.


MR ODGERS:  The agreement standard is 15 days, but there are schools with 10 days.  There's one state with 20 days basically as the entitlement.  In additional to which there are faith based school that would universally grant simply an advance basically.  There wouldn't be – I couldn't imagine a situation in a Catholic school anywhere in Australia, and they are by far the majority of our sector, where the employer would not extend that leave with pay even if the sick leave were exhausted.




MR ODGERS:  That might not help the discussion very much, but it's some indication of, I suppose, the world we're in.  I suppose, it's wrong of me as well not to point out that in this industry, I suppose, having worked in a health industry for many years, in this industry sick leave utilisation is pretty low by professional staff.  The majority of our members are carrying a very large balance of sick leave and maybe that's why when we approached two or three principals to give evidence as part of this matter none of them could ever remember having had a request made for leave with pay during term time, which you might think is quite extraordinary.  You handle thousands of staff over the period of decades and yet there's never been a request for leave with pay.  I suggest that that would be partially because of policy coverage in Catholic schools, and partially because of the lack of expectation, and that lack of expectation I suppose goes to the fact that most schools, the period of time where one would not be required to present at the workplace would be 13 weeks in the year.


THE COMMISSIONER:  Right.  Mr Roucek, do you have a view about this annual leave in advance issue?


MR ROUCEK:  Commissioner, from our perspective and our client's perspectives really our only interest in this is in relation to those employees in schedule B of the award, and I generally say that we don't have concerns with the inclusion of the proposed draft determinations; the careful inclusion of the proposed draft determinations insofar as they would apply to those employees in schedule B.


THE COMMISSIONER:  Yes.  I'm told that the IEU submitted the model term should apply to teachers employed in early childhood services and operating for at least 48 weeks per year, those in schedule B.  Is that maintained?


MR ODGERS:  It is.






MS KNOPP:  And we do too.




MS KNOPP:  If the employer associations agree with the inclusion of model terms in schedule B.


THE COMMISSIONER:  Schedule B.  Yes, all right.


MS KNOPP:  There is potential to accrue leave.  There's potential to take leave at a different time, whereas there isn't in the main body of the award.


THE COMMISSIONER:  Yes.  Can someone tell me, in terms of the main body of the award, the annual leave in advance issue, what evidence has been put on?


MS KNOPP:  We've put in a submission.


THE COMMISSIONER:  But no evidence?  Just submissions?


MR ODGERS:  No, a single witness statement.


MS KNOPP:  This is the first conversation we've had about it.


THE COMMISSIONER:  Yes, yes, yes.


MS GILMOUR:  And there is a witness statement.


MS KNOPP:  There's a witness statement.


MS GILMOUR:  We have filed a witness statement.




MR ODGERS:  In October 2015 the parties filed their second round of submissions that basically set out our position in brief and both from the union's side and the employer's side we included a witness statement, so that there would be some practical support for the ‑ ‑ ‑




MR ODGERS:  In our case a principal.  In the case of the AIS an executive, long authority in the industry.


MS KNOPP:  Michael Carr is a director of the Association of Independent Schools in New South Wales plus a former principal of a school.


THE COMMISSIONER:  All right.  What I might do is I'll go back and look at those witness statements, and also liaise with the other members of the Full Bench about our satisfaction around that evidentiary side of it.  It might be that we come back to you and say, "Look, is it possible for you to jointly file some additional evidence just on this point?", but let me look at the witness statements first.


Mr Roucek, is there something else you wanted to raise?


MR ROUCEK:  Commissioner, no, as I say, from our client's perspectives there's really no opposition to the inclusion of the proposed draft determinations such that they would only apply to those employees covered by schedule B.


THE COMMISSIONER:  Yes.  Have the parties otherwise seen this correspondence from – no.  So we received some correspondence from Australian Business today dealing with the Educational Services (Teachers) Award explaining what variations they seek, but it's not related to the annual leave issue, so I think we will not deal with that matter today.  You weren't expecting to deal with this matter today, were you, Mr Roucek?


MR ROUCEK:  No, Commissioner, we weren't.


THE COMMISSIONER:  Yes.  It's just in response to the call for a response to a statement.  Yes, I see that.  All right.  I will report back to the other members of the Full Bench about this discussion.  We can see the continuing resistance to any inclusion of the annual leave in advance provision and the joint position on that.  As I say, I will look at the witness statements just to get a sense of whether or not we will require any more evidence, but otherwise I don't think we'll be troubling the parties in relation to that.  Thank you very much.


MR ODGERS:  Thank you.


MR ROUCEK:  Thank you, Commissioner.

ADJOURNED INDEFINITELY                                                           [2.24 PM]