C2001/3938, Transcript of Proceedings [2001] AIRCTrans 2252 (6 September 2001)

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TRANSCRIPT OF PROCEEDINGS


O/N 8998

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT DUNCAN

C No 3938 of 2001

AUSTRALIAN EDUCATION UNION

and

THE COUNCIL OF THE EAST GIPPSLAND
INSTITUTE OF TECHNICAL AND
FURTHER EDUCATION

Notification pursuant to section 99 of the Act
of a dispute re employment and classifications
of certain persons as technical officers rather
than as teachers

MELBOURNE

4.04 PM, MONDAY, 20 AUGUST 2001

PN1

THE SENIOR DEPUTY PRESIDENT: Could I have appearances, please?

PN2

MR COLLEY: If the Commission pleases, Colley, initial D, for the Australian Education Union.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Colley.

PN4

MR WILLIAMS: If the Commission pleases, Williams, initial D, appearing for East Gippsland Institute of TAFE. Together with me is Mr Griffiths, initial R, Ms Hudson, initial A, and Mr Cooper, initial G.

PN5

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Williams.

PN6

Mr Colley.

PN7

MR COLLEY: If the Commission pleases, this is a notification of alleged industrial dispute pursuant to section 99 of the Act filed and served in the Commission upon the East Gippsland Institute on 19 July last. Obviously, with matters of this sort, there is quite a substantial antecedent history and rather than launch into that history at this point in time, I thought it might be convenient if we let the Commission know what it is that the union is actually seeking and take it from there.

PN8

THE SENIOR DEPUTY PRESIDENT: Certainly it would be my wish to go into conference as soon as I can reasonably do that, so what you are suggesting, Mr Colley, fits in with that.

PN9

MR COLLEY: Certainly, your Honour. We would briefly outline to you what it is that we are seeking, the reasons why we are seeking it and then why we say that the Commission is able to deal with this matter on whatever ground of opposition might be raised and I can essentially tell the Commission that the union is after a finding or a determination or a recommendation that employees of the Council of the East Gippsland Institute of TAFE employed in positions which are variously titled instructors, trainers, assessors, facilitators or industry training coordinators or perhaps in some way titled in a way in substantially identical terms, are not employees to whom the PACCT Award, that is, the Professional Administrative Clerical Computing and Technical PACCT staff Institute of TAFE in Victoria Interim Award of 1999, that award does not apply.

PN10

Secondly, we would be seeking a finding, prima facie, employees engaged by the employer to teach or to lecture or to manage or to develop a TAFE program or programs excluding certain specified positions, are persons to whom the Teachers Award, and I use that word "Teachers" in terms of the relevant award for this class of employees, rather than giving it its proper title. And then thirdly, we would be seeking the establishment by the Commission of a process supervised by it to investigate and report upon the merit and fairness of the implementation of those findings which we say can be made on a preliminary basis this afternoon.

PN11

Your Honour, the AEU has drafted an order to reflect that and I have provided it to my friend, Mr Williams, this afternoon already. I would like to table that now.

PN12

THE SENIOR DEPUTY PRESIDENT: I will mark the draft order submitted by the AEU in these proceedings, exhibit AEU1.

EXHIBIT #AEU1 DRAFT ORDER SUBMITTED BY AEU

PN13

MR COLLEY: Your Honour, the union has also collated into one folder a number of documents which we say are pertinent in assisting the Commission in understanding exactly what has gone on that has led to the state of affairs bringing us here this afternoon and if I could table them with your Honour. I have provided a copy to Mr Williams also this afternoon.

PN14

THE SENIOR DEPUTY PRESIDENT: I will mark these for identification. I have naturally got no idea what is in them and Mr Williams may not have much better an idea, but I will mark them so that we can refer to them. For identification, I mark the bundle of documents re classifications in this matter exhibit AEU2.

EXHIBIT #AEU2 BUNDLE OF DOCUMENTS RE CLASSIFICATIONS

PN15

MR COLLEY: Your Honour, if you go to tab 8 of exhibit AEU2, you will find there the correspondence which has passed between the AEU and the Institute. The different pieces of correspondence are separated by a pink separating sheet and they commence on 20 March of this year with a letter under the signature of Ms Pat Ford, Vice President of the Union in the sector of its coverage to Mr A Griffiths as Director of the East Gippsland Institute concerning instructor trainer and related classifications.

PN16

Your Honour, the union became aware earlier this year that the employer was employing a number of individuals into classifications which our information was that they were formerly employed under the PACCT Award and if I can use that word generally to describe the non-teaching staff or general staff of the TAFE Institutes, it is not strictly correct, there are a number of classes of employees that are covered by neither the PACCT nor the Teachers Award, but they are the predominant awards covering the employees at the TAFE Institutes in Victoria.

PN17

We asked of the Director to investigate that information and to clarify whether it was true and if it was true, to take such steps as were necessary to correct it. The Director's reply, you can see in the following - not tab, but following divide, was on 23 March 2001. He verifies that we have been correctly informed about the Institute's employment practices in the first paragraph, but that it was his understanding that those employees are legitimately employed under the PACCT Award following an examination of the role required by the Institute.

PN18

Your Honour, subsequent to that correspondence, on the next divide a further letter by the AEU to Mr Ray Griffiths saying that we were going to take the matter further, that it seemed, on a prima facie basis, that if these people were doing teaching work, then the Teachers Award was the appropriate award to apply to their employment. That was not occurring and we felt that that was, at least at prima facie level, a breach of the award and informed the employer that we wished to enter the place of employment and to have made available to us certain documents pursuant to the provisions of section 285B of the Workplace Relations Regulations of 1996.

PN19

We also supplied, for the assistance of the Director, a list of names of persons who, on our information, seemed to be in the class of employees with which we were concerned. They are attached to that correspondence and they were some 74 people in that category. Your Honour, a meeting pursuant to that correspondence did take place between officers of the union and the employee on 14 May at which the union was provided with letters of offer, contracts of employment and pay advice slips of the most recent pay period and that meeting then investigated those positions - together with position descriptions, so, letters of offer, the relevant contract of employment, position descriptions and some other material such as pay advice slips.

PN20

The union did undertake to provide an employee - because obviously it was a long - looking at the documentation for 74 people, a very long exercise on the given day, the union formed a preliminary view that various of those 74 people could be excluded. That is, they were properly employed under the Teachers Award in some cases, or were properly employed under the PACCT Award in others, but there were a range of people who fell between and we expressed a preliminary view that these people should be employed under the Teachers Award, but undertook to get back to the employer with a confirmed view about that.

PN21

In a subsequent review of that material, we required further information because it was hard to match position descriptions with proper pay advice slips and the like. The employer subsequently did provide that additional information, but we informed your Honour, the employer by letter of 7 June which is the next one in that file, that on any view of the material, that is, without need to go to further clarification, there were at least some of the remaining people who taught and therefore were teachers, in our view, and the Teachers Award applied. We describe those positions in an attachment to that correspondence which is the third page of that document headed "Teaching Positions at East Gippsland TAFE" and effectively, that describes instructor or assessor positions in a number of program areas, trainer or instructor positions variously in the primary schools area, the equine studies area and the hospitality and tourism area.

PN22

Your Honour, subsequent to that, we said that - you can see in the terms of that letter, that if these classifications of the persons in these positions were not treated and accorded the terms of the TAFE Award, then we would have little advice that - choice, but to pursue our options here in the Commission or perhaps in the Court, depending upon further advice we received as to whether it was proceeding in the nature of a breach action or whether we were still engaged in industrial disputation about it.

PN23

Your Honour, the long and the short of that correspondence is that the employer has adopted the position that none of these positions are positions to which the Teachers Award properly applies. We had a subsequent meeting, your Honour, at the offices of the employer and the union on 24 July, shortly after we lodged the notification to the Commission and even at that point in time, your Honour, the stance that continued to be adopted by the employer was that these are not teaching positions.

PN24

Your Honour, the union's submission to you today is that when an employer or the employer in this case makes a decision to classify its employees whose predominant duties are those of instruction, supervision and assessment, or the coordination and management, or the direct coordination and management of such positions as PACCT staff pursuant to the award, then it has made a wrong decision and, your Honour, it is not a question of motive or intention on the part of the employer in this regard and we do not make any submission concerning that, but we do say that that decision is wrong and it is wrong on two bases, that is, that if you looked at the definition of a teacher, the position descriptions - sorry, if you look at the position descriptions of the PACCT staff as provided and then you compare it with the definition of a teacher, the classifications standards that are in the Teachers Award, then you could not reasonably come to a conclusion that this work is not teacher's work. That is the first basis.

PN25

The second basis, your Honour, is that if - sorry, not if, these positions cannot be classified under the PACCT Award either because, on its proper construction, that award in terms does not apply to positions of this sort, or secondly, your Honour, because the positions simply are not technical officer positions as that term is understood within the award and within the sector of the industry covered by the award generally.

PN26

Now, your Honour, if I could take the second of those broad bases first, because it relates to the first of the findings that we are seeking your Honour make this afternoon and that is that trainers, and I use that term generically to encompass all of the positions that we are in contest about, are not covered by the PACCT Award. Now, your Honour, I will make this brief because I understand that that is a point that is not contested by the employer now at this stage, but briefly for your Honour's information, the PACCT Award is included behind tab 5 of exhibit AEU2 and you will see on page 3(1) in the bottom right hand corner of that, the top of the page is clause 3, the parties bound clause, and your Honour, this award is interesting in that it does not have a scope or incidence clause, nor does it, in its terms, describe who the award applies to, but it is said to be binding upon the respondents in schedule A and they are generically the employers and the various TAFE Institutes and the NTU and its members or persons eligible to be members of the NTU.

PN27

Your Honour, if you turn to clause 5.1.11, that is on the next page, and 5.1.6, you can see that the award draws a distinction between employees as such and PACCT staff and that is that an employee is any person employed by a TAFE Institute, but that PACCT staff particularly refers to persons in a professional, clerical, administrative, computing or technical position. Your Honour, we say, on its proper construction, in the absence of an application clause, it is open to the Commission to determine to whom that award applies and, your Honour, we would say that this award applies to those employees employed as PACCT staff by the employer who are members or eligible to be members of the NTU. Put briefly, your Honour, the employees in the positions which we contest are not eligible to be members of the NTU and as a matter of logic, this award can therefore not apply to them.

PN28

To make good that submission, your Honour, I need to take you to the eligibility rule of the NTU and that is found behind tab 2 and the eligibility rules of many unions, your Honour, are cumbersome instruments, but if you see at the bottom of the pages, if you go to page 6 of 90 and our submission, your Honour, the way this rule works is that clause 6.1 provides a general description of coverage and then clause 6.2 operates to specify some particular areas of coverage or exclusion and, your Honour, clause 6.2 subclause (h), which is found on page 8 of 90, describes the union's coverage with respect to PACCT staff in the State of Victoria, as all encompassing, except for under Roman I, all classes of nursing employees, under Roman ii, all classes of employees engaged in child care work, and iii, teaching staff.

PN29

So, on our submission, your Honour, the way the rule operates is to provide all encompassing coverage of professional staff, for example, within TAFE Institutes in Victoria, but excludes teaching staff and operates, if you like, as a demarcation between this union, that is, the Australian Education Union, and the NTU which is the respondent union for the PACCT staff Award.

PN30

Your Honour, the critical question at once, of course, is how do you describe or identify teaching staff and your Honour, if I can make a number of submissions in regard to that matter. First, for the purposes of determining union coverage, I will refer your Honour to a decision of his Honour Senior Deputy President Williams dated 19 December 2000 in print T4652 concerning an application by the Australian Nursing Federation to alter its eligibility rule and essentially, your Honour, the Commission as constituted in this decision, reviewed the authorities at page 6 of 15, which you find at the top of the right hand corner of the page, and - sorry, reviewed the authorities for determining eligibility rules and rules coverage of unions and importantly, on the next page, your Honour, at about .5 of the page, which is the third dot point, his Honour is developing a test consistent with the authorities as to how you determine union coverage when it is contested and he says at the second part of that dot point:

PN31

The person must not just be employed,

PN32

and I am quoting,

PN33

she or he must be employed for a specified purpose and in ascertaining the correct calling of an employee, it is appropriate to examine not only the nature of the duties performed by the employee, but also where the employee carries out diverse duties, the primary purpose for which the employee is employed.

PN34

And the next dot point, your Honour, Senior Deputy President Williams goes on further to describe what the primary purpose may be properly qualified as and suggests that that primary purpose may itself be discerned other than by reference to the expressed or specified purpose of employment, an examination of the actual duties performed and the manner in which they are performed may well demonstrate that whatever title or classification an employee is given and whatever is the specified purpose of the employment, the employee is in fact performing duties at the instance of or with the approval of the employer and the nature of which may bring that employee within a different classification to that in which the employee has been employed.

PN35

So, essentially, on our submission, your Honour, the Senior Deputy President was there doing two things, one, you look firstly at the primary purpose for which the person is employed and in doing that, in ascertaining what that primary purpose is, you do not look at simply the classification or specified purpose for which the employee is employed, but you also look at the duties that the person is either required to perform or is in fact performing. Your Honour, we say that that primary purpose test is a test for ascertaining the correct classification or calling of employees when the classification is in dispute, subject, of course, to looking at the proper construction of awards where they are called in question.

PN36

Other assistance, Commissioner, for determining what is a teacher, your Honour, is gained by what is generally described as the plain and ordinary meaning of teacher. It is certainly not defined in the NTU rules, that is teacher or teaching staff. It is defined within the eligibility rules of the AEU and if your Honour could turn to tab 1 at page 2 of that document, there is a definition of a teacher and your Honour, it is not all that helpful.

PN37

THE SENIOR DEPUTY PRESIDENT: I have heard of circular definitions before, but I have never seen such a good example.

PN38

MR COLLEY: One can ascribe to the union that I am representing today, your Honour, maybe a very wide and grandiose scheme of recruitment, but the eligibility rule is not all that helpful. Given that, your Honour, we say it is certainly open to you to look at, in construing what the term teacher might be, might mean, to look at a number of sources, one of which is the plain and ordinary meaning of the word teacher and I will table for your Honour two dictionary definitions.

PN39

THE SENIOR DEPUTY PRESIDENT: We will mark the two extracts from dictionaries on the meaning of teacher, exhibit AEU3.

EXHIBIT #AEU3 TWO EXTRACTS FROM DICTIONARIES REGARDING THE MEANING OF THE WORD "TEACHER"

PN40

MR COLLEY: Your Honour, there are two sources here, one is the Shorter Oxford English Dictionary and the other is the Macquarie Dictionary. They are extracts, your Honour, obviously, rather than a full document. If your Honour turns to the second page of the Shorter Oxford English Dictionary, you will see there "teach" is defined as taught, to show, to point in a particular direction, to show - - -

PN41

THE SENIOR DEPUTY PRESIDENT: That is the Macquarie, is it?

PN42

MR COLLEY: Sorry, no, the Shorter Oxford Dictionary on the left hand side in the first column, about point two of the page.

PN43

THE SENIOR DEPUTY PRESIDENT: You are going to "teach" as distinct from "teacher".

PN44

MR COLLEY: Well, they follow. I am going to "teach" first, because at least on its face, a teacher is one - - -

PN45

THE SENIOR DEPUTY PRESIDENT: Who teaches.

PN46

MR COLLEY: Who teaches, so what is "teaching", it is - if your Honour goes to that definition first, it is "To show, to point in a particular direction, to show by way of information or instruction, to impart or convey knowledge of, to give instruction or lessons in, to make known, to communicate something by way of instruction", and so on. Your Honour, teaching certainly, by this definition, encompasses the concept of instruction.

PN47

Teacher, which next appears after the adjective "teachable" has a meaning consistent with the word "teach". That is one who teaches or instructs. One's functions to give instruction. If your Honour turns to the Macquarie Dictionary definition, on the second page on the right-hand column of that page, again you have the distinction between "teach, teachable and teacher":

PN48

"Teach" means to impart knowledge of or skill in, to give instruction in, to give instruction in, to give instructions, to impart knowledge or skill, to give instruction.

PN49

And:

PN50

"Teacher" is one who teaches or instructs.

PN51

Your Honour, while we are on the definition of "teacher", the Teachers Award does have a definition of "teacher", and that award can be found at tab 3. And at numbered page 4 of that document at about point 6 of the page at subsection (20):

PN52

A "teacher" means any person employed to teach or lecture or to manage or develop a TAFE program or programs.

PN53

But it excludes certain classifications, of persons employed at executive or management service level within the industry. So, your Honour, in the absence of an application clause in the PACCT Award, in light of the eligibility rule of the NTEU and the proper construction of that award, in terms of its application clause by imputation, we say these people are not eligible to be members of the NTEU, that they are teaching staff. If, your Honour, we fail on that point and the PACCT Award is held to apply then, your Honour, it cannot apply to the persons variously titled "instructors, trainers, assessors" and the like.

PN54

We make that secondary submission, your Honour, because simply, the classification descriptions for technical officers, whatever they may be, cannot accord with the type of work that these trainers do. Now, your Honour, I have provided, behind tab 7, certain PACCT position classification standards. Your Honour, these standards are not incorporated as in the PACCT Award, nor are they incorporated within any legally binding instrument, but we say this is not to the point. Your Honour, in order to assign a classification to an employee, the employer is simply not at liberty to pick and choose at will and that the decision they arrive at an employee's classification must be reasonable and offensible.

PN55

Your Honour, there is within the PACCT staff certified agreement, operating at the institute, a process for resolving disputes concerning PACCT classifications. And if I could just briefly, your Honour, outline that for you. They are found behind tab 6 and at clause 24 of that document, it is page 14 of 20, describes a process to be used for the classification of all PACCT positions. I am not going to go through that in detail now, your Honour, but the point I want to make is provided at sub-clause 24.3 on the next page, "Principles for a classification committee", and that is:

PN56

A position description is first generated within the human resource function of the institute, providing input from the relevant program area, but then supplied to a classification committee for further advice.

PN57

And at 24.4.3, your Honour, that classification committee is bound to classify a position only on the basis of which classification descriptor best fits. So, your Honour, this is not a case where an employer can say, "I simply look around at the work people do. If it's generally administrative in nature, I'll call them admin staff. If it's generally clerical in nature I'll call them clerical staff, or technical in nature I'll call them technical staff". There are classification descriptors. And, your Honour, at least as a guide, without being binding, there are classification descriptors pertaining to the PACCT positions and they are found, as I said, behind tab 7. And, your Honour, if you could go to tab 7 you will see that technical officers - and these are the general classification of the positions in contest. At page 56 of that document, you will find there a group standard for technical officers:

PN58

Generally speaking it involves the application of technical knowledge and experience.

PN59

At the top of the page, about halfway through that paragraph:

PN60

At a more junior or assistant level it would involve carrying out a limited range of technical functions to support the activities of teachers or other technical staff.

PN61

Provides a dot point list of certain activities, largely of a technical nature in laboratory or similar sorts of work locations. At a more senior level, at the bottom of the page, your Honour, the group standard says that:

PN62

Technical officers have responsibility for oversight of other technical functions and the modification of various procedures and techniques.

PN63

Over the page, your Honour:

PN64

In carrying out these positions they are primarily in support of teaching functions.

PN65

The first dot point:

PN66

They assist teachers -

PN67

And so on. The way these standards work is that there are various levels within the technical officer classification, both on an incremental, I guess, basis and on a work value basis, such that there is a difference in distinction between technical officer grade 5, if you like, and technical officer grade 6. And just for your Honour's information, they are found at pages 68 through to 71 and I draw your Honour's attention to those, because the positions that these people are employed and paid at vary between various points between the technical officer grade 5 classification and various points within the technical officer grade 6 classification.

PN68

Now, your Honour, I think it is incumbent upon me very briefly to look at a means of bringing to your Honour's attention, what is the work that these people actually do. And, your Honour, I have provided a number of position descriptions, and if I can take your Honour very quickly to those. Just in passing, your Honour, I have provided behind tab 9 the letter of offer that these people receive and it is clear, your Honour, that this is a form letter generated on occasion when an employee is employed. It makes it clear that the PACCT Award or any agreement under the PACCT Award will apply to their employment. There is a contract, which is the next document behind that. Again, that is a contract in a standard form. It does not clearly say which award applies, but only that, for example, in clause 2.2 that:

PN69

The hours of work as specified in the award will apply.

PN70

But it is not contentious that, at least in terms of this contract and the letter of offer, that it is the PACCT Award. And I have provided, so that your Honour can see, that from time to time when a specific individual is employed, the last two documents are extract of a couple of pages of an actual contract. This particular person, when employed at the beginning of 1998, as a maritime training and development officer on a fixed term contract, part-time, was employed at technical officer, grade 6, level 3, with an over award payment. And on the next page, your Honour, there is a senior timber instructor employed as of 1 January 1998. There is no termination date, so it is an ongoing employment. And that particular person was employed at that time as technical officer, grade 6, level 3.

PN71

But I provide those simply, your Honour, for providing you with perhaps the contractual basis for these employees' employment. But looking at the actual work that they do, your Honour, they are collated, generally speaking, behind tabs 10, 11, 12 and the remainder of the tabs that are included in this exhibit. It just will not be possible for me this afternoon, your Honour, to go through all of those, but if I could go through some of them. If we go behind tab 10, this is a training officer in fishing and marine studies located at the South East Australia Maritime Education Centre, commonly known as SEAMEC. They commenced - well, it is difficult to say when the actual employment commenced, but the position description describes a commencement date at November. Perhaps that is a wrong word, not a commencement date, but when the position description was drawn, November 1996 and a classification level:

PN72

The position objectives are to deliver subject areas within courses, to prepare candidates for examination, to promote courses, to liaise with government departments and to administer the day to day operations of the centre.

PN73

If you turn over the page, your Honour, to the specific position responsibilities, that training officer is required to teach in specified programs. That is found under the heading, "Specific position responsibilities":

PN74

Industry liaison with government, private enterprise and other providers.

PN75

Paragraph 4 of that description:

PN76

The training officer is responsible for competency assessments.

PN77

There are a range of further qualifications and descriptions. Qualifications and experience on the next page, your Honour, you will see that there are mandatory requirements and experience, for experience within the particular fishing industry; certain certificates of competency:

PN78

Instructor qualifications or preparedness to undertake such training. Preferred qualifications are relevant academic qualifications in a special field and relating to the industry.

PN79

If you turn over to the last page, your Honour, there are key selection criteria, again dealing with experience requirements. If you look at point 2 of those key selection criteria, you will see they involve:

PN80

A well developed interpersonal skills and the ability to instruct clients. A responsible and professional attitude, high levels of motivation, excellent organisational skills -

PN81

etcetera:

PN82

Ability to work with minimal supervision. Ability to respond to challenging program delivery requirements. A knowledge of the vocational education and training system.

PN83

Your Honour, this is not a person performing routine tasks at a low level, requiring significant supervision. If you turn to the next position description - not the next tab, simply the next position description, these are all maritime trainers:

PN84

Promote and develop courses, deliver subject areas, prepare candidates for certain qualifications.

PN85

You will see over the next page, your Honour, that SEAMEC delivers program in all aspects of fishing in the maritime industry and a number of certificates at different levels of competence or capability. If you go to about point 5 of the page:

PN86

This particular maritime trainer is required to coordinate, teach and assess programs.

PN87

Down the bottom of the page, your Honour, under the heading, "Judgment and decision making", this person has to:

PN88

Assess, initiate and develop industry training and service provision needs, to be responsible for competency assessments, to make recommendations concerning teaching strategies, learning and assessment materials offered by the particular centre.

PN89

Turning over the page under the heading, "Management skills", second paragraph there, your Honour:

PN90

The maritime trainer is required to assist in the evaluation and development of curriculum relating to the development of courses and needs the skills to maximise student learning in relation to a number of different areas.

PN91

At "Key selection criteria" on the next page. This person has to have:

PN92

- the ability to effectively teach fishing and maritime programs to a diverse client group.

PN93

Turning to the next position description. Again, it is not immediate clear because perhaps it is an older position description of 1993, your Honour. But this person employed was employed to effectively teach subjects. At the third dot point:

PN94

- to provide educational leadership.

PN95

On the second page, your Honour, under the heading of, "The role of the position", this person is described as:

PN96

The teacher will prepare, supervise, instruct and assess students in programs.

PN97

Your Honour, if you turn to page 4 of that document you will see that this person or the specification for this person is in range of experience within the fishing and vessel trading area:

PN98

- experience in planning, budgeting, leading, evaluating, praising, motivating, supporting, coordinating, education and training programs and teaching staff.

PN99

Has to have skills in teaching and learning strategies. Over on page 5, your Honour:

PN100

This person has to have a demonstrated ability to effectively teach.

PN101

If you can turn to the next tab, your Honour. And I am not going to take your Honour through all of the position descriptions. It would be unfair on my colleague Mr Williams not to let him have his say. But these primary objectives of this particular position, this is a building instructor and assessor, a totally different program area, your Honour. This area deals with:

PN102

- a broad range of clients and the pre-employment, the new apprenticeship, the post-trade and a whole series of commercial courses, specific position responsibilities.

PN103

On the next page:

PN104

- are to instruct and assess, contribute to planning and development and implementation of programs.

PN105

They have some mandatory qualifications on the last page, your Honour, being a certificate of proficiency, that is:

PN106

- a trade certificate, apprenticeship, an approved course of trainer, workplace trainer or preparedness to undertake the same. Similarly is preferred to have an accredited workplace assessor qualification.

PN107

And, your Honour, given the time, I will not take you perhaps further, other than, if we go to tab 14, these are industry training coordinators within the Corrections Education Team located at the Fulham Correctional Centre, your Honour. And very quickly, on the last page of that document, this particular person:

PN108

Must be fully qualified in the area of delivery, with an approved teacher qualification.

PN109

And in its relevant key selection criteria:

PN110

Has relevant trade and teacher or training qualifications.

PN111

Your Honour, we say that through those position descriptions, this is the work that teachers do and, your Honour, I will turn to that point now because that relates to the second findings. That is that if the first finding is that these people are not appropriately PACCT staff employees, we seek a finding that they are appropriately teaching staff employees. We say, your Honour, that the Teaching Award does apply to these people and it does so by operation of a parties bound clause. If you go to tab 3 of exhibit AEU2, you will find on the first page, page number 1 of that award, if headed, "Parties bound", but in terms, your Honour, it also has an application or incidence dimension:

PN112

- and the award is expressed to apply to and be binding upon the employers.

PN113

Relevantly in this case the Gippsland Institute:

PN114

- and the Australian Education Union in respect of persons who are eligible to be members of the union employed by the employer.

PN115

As I have taken you to, your Honour, in my previous submissions, we do have eligibility for this class of employee. And if your Honour could turn to tab 1 just to make that point very clear. Tab 1 is the AEU's eligibility rule. At page 6 of tab 1 is that section of the union eligibility rule that deals with teachers in TAFE in Victoria. It is actually eligibility rule 5, subparagraph (4) sub-subparagraph (b):

PN116

All persons employed in the technical and further education teaching service of the State of Victoria -

PN117

That service no longer exists, your Honour:

PN118

- or in or by a technical and further education institute in Victoria, in a position of industrial ...(reads)... emergency teachers, librarians and instrumental musicians.

PN119

Your Honour, we say that on a proper construction of the Teachers' Award, where a person is a teacher, as that term is given its plain and ordinary meaning, or as that term is defined within the Teachers' Award, then persons engaged in a teaching function should be classified as teachers. If your Honour can turn to tab 3, which is the Teachers' Award, you will see, only if this submission is right, your Honour, that the award applies to teachers, and having formed the view that these are teachers, the award, at page 8 of the award, clause 2.1.1:

PN120

That once you are a teacher you are employed in one of the following classifications, from Head of Department down through to teacher.

PN121

This is a descending scale, if you like, your Honour, and within the teacher classification, "Teacher", in this sense, in its formal classification sense, has six salary subdivisions. Over the page, your Honour, to page 10, the award then sets up a scheme subsequent to being engaged as a teacher at clause 2.2.1:

PN122

That the positions are discriminated, one as against the other, by means of a classification standard specified in a schedule to the award, and that schedule also deals with eligibility of requirements.

PN123

We say, your Honour, if you go to that schedule, which is found at page 32, you will find, if you needed to, more specificity about what it is that a teacher in a TAFE institute may be required to do for the purposes of, "The Placement", within the teacher classification as distinct from placement within an AST program coordinator or head of department classification. And your Honour at about point three of the page, under the heading, "Context and typical duties":

PN124

Positions at this level are primarily to provide teaching and support to TAFE clients.

PN125

Under the heading, "Accountability and Extent of Authority":

PN126

Teacher level positions are required to supervise, instruct and assess students.

PN127

A bit further down at about point six of the page:

PN128

Teachers may be required to coordinate and supervise resources, and to provide specialist advice.

PN129

Turning over the page:

PN130

Teachers can be required to make adaptations and modifications to teaching strategies, learning materials and so on.

PN131

From that general role we develop a general description at page 34:

PN132

Teachers prepare, conduct and assess TAFE teaching programs.

PN133

At the large "B" of the page:

PN134

Those programs may be theory or practical conducted through teacher centred or teacher presented classes. Tutorial or workshop sessions, individualised self paced learning, distance education or any variety of mixed mode learning, or mixed mode teaching.

PN135

And so on. So, your Honour, clearly we have position descriptions accorded to the employees whose positions we contest, and on our submission, we say, that those position descriptions, at least at a prima facie level, your Honour, accord with firstly the definition of a teacher within the teacher's award, and secondly within the classification standards contained in schedule 2, to the teachers award. Your Honour, very quickly, and lastly, I might make some submissions about the jurisdiction of the Commission to deal with this matter.

PN136

I do not think that this is an issue in dispute. The parties are here following a process about which they have been unable to resolve at the local level. It is within the ambit of the original dispute finding, and we ask that the Commission proceed on the basis of that. We say it is an exercise of conciliation, which the Commission, subsequent to a finding of dispute, if that is needed, the Commission will be engaged upon - perhaps as a last resource arbitration - that is not a point we are seeking - the pathway we are seeking to go down upon.

PN137

That there is ample authority both within the High Court and within this Commission for the Commission to engage on a process for resolving disputes concerning classifications. Whether that authority in the High Court is in the decision of, "Re Cramm", or whether the authority is in the decision of the High Court of The Crown v Hegarty. There have been a number of decisions, also on classification issues, your Honour, that deal with whether or not a dispute concerning classifications is excluded by section 89A of the Act.

PN138

I cannot go into detail of those decisions, now, your Honour, but I can mention if you like a decision by Deputy President Duncan on 14 October 1999, in a case concerning the CEPU v Telstra in print S0111. There was also a decision of the Full Bench of this Commission in a matter concerning the HSUA v Dorovic Pathology on 8 February 2000, which was an appeal decision on the question of jurisdiction to deal with these issues, and that Commission found at paragraphs 23, 24, of that decision that a matter dealing with jurisdiction was appropriately before the Commission when dealing with issues to deal with classification. It was not an exercise of judicial power, not excluded by section 89A. Your Honour, I will leave it there, subject to what Mr Williams might have to say they are the submissions of the union at this stage.

PN139

THE SENIOR DEPUTY PRESIDENT: Very well, Mr Colley, thank you. Yes, Mr Williams?

PN140

MR WILLIAMS: Yes, your Honour, I would like to briefly turn - very briefly turn to the correspondence between the parties mentioned by Mr Colley at tab eight and then go into the substance of the - of the issue in dispute. On 20 March 2001, the AEU wrote to East Gippsland seeking reclassification of an unspecified number of positions that are trainers, instructors, assessors, from the TAFE Packed Award as technical officers to teachers under the TAFE Teachers Award.

PN141

On 23 March, the Institute corresponded with the AEU in response. East Gippsland in that correspondence - East Gippsland TAFE requested that the AEU provide the identity of the specific positions that are claimed were incorrectly classified so that it could investigate and analyse the AEU claim. On 24 April, about a month later, the AEU wrote to the Institute indicating that it was pursuing the matter and attached a list of the 74 positions that Mr Colley's already identified.

PN142

The AEU suggested a meeting between the parties, and the AEU advised that it would seek to access wages and timesheet records together with position description and any written contracts of employment at that time. On 11 May the Institute provided an email to the AEU which summarised what we call the telephone list, the 74 positions, categorised by occupation or award category, and of those 74 positions, 16 are teachers, 13 are internet trainer facilitators, 23 are classified as instructors and or assessors, 12 are administrative officers, classified pursuant to the Packed Award, five were teaching team leaders, one was a manager, and two were casual employees.

PN143

One was a restaurant chef manager/assessor, a combined role, multi-skilled role, and one person on the list had not worked at East Gippsland since 31 December last year. On 14 May, a meeting was held between the AEU, the Institute and the Victorian TAFE Association. The meeting went for a day and the Institute provided to the AEU all available wage records, position descriptions and contract materials sought. The AEU provided that meeting an initial without prejudice response, as to the positions that they thought should be subject to classification pursuant to the teachers' award, and they agreed to go away and further analyse that claim and to clarify it.

PN144

On 7 June, the AEU wrote to the Institute demanding a reclassification of nine positions pursuant to the TAFE award. This was identified as the first group in the correspondences group one. The AEU indicated that their investigations were continuing into other positions and they stated that reclassification was required of the identified staff as they provide instruction, supervision and assessment of vocational education and training students. The AEU advised that unless the Institute agreed to the reclassifications in writing within 14 days that they would pursue the matter within the AIRC or the Federal Court.

PN145

On 15 June the Institute responded. In that response the Institute stated that it wanted to address the full scope of the AEU claim, and not deal with the matter in a piecemeal way, that is not the nine positions in isolation of any prospective further claim. It advised that in the event the Institute had wrongly classified staff, once an entire evaluation was concluded, staff could be reclassified with an operative date of that reclassification being from 21 June, but the Institute contends that the staff should not be classified in accordance with the TAFE Teachers' Award and I will turn to that later. But in the event they were wrong they provide a security of a date.

PN146

On 25 June the AEU wrote to the Institute. The letter sought additional information about reclassification of the previously identified nine positions within seven working days of 25 June, with a threat that if the reclassification did not occur, and I quote from their correspondence:

PN147

Formal supervision of these matters will be sought from the Industrial Relations Commission or Court as appropriate if you fail to comply.

PN148

On 6 June the Institute wrote to the AEU seeking a meeting to progress the matter. Fundamentally the Institute sought an explanation, that is the rationale of why the AEU thought these staff were performing the role of a teacher such that it justified a reclassification. On 19 July the AEU notified this Commission of a section 99 dispute, and on 24 July, as Mr Colley mentioned, the parties met.

PN149

At that meeting the Institute was provided with a copy of the section 99 notification. We discussed the issues in dispute and it became apparent that the parties were a long way apart, and that is that the AEU advised us that they believed that anybody that was involved in the supervision, instruction or assessing of vocational education students should be classified as a teacher. On 14 August, the AEU sent an email to the Institute outlining 43 positions in dispute, and we claim that some of those people are not subject to the current dispute notification, but that is a technical matter, it can be dealt with at another time, as they are teaching team leaders classified with over award payments not subject to the Packed Award.

PN150

I would like to turn to the history of industrial skills instructors and award coverage. Industrial skills instructors are a separate category of employees within the TAFE sector. On 19 May 1992 the Industrial Relation Commissions of Victoria, in full session, determined dispute between the then FTUV the Federated Teachers Union of Victoria, and the Australian Colleges and University Staff Association, re salary and conditions of industrial skills instructors employed at TAFE colleges in case numbers 89/0543, 90/2930, 90/3664 and 91/2679, and I think you can tell from the list of numbers there it was a long and arduous case. I wish to tender a copy of the Full Session decision, that is decision 92/0179, and at the same time I will tender a document which is a correlation of information and this is decision number 92/0179 of Deputy President Garlick, Commissioner Conway and Commissioner Gwyther.

PN151

THE SENIOR DEPUTY PRESIDENT: Yes, I will mark that decision exhibit T1 and the document headed, "Comparison of Teachers with Industrial Skills Instructors as at 1992, exhibit T2.

EXHIBIT #T1 92/0179 FULL SESSION DECISION

EXHIBIT #T2 COMPARISON OF TEACHERS WITH INDUSTRIAL SKILLS INSTRUCTORS AS AT 1992

PN152

MR WILLIAMS: Thank you, your Honour. In the decision on pages 7 and 8 of the Full Session Decision, I do not expect you to look at that document in detail, I will take you to the schedule of details. You will see on page 7 that right near the bottom of the page we start to see an analysis by Mr Crocker for the Ministry of Education and Training. A nine point criteria that compares a teacher's role with that of an industrial skills instructor. The Commission in the subsequent pages provides an insight to the differences between the role of a teacher and an instructor, and you have the T2 document is actually a summary verbatim of that decision.

PN153

THE SENIOR DEPUTY PRESIDENT: It is based on the decision?

PN154

MR WILLIAMS: Yes. Now, if I can take you to that - I would like to take you through those points, your Honour. A teacher under that decision:

PN155

Teachers are required to complete formal academic or trade qualifications to obtain registration.

PN156

And what the Full Bench said in response was:

PN157

Instructors are not required to do this -

PN158

However, they did say:

PN159

This does not define a difference between teachers and instructors. Teachers are required to complete teaching qualifications to obtain registration. Instructors are not required to do this but again this does not define a difference between teachers and instructors.

PN160

Under point three:

PN161

Teachers are required to prepare curriculum for new courses and revise an updated existing curriculum.

PN162

And this is where the differences start to occur:

PN163

Instructors have direct input to curriculum through consultation, but others prepare the final documents. Instructors for the most part instruct students so that they may meet the level of competency.

PN164

And you will see I have noted there the relevant pages of the decision where these comments are made:

PN165

Teachers are required to teach across a broad range of curriculum topics at one level, and teach a topic in an extended way from level one to level two, but not all of them do so. Instructors are not required to teach across a broad range of curriculum.

PN166

Point Five:

PN167

Teachers are required to research and evaluate teaching assessment material, whereas instructors are not required to do research but they may be consulted about research.

PN168

Point Six:

PN169

Teachers are required to plan and prepare detailed lessons, whereas instructors are not required to plan and prepare detailed lesson plans to the same extent as teachers.

PN170

Point Seven:

PN171

Teachers are required to adapt teaching methods to meet particular client student requirements, whereas instructors are not required to the same extent as teachers, to adapt teaching methods to meet particular client student requirements.

PN172

Point Eight:

PN173

Teachers are required to participate in and deliver professional development to colleagues. Instructors are not required to participate in and deliver professional development to colleagues.

PN174

Point Nine:

PN175

Teachers are expected to pursue further studies and upgrade existing qualifications throughout their careers. Instructors are not required or expected to pursue further studies and upgrade existing qualifications.

PN176

And turning over, your Honour, to some key comments that are made elsewhere in the decision. And I quote:

PN177

It is common ground among the parties that ISIs, Industrial Skills Instructors, did not come within the jurisdiction of the professional Administrative Clerical Computing and Technical Staff TAFE Award - Conciliation and Arbitration Board -

PN178

I am sorry:

PN179

But they did come within the jurisdiction of the TAFE Teaching Service Conciliation and Arbitration Board. They had commonly been employed on terms consistent with the Packed Award.

PN180

Quote:

PN181

It appears that the specific provisions of the TAFE Teaching Service Interim Award only applied to teachers and officers of the TAFE Teaching Service.

PN182

For the purposes of this case we consider that Industrial Skills Instructors are award free. The award that they are referring there to, The TAFE Teaching Service Interim Award, is very much a reflection of the 1994 award. Commissioner Gwyther has found that Industrial Skills Instructors were involved in a teaching function, but he did not go as far as to decide whether they are teacher in an all embracing sense of the word, or whether they perform the same functions as teachers to an extent that would warrant them receiving the same pay and conditions of teachers.

PN183

Teachers are more likely to teach subjects that have more in depth content than the courses taught by ISIs, the latter being mainly practical in content and of short duration or as witness Nam said:

PN184

Practical hands on matters which did not involve conceptualising.

PN185

The unions have not satisfied us that ISIs are teachers. The ISIs are currently award free, the first award principle is available and relevant. Your Honour the Institute in classifying instructors, trainers and assessors, has for convenience, and on a basis of fairness and equity, chosen to classify such positions as technical officers under the TAFE Packed Award. The Institute acknowledges that in a technical legal sense, the 1992 Full Session decision says that this may not be correct relative to some of the classifications in dispute, and in fact that they are award free.

PN186

During discussions on this dispute with the AEU, the Institute explained that its position was one of convenience and consistent with the policy of the current State Government that employees should have coverage under comprehensive awards. The Institute chose a Packed Award as the award most appropriate. In some other TAFE institutes, Industrial Skills Instructors or similar positions to those at East Gippsland are award free, engaged on common law contracts with the terms and conditions of employment either referred to the TAFE Packed Award or the same terms and conditions as the TAFE Packed Award are fully outlined in the common law contracts - that is in some instances.

PN187

The AEU claim that some or all of the positions in question are not packed positions and therefore they must be teachers. East Gippsland TAFE contends that this is not the case and that there may be some positions that are appropriate packed but otherwise they are positions that are currently award free with functions similar to industrial skills instructors, as described in the 1992 decision of the State Industrial Relations Commission.

PN188

Your Honour, on 9 September 1998, a Full Bench of this Commission, the Australian Industrial Relations Commission, comprising Munro J, Senior Deputy President Harrison and Commissioner Hoffman, handed down a decision 1138 of '98, print Q5998, in regard to a variety of claims associated with a special case work value claim, and competing claims from the AEU and employers for a first award. Your Honour, I would like to provide you with a copy of that decision.

PN189

THE SENIOR DEPUTY PRESIDENT: Yes?

PN190

MR WILLIAMS: Sorry, your Honour. In referring to this decision I would like to take you to about four points out of the decision, and just run through those points. It is on page 12 of 25 at point 46. And I quote from the decision:

PN191

In the determination of that part of the matter we note one important point. The AEU and the ATI -

PN192

That is the VTAs predecessor organisation:

PN193

proposed classifications structures do not join issue about the proposed introduction of a base ...(reads)... the salary points proposed and in the designation of a classification.

PN194

Turning to point 49:

PN195

We have given close consideration to whether we should vary the award to insert a new ...(reads)... translation for an existing award classification and salary points.

PN196

I just wish to quote two more subclauses, clause 50:

PN197

We considered that the issues we have identified are not adequately developed or confronted ...(reads)... involving the determination of whether such an order should be made.

PN198

So in summary, your Honour, for a period of quite a few years the parties were working towards a comprehensive revised classification structure which would consider bringing in this category of workers, industrial skills instructors, that were found in 1992 to be award free to the contemporary environment, but that has not eventuated. We contend - - -

PN199

THE SENIOR DEPUTY PRESIDENT: So you say they are still award free?

PN200

MR WILLIAMS: Yes. We contend that the work performed by most of the disputed positions is work that is consistent with that previously described in 1992 and 1998 as industrial skills instructors. We do not say that they are all industrial skills instructors pursuant to the 1992 decision, we say that their work is consistent with that. With the introduction of training packages as a key component of the National Training framework. Much of the delivery is using off the shelf products nowadays, where it has not been in the past.

PN201

The work of the disputed technical officer classified positions in relation to job characteristics, duties and responsibilities, accountability, authority, qualifications and experience are the same or similar composition to the ISIs as described in the 1992 case converted to the contemporary environment in our submission. They do not correlate with the requirements of a teacher as described in the Teachers' Award and we refute the definitions that have been forwarded to you by Mr Colley under those definitions, everybody is a teacher. Everybody provides a level of instructions so I do not think that we can rely upon those.

PN202

There may be some similarities between the functions of an industrial skills instructor and these people - and teachers - but there is no correlation that justifies or warrants classification as a teacher. They may be involved in teaching functions but that does not make them teachers. If we turn to the standards for registered training organisations as required by the Australian National Training Authority, in the Australian Quality Training framework which has been developed over the last few years, further modified in July of this year.

PN203

At standard seven, titled, "The Competence of Registered Training Organisation Staff", which is basically a criteria that you must comply with to be an eligible training provider across Australia of which all TAFE institutes are, we derive the following, and I am quoting from that standard seven.

PN204

A registered training organisation must ensure that assessments are conducted by a person/persons who have the following competencies from the training packages for Assessment and Workplace Training or demonstrated equivalent competencies in - and I forget the codes, basically, it's in planning - plan assessment, conduct assessment and review assessment and relevant vocational competencies at least to the level being assessed.

PN205

However, if a person does not have all of the competencies, this is the trainer/facilitator, one person with the competencies of planning assessment or conduct assessment or review assessment and/or more persons with relevant vocational competencies, at least to the level being assessed, may work together to conduct the assessments.

PN206

The registered training organisation must ensure that training is delivered by a person who has all of the competencies of Certificate 4 from the training package for Assessment and Workplace Training or has demonstrated the equivalent competencies or who is under the direct supervision of a person with those competencies and is able to demonstrate vocational competencies at least to the level of those being delivered. This standard means that in the contemporary environment, persons involved do not need, in many, or certainly all instances, to be professional teachers, in the sense of the TAFE teachers award, and can be instructors, trainers and assessors, as we claim most of these disputed positions, if not all of them, are.

PN207

In the past 2_ years, East Gippsland TAFE has employed 20 TAFE teachers pursuant to the TAFE Teachers Award. The institute analyses vacancies or increases in staff requirements to deliver the required training or teaching, on a needs basis and then makes a decision as to the most appropriate position to fulfil its requirement. The appointment of the 20 teachers is evidence that the institute is not systematically replacing teachers with positions other than instructors. But what East Gippsland TAFE has done, which is relatively unique, is it has structured its working teams and, more often than not, these trainers and assessors are working in terms with qualified teachers, more often than not. And these trainers and assessors are largely involved in the delivery of training, assessment, supervision of students. They have input to some areas of a teaching function, but through consultation, they do not get involved in the pedagogical skills associated with learning and teaching.

PN208

Your Honour, I do not wish to say any more about the merit of the case but I hope that I have portrayed a different picture there fundamentally in coming from where Mr Colley has come from. We accept that these positions may not be appropriately classified under the packed award because of all of the issues Mr Colley has raised. I am not going to concede to all of them but the issues associated with rules, scope of award and like. What we say is, they are award-free, but we have placed these people on either the award or effectively a Commonwealth contract that incorporates the award to provide award coverage, but they are certainly in our view, not teachers.

PN209

Turning very briefly to jurisdiction, your Honour. The institute does not wish to press the issue of jurisdiction of the Commission in this matter at this time, but reserves the right to raise this matter at a latter time if necessary. We would be happy to make a few points on jurisdiction as a fundamental question and then leave the matter and proceed to a private conference and seek to find a way to proceed to develop a mechanism that may resolve this matter. However, in relation to classification disputes, there are a number of decisions of note. I will refer to only two, both of which Mr Colley has already referred to, but in print S2949 H.S. Yulay v Dorovic Pathology, a Full Bench decision of 8 February 2000 found that the Commission could address the merit, fairness and equity of classification issues involving a reclassification within the scope of a relevant award and that the dispute was not an exercise of judicial of interpretative functions and therefore had jurisdiction to hear and determine the matter.

PN210

In print S0111, Deputy President Duncan on 14 October 1999, handed down a comprehensive decision in a classification matter involving Telstra Field Testers. That decision analysed a number precedents including CRAM Precision Data Holdings Limited v Wills, Qantas Airways v the ASU, Ranger, the Waterside Workers Federation v J.W. Alexander, TWU v MN and Special Broadcasting Service v CPSU and probably a number of others that I missed in the fine print, and determined in that matter that the Commission did have jurisdiction to hear these matters. By contrast, however, in this instance, we are considering issues that we contend involve the consideration of reclassification of employees not within the scope of an award but from an award-free environment to the award and we draw that back to the Full Bench decision in 1998 and the Full Session decision of the State Commission in 1992.

PN211

This, of itself, may on further analysis provide questions as to the Commission's jurisdiction in such matters. As indicated, we do not wish to press the issue now. We are happy to adjourn into conference and seek to find a way to resolve this matter but we do reserve our rights should we be unable to resolve the dispute through a conciliation mode. If the Commission pleases, your Honour.

PN212

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Williams. We will go off record.

OFF THE RECORD

RESUMED

PN213

MR COLLEY: If the Commission pleases, there are a number of points that I just want to make it abundantly clear where the unions point goes in terms of the submissions made by Mr Williams. Your Honour, fundamentally, this is not a case for bringing ISIs, Industrial Skills Instructors, into the award. We say that the positions that are being contested are not Industrial Skills Instructor positions and we can make that point good by going to the position descriptions which I already have done so. Industrial Skills Instructor was a person delivering tickets, previously administered by the State Department of Labour, which were a prerequisite for employment for occupational health and safety provisions in industries such as dogging, rigging, chain-saw operations, backhoe operations, and the like. This is not the situation we are dealing with here.

PN214

We are dealing with a class of employees who teach a diverse range of students, across a broad range of subjects and in some cases are specifically required or described as teachers by the employer. Secondly, even if they were ISIs, the 1992 State case to which Mr Williams referred, is distinguishable on this basis, that a different award applied, the definition of teacher in that - in the State Award at that time, is vastly different to the definition of a teacher currently. There was a different Industrial Relations legislative framework in operation and there was a different state regulatory operation which controlled the ability of the State or the institution to then employ people into teaching positions. Teachers either had to be registered by an independent registration board to teach, or otherwise get the permission from that board to teach.

PN215

It is non-contentious, your Honour, that teachers in TAFE institutes today do not have to be teacher trained. The award in fact permits that clearly in its terms, by means of schedule 3 to the award and in fact, if you are not teacher-trained, the award provides a bar to incremental progression at T5. So the ISI case, for shorthand, is clearly distinguishable. The standard for registering organisations to deliver vocational education and training to which Mr Williams referred, standard number seven, is a standard for the organisation itself to be registered to conduct particular courses. It is not a standard for classifying employees for the purposes of award coverage and I will not go too much further on the jurisdictional questions which Mr Williams raised at the end.

PN216

But one point about teamwork, if you have people working in teams that deliver the same work to the same clients, one classified as Technical Officer, one classified as Teacher with a salary difference between the two in the order of two or $3000 a year, you are being unfair and that practice does not have merit. Subject to the outcome that we are seeking today, your Honour, I have brought to your Honour a draft order that we are - - -

PN217

THE SENIOR DEPUTY PRESIDENT: You handed it up, have you not?

PN218

MR COLLEY: - - - handed - that is know as exhibit AEU1.

PN219

THE SENIOR DEPUTY PRESIDENT: Yes.

PN220

MR COLLEY: And we are content to go into conference now.

PN221

THE SENIOR DEPUTY PRESIDENT: There will be no order issued today, Mr Deery. We will still go into conference.

SHORT ADJOURNMENT [5.46pm]

RESUMED [6.13pm]

PN222

THE SENIOR DEPUTY PRESIDENT: I issue the following direction for the future conduct of this matter, that the parties confer, with a view to producing agreed statements as to what the incumbents of the disputed positions actually do in the work of the Institute. The Institute is to facilitate, in the event that person's wish to consult the union to that end. There will be a telephone report back at 9 am on 4 September next. An hour has been allocated. Its purpose will be to give further consideration to what steps should then be taken. I might indicate to the parties that the first available date for a face to face matter in Melbourne or anywhere is 31 October next. I adjourn this matter accordingly. I adjourn the Commission indefinitely.

ADJOURNED UNTIL TUESDAY, 4 SEPTEMBER 2001 [6.14pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #AEU1 DRAFT ORDER SUBMITTED BY AEU PN13
EXHIBIT #AEU2 BUNDLE OF DOCUMENTS RE CLASSIFICATIONS PN15
EXHIBIT #AEU3 TWO EXTRACTS FROM DICTIONARIES REGARDING THE MEANING OF THE WORD
EXHIBIT #T1 92/0179 FULL SESSION DECISION PN152
EXHIBIT #T2 COMPARISON OF TEACHERS WITH INDUSTRIAL SKILLS INSTRUCTORS AS AT 1992 PN152