C2003/250, Transcript of Proceedings [2003] AIRCTrans 5010 (11 November 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT MARSH
SENIOR DEPUTY PRESIDENT WATSON
COMMISSIONER THATCHER

C2003/250

APPEAL UNDER SECTION 45 OF THE ACT
BY AUSTRALIAN EDUCATION UNION AGAINST
A DECISION [PR936311] AND ORDER
[PR936313] BY SENIOR DEPUTY PRESIDENT
O'CALLAGHAN ON 25 AUGUST 2003 IN C00142
OF 1998 RE AWARD SIMPLIFICATION

PERTH

10.01 AM, WEDNESDAY, 29 OCTOBER 2003

PN1

MS L. GALE: I appear with MR MATT FARRELL on behalf of the Australian Education Union.

PN2

MR R.J. ANDRETICH: I seek leave to appear on behalf of the Department of Employment and Training with MR WISHART this morning.

PN3

SENIOR DEPUTY PRESIDENT MARSH: Yes, thank you. Is there any objection to the application for leave, leave is granted. Thank you.

PN4

MR ANDRETICH: Thank you.

PN5

SENIOR DEPUTY PRESIDENT MARSH: Can I just indicate before we start that we received the submission from the ACTU seeking to intervene, is there any objection to that intervention? Leave is granted therefore. Have all parties received copies of that submission, good. For the record I also indicate that we received the written submissions of the AEU, 23 October and also written correspondence from the Department of Education and Training on that date also. Yes, Ms Gale, we will proceed. Thank you.

PN6

MS GALE: Thank you, your Honour. Before I start, could I pass up an annotated version of our outline of submissions, annotated only in the sense that there is now in relation to the points going to the substance of the transcript and witness evidence before his Honour, Senior Deputy President O'Callaghan, there is now an indication of some of the transcript and witness evidence references below those paragraphs in bold.

PN7

SENIOR DEPUTY PRESIDENT MARSH: I see, yes, that would be useful. Yes, thank you.

PN8

MS GALE: The Australian Education Union seeks to appeal by way of leave. The decision and order made by Senior Deputy President O'Callaghan in Adelaide on 25 August 2003, which are tabs 3 and 4 in volume 1 of the appeal book. The decision was the outcome of a long process of conciliation and then arbitration in relation to the simplification and the item 51 review of the Teachers, Public Sector, Technical and Further Education Western Australian Interim Award 1995. When I say arbitration of that matter, I should make it clear that it was not arbitration of differences between the parties to the award but merely an arbitral process to provide the parties with an opportunity to address some of the questions and concerns that the Senior Deputy President had in relation to the draft award that had been proposed by the parties as a consent draft.

PN9

That arbitration took place in Perth in May and the decision was issued in August. The award under review is the award which applies to TAFE teachers in the State of Western Australia. It applies to all colleges of technical and further education in this State and the department is also a party to the award. Collectively, in the TAFE system in Western Australia, we understand that there are over 4000 lecturers employed. Certainly in relation to the recent ballot for a certified agreement there were something in the order of 4200 ballot papers issued. We say that Senior Deputy President O'Callaghan's decision is fundamentally flawed on a number of points and that it results in such a distortion of the system of relativities between minimum rates awards that it should not in the public interest be allowed to stand.

PN10

The three central elements of the decision which we challenge are the structure of the rates that was determined by Senior Deputy President O'Callaghan in relation to the lecturer and the advanced skills lecturer classifications of the award. The level of the relativities struck across the full breadth of the award, including we say the failure to properly consider all elements of work value in deciding those relativities, including the inappropriately low relativity struck at grade 1 and including the resulting distortion of established work value standards which comes from applying the existing internal relativities to an inappropriately low external relativity.

PN11

And the third key element of the decision, which we challenge, is the reduction of some conditions of employment prevailing in the previous award, which we say have inappropriately been removed in the Senior Deputy President's decision. In proceedings before Senior Deputy President O'Callaghan, the union provided the Commission with a significant body of evidence in written and oral form in support of the joint position of the parties in relation to the simplification and minimum rates adjustment of the Teachers, Public Sector, Technical and Further Education Western Australian Interim Award. We presented three witnesses who gave extensive written and oral evidence.

PN12

The first of those witnesses, Mr Hawke, is an experienced TAFE lecturer who now holds a senior post with significant management responsibilities. The second witness, Mr Farrell, is also an experienced TAFE lecturer who, as a union advocate, has extensive experience of the history and operation of the award and of the working conditions of TAFE lecturers in Western Australia. The third witness, Mr Hewitt, is the National Secretary of the TAFE division of the Australian Education Union, himself an experienced TAFE lecturer. He is also a member of several national TAFE policy councils, which determine the direction of TAFE and he is a participant in international forums dealing with technical and further education.

PN13

The evidence of these witnesses was uncontested and was further supplemented by uncontested submissions from the bar table. Through this evidence and submissions, that parties established a clear case that the rates and classification structure set out in the old award were the product of proper work value considerations at the time of the national benchmarking of teacher salaries under the structural efficiency principle in the late 1980s and early 1990s. We established a clear case that the rates and classification structures set out in the old award were consistent with the rates and classification structures for TAFE teaching work in other awards of the Commission which have been through item 51 reviews.

PN14

And we established a clear case that the rates and classification structures set out in the old award were appropriate to the needs of the industry. We established that the classification structure set out in the old award, although expressed in the old award as an incremental structure, was based on the acquisition and utilisation of skill and knowledge through teaching experience rather than on annual incremental progression regardless of skill. The parties produced a consent draft, a re-writing of the classification structure in the old award, to reinforce the skill based nature of the movement through the classification structure and to remove any appearance of automaticity in incremental progression.

PN15

In light of these factors and consistent with the decisions of this Commission in relation to other awards regulating the salaries and classification structures of TAFE lecturers around the country, the parties submitted that the existing classification structure should be retained and that the existing rates should be accepted as satisfying the Commission's principles, subject only to being updated for safety net adjustments. Through the evidence in submissions the parties also established a clear case that the level of detail in the provisions proposed in the parties consent draft was appropriate to the needs of the industry and was clearly understood within the industry.

PN16

The parties were in agreement about the central issues of the matter. Indeed, the Senior Deputy President noted this fact in his closing remarks on transcript where he said, quote:

PN17

I now find myself in the unique position where this is the first arbitration on an award simplification matter where the parties are effectively in agreement.

PN18

Close quote and that is at paragraph number 877 of the transcript. Because the position was a consent one between the parties there was little or no cross-examination of the witnesses and, therefore, much of the evidence was not drawn out in detail on the witness stand. Nevertheless, the evidence was provided in the witness statements and in the attachments to those statements. The parties were entitled to rely on the sworn evidence presented in those statements and drew the Senior Deputy President's attention to relevant paragraphs during our closing submissions. Despite the case presented to him, we say there are many points where the decision and order made by Senior Deputy President O'Callaghan revealed that he failed to take the evidence into account or failed to give adequate weight to the uncontested evidence presented by the parties and, as a result, he erred in his application of the Commission's principles.

PN19

In particular, we say that he should have been satisfied that the existing classification structure and rates provided in the award were adequate to meet the standards established through the paid rates review decision and the supplementary decision in relation to the retention of an incremental structure and in relation to the identification of external relativities. We say that with the additional provisions that the parties propose to include in the award to provide for a review of incremental progression, to provide for an articulated classification structure which gave a clearly identifiable skill level at every incremental step and a process which made it clear that an employee could not move to the next incremental point unless they satisfied those criteria.

PN20

That if they satisfied those criteria early they could move early. The old concept of an annual movement of salaries was completely eliminated in the draft that we proposed.

PN21

SENIOR DEPUTY PRESIDENT WATSON: That arises where, is that arising from clause 11.2 of the proposed draft?

PN22

MS GALE: Yes, your Honour. The proposed clause 11, which can be found in volume 3 of the appeal book, bear with me a moment, I will just make sure that I am referring to the correct - - -

PN23

SENIOR DEPUTY PRESIDENT WATSON: The document marked AEU4 toward the rear of tab 18, is that the one?

PN24

MS GALE: Yes, that is correct. This clause was revised several times during the proceeding in response to issues and concerns that were raised by his Honour as we went on. This AEU4 was a consent draft between the parties that was put forward during the proceedings in May.

PN25

SENIOR DEPUTY PRESIDENT WATSON: Was that the final position of the parties?

PN26

MS GALE: It was.

PN27

SENIOR DEPUTY PRESIDENT MARSH: So that replaced volume 3, tab 11?

PN28

MS GALE: That is correct.

PN29

SENIOR DEPUTY PRESIDENT MARSH: Yes.

PN30

SENIOR DEPUTY PRESIDENT WATSON: Okay.

PN31

SENIOR DEPUTY PRESIDENT MARSH: And also replaced the clause 11 in the draft award that was put up?

PN32

MS GALE: That is correct.

PN33

SENIOR DEPUTY PRESIDENT MARSH: Yes. Thank you.

PN34

MS GALE: It also replaced, I think, another tab in volume 3, no, I'm sorry, that is it.

PN35

SENIOR DEPUTY PRESIDENT MARSH: Is that the same clause that was in the joint submission, the final joint written submission?

PN36

MS GALE: This is slightly amended from the clause that was in the final written submission.

PN37

SENIOR DEPUTY PRESIDENT MARSH: Yes. I was looking, it looks very similar, but it is slightly different, yes.

PN38

MS GALE: It is slightly different.

PN39

SENIOR DEPUTY PRESIDENT MARSH: Yes, thank you. So what we focus on is AEU4, that is the final position that was put to his Honour?

PN40

MS GALE: That is the final position that was before his Honour.

PN41

SENIOR DEPUTY PRESIDENT MARSH: So we really don't need to have regard to any of the other versions of this clause?

PN42

MS GALE: I don't think so.

PN43

SENIOR DEPUTY PRESIDENT MARSH: No. Good, thank you.

PN44

MS GALE: And if I can perhaps take you to the salient points within that clause to illustrate what I've been saying.

PN45

SENIOR DEPUTY PRESIDENT MARSH: Can I just ask you, to give me a little of context, is this a clause peculiar to the Western Australia award or has it got its genesis in identical or similar provisions that have been inserted into other TAFE awards in other States?

PN46

MS GALE: In terms of its structure and the specific labelling of different classifications and the detail of the criteria and standards set out for the higher classification levels it is certainly specific to the Western Australian award. In terms of the general form of what was proposed by the parties, it draws upon elements from a number of different Interstate awards, but it is not identical to any of them in particular.

PN47

SENIOR DEPUTY PRESIDENT MARSH: Thank you. Yes, sorry, I interrupted you.

PN48

MS GALE: The parties proposed a new clause, 11.2, which sets out the process for advancement within the lecturer and advanced skills lecturer classifications. That process provides that there will be an annual review of each employee in those classifications and that is a review which may lead to a movement up the incremental scale. At 11.2.2 it provides expressly that movement to the next salary point within either of those classifications will occur when a staff member has over the preceding 12 months acquired and used additional skills, experience and competencies within the ambit of the classification and in accordance with the college priorities. They will be assessed against relevant criteria used in the review.

PN49

SENIOR DEPUTY PRESIDENT MARSH: Can I just interrupt you there?

PN50

MS GALE: Yes.

PN51

SENIOR DEPUTY PRESIDENT MARSH: His Honour in his decision reviewed the evidence of Mr Hawke and than made comment on that specific point at paragraph 23:

PN52

This evidence is indicative of college specific approach to movement from one increment to another.

PN53

He made comment in his decision, would that be a fair finding looking at 11.2.2 that in assessing movement from one salary point to the next will be done so in accordance with college priority, so it is college specific, his Honour is correct in that?

PN54

MS GALE: In the sense that it would be subject to the needs of the enterprise, yes.

PN55

SENIOR DEPUTY PRESIDENT MARSH: Yes. I see.

PN56

MS GALE: Yes.

PN57

SENIOR DEPUTY PRESIDENT MARSH: But there would still have to be the acquisition and utilisation of additional skills, experience and competencies?

PN58

MS GALE: Absolutely, yes.

PN59

SENIOR DEPUTY PRESIDENT MARSH: But they would be tested against the needs of the particular college?

PN60

MS GALE: We would say that the operation of this provision is such that an employee who was able to establish that they had new skills and competencies which were of absolutely no use to the college in their job would not, on the basis of that, be able to move through the classification structure.

PN61

SENIOR DEPUTY PRESIDENT MARSH: Yes. I understand.

PN62

MS GALE: However, the generic nature of the teaching skills is such that the specific needs of the enterprise would really relate to the subject matter in which the lecturer was teaching and issues like that and the needs for a lecturer in accounting at C.Y. O'Connor TAFE would be much the same as the needs in terms of a skills base for a lecturer in accounting at Pilbara. It is not really a reference to, for example, a college having the capacity to say: we will only have 3 per cent of our staff at level 7 or above, for example. It would be the teaching priorities rather than some arbitrary standard. But that is certainly what was understood by the parties as the framework that was being put forward.

PN63

SENIOR DEPUTY PRESIDENT MARSH: Thank you, Ms Gale.

PN64

MS GALE: The central element, we say, is that the employee would be required to establish that they not only had gained additional skills, but that they were using those skills in their teaching work. 11.2.3 provides for an express statement that someone will not automatically progress. That progression may be blocked if they fail to meet the requirements set out in 11.2.2. Subclauses point 4 and point 5 deal with administrative detail as to how the increase in salary would apply. 11.2.6 ensures that it is extended to part time as well as full time employees and that the review is a confidential process. 11.2.7 comes to the criteria that would be applied. The review would involve an assessment of performance and the use of skills against the requirements of the classification.

PN65

It would involve an identification of any staff development and training needs for that employee in order to enable them to acquire and use new skills and in order to identify performance objectives and in order to ensure continued satisfactory performance. 11.2.8 provides that there is a capacity for review. The clause then reverts to a fairly traditional formulation of salary and reference to safety net adjustments. The actual dollar figures were not put in because we knew that that was a separate discussion to do with relativities and that the figures that flowed from the outcome on relativities would be inserted at a later time.

PN66

Then when you come to 11.3.2, which deals with the lecturer grades, we proposed that the minimum salary for each lecturer should be on the basis of qualifications, skills, the level of responsibility with which they perform the duties of lecturer and then provide the framework within which those should be assessed against the different skill levels. We proposed in 11.3.2A a reference to the basic trade professional and industry qualifications which would be required of any appointment to the classification of lecturer. Under the old paid rate structure the reference to the AQF3 qualification, the trade certificate and five years relevant trade, professional or industry experience appeared only in reference to the old grade 1 because there was a paid rate structure which assumed that people moved through.

PN67

This was agreed between the parties without the slightest qualms that these two elements, that is the basic professional or industry qualification, plus five years relevant trade, professional or industry experience is a requirement for appointment at any level in the TAFE lecturing classification structure. There was some confusion, we believe, in the proceedings before Senior Deputy President O'Callaghan about the educational qualifications referred to in the old award. The old award referred to educational qualifications by reference to - that is qualifications in relation to teaching skills, a diploma in education, a degree or batchelor in education and so on, it referred to those qualifications through the definitions clause by reference to concepts such as three year trained, four year trained or five year trained lecturer.

PN68

Since that award was written a new qualification has entered the field, which is indeed a qualification in teaching skills. It is called a Certificate 4 in Assessment and Workplace Training. It is a basic qualification in teaching skills and it is, again, accepted in the industry and indeed imposed by the national regulatory authority of the industry that TAFE lecturers must have at least a Certificate 4 in Assessment and Workplace Training. Now, it is of course possible that if someone has a degree in education with appropriate experience or qualifications specifically in relation to adult and workplace education that they will have already the skills and competencies of and Assessment 4 in workplace - in assessment and workplace training.

PN69

They may well have considerably more than that, nevertheless it has now been introduced to the industry as a basic requirement that all lecturers must have those competencies and must have been assessed as having those competencies. This has been a cause of some anxiety for many of our members who believe they are already well ahead of those competencies, but the industry has been through a process of recognition of prior learning, of assessment and ascertainment of those skills.

PN70

SENIOR DEPUTY PRESIDENT WATSON: And that includes a grade 1, does it?

PN71

MS GALE: Yes. It does.

PN72

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN73

COMMISSIONER THATCHER: Excuse me. Did you say must have or are required to obtain?

PN74

MS GALE: The situation is that under the Australian Qualification and Training framework a person cannot teach unless they have a Certificate 4. It is our understanding that a person may be employed in the week or two before teaching commences. For example, in a particular term at grade 1 without a Certificate 4 but the expectation is that they would obtain that Certificate 4 before they would be released into the teaching environment.

PN75

COMMISSIONER THATCHER: And that new training framework is in operation now?

PN76

MS GALE: Yes. And there was evidence to that effect, particularly from Mr Hawke and Mr Hewitt in the May proceedings.

PN77

SENIOR DEPUTY PRESIDENT MARSH: There is a requirement for all lecturers, if you wouldn't mind just clarifying to me, to obtain the competencies of a Certificate 4 in Assessment and Workplace Training or equivalent, but that is not a recognised teaching qualification, is that right?

PN78

MS GALE: That is correct.SENIOR DEPUTY PRESIDENT MARSH: So beyond Grade 1 you have to have a certificate for, plus your basic trade, professional qualifications, plus a teaching qualification? Is that right?

PN79

MS GALE: That is correct.

PN80

SENIOR DEPUTY PRESIDENT MARSH: I see.

PN81

SENIOR DEPUTY PRESIDENT WATSON: Is it a requirement for the certificate or equivalent properly reflected in the Grade 1 definition?

PN82

MS GALE: Yes.

PN83

SENIOR DEPUTY PRESIDENT WATSON: I understand the point you are making that someone may be there for a few weeks without not teaching?

PN84

MS GALE: I should have clarified that a little further but under the national standards it is possible that a person without a Certificate 4 can engage in teaching duties if they are supervised directly by someone who has a Certificate 4. My understanding of the situation in Western Australia is that the employer's policy as reflected in this draft is that all teachers must have a Certificate 4. So that is a standard that is marginally more rigorous than that imposed by the AQTF.

PN85

SENIOR DEPUTY PRESIDENT WATSON: So one should read Grade 1 qualification in conjunction with the 11.3.2(b) requirement?

PN86

MS GALE: That is the intention, yes. Because it is possible that someone could come in at Grade 4 but still would have to satisfy that requirement, that is a requirement that we say applies across the whole classification structure.

PN87

SENIOR DEPUTY PRESIDENT WATSON: Including Grade 1?

PN88

MS GALE: Yes.

PN89

SENIOR DEPUTY PRESIDENT MARSH: So all the minimum salary grades applicable, 11.3.2(d) are in addition to 11.3(ii)(a) and 11.3(ii)(b)?

PN90

MS GALE: That is right. We say (a), (b) and (c) are preparatory provisions or introductory provisions which apply across the full range of grades except obviously that once you've attained Grade 10 there is nowhere further to progress to in terms of clause C.

PN91

SENIOR DEPUTY PRESIDENT MARSH: So what is set out in 11.3.2(d) is what is what distinguishes the grades?

PN92

MS GALE: That is correct.

PN93

SENIOR DEPUTY PRESIDENT MARSH: Yes. There is no exception to 11.3.2(a), (b) or (c) for any lecturer other than the way in which Grade 1 for example, working under a supervisor before he or she gets the Certificate 4?

PN94

MS GALE: That is correct.

PN95

SENIOR DEPUTY PRESIDENT MARSH: I see, thank you, Ms Gale.

PN96

SENIOR DEPUTY PRESIDENT WATSON: Can I just ask you? Was that put to Senior Deputy O'Callaghan between his February and August decisions?

PN97

MS GALE: Sorry, you are referring to AEU4?

PN98

SENIOR DEPUTY PRESIDENT WATSON: Yes, AEU4.

PN99

MS GALE: Yes. No, that was worked on up until the night before proceedings began. It was presented during the proceedings in May.

PN100

SENIOR DEPUTY PRESIDENT WATSON: During - so it was after the decision in February?

PN101

MS GALE: Yes and partly in response to that decision.

PN102

SENIOR DEPUTY PRESIDENT WATSON: Yes, very well. Can I ask you, in respect to the August decision, are the provisions in 11.2 and those preparatory provisions, 11.3(a), 2(b) and (c), are they specifically addressed in the decision of August of Senior Deputy President O'Callaghan?

PN103

MS GALE: No. There is in the decision the conclusion that the evidence before him was effectively that the incremental process had annual automaticity and was not - - -

PN104

SENIOR DEPUTY PRESIDENT WATSON: To be disrupted only as a result of performance management initiatives.

PN105

MS GALE: Yes.

PN106

SENIOR DEPUTY PRESIDENT WATSON: That is paragraph 21.

PN107

SENIOR DEPUTY PRESIDENT MARSH: Yes. Paragraph 25 also refers to a measure of automaticitiy and time related.

PN108

MS GALE: Yes.

PN109

SENIOR DEPUTY PRESIDENT MARSH: So that must be referring to 11.3.2(c) and 11.2, you've already taken us to 11.2.2.

PN110

MS GALE: Yes, I think it is at paragraph 13 - sorry, paragraph 12 his Honour does discuss the proposed structure.

PN111

SENIOR DEPUTY PRESIDENT WATSON: But it doesn't seem to address the process within 11.2?

PN112

MS GALE: No.

PN113

SENIOR DEPUTY PRESIDENT MARSH: Well, he refers to the college priorities which he does again in the paragraph I took you to earlier which is paragraph 23 or 24. So that presumably would imply at least that he is referring to 11.2.2.

PN114

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN115

MS GALE: Yes. There was, I think, a confusion in that he - well, he has reached conclusions about the automaticity apparently on the basis of evidence given when he asked the witnesses about the current practice and the current practice under the certified agreement is in fact a much more automatic annual process. It is even under the current certified agreement, it is subject to a performance review and to the potential for that incremental process to be denied. But on the basis of that evidence he seems to have concluded that the proposition put forward in AEU4 suffered from the faults he identified in the current certified agreement procedures.

PN116

SENIOR DEPUTY PRESIDENT WATSON: Is that provision contained in the material somewhere?

PN117

MS GALE: The certified agreement procedures?

PN118

SENIOR DEPUTY PRESIDENT WATSON: The certified agreement.

PN119

MS GALE: No, it is not. We could provide that if you wish.

PN120

SENIOR DEPUTY PRESIDENT WATSON: Yes. No, I'm just wondering where the terminology: Disruptive only as a result of performance management initiatives, in paragraph 21 comes from in the decision of his Honour. He refers:

PN121

- automatic time based movements disrupted only as a result of performance management initiatives.

PN122

MS GALE: In the proposed 11.2, at 11.2.7, the parties had clearly linked the procedure to performance management as well as to the ascertainment of skill used and attained and that if someone had not - we say that there was considerable evidence that if someone teaches and they do their job properly, they will improve their teaching skill. There was extensive witness evidence that went to how that happens and our conclusion is that if someone has not improved their teaching skills and used those improved skills as a result of a year of teaching experience then there are questions to be asked and it should lead into a performance management process because it is integral to the work of teaching. That it is, in fact, a two-way process, the teacher learns as they teach and if they are not doing then there are questions to be asked.

PN123

So indeed as we say is appropriate to the industry we had linked that to performance management mechanisms as well. However, we say that it is clearly a misreading of that provision to say that it is not an assessment of skill.

PN124

While we have AEU4 before us I will just touch briefly on one other matter if I can find the right reference in the decision. His Honour in his order he has retained a category which was in the previous award called: counsellor. And it largely mirrors the Lecturer, Advanced Skills Lecturer and higher classifications in that there is a Lecturer or Counsellor, an Advanced Skills Lecturer, Advanced Skills Counsellor. We had not put forward provisions which addressed the Counsellor classification in the same way for the same way for the reason that we were proposing that the Counsellor classification could be removed from the award.

PN125

It is our understanding that there are, in fact, no people employed under that classification any more. Unfortunately from re-examining the transcript it appears we came close to making that point a few times but in each case were diverted on to other matters. So that is simply a point of explanation.

PN126

SENIOR DEPUTY PRESIDENT WATSON: So you say there is no need for that classification and whatever else arises in - - -

PN127

MS GALE: That is correct.

PN128

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN129

MS GALE: I should also add, your Honours, that if the appeal succeeds we will be actually proposing yet another revision of clause 11 which is a re-ordering and again a re-emphasis of the skill based nature of the review process. If I can turn to the issue of the relativities that result from Senior Deputy President O'Callaghan's decision? It was and is the case that the industry of technical and further education is a national industry. The industry is regulated nationally through the Australian qualifications framework, the Australian National Training Authority and the conferences of State and Territory and Commonwealth Ministers of Education and Training.

PN130

In that industry there are awards regulating the terms and conditions of TAFE lecturers' work in every State and Territory. The majority of those awards are in the Federal arena and have been subject to item 51 reviews. The national character of the industry has long been recognised by this Commission and by State industrial tribunals dealing with those awards. This is reflected in the manner in which TAFE lecturer awards were dealt with during the award restructuring process under the structural efficiency principle. Although some of the awards were in the Federal jurisdiction and others in State jurisdictions the outcomes of that process were clearly national in their scope and are generally referred to as the national bench-marking of teacher salaries.

PN131

Indeed, we say the process outstretched not only across TAFE teachers but across schoolteachers as well. In that national bench-marking process the top of the un-promoted teacher classification was uniformly treated as the key classification and it was on that pay rate that the parties and the tribunals focussed. In the case of the West Australian TAFE award, that is the Grade 10 step within the Lecturer classification. The outcome of the structural efficiency process aligned the top step of teacher classifications including the TAFE lecturer classifications across the country.

PN132

The variety of awards and tribunals involved together with the fact that in each case there was a State or Territory department party to the award meant that the process stretched over several years. The time factor meant that the first awards to complete the process were fixed to rates of around 38,000, the first national teachers' benchmark rate. By the time the West Australian TAFE Award brought up the rear of the pack, the national teachers' benchmark had moved to 41,000 through national wage case adjustments. Nevertheless, although the figures varied from State to State, the outcome was when adjusted for time, appropriate. Across the country, the outcome was an alignment of teacher rates of pay. I would like to pass up a table which illustrates that fact.

EXHIBIT #G1 TABLE ILLUSTRATING ALIGNMENT OF TEACHER RATES OF PAY

PN133

MS GALE: This brings us to a number of the authorities which were on our list of authorities. This bundle contains and I do apologise for the quality of some of the many times photocopied documents included in this. It contains the relevant decisions from various State and Territory tribunals dealing with the national bench-marking of teacher salaries. In every case the bench-marking was done at the top of the incremental scale for a four year trained teacher un-promoted. That is true across both school and TAFE awards. I would also like to pass up a recent decision of your Honour, Senior Deputy President Watson in relation to a Northern Territory Catholic Schools Award.

PN134

SENIOR DEPUTY PRESIDENT WATSON: I might say that this decision was the subject of appeal but ultimately the appeal didn't proceed because the parties apparently reached agreement, an agreement so the appeal had no point. So it was appealed without issues on appeal having been addressed by the Full Bench.

PN135

MS GALE: Indeed that is also my understanding, your Honour. I refer to this decision principally in relation to the support it gives to our proposition that there has been a national bench-marking of teacher salaries across Australia. In this case, your Honour, you were looking at a catholic schools' award which sits outside the framework of Government employment for obvious reasons. Nevertheless that award shared with other teacher awards in Australia the history of its work value considerations and its origins dating back to the national bench-marking of teacher awards and if particularly I can draw your attentions to paragraph 55 where there are several findings set out in dot points.

PN136

The third dot point there is a finding that the non-Government schools award in the Northern Territory was varied to give effect to the national benchmark rate which was determined as the appropriate national rate of pay for teachers in both the public and private schools sectors. The national benchmark rate was implemented in all awards for teachers in each State and Territory of Australia. The decision of his Honour, Senior Deputy President O'Callaghan in February made it clear to the parties that he was not at that point satisfied that the West Australian TAFE Teachers Award shared that national history.

PN137

The parties presented evidence in July through the witness statement of Mr Farrell and the attachments to that witness statement which were extracts from the relevant West Australian tribunal decisions and then the Federal Commission which took the West Australian award and made it a Federal award that, in fact, the rates made in Western Australia were part of that national bench-marking process, that they were the result of the same, the common national review of work value for teachers across the country.

PN138

On that basis the party's submission is and was that the award which contained increments was nevertheless an award which had contained rates which had been based on a proper work value assessment through the structural efficiency process and that those rates still maintained appropriate relativities with other minimum rates awards around the country dealing with TAFE teaching staff and indeed with teaching staff generally. All of those other awards have been subject to item 51 reviews and in - sorry, all of those awards in the federal arena have been subject to item 51 reviews. I would like to hand up a table which illustrates the outcome of those reviews.

EXHIBIT #G2 TABLE ILLUSTRATING OUTCOME OF REVIEWS

PN139

MS GALE: This gives a snapshot of the current awards for TAFE lecturing work in the Federal arena and I've also included there the higher education academic award for reasons which I will come to shortly. The simplification decision in the ACT was the earliest. It occurred in 1999 and because of the difficulty in comparing rates from different years I have included there in the second column a more recent safety net adjustment of that award which brings it up to the 2002 safety net.

PN140

The ACT award was simplified in '99 and has since been adjusted for national wage case decisions and it now provides a minimum rate of $33,864 for a TAFE teacher and a maximum rate of $46,415. In the Northern Territory there are several awards which apply to TAFE teachers. There is one which applies to the Northern Territory university, one which applies to the Centralian Institute and there is one that applies to the Bachelor Institute of Indigenous Education. And all of those provide slightly different rates, the two that are associated with higher education institutions, the university award and the TAFE award have been subject to a range of variations which make them look more like a university award.

PN141

Therefore for comparative purposes I have used the Northern Territory Centralian Award which is the pure TAFE institute, if you like in the Northern Territory although I should advise you that it has as of 1 October this year, it has been merged with the Northern Territory University so it is now part of the new Charles Darwin University. However this award made in 2001 reflects the institution as a stand alone TAFE college.

PN142

SENIOR DEPUTY PRESIDENT MARSH: Ms Carr, where will we find the equivalent rates for Western Australia prior to its implication?

PN143

MS GALE: It is funny you should ask. I have here a table which sets the information out in graphic form.

PN144

SENIOR DEPUTY PRESIDENT MARSH: Thank you. I will mark that graph of interstate comparison of TAFE teaching rates, G3.

EXHIBIT #G3 GRAPH OF INTERSTATE COMPARISON OF TAFE TEACHING RATES

PN145

MS GALE: The data was on one side of the page and the graph on the other. I put this down to my slightly inferior computing skills. But the data is the rates which result from the item 51 reviews of TAFE awards notionally updated to include the latest safety net to make them comparable.

PN146

SENIOR DEPUTY PRESIDENT MARSH: Yes. That is what I was seeking.

PN147

MS GALE: Okay. Those changes have not actually occurred in all of those awards but I've included those rates in the table as though they had. The last three parts of the table, the first which is simply entitled: WA, shows the rates that result from Senior Deputy President O'Callaghan's decision and order. The next which is called: WA if old rates updated. It shows the rates from the old award with the safety net adjustments applied and no other changes.

PN148

And then the final set there, the WAF2010 accepted, illustrates the rate that would flow if the highest relativity urged by the union during proceedings in May were adopted by the Commission. We say that this graph and table indicates very major problems with his Honour's decision and order. The highest rate available for a TAFE lecturer under the new West Australian award, regardless of qualifications, a TAFE lecturer with three post-graduate degrees and 20 years teaching experience, the highest minimum rate available under the award is 32,499. That rate is actually lower than the lowest minimum rate for an entry level TAFE lecturer in any other State or Territory.

PN149

Only the Centralian Award in the Northern Territory and the West Australian award specify a minimum rate, particularly for the 4-year tertiary trained TAFE teacher and that is the red column. The rate in the Northern Territory Centralian Award for a TAFE lecturer with 4 years tertiary training and with the relevant industry experience and trade qualification is 39,900. In the award made by Senior Deputy President O'Callaghan it is 31,060.

PN150

As you can see the top rate across the country bears a degree of commonalty, there are some slightly higher and some slightly lower but they are all within the range of 47 to 51,000 and the rate proposed as the highest minimum rate applicable in Western Australia - I am sorry, not proposed, but established by his Honour's order and decision is 32,449, which is in the order of $15,000 behind the pack.

PN151

The second last column: WA Rates, if the old rate is updated, we say shows that the party's primary submission before Senior Deputy President O'Callaghan, that the rates already bore an appropriate work value relativity to rates in other States and Territories, that they already satisfied the requirements of a minimum rates award and therefore should simply be updated for safety net adjustments without further adjustment of the rates, would have resulted in rates which are almost identical to those in the ACT and to the level A academic rate in the university system and to the TAFE teaching rates in the Tasmanian award and close to the rates in the Victorian award which have been subject to a work value adjustment in 1988, which explains why they are slightly higher than the others.

PN152

SENIOR DEPUTY PRESIDENT WATSON: Ms Gale, just so I don't confuse myself, in exhibit G1, the national benchmarking, they're other than the WA TAFE Award Teachers' Award, are they? And they can be found by going - - -

PN153

MS GALE: Sorry, the Teachers' Awards?

PN154

SENIOR DEPUTY PRESIDENT WATSON: Teachers' Awards.

PN155

MS GALE: Yes, they are.

PN156

SENIOR DEPUTY PRESIDENT WATSON: Rather than TAFE specific?

PN157

MS GALE: Yes, yes.

PN158

SENIOR DEPUTY PRESIDENT WATSON: Yes, and that can be found by going to the references, but G2 and G3, they're showing specific TAFE Awards, is that the position?

PN159

MS GALE: They are, yes. A decade further on we have a much greater distinction between the award structures, the different categories of teacher employment.

PN160

SENIOR DEPUTY PRESIDENT WATSON: So the ACT is the ACT Technical and Further Education Teachers' Salaries and Conditions Award?

PN161

MS GALE: Yes.

PN162

SENIOR DEPUTY PRESIDENT WATSON: Centralian is - perhaps I will move on. Victoria would be the State Teachers' Conditions of Employment Victoria Award?

PN163

MS GALE: Yes. The relevant awards are listed, I hope they're all there, under the list of authorities that we provided.

PN164

SENIOR DEPUTY PRESIDENT WATSON: I see. Thank you. And the Higher Education Academic is what award? I just want to be clear that we're looking at the same awards on there.

PN165

MS GALE: Yes. That is - yes. I see we have only put the simplification decision in relation to that award on the authorities list, I should have that here at my - - -

PN166

SENIOR DEPUTY PRESIDENT MARSH: It is the Centralian Award for the Territory, as identified there.

PN167

MS GALE: Yes.

PN168

SENIOR DEPUTY PRESIDENT WATSON: The Victorian awards identified there are the pre-simplification and post-simplification awards.

PN169

MS GALE: Yes.

PN170

SENIOR DEPUTY PRESIDENT WATSON: The same award, in effect. The ACT we have dealt with. Tasmania, yes, and when you refer to Higher Education Academic you're referring to the Australian Post-Compulsory and Higher Education Academic Salaries Award.

PN171

MS GALE: As it was but I believe, as part of the simplification decision, its title was changed to the Australian Higher Education Salaries Award.

PN172

SENIOR DEPUTY PRESIDENT WATSON: Yes. Very well, thank you.

PN173

MS GALE: I apologise. I will clarify that after a break.

PN174

SENIOR DEPUTY PRESIDENT WATSON: Thank you for that.

PN175

MS GALE: Of course at the time of the national benchmarking of the Teacher Awards they were paid rates awards not minimum rates. In that context the relativity - their external relativity with minimum rates awards was a less important consideration. The central issue in that national benchmarking process was the fixing of a rate of the work value of teachers which would bear an appropriate relationship to other awards in the same and comparable industries.

PN176

Although there was not a fixed relativity struck with minimum rates awards in that process as there was no need to do so for a paid rates award, nevertheless the relativity which resulted from the national rate of $41,000 at the top of the scale was approximately 189 per cent of the C10 rate in the Metals Award. Another comparator for all teaching awards at the time of the structural efficiency principle was an award which at that point was already a minimum rates award but had not been through a minimum rates adjustment process and went through that process at the time of award restructuring and that is the Australian Post-Compulsory and Higher Education Academic Salaries Award.

PN177

This, for obvious reasons, was a more important comparison point for TAFE teaching than for school teaching because of the greater similarity of the work. In general, the unions at that point in time sought and achieved a parity between the top of the unpromoted teacher scale in teaching awards and the bottom of the Lecturer Level B classification in the Higher Education Academic Award and it is that rate, the Lecturer Level B, that the first step of Lecturer Level B in the Universities' Award that is represented in that graph, G3.

PN178

Importantly, the item 51 reviews, which have now been concluded in relation to all other school and TAFE awards in the Federal arena have not only retained the pre-existing rates as appropriate minimum rates but they have retained the pre-existing classification structures with incremental structures as appropriate minimum rates for teaching and TAFE teaching.

PN179

SENIOR DEPUTY PRESIDENT WATSON: With some modification in case, for example, Commissioner Eames, I think, introduced some formulation similar to that proposed in this matter by the parties.

PN180

MS GALE: Indeed. In the Victorian TAFE Award a formulation relating to the manner of progression between incremental steps was introduced in the 1998 work value - no, I'm sorry, in the 1992 decision in relation to that award, where it in fact was found to be a minimum rates award. The remainder were converted from paid rates to minimum rates in 1999 through to 2003 and they have all involved the introduction of some words in relation to the manner of progression between incremental steps.

PN181

Indeed, in relation to the Centralian Award by Commissioner Eames, I think it is, there is a more articulated classification description for each incremental step. The table, which is exhibit G2, indicates the number of incremental steps in each of those awards at the lecturer classification after they have complete an item 51 review under date and decision, the next line across the table, is the number of steps and you will see that the ACT award still has 10 steps, the Northern Territory award has 11, Victorian has 6, the Higher Education Academic has 8 at level A and, as I mentioned, the first step at level B. So that 9 actually reflects 1-and-a-bit classifications.

PN182

In Tasmania there are eight incremental steps at the TAFE teacher grade and in Western Australia in the old award there were 10 and those structures have been retained - with the addition of words to make sure that they comply with the Commission's standards those structures have all been retained. The essence of our argument is that in ascertaining the appropriate award structure for the West Australian TAFE Award his Honour should have had regard to the structure and the rates in minimum rates awards made by this Commission in comparable areas of work and the most comparable minimum rates awards are those made for TAFE teaching work in other States and Territories.

PN183

The next most comparable are those made for school teaching work and for university teaching work in other States and Territories. The evidence before him was that in all of those cases an incremental structure had been retained in terms similar to, and in some cases less rigorous, than those proposed by the parties in proceedings before Senior Deputy President O'Callaghan but in his decision he removes those parts of the classification structure which are based on any skill measure other than merely qualifications and he draws a relativity between the least appropriate grade in the award to choose as a key classification and the C10 rate in the Metals Award, apparently without giving any regard to the relativities that will result with any other minimum rates award, and particularly with minimum rates awards in the TAFE industry.

PN184

His decision has not only distorted relativities with other TAFE awards around the country, it has blown them completely out of the water, there is no basis on which the rates in the West Australian TAFE Award can be said to bear any appropriate relativity to the already established minimum rates for TAFE teaching work for the comparable industry around the country.

PN185

So we put it to his Honour that the appropriate decision to make, the correct decision to make was that the rates, subject to safety net adjustments, already satisfied the requirements of the wage fixing principles, that they could be declared as minimum rates and merely adjusted to contemporary rates by the addition of safety nets. His Honour, we say, was wrong in rejecting that submission but we say the problem with his decision goes further than that because if he was not satisfied that these rates already reflected an assessment of work value through the national benchmarking of teacher rates and the structural efficiency process, if he was not satisfied that they bore an appropriate relativity to other minimum rates awards then the consequence of those conclusions was to find that these rates had not been subjected to any work value determination by the Federal Commission since the award was made.

PN186

In that context we say he then would have to undertake an assessment of the work value of TAFE teachers in order to conclude what an appropriate relativity between the TAFE teacher rates of pay and other minimum rates were. We presented substantial evidence which went to the question of the work value of TAFE teachers and indeed that went to the question of whether that work value has changed between the making of the earlier Federal award and the item 51 review.

PN187

On the basis of that ultimate submission the parties again put forward the view that they advanced in written submissions in February, which was that the appropriate work value relativity should be determined by identifying grade 10 as the key classification, that using grade 10 as the key classification the appropriate relativity falls somewhere between 210 per cent and 180 per cent and that the parties had consent on that range. Of course, we urged different views within that range as to what the actual relativity might be if the Commission had to go down that path.

PN188

Nevertheless, both parties supported grade 10 as the key classification. Both parties supported a relativity at that level in the order of the old award and supported the proposition that there had been work value changes since the old award was made. The question was asked by Senior Deputy President O'Callaghan, I think it is at paragraph 195 of the transcript. At that paragraph his Honour says: well, the principles do require me to identify a key classification, they indicate that wherever possible - and these are my words rather than direct citation from those principles - that the general key classification that a Commission member goes in search of is with the Metal Trades person and it appeared to me on the basis of the material you provided to me this morning that there may be scope to say there is a link between the grade 1 employee, that is the person with at minimum trade skills and five years experience, with that of the Metal Trades person and it was that issue that I was just interested in exploring.

PN189

And there then follows in the next few pages of transcript an exploration of that issue. Indeed, the union there argues strongly not only that the appropriate key classification is grade 10 but discusses why grade 1 is the wrong classification to pick. At paragraph 199 we point out that the grade 1 appointment requires at least five years of industry experience on top of a trade qualification. So even if grade 1 were chosen as the key classification the relativity with C10 would not be 100 per cent, that what you have even at grade 1 in the TAFE classification structure is someone who can teach the knowledge held by a C10 person not merely someone who can exercise those skills.

PN190

That is why the industry experience and the reference to teaching skills and teaching qualifications are essential to both parties in this award. At paragraph 200 we point out that the grade 1 classification is not much used in the industry. There was evidence provided by Mr Hawke in his witness statement and Mr Farrell at paragraph 58, I think, of Mr Farrell's witness statement which sets out a typical spread of employment across a department in TAFE and at that paragraph of his statement Mr Farrell shows data that was provided to the union by the Department of Education and Training setting out the number of lecturers at each classification level and including the advanced skills classification levels.

PN191

That graph shows clearly that only a very small proportion, somewhere around 40 people, were employed at grade 1 in May 2003. At paragraph 59 of his witness statement he shows the staffing profile of the civil and mechanical engineering section at Central TAFE which shows lecturers spread between grade 6 and grade 10 and then six people at the Advanced Skills Lecturer classification and no one below grade 6. It was the evidence of Mr Hawke that the common entry point was between grades 2 and grade 5, but grade 1 was not a common entry point to the industry.

PN192

The parties urged strongly that Lecturer Grade 1 was not an appropriate classification to choose as the key classification. We urged that it certainly should not be fixed at 100 per cent relativity. We urged that if a key classification was to be identified it should be grade 10. Nevertheless, in his - - -

PN193

SENIOR DEPUTY PRESIDENT WATSON: The dilemma for Senior Deputy President O'Callaghan, I suppose, was he didn't see grade 10 as properly being available within the awards.

PN194

MS GALE: Yes.

PN195

SENIOR DEPUTY PRESIDENT WATSON: So he could hardly then use it as a key classification.

PN196

MS GALE: That indeed is a dilemma if you make the first error, yes. The consequence of eliminating grade 10, however, does not result in grade 1 jumping out as an appropriate key classification. Firstly, the parties were never asked what might be an alternate key classification if grade 10 were not there, however, we did make it clear that it should not be grade 1, grade 1 is what is seen in the industry as the unqualified entry point, a qualified TAFE teacher is seen as a TAFE teacher with teaching qualifications and the minimum entry point for a qualified TAFE teacher is grade 2.

PN197

SENIOR DEPUTY PRESIDENT WATSON: That is the 3-year trained, education trained, yes.

PN198

MS GALE: Yes.

PN199

SENIOR DEPUTY PRESIDENT WATSON: And under the relativity fits, by using grade 1 and then simply applying existing relativities, that resulted in something like 105 per cent relativity for the grade 2, is that correct, for 3-year trained people?

PN200

MS GALE: Relativity to?

PN201

SENIOR DEPUTY PRESIDENT WATSON: To either grade 1 or Metals C10?

PN202

MS GALE: To grade 1, yes. With the - - -

PN203

SENIOR DEPUTY PRESIDENT WATSON: The 2.91.671.

PN204

MS GALE: Yes. If grade 1 was fixed at C10, yes.

PN205

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN206

MS GALE: Then grade 2 applying internal relativities comes out at about 105. Grade 3 comes in just a hair under 110 per cent.

PN207

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN208

MS GALE: Grade 4 comes in a fraction under 115 per cent. On the question of whether grade 1 should be the key classification, we say that there was nothing to recommend it except its proximity in dollar terms to C10. It happened to be the lowest rate on the scale. There was nothing else to recommend it as a key classification and we say that that is not the sort of consideration that really provides the basis for identifying a key classification. It is perhaps unfortunate that there doesn't appear to be a succinct statement anywhere of what are the appropriate factors for identifying a key classification, but we say that the practice of the Commission has been to look at appropriate qualified entry points, to look at, to consider the views of the parties and to look at other relevant awards in related industries where key classifications have been identified. And we say on those three counts, the first position is that grade 10 should be the key classification.

PN209

The second position is that at the very least, it should be a qualified TAFE teacher classification, a common entry point into the profession and one where people are actually employed in some numbers. And one which is comparable across other awards and agreements. Sorry, not agreements, just awards. If I could also draw your attention to the transcript at paragraphs 645. There was further discussion of the possible relativities between the existing grades and the C10 rate. We had presented a spreadsheet which is in the appeal book, which as correctly identified by Senior Deputy President O'Callaghan in his decision, had omitted one safety net adjustment in its calculations. So we have actually produced a corrected version of that spreadsheet.

EXHIBIT #G4 SPREADSHEET WITH RELATIVITIES OF SAFETY NET ADJUSTMENTS

PN210

MS GALE: And this shows firstly the existing award rates in the old TAFE award at the time of the national benchmarking, that is, with 41,000 at the top, the lecturer classification, and the remaining rates set out there. In the very first column under Lecturer Grade 10, there is a heading missing there and that next box is the ASL1 and Equivalent classifications in the award and that - - -

PN211

SENIOR DEPUTY PRESIDENT MARSH: Sorry, which column is that?

PN212

MS GALE: I'm sorry. In the very first column here, there is an empty box just under the lecturers.

PN213

SENIOR DEPUTY PRESIDENT MARSH: Oh yes.

PN214

MS GALE: That is the ASL1 classifications, which have somehow transmogrified into a plus sign but then under that point 1, point 2, point 3 are Advanced Skills Lecturer 1, 2 and 3.

PN215

SENIOR DEPUTY PRESIDENT MARSH: I see. Thank you.

PN216

MS GALE: The first column of figures sets out the actual dollar rates in the old award prior to any safety net adjustments. The second column sets out the relativity that each of those rates bore to the C10 rate at that time. And the third column of figures sets out the internal relativities that each rate bore to the Grade 10 classification in the TAFE award. The next column entitled: Resulting Relativity to C10, what we are proposing there is the result from not adjusting the rates at all and so the resulting relativity is identical to the earlier relativity. And then following through from that, the safety net adjustments have been applied and the final column on the right-hand side, 2003, final annualised rates sets out where those rates would be now if they had been updated for safety net adjustments.

PN217

In that context you can see, using the second column of figures, the relativity to C10, you can see where each of those grades that remain in the award, that is, Lecturer Grade 1, 2 and 3 and 4 and Advanced Skills Lecturer, point 1. You can see where each of those sat in terms of its original relativity to C10. And now those relativities have moved such that Lecturer Grade 1 is now at 100 per cent instead of 130. Lecturer Grade 2 is now at 105 instead of 136.

PN218

SENIOR DEPUTY PRESIDENT WATSON: I'm sorry, are these shown somewhere?

PN219

MS GALE: No, I'm sorry, these are the rates that result from - - -

PN220

SENIOR DEPUTY PRESIDENT WATSON: Sorry, the resulting relativity in the fifth column, the second one, Grade 2, should be 136, I presume.

PN221

MS GALE: Yes, it should.

PN222

SENIOR DEPUTY PRESIDENT WATSON: Yes. If you could just run through those relativities again.

PN223

MS GALE: Yes.

PN224

SENIOR DEPUTY PRESIDENT WATSON: 100 for Grade 1.

PN225

MS GALE: 104.9 or 105 for Grade 2. 110 for Grade 3 and all of the remaining grades are now - of lecturer are now at 114.7, 115.

PN226

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN227

MS GALE: And then at the Advanced Skills Lecturer, point 1 is now at 150 per cent, point 2 and 3 of course no longer exist. The Advanced Skills Lecturer 2, which was at 217 per cent, is now at 165 per cent. The Principal Lecturer, which was at 120 - I'm sorry, was at 227, is now at 172 and the Associate Director points are both also at 172. We say that there are well established - sorry. In ascertaining what might be an appropriate key classification and what the relativity for that key classification should be, Senior Deputy President O'Callaghan erred in concluding that the qualifications held were the only or the principal factor to take into account in considering those relativities.

PN228

On the basis of looking at a distinction of qualifications, he found a basis for keeping Grade 1 to 3 and 4. But we say that even if he was not able to be satisfied that the incremental structure as amended met the requirements necessary to retain all increments, he should have been satisfied that there was a clearly distinguishable and ascertainable skill level proposed for Grade 10. And he should have retained a classification structure if - not an incremental structure. He should have retained a classification structure which had at least Grades 1, 2, 3, 4, and 10.

PN229

The problem he expressed with the way that the grades were set out was that the skill level was described, for example, at Grade 7 or Grade 8, in terms of the level of skill, knowledge, experience and responsibility that you might normally expect of someone with identified level of qualification and an identified number of years of experience. He had rejected the years of experience element to that, which left him with the qualifications element. He overlooked the fact that it was expressed as a description of the skills and experience which you might expect of someone with those qualifications and instead looked only to the holding of a qualification as such.

PN230

Nevertheless, when you get to Grade 10 in AEU4, the formulation that was proposed differed from the grades which came before it. But clause 11.3.2(d) in AEU4 - - -

PN231

SENIOR DEPUTY PRESIDENT WATSON: I'm sorry. 11 point?

PN232

MS GALE: 3.2(d). I hope.

PN233

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN234

MS GALE: It sets out each grade in sequence and when it comes to - for example, at Grade 8, leading from the introductory stem, which is at the very beginning of 11.3.2:

PN235

A lecturer will be paid a minimum salary on the basis of qualifications held, skills employed and level of responsibility with which they perform the duties of lecturer in accordance with the following.

PN236

They must have the criteria set out in subparagraphs (a) and (b) and then, in subparagraph (d) at Grade 8, they have the qualifications or equivalent. They employ the skills and work at a level of responsibility normally expected of a Grade 5 lecturer with an additional 3 years lecturing experience. His Honour was not satisfied despite, we say, extensive evidence before him that in this industry, in this type of work, that is a clear and ascertainable description of a distinct work value level. He was nevertheless not satisfied with that. However, if you look at Grade 10, it goes beyond that.

PN237

It includes similar words: Has the qualifications or equivalent, employs the skills and works at a level of responsibility normally expected of a Grade 5 lecturer with an additional 5 years lecturing experience. It goes on to say:

PN238

A Grade 10 lecturer is an experienced lecturer with both trade, professional or industry qualifications and recognised teaching qualifications and substantial experience of lecturing duties since gaining those qualifications.

PN239

That is a distinct skill level. It is not a skill level that is encompassed by the words that Senior Deputy President O'Callaghan has provided in the order relating to the top classification of the unpromoted lecturer he has provided for, which is Grade 4, which simply requires that a person be 5-year trained?

PN240

SENIOR DEPUTY PRESIDENT WATSON: Yes. 5-year-trained lecturer.

PN241

MS GALE: So we say that if our primary submissions failed, Senior Deputy President O'Callaghan still had the basis on which to identify Grade 10 as a classification in the award, whether it was renamed Grade 6 or Grade - Lecturer Plus or whatever, that that skill level was clearly identifiable. There was extensive evidence about the skill level of a Grade 10 lecturer and how that differs from the skill level of less experienced lecturers. There was extensive evidence about the greater range of duties that Grade 10 lecturers are expected to undertake and the higher responsibilities that they take on, including in relation to the supervision of other staff.

PN242

Nevertheless, Senior Deputy President O'Callaghan chose to base a classification structure only on qualifications and in doing so, he left us without the most appropriate key classification.

PN243

SENIOR DEPUTY PRESIDENT WATSON: Indeed, he seems to have based it only on lecturer training. There is no reference in his definitions in Grades 2, 3 and 4 to the AQF3 qualification.

PN244

MS GALE: That is correct. And indeed, nor is there any reference to the Certificate IV in Assessment and Workplace Training which, as the parties put to him, was a new qualification now required of all TAFE lecturers.

PN245

SENIOR DEPUTY PRESIDENT WATSON: And a trade certificate is a qualification required of all lecturers?

PN246

MS GALE: Well, a trade or professional. A Certificate III qualification, yes.

PN247

SENIOR DEPUTY PRESIDENT WATSON: Yes. An AFQ3, yes.

PN248

MS GALE: Which obviously TAFE, in the popular minds, tends to be associated with plumbing and like trades, but in fact that trade training area is now in the order of about 20 per cent of TAFE delivery and a lot of it is in other professional areas where the qualification base of the teaching staff differs. In fact, that is one of the reasons there needs to be entry points at higher levels, is of course that many people, in some discipline areas, now you simply can't get a job in TAFE unless you already have a Bachelor in teaching, plus for example a postgraduate qualification in teaching English as a second language.

PN249

So it is absolutely necessary to have a skill level in there, for example, as an entry point for a 5-year trained. And that is why the reference is proposed to trade professional or industry as a generic grouping of qualification types and experience types.

PN250

SENIOR DEPUTY PRESIDENT MARSH: Ms Gale, I accept the way in which the parties approached Grade 10 for his Honour and the importance of that as a key classification, but was the submission put to him that you are putting to us, that if he decided to delete the grades 5 and beyond, he should nevertheless retain Grade 10? Or was that not envisaged by the parties that that structure was going to be proposed?

PN251

MS GALE: We didn't foresee that that was on the cards, no, and so that position was not put. There was some discussion on the transcript as to what might be an appropriate relativity at Grade 1 and whether the relativity which flowed from what we were proposing was going to be appropriate. In fact, the union was urging that if the current rates could not be retained, the work value changes over time meant that a relativity of 210 per cent at the Lecturer Grade 10 rate should be established and that would have resulted in a Grade 1 relativity of around 145 per cent. The primary submission of the parties, as earlier described, is that the existing relativities should be accepted as appropriate and that resulted in a relativity at Grade 1 of 130 per cent.

PN252

So there was a discussion of whether that range of between 130 and 145 was an appropriate or supportable relativity at Grade 1. And in relation to that, we drew attention to the fact that in - to several factors. Firstly, before a Grade 1 Lecturer will be teaching, they will have retained a Certificate IV in Assessment and Workplace Training, which is a higher skill level than the Certificate III held by a C10. So simply looking at formal qualifications held we say and said that the relativity could not be 100 per cent at C10.

PN253

We also drew attention to the fact that the Metals Award itself treats training skills or teaching skills differently in the way that they are valued in the Metals Relativities. There are classifications in that award that are the trainer classifications and they are not set at fixed relativities to C10, per se, they are set at relativities to the highest classification level of the people being trained. And the trainer Grade 1 or Level 1 in the Metals Award bears a relativity of 122 per cent to the highest qualification being trained. And the trainer Grade 2 or Level 2, sorry, bears a relativity of 140 per cent to the highest qualification being trained.

PN254

Now, if they are training C13s, that 140 per cent is 140 per cent of C13, not of C10. However, the - - -

PN255

SENIOR DEPUTY PRESIDENT WATSON: What distinguishes Grade 1 and 2 trainers in the Metals Award?

PN256

MS GALE: It appears that a Grade 2 trainer supervises a Grade 1 trainer.

PN257

SENIOR DEPUTY PRESIDENT WATSON: I see.

PN258

MS GALE: Yes. But I only say appears and that there is scant detail in the award as to exactly what these classifications do. In fact, in the original Metals Award, there was also a reference to a Grade 3 but it had no relativity set and that grade has now disappeared from the current version of the award. Now, it is a complex line of argument because the person being trained in TAFE doesn't necessarily have any classification. The student may be in a workplace setting and may be a C10, a C5, a C13. They may be in a professional setting and be employed under an award which provides them with some relativity to the Metals Award. They may be unemployed. There may be a mixture.

PN259

SENIOR DEPUTY PRESIDENT WATSON: They may be an apprentice too presumably.

PN260

MS GALE: Yes. Yes. Some people are being trained in a workplace environment where they are employed and undertaking training at the same time. Other people are being trained at the college or on-line and in any one class there may be quite a variety of existing classification levels amongst the students and, in many cases, the classification level, if they do have employment, is not in a field that is related to what they are studying. They may, in fact, be seeking to set themselves up for quite a different career by branching off into a new field of study. So, you can't take the Metals Award and say a TAFE Teacher at Grade 3 is teaching C12s and they should be paid at least 122 per cent or 140 per cent of C12. It just doesn't apply that way.

PN261

However, the point that we did make about the Metals Award is that inherent in that structure is an acknowledgment that training skills are different to and add to the work value of a trainer. They are different to their other trade or industry skills and, on that basis, we said that even at Grade 1 with a trade qualification, a Certificate IV in Assessment and Workplace Training and significant, relevant industry or professional experience, the person - what also needed to be considered is that the person's duties and responsibilities are educational. They are employed as teachers and in that context they could not possibly be held to be at the relativity level of the 100 per cent to C10. We urged that the range of relativities being sought by the parties, that is between 130 and 145, were appropriate.

PN262

The Level 2 Trainer in the Metals Award is described as someone who has completed 15 modules appropriate to training skills, in addition to any production trade or technical qualification. The Australian qualifications framework, of course, no longer provides modules. It provides competency standard units and the measure is not easily transferable from one to the other. However, we say that a Grade 1 TAFE Lecturer must have equivalent teaching skills, at least to someone with 15 modules of workplace training skills. Indeed, the Certificate IV in Assessment and Workplace Training would be at least equivalent to those 15 modules and therefore we say that the Grade 2 Trainer, the Level 2 Trainer in the Metals Award, which is effectively 140 per cent loading on top of the highest qualification being trained, is a relevant classification to consider and in that context the relativity that we urged, of between 130 and 145 per cent, was entirely appropriate.

PN263

We also pointed out that TAFE lecturers typically teach across a range of eight UF levels and would usually be delivering some of their courses at higher, much higher, than C10 than the AQF3 that provides a C10 classification. Indeed, TAFE delivers subjects right up to AQF7 and TAFE lecturers are through their career expected to teach as required across a broad range of AQF standards.

PN264

SENIOR DEPUTY PRESIDENT WATSON: Would students deal with their AQF sequentially? So, someone attaining an AQF7 qualification would already have an AQF6 qualification?

PN265

MS GALE: Generally, yes. The structure of qualifications in TAFE is now such that you may enrol directly into an AQF7 qualification, but in the first 4 or 5 units in that would constitute the AQF6 qualification and then you would undertake more units which would bring it up to AQF7 and so on. There is also an extensive process of recognition of prior learning which now applies in TAFE, so that every student entering into the TAFE system is entitled to have their existing skills and competencies assessed, whether they take the form of a formal qualification from some other system or from the TAFE system or whether they arise from workplace experience. So, a student may in fact enrol in a higher AQF level without a formal qualification to indicate they have the lower, but they would have had a recognition of prior learning to assess them at that level.

PN266

I should, if I may, hand up a copy of the Northern Territory Centralian College Award, which was referred to earlier, which was - I think most of the other awards are in the exhibit book that was before Senior Deputy President O'Callaghan. This is an additional authority that is referred to. We also say that there are established relativities for - sorry, start again - that having decided that he was going to look only at qualifications, which we say was an error, but having made that decision Senior Deputy President O'Callaghan should have turned his attention to existing, established relativities in relation to tertiary qualifications in other awards and agreements. There are well-established relativities relating to the new graduate, 4 year trained and 5 year trained - sorry, 3 year trained and 4 year trained professional.

PN267

We did not lead evidence or submissions in relation to those relativities because we were not alive to the proposition that we needed to establish a relativity point other than Grade 10. The minimum entry requirement established in his Honour's decision for a Grade 2 Lecturer has been set at 104.9 per cent of the C10 rate, yet a Grade 2 Lecturer is defined as someone with 3 years of tertiary training, and I will add that the way that the 3 years trained is defined in this award, it can mean more than 3 years trained because that 3 years tertiary training is defined in the Definitions clause as including the completion of a 3 years trained teaching qualification in addition to their relevant trade or professional qualification and relevant work experience. So, it is possible that someone will do more than 3 years of tertiary training before completing the particular teaching qualification but it is the teaching qualification that becomes the trigger for that grade.

PN268

We say that it is well-established in decisions of the Commission that the relativity for a 3 year degree, new graduate rate should be set at no lower than 125 per cent. Similarly, the Lecturer Grade 3 qualification is defined as 4 years trained, including either a 4 year degree in Education or a 3 year degree in another field, plus at least 1 year qualification such as a Graduate Diploma in Education, as well, of course, as the relevant industry and professional experience. The relativities resulting from Senior Deputy President O'Callaghan's decision place Lecturer Grade 3 at 109.8 per cent, just below 110 per cent, but there are established relativities which place a new graduate entrant with a 4 year degree at 130 per cent.

PN269

SENIOR DEPUTY PRESIDENT WATSON: I am sorry. Where are the established relativities? You are coming to that?

PN270

MS GALE: I will come to those, yes.

PN271

SENIOR DEPUTY PRESIDENT WATSON: Yes. Thank you.

PN272

MS GALE: We say that there was ample evidence before his Honour that a new TAFE teacher is far from a new graduate entrant. They are, in addition to their tertiary qualifications, required to bring that relevant industry or professional work experience and it is clearly understood in the industry that at least 5 years is an appropriate measure to ascertain the depth of that industry experience. So, again, we emphasise that we are not talking about like with like in the sense that the relativities that I will now come to relate to the new graduate entrant, not to a graduate entrant who also brings extensive work-force experience.

PN273

In relation to these relativities, I would like to refer to the social and community services award decisions of Senior Deputy President Cartwright. In Print 915831, the decision of Senior Deputy President Cartwright in relation to the Social and Community Services - Victoria - Award 2000, which is a decision dated 25 March 2002, we say the appropriate approach to determining the key classification and relativities with other minimum rates award in a professional award has been followed. The matter before Senior Deputy President Cartwright was an item 51 review of an interim award made under first award principles prior to the introduction of the current Act. Having been satisfied that the award had not been through the minimum rates adjustment, Senior Deputy President Cartwright at paragraph 19 says:

PN274

Principle 2 of the conversion principles then requires the Commission ...(reads)... level at which minimum rates for this award should be fixed.

PN275

From paragraph 20, his Honour then sets out the reasoning by which he determined that the key classification that was urged by the parties should in fact be the key classification. The point he chose was the graduate entry classification for a social worker with a 4 year degree. The fact that this was supported by the parties was clearly relevant and the fact that this classification was common to the various social and community service awards around Australia was also clearly a relevant consideration. At paragraph 26, his Honour determined that the appropriate relativity for the graduate entry social worker with a 4 year degree is 130 per cent.

PN276

The fact that the relativity for comparable classifications in comparable awards had already been fixed at 130 per cent was a relevant and significant factor in his consideration. This decision follows his earlier decision on 5 March 2002 in relation to the Social and Community Services Queensland Award, which is Print 914950. Unfortunately, it seems we don't have a copy of that print available, though we can obtain that over the break. In those proceedings, his Honour accepted uncontested evidence that the entry point for the 4 year trained social worker was not only the largest concentration of employees employed under the award but was also a common classification across the various social and community awards around Australia.

PN277

In light of these considerations that it was the most common concentration of employees and that it was a comparable point across the country, his Honour found that the graduate entry classification for a social worker with a 4 year degree should be the key classification in that award also. In those proceedings, the parties urged different relativities for that key classification. The union was seeking a relativity of 130 per cent and the employer argued instead for a relativity of 120 per cent. This is for a 4 year degree new entrant. His Honour determined in that decision that the appropriate relativity was 130 per cent, and when we supply you with a copy of that decision you will be able to find that at paragraph 16 to 18.

PN278

At paragraph 16 of that decision, his Honour refers to an exhibit that was tendered by the ASU in support of their proposition that the appropriate relativity for a new graduate, 4 year trained social worker was 130 per cent, and we have reproduced that exhibit for these proceedings.

PN279

SENIOR DEPUTY PRESIDENT MARSH: This table with a heading, "Attachment", shall be exhibit G5.

EXHIBIT #G5 TABLE WITH A HEADING, "ATTACHMENT"

PN280

MS GALE: I apologise for the quality of the copy that we have. It has been through at least one too many fax machines. However, the first column sets out at least the award numbers in legible form of relevant awards; the Metal Engineering and Associated Industry Professional Engineers' and Scientists' Award of 1998, a relativity for the 4 year degree entry level of 130 per cent, for the 3 year degree entry level of 125 per cent, and that is degree holders with no previous work experience. The next refers to, I believe, the Scientific Services Professional Scientists' Award, the next to Award Number 800659, a professional engineering award, the next to the Municipal Officers' South Australia Award, the next to the Social and Community Services Award South Australia. I believe the next is to the Queensland Local Government Officers' Award, the Local Government Officers' Award Western Australia, the Municipal Employees' Northern Territory Award and the Victorian Local Authorities Interim Award.

PN281

In each case it was urged for his Honour, Senior Deputy President Cartwright, on behalf of the ASU and accepted in his decision that these relativities applied and had been established in those awards. We say that there is a clearly established precedent in his decisions and in these other awards which were referred to him for those relativities as the minimum relativity that could be applied to a new entrant with 4 year degree or 3 year degree tertiary qualification and no previous work experience.

PN282

We were not urging that either Grade 2 or Grade 3 should be adopted as the key classification. However, we say that the relativities which have resulted from Senior Deputy President O'Callaghan's decision so seriously distort external relativities at these points that he should have had regard to the established precedents. He should have given the parties an opportunity to address him on appropriate relativities at points below Grade 10 and above Grade 1 if he was minded to set a key classification at another point. The fact that these relativity points are so distorted, we say, should have indicated to him that the relativity he was setting at Grade 1 was entirely inappropriate. We have a table here which shows what the relativities would be if, for example, Grade 3, the 4 year trained point, had been set at 130 per cent.

EXHIBIT #G6 RELATIVITIES TABLE

PN283

This table sets out in the first column the rates of pay established by the August decision. In the second column it then sets out the resulting relativity to the C10 rate. The next column, for comparative purposes, shows what the previous relativity prior to the Item 51 review was to the C10 rate, and then the last column shows what the relativities would be if Grade 3 had been fixed at 130 per cent, bearing in mind that we say that 130 per cent is an appropriate relativity for a 4 year trained person with no experience and without teaching duties. We say that a 4 year trained person with experience and with teaching duties should be set at a relativity higher than this.

PN284

Nevertheless, this shows if one looked only at qualifications and not at the full range of factors which should inform a work value assessment, then we say that a relativity no lower than 118 per cent at Grade 1 through to 172 per cent at Grade 10, or in a Grade 1 to Grade 4 structure, 118 per cent through to 136 per cent should have been the bare minimum relativity that could have been imposed, and that can be compared to the actual relativities but that result - the 4 year tertiary trained TAFE Lecturer is set at Grade 3 at just under 110 per cent, which is clearly a significant distortion of established relativities.

PN285

We will also point to the fact that in closing submissions the employers also addressed the question of whether an appropriate relativity at Grade 1 could result from the proposition of the parties - and if you can bear with me a moment we will find the exact point. At paragraph 868 of transcript, the employers re-assert the primary submission of the parties that the current rates are appropriate, that the key classification should be Grade 10. At paragraph 870, the employers refer to the discussion earlier in proceedings about the Trainer classifications in the Metals Award and urge there that if 22 per cent - we will point out there that if the 22 per cent skill loading for the Trainer 1 in the Metals Award, that is the lower of the Trainer classifications, were added to the C10 rate, then the resulting rate would be close to that being urged by the parties at Level 1.

PN286

So, we say that clearly the ambit of the submissions before his Honour was that the Level 1 rate should not be at 100 per cent. The most generous reading of the submissions was that there had been perhaps a suggestion that it might be as low as 122, but the primary submission of the parties was clearly that it should be retained at the 130 per cent rate.Your Honours, would now perhaps be an appropriate time to break?

PN287

SENIOR DEPUTY PRESIDENT MARSH: Yes, certainly. Perhaps we could go off the record for a minute and if I could just ask you - - -

OFF THE RECORD [12.26pm]

RESUMED [12.27pm]

PN288

MS GALE: Okay. So we are referring to G4 which is the spread sheet of rates and addressing the problem that there has been an error in the calculation of the rates for Lecturer Grade 2. In the column headed: Result in Relativity to C10. The relativity there should be 136 rather than 189. In the next column the rate that flows from that is 29,611. In the next column headed: Weekly, that becomes $567.62, that is 567.62. I believe that doesn't affect the trigger points in relation to those safety net adjustments which varied at different salary levels which brings us through to the second last column, the weekly rate should read - this is for Lecturer Grade 2, the weekly rate should read: $690.62, that is 690.62. The resulting final annualised rate is $36,027.

PN289

SENIOR DEPUTY PRESIDENT MARSH: Would that be an appropriate time, Ms Gale? Would quarter to 2 be convenient? We will adjourn until 1.45.

LUNCHEON ADJOURNMENT [12.29pm]

RESUMED [1.50pm]

PN290

SENIOR DEPUTY PRESIDENT MARSH: Yes. Okay, we can start.

PN291

MS GALE: Thank you, your Honour. If I can first start with a couple of matters of detail. I can advise that the correct title of the University Academic Award is the Higher Education Academic Salaries Award 2002 and it is award number 820200.

PN292

SENIOR DEPUTY PRESIDENT WATSON: Sorry, 82 - - -

PN293

MS GALE: 820200.

PN294

SENIOR DEPUTY PRESIDENT WATSON: Thank you.

PN295

MS GALE: Also there are two more documents which are referred to in the list of authorities which are not available in the earlier exhibit books. The Tasmanian TAFE Teachers Award and the Higher Education Award Structural Efficiency Principle decision.

PN296

SENIOR DEPUTY PRESIDENT MARSH: Thank you.

PN297

MS GALE: There was also an award that I referred to this morning. Sorry, a decision of Senior Deputy President Cartwright from 5 March 2002 in relation to the Social and Community Services of Queensland Award 1996. I can provide a copy of that.

PN298

SENIOR DEPUTY PRESIDENT MARSH: Yes, thank you.

PN299

MS GALE: I would also like to provide a decision which is not on the list of authorities I'm afraid. It is a decision of Commissioner Larkin in relation to three railway industry awards. The Locomotive Enginemen's New South Wales Award, the Rail Miscellaneous Grades Award and the Railway Traffic Permanent and Signalling Wages Staff Award 2002. This decision relates to the issue of incremental levels in those three awards and whether those incremental levels were included in the awards pursuant to the relevant work value principle or were inserted by the Commission on the grounds of structural efficiency and work value.

PN300

In particular, I would like to draw your attention to paragraph 51 of that decision where the relevant considerations from the paid rates review decision are set out and particularly the last paragraph in that quote from the paid rates review decision where the final sentence reads:

PN301

Where it can be demonstrated however that incremental payments were included in the ...(reads)... the retention of such payments is permissible.

PN302

And then at subparagraph 52 the extract there refers to the supplementary decision: Paid rates for the supplementary decision, where the classification of veterinary officer was examined and the relevant quote that the award provides:

PN303

That officers performing particular functions to be paid at a particular level in the structure there are also barriers to progression at particular pay points.

PN304

And it then goes on to refer to the position of the parties in relation to those particular classifications. It concludes with the sentence:

PN305

We are prepared to accept that the provisions are based on structural ...(reads)... adopt in principle the changes proposed by the union.

PN306

In the context of those particular elements of the paid rates decision and the supplementary decision, Commissioner Larkin then goes on to examine the awards that are before her and concludes, if I can draw your attention through to paragraph 82 and 83. At 82 the decision refers again to the considerations in the supplementary decision where it is emphasised that minor re-drafting to provisions is permissible so long as it ensures that progression was based on a work value change. Then at paragraph 83:

PN307

I am prepared to accept that the classification of car and wagon examiner at the ...(reads)... to this level is dependent on change work value.

PN308

We present this decision simply as an illustration of the proposition that even if an entire incremental structure were not considered to be founded on work value and we say in the case of the TAFE award it is. Nevertheless it is possible to look at single increments within that structure and in this case Commissioner Larkin has looked at the fifth year rate within an incremental structure and found that that particular point satisfied the requirements of the Commission.

PN309

The decision is also important I think in that it emphasises the capacity or the openness resulting from the supplementary decision to allow the parties to engage in minor re-drafting to ensure that progression is based on changed work value. The old award in West Australian TAFE which is in the appeal books at 4, I think. For ease in any case I've provided additional copies. This is the Teachers Public Sector Technical and Further Education Western Australian Interim Award 1995. And the provisions relating to salary progression are set out in clause 8, which is about five pages in to the document.

PN310

Clause 8 starts with the salary scale for the lecturer and counsellor classification. Then it has some important provisions. It says at clause B, that is clause 8.2B:

PN311

Except as otherwise provided in this award, progression along the salary scale shall be by annual increments and shall be dependent upon satisfactory service.

PN312

So there is a clear statement in the old award that progression was at least in part, a matter of annual increments. However, it goes on to say at subclause C:

PN313

A lecturer or counsellor who has not had a satisfactory report may not advance further than three annual increments from the grade of appointment.

PN314

Which indicates that there is a barrier that if a lecturer is not assessed as having progressed satisfactorily under the old award, there is a barrier to progression at three increments. At subclause D there is an additional barrier which is even stricter:

PN315

Progression beyond two increments from the grade of appointment is dependent on attaining an approved teaching qualification.

PN316

That provision requiring or providing a progression barrier dependent on obtaining an approved teaching qualification, I would emphasise again that that is something more significant than a Certificate 4 in assessment and workplace training but is a tertiary qualification in teaching. That provision was proposed by the parties to be inserted into the new award and it appeared in a AEU4 in subclause 11.3.2C. This is the third of the introductory subclauses which precede the grade descriptors in the Lecturer classification.

PN317

The subclause is entitled: Progression through the grades. The first part of that subclause refers back to 11.2 and emphasises that progression through the grades is dependent upon that review process which in 11.2 is expressed as a work value assessment. Then the second part of 11.3.2C replicates that progression barrier:

PN318

A lecturer who has not been assessed as having competencies equivalent to an approved teaching qualification will not be entitled to progress more than two grades above their minimum salary on appointment.

PN319

And that barrier is regardless of what other skills and expertise the lecturer may bring to their work. We say that this mix or this spread of provisions in the old award and the proposed replication of elements of it and expansion of the review requirements put forward by the parties should have satisfied Senior Deputy President O'Callaghan that the West Australian award indeed met the requirements of the wage fixing principles, met the requirements that are set out in the paid rates decision and the supplementary decision in relation to incremental progression.

PN320

We have an award which contains barriers to progression. We have an award where progression is not automatic but is subject to a performance review. It is arguable that the performance review in the old award is merely one of satisfactory performance but the evidence before his Honour clearly established that satisfactory performance by a TAFE teacher involves the gaining of new skills and the use of those new skills in their teaching. If a lecturer is merely treading water in terms of their skills they are not, they cannot be teaching satisfactorily. l

PN321

So we say that the old award met the expectation that movement from one classification to another was based on work value. We say that it also met the expectation that the award rates and the classification structure were included in the award originally pursuant to the relevant work value principles and on grounds of structural efficiency. In that context the retention of the rates was permissible and should have been the outcome of the proceedings. The West Australian award was first made by the Federal commission in 1995, that followed the earlier decisions of the West Australian tribunals in relation to teacher and TAFE teacher awards.

PN322

The evidence of Mr Farrell at paragraph 17 to 20 of his witness statement which is in volume 2 of the appeal book at tab 5 sub-tab 2. Mr Farrell's evidence set out the history of the West Australian Government Schoolteachers' Tribunal decisions. At paragraph 17 his evidence is that:

PN323

In July 1992 in decision 72 WAIG 1931, the Government Schoolteachers' Tribunal declined to vary the TAFE Teachers Award to provide for an increase of 2.5 per cent for TAFE teachers. The Tribunal was not satisfied that the parties had made sufficient progress on the agenda arising from the structural efficiency principle agreements.

PN324

At paragraph 19 he reports that the 2.5 per cent application was re-submitted under the State wage fixing principles and in December 1992 that application was successful and the relevant decision there is 73 WAIG 501. In that decision a new broad-banded salary classification structure was adopted in line with the structure adopted in other States and Territories. The previous 20 point classification scale was converted to a 10 step scale with the national benchmark rate of $41,000 at the 10th point. There was an enhancement of career paths, there was the development of skill related career paths and the introduction of the advanced skills teacher or advanced skills lecturer classifications ASL1, ASL2 and Principal Lecturer.

PN325

Internal relativities within the new award were established and there were a range of flexibilities in relation to teaching weeks and teaching hours. The decision does not say: This is a work value decision. It says: This is a decision under the structural efficiency principle. It awarded the 2.5 per cent increase. It made those significant changes to the award to bring it in line with the changes that had been made to teaching, school-teaching and TAFE teaching awards around the country. We say that this is a bird-watching situation. Did the decision of the West Australian tribunal look like a duck? Did it quack like a duck? Yes, it did. It was on all fours or perhaps being a duck, all twos with the decisions made across the country which were clearly expressed as both work value and structural efficiency principle decisions.

PN326

We say that this is a work value and structural efficiency principle decision. It would be a bizarre construction to conclude that the West Australian tribunal introduced the same structures, the same benchmark, the same changes to career paths and the same rates as had been introduced on the basis of work value and structural efficiency principles around the country and yet that that was not a work value decision. In relation to the classification structure and relativities then, we say that the original classification structure is based on work value, it was subjected to the structural efficiency principle.

PN327

The 1992 and 1993 decisions in West Australia make that clear and the 1995 award simply takes that State award and turns it into a Federal one. The principles which bound the West Australian tribunal were identical to the national wage-fixing principles. We say that the parties were following the appropriate path to propose amendments to the classification structure, to make it clear and beyond doubt that movement between one grade and another should be based on work value and that we put forward a structure which achieved that objective.

PN328

We say that we had no warning that his Honour was considering truncating the classification structure or considering that qualifications might be the only criteria on which a work value level for TAFE teaching or a classification level for TAFE teaching might be appropriately fixed. That if we had had warning of those issues we would have been able to present significantly more evidence in relation to those points. We say that there is a clear national structure of TAFE teaching awards with a consistency across the country in relation to the retention of increments, in relation to the retention of existing relativities without further adjustment and in relation to the use of the top of the un-promoted teachers' scale as the key classification in that process.

PN329

We say that there is further an established set of relativities and of processes in relation to identifying key classifications in other awards and industries which would militate against the identification of Grade 1 as the key classification in this award in any circumstances and would militate against the identification of external relativities which result in patently absurd rates for three year and four year and five year trained TAFE lecturers. We say the industry of TAFE is a national one and the standards which apply to TAFE teaching are negotiated and agreed at a national level. There is national regulation of quality and of lecturer qualifications and that the parties sought to reflect those factors in the draft classification structure that we put forward to Senior Deputy President O'Callaghan.

PN330

We say that the skill and responsibility required of TAFE lecturers and the conditions under which TAFE lecturing work is performed are generally the same across Australia. That there was evidence of this before Senior Deputy President O'Callaghan and that this should have provided further support to the proposition that the relevant minimum rates awards to bear in mind when fixing relativities were the already - the other TAFE awards which had already been completely through item 51 reviews. We say that his Honour was wrong in finding that the proposed classification structure involved automaticity. A proper examination of the classification structure proposed by the parties makes it clear that progression from one incremental level to another is subject to satisfactory establishment of the acquisition of skills and experience and the use of skills and experience in the lecturers' work. We say that the evidence cited by his Honour at paragraphs 22 and 24 of his decision relating to automaticity and evidence which he clearly relied upon in support of his finding that there was an element of automaticity.

PN331

That evidence is in fact not inconsistent with the position that the parties put before his Honour and not inconsistent with the position we are advancing today, that is that evidence as to the practice under the certified agreement does not lead to conclusions as to how the award should be read. In relation to the certified agreement, I understand there are copies of this coming but the certified agreement in operation at the time of the August decision has now been replaced by a new agreement but the provisions in relation to progression remain the same.

PN332

This is reading from the agreement which was in operation at the time of his Honour's decision. Clause 26 of that agreement, which is the - well, there was a separate agreement for each TAFE college and in this case I'm reading from the Central TAFE Lecturers' Certified Agreement 2000, which was document T4917. That agreement was in identical terms in relation to this question with every other college agreement across Western Australia and the replacement agreement, which has just been certified, is in fact a multi-employer certified agreement, so there is now one provision which applies to all TAFE colleges in Western Australia.

PN333

The relevant clause in this agreement is clause 26: Progression, and it is very short. 26.1 provides:

PN334

Progression along the salary scale within each classification grade will be by annual increments subject to satisfactory service regardless of the lecturer's fraction.

PN335

And in the context that is their part-time or full-time fraction. 26.2 provides:

PN336

Progression beyond two increments from the grade of appointment is dependent on obtaining an approved teaching qualification.

PN337

That is all that the certified agreement has to say in relation to incremental progression. We say that evidence that under those provisions that it is not common for a TAFE lecturer to be refused an annual increment is hardly evidence one way or another as to how the proposed award clause would operate. We say that Senior Deputy President O'Callaghan was wrong to reject the Lecturer Grade 10 classification as the key classification in the award, that in doing so he failed to take into account the evidence that this is the traditional point of comparison for relativity purposes in all TAFE awards including all TAFE awards in the Federal jurisdiction and that it had been the focus of consideration in the national benchmarking of teacher rates in the early 1990s.

PN338

The internal relativities in the award and the classification structures that were introduced during the structural efficiency process were built upon the Lecturer Grade 10 rate as the benchmark rate. There was evidence, particularly from Mr Farrell, that the Lecturer Grade 10 classification was the most common salary level with the majority of the work force located at this grade. For all of these reasons we say that it should have been identified as the key classification. It also had the merit that both parties to the award urged it be the key classification.

PN339

We say that even if some of the other incremental points fail to satisfy the principles in relation to the retention of increments it was quite open to his Honour and would have been the appropriate path to retain the grade 10 classification in any case. We say that he was wrong to adopt the Lecturer Grade 1 classification as the key classification in the award. In determining that Lecturer Grade 1 was the key classification Senior Deputy President O'Callaghan failed to take into account the evidence in the proceedings that a Lecturer Grade 1 does not hold a recognised teaching qualification and that the Lecturer Grade 1 is not a common entry point to the profession.

PN340

We say that Senior Deputy President O'Callaghan erred in fixing the relativity of Lecturer Grade 1 at 100 per cent. In doing so he overlooked the uncontested evidence as to the skills and responsibility required, the duties performed and the circumstances under which the work is performed at grade 1. Even if he were considering qualifications alone Senior Deputy President O'Callaghan failed to take into account the fact that a Grade 1 Lecturer isn't required to obtain a Certificate 4 qualifications before commencing teaching duties and that that requirement was expressed in the salaries provision that the parties put forward.

PN341

Indeed, when we proposed to include that requirement for a Certificate 4 in Assessment and Workplace Training in clause 11 his Honour suggested that that might need further definition so that there could be clarity as to exactly which qualification was being referred to and in response to that we put forward a proposed amendment to the definitions clause. There is some irony in the fact that his Honour's decision does amend the definitions clause to define a Certificate 4 in Assessment and Workplace Training but does not include the provision which refers to that qualification which would make such a definition appropriate.

PN342

We say that setting the Lecturer Grade 1 classification at a 100 per cent relativity results in a significant distortion of existing wage relativities within the award and between this award and other awards of the Commission, including other TAFE awards. We say that by truncating the classification structure contained in the award in such a way as to remove the traditional key classification from which the internal relativities were established and maintained he has failed to maintain the internal relativities in the award.

PN343

We say that the decision that formal qualifications held would be the only criterion on which to establish the appropriate relativity is a fundamental error. We say that the proposed relativity for grade 10, which was urged by the parties, of between 180 per cent and 210 per cent and that the resulting relativities which would flow from that to other grades was supported by the evidence as to the skills and responsibility required, the duties performed and the circumstances under which the work is performed.

PN344

In particular, the evidence of Mr Hawke at paragraphs 18 to 54 and especially at paragraphs 50 to 54. The evidence of Mr Farrell at paragraphs 28 to 41 and 52 to 57 and the evidence of Mr Hewitt at paragraphs 67 to 82 and all of those are references to witness statement paragraphs, supported by the transcript, at paragraphs 809 to 810, all provide the basis on which the relativities proposed by the parties could have been supported.

PN345

His Honour's decision also has resulted in reductions in existing award entitlements. Apart from the obvious reduction in award entitlements resulting from the decisions in relation to salaries for full-time employees there is a consequent reduction in the rate of pay applicable to casual employees and particularly - - -

PN346

SENIOR DEPUTY PRESIDENT WATSON: Just before you go to the casuals.

PN347

MS GALE: Yes.

PN348

SENIOR DEPUTY PRESIDENT WATSON: The rates in respect to full-time, if you like, or the non casuals, I'm just wondering if his Honour was right in going back to four grades. What residual amounts would there have been? There was plainly the balancing of national wage safety net adjustments versus whatever residual might have existed. Should there have been some schedule of residual payments, if he was right on everything else in only having four rates?

PN349

SENIOR DEPUTY PRESIDENT MARSH: Yes, there is.

PN350

MS GALE: Yes. Well, in that scenario - - -

PN351

SENIOR DEPUTY PRESIDENT WATSON: There is, is there?

PN352

SENIOR DEPUTY PRESIDENT MARSH: Yes.

PN353

MS GALE: Yes. We would have urged residual payments which reflected the old award incremental steps together with safety net adjustments.

PN354

SENIOR DEPUTY PRESIDENT WATSON: Yes. They're set out in transitional wage arrangements, is it, in schedule 2?

PN355

SENIOR DEPUTY PRESIDENT MARSH: Yes, the schedule contains that.

PN356

MS GALE: Yes.

PN357

SENIOR DEPUTY PRESIDENT WATSON: Yes. I see, yes. Thank you.

PN358

MS GALE: But there are transitional rates for the full-time rates provided but not for casuals.

PN359

SENIOR DEPUTY PRESIDENT WATSON: Not for casuals.

PN360

MS GALE: Now, perhaps that was on an assumption that each casual engagement is a new one and therefore there is no transitional process but this is an industry where people are engaged for a year or a semester with a clear casual rate of pay, even though the appointment is somewhat non casual in its duration. So there would be many casual employees whose award entitlement should have persisted and a transitional provision at the very least should have been provided for, but we say it goes further than that in that the casual rates structure that the parties put forward, and you will see from the transcript that both parties indicated that they wished to come back to the casual rate structure at a later time but not in the context of an item 51 review.

PN361

That it is not a structure that either side was delighted with in its entirety but it was a satisfactory compromise that we put forward in terms of satisfying the principles and what we put forward was a three level casual rates structure where each of the three levels was fixed to one of the full-time classification rates and then was adjusted - calculated back to an hourly rate, 20 per cent loading and then an additional loading incorporated to account for the preparation or associated work, marking, etcetera, associated with the actual hour of teaching which is a casual structure that is common to a number of different TAFE and higher education awards.

PN362

The structure that we put forward can be found in appeal book volume 1 - I must get this straight first. Appeal book volume 3, the exhibit AEU5, which I believe is behind tab 18, in that structure we proposed a rate drawn from grade 1, a rate drawn from grade 3 and a rate drawn from grade 8. Obviously, without a grade 8 then it makes it difficult to draw a rate from that level. The rates presented in AEU5 reflect the proposed rates of pay which were being urged by the union, which were 210 per cent relativity.

PN363

So the actual dollar figures there related to our ultimate submission not to our primary submission, our primary submission being that the existing 189 per cent relativity should remain unchanged. In the decision his Honour has accepted the methodology which was put forward by the parties and at clause 13.2.1 of the award he has provided three casual rates which are based on the new grade 1, grade 3 and grade 4.

PN364

At one level that is a logical consequence of his decision in relation to the classification structures, however, the outcome in terms of actual casual rates is at level 2 and level 3 the casual rates are lower than the old award casual rates by significant amounts. In the old award the casual rates are set out at clause 9 of the old award and the rates were $23.16, $32.96 and $40.66 respectively.

PN365

Those rates were not in the old award fixed to particular classification levels. The relationship between the casual rates and the particular classification levels put forward by the parties, as was explained to his Honour, was partly based on finding rates which would not disturb the current certified agreement rates and the parties sought to come back to that issue in the future but there was certainly no evidence before his Honour that the existing casual rates structure reflected any over-valuing of the work value of casual lecturers and we certainly were not appraised of any proposition, the rate for example for a Level 3 Casual Lecturer of $40.66 in the award, and that is of course before safety net adjustments since this award hadn't been updated since 1995, that that rate should be cut to in fact $34 in the new award in an industry where there is a high dependence on casual workers and those casual workers are often people who have a comfortable living from another profession and share their expertise and skill in the industry.

PN366

It is actually a serious undermining of the rates structure to have a situation where the maximum casual rate provided in the award is so low as to be laughable to most of those professional and trades workers who the industry would be seeking to attract. So we say that the casual rates that are set are wrong, that the reliance upon the particular structure and methodology put forward in AEU5 overlooks the submissions that were before his Honour that those rates were not put forward as an ideal methodology, that those rates had been chosen primarily because they provided the best solution possible to the differing views the parties had about casual rates without disturbing the current certified agreement rates. In that context it seems strange, to say the least, that the outcome would be to adopt the methodology when not adopting the rates on which it is based.

PN367

SENIOR DEPUTY PRESIDENT WATSON: There is an additional issue, is there not, in respect to level 3 that - - -

PN368

MS GALE: I'm sorry?

PN369

SENIOR DEPUTY PRESIDENT WATSON: There is an additional issue in respect to Casual Lecturer Level 3 insofar as Senior Deputy President O'Callaghan has relied obviously on grade 4, the highest grade, rather than grade 8?

PN370

MS GALE: That is correct.

PN371

SENIOR DEPUTY PRESIDENT WATSON: But otherwise the problems arise simply as a reflection of the rates and relativities struck for the non casual rates.

PN372

MS GALE: That is right.

PN373

SENIOR DEPUTY PRESIDENT WATSON: Yes. Very well.

PN374

SENIOR DEPUTY PRESIDENT MARSH: Plus the lack of transitional arrangements?

PN375

MS GALE: Yes.

PN376

SENIOR DEPUTY PRESIDENT MARSH: Yes. Thanks.

PN377

MS GALE: The next provision in the award which has been deleted by Senior Deputy President O'Callaghan is a provision relating to long service leave entitlements accrued prior to 1990. There was some extensive discussion between the parties and his Honour in relation to the long service leave clause that was proposed he was of the view that the existing clause was unnecessarily complex and detailed and the parties went some way towards meeting those concerns but clearly not as far as his Honour had hoped and in particular the clause that was eventually introduced by his Honour involved a considerable re-writing of the previous provisions and they are indeed complex and in some cases convoluted provisions.

PN378

Nevertheless, they reflect a history of long service leave entitlements of employees who have moved between the various parts of State employment, from a teaching service or public service employment through to direct employment by colleges and in that context there has been the grand-parenting of various entitlements, including a provision which provided that long service leave entitlements accrued prior to 1990 could be retained under certain circumstances.

PN379

SENIOR DEPUTY PRESIDENT MARSH: Does his Honour refer to this provision in his decision?

PN380

MS GALE: He does.

PN381

SENIOR DEPUTY PRESIDENT MARSH: If you're coming to it that is fine.

PN382

MS GALE: Yes. Paragraph 52, 53 and 54 of his decision.

PN383

SENIOR DEPUTY PRESIDENT MARSH: Yes. I have it in front of me, yes, yes. I recall now, yes. I just couldn't recall where he referred to grand-parenting.

PN384

MS GALE: In the old award it was clause 25.

PN385

SENIOR DEPUTY PRESIDENT MARSH: Right.

PN386

SENIOR DEPUTY PRESIDENT WATSON: But what has happened is his Honour simply deleted the portability provisions on the basis of their convoluted nature. Is that what has happened or has he retained them in some other form or not retained them?

PN387

MS GALE: He has not retained them in any other form. His decision indicates at paragraph 52 that a key factor for him was the requirement for plain English expression.

PN388

SENIOR DEPUTY PRESIDENT WATSON: He does go on to say, "Modified the proposed provisions relative to portability".

PN389

MS GALE: Yes.

PN390

SENIOR DEPUTY PRESIDENT WATSON: Yes. Well, perhaps you take us through what was proposed there, what resulted.

PN391

MS GALE: Yes. The original award at clause 25 subclause (5) has a definition of default period and it is a complicated definition but we say it is in plain English, it is just merely hard English. The default period is the period commencing from the third anniversary of the date on which they're entitled to 13 weeks long service leave or there is a provision for a postponement of that entitlement, in which case it is the date on which the employee becomes entitled to take long service leave. Then the alternative, that is subclause (a), the alternative subclause (b), default period, is where:

PN392

At 1 January 1990 an employee had an entitlement to 26 weeks long service leave the default period shall mean the period commencing four years from the date on which that entitlement arose and ending on the date on which that entitlement has been completely taken.

PN393

We say that it is a feature of an industry with an aging work force, that there are still people in the work force who may well have long service leave entitlements accrued before 1990, which have not yet been completely taken and we say that for those employees that clause still had work to do and provided an important condition - - -

PN394

SENIOR DEPUTY PRESIDENT WATSON: The term is defined there, where is it used in the provision, "default period"?

PN395

MS GALE: If I could perhaps defer to Mr Farrell in relation to the intricacies of the long service leave clause.

PN396

SENIOR DEPUTY PRESIDENT WATSON: Yes. Certainly. Subclause (5)(c), and it is a defined default period but that can't be the end of it presumably.

PN397

MR M. FARRELL: The default period was one of the, I suppose, scenarios in which an employee might have found themselves in the changeover that occurred on 1 January 1990. If we move over to clause 20 - - -

PN398

SENIOR DEPUTY PRESIDENT WATSON: I haven't gone that far, that is the problem.

PN399

MR FARRELL: I suppose this is in reverse. That is one situation that an employee might have found themselves in as at this 1 January 1990 changeover but the bulk of the provision occurs in clause 20 and clause 20 sets out - sorry, subclause (20) of clause 25 sets out scenarios which an employee may have found themselves in, in this changeover period and, for example, a person may not have accrued a full entitlement to long service leave, in those circumstances there was a pro rata calculation, there were certain conditions that had to be fulfilled, less than a 10 years service or accrual towards their long service leave. There was a conversion to the new seven year entitlement and accordingly a new entitlement date was calculated.

PN400

Now, those matters are addressed in the subclause we have been talking about, but mainly in clause 20, and when one puts them all together, any scenario that an employee would have found themselves in, all possible scenarios were considered. It isn't all that clear and we agree with that, however, when one does sit down as one is required to do when members ring up and consult with the employer it is always possible to work through the entitlements and in fact a number of people are still working through their entitlements who are in the service not so much as the accrual of the long service leave entitlements under the new system, but because a major effect of this 1 January 1990 change was that their entitlement date varied. Under the old system, their entitlement date came up after an exact period of let us say 10 or 15 years. Anyone who didn't have a 10-year entitlement date got a pro rata of the 10 years and then moved to a 7-year accrual program with the pro rata for 10 tacked on. And so they are not even full year dates when an employee's entitlement would arise and that still creates some confusion.

PN401

However, for a person to look back and be able to check that their entitlement date, if they commenced service for example as I did in 1968, with the conversion, a person needs to be able to track back and see what their entitlement date was prior to 1990, do the appropriate conversion and then calculate a new entitlement date. And the complicated factor is that with that conversion, the entitlement dates not being full years are all over the place. But this entitlement to the service prior to 1 January 1990 hasn't disappeared. It is still around because there are still arguments as to what conversion occurred in 1990 with respect to the service prior to that date and then adding on a new rate of entitlement which is a 7-year rate.

PN402

I can tell you that this does create a lot of headaches for people trying to calculate it but I think I have finally mastered it only by doing quite a number of them and sitting down with people from the department and we agree on a process. It does get quite confused.

PN403

SENIOR DEPUTY PRESIDENT MARSH: And did Senior Deputy President O'Callaghan provide a subclause that represents what you are putting to us or was it deleted entirely? Did he attempt to rewrite it?

PN404

MS GALE: There were a number of attempts by the parties to rewrite this clause and a revised long service leave clause was provided, I think, in February and a further revision was provided during the proceedings. I can answer the specific question in relation to default period. It actually arises in the paragraph before, under the letter K. It is one of the categories of times which count neither as service nor as a break of service for the purpose of calculating long service leave. The final clause that the parties put forward did retain grand-parenting of the provisions applicable to pre-1990 employees and the provision included in the final award by his Honour Senior Deputy President O'Callaghan has omitted some elements of that. And we believe from reading the decision that it has been omitted on the basis that he is not satisfied that it is expressed clearly.

PN405

We say that the clause that we finally put forward was indeed expressed as clearly as was possible, given the convoluted nature of the entitlements that it reflected and that each part of it had work to do.

PN406

SENIOR DEPUTY PRESIDENT WATSON: So his Honour made no provision whatever for portability of credit. Is that correct? I think I proposed - I'm now looking at - - -

PN407

MS GALE: Clause 17 in the order.

PN408

SENIOR DEPUTY PRESIDENT WATSON: AEU 6, which is at the back of tab 18 and below unit 3. And the order of his Honour. It appears there is no provision 17.1.6 in the union draft dealing with portability.

PN409

MS GALE: Your Honour, can we take that on notice and come back to that in a few minutes?

PN410

SENIOR DEPUTY PRESIDENT WATSON: Yes. It is really a matter of trying to work out what has happened.

PN411

SENIOR DEPUTY PRESIDENT MARSH: Yes, that is right.

PN412

MS GALE: Yes.

PN413

SENIOR DEPUTY PRESIDENT WATSON: It may be his Honour took the view Mr Farrell, having mastered the provision, parties sought to retain it simply to make Mr Farrell indispensable.

PN414

MS GALE: That would be a noble objective, Your Honour, but I don't think one we were guilty of. The next provision which we say has been removed from the award without good reason relates to the allowances payable on appointment, promotion or transfer. In the previous award, this was clause 14 and again it was a long clause with many detailed provisions which reflects the complexity of the State and the significant costs and disadvantages incurred by employees in moving to remote locations.

PN415

SENIOR DEPUTY PRESIDENT WATSON: This is what you have described in your written submissions as excess baggage allowance in those circumstances, is that right?

PN416

MS GALE: That is correct.

PN417

SENIOR DEPUTY PRESIDENT WATSON: Right, okay. I'm with you.

PN418

SENIOR DEPUTY PRESIDENT MARSH: Ms Gale, before you go into the detail of that matter, would it be convenient if we had a 10-minute break?

PN419

MS GALE: Yes.

PN420

SENIOR DEPUTY PRESIDENT MARSH: We will adjourn for 10 minutes.

PN421

MS GALE: Thank you.

SHORT ADJOURNMENT [2.56pm]

RESUMED [3.08pm]

PN422

SENIOR DEPUTY PRESIDENT MARSH: Yes, Ms Gale?

PN423

MS GALE: Thank you, your Honour. The next provision which existed in the old award and was sought by the parties to be retained, which was not retained and we say should have been retained, in the old award was clause 16, subclause (10). It fell within the provision relating to removal allowance. That provision has been renamed in the new award Relocation Allowance. The old subclause 16.10 provided that all employees appointed, promoted or transferred to localities north of 30 degrees latitude will have included in the air ticket both to and from the locality an allowance for 25 kilograms excess baggage and an excess baggage allowance of 16 kilos is to be provided for children under 3 years of age when not fare-paying passengers.

PN424

His Honour indicated in his draft order in February that he proposed to remove that provision and the parties opposed that removal. In particular on transcript at paragraphs 5 - paragraph 595 replaced on record that we did not wish to have that provision removed from the award. We say there is nothing difficult about it in terms of the manner in which it is expressed. And we say that it is a provision that relates to the particular history and needs of the industry and should have been retained. In relation to the vacation travel allowances, the old award at clause 17, subclause (5) provided that an employee - that when an employee and the family of the employee travel together by rail, first class rail fares will be allowed for the employee, the employee's dependent spouse and dependents.

PN425

That provision was also urged by the parties to be retained. We raised that in our April submissions and again on transcript at paragraph 636. And the provisions that his Honour has moved from the appendices of the old award, the schedules of the old award, into the body of the clause 11, the classification structure, which set out the details of selection panel processes for two of the classifications, have been changed in the final order in a manner which was not foreshadowed to the parties and has changed the effective entitlement of the union to representation in the selection processes of those positions.

PN426

In relation to the principal lecturer classification, which in the old award was set out at appendix 9, and in this award the appendixes came after the schedules. The old appendix 9 set out the Principal Lecturer Classification starting with the principals and criteria and the role and then on the next page dealt with the panels:

PN427

The panels for the purpose of assessing Principal Lecturer will comprise the nominee of the chief executive, the college directoral nominee, the representative from the relevant industry, a recognised experienced principal lecturer from a different institution.

PN428

And then it says:

PN429

The union shall be invited to nominate a representative as a panel member.

PN430

This has been changed in the final award to say, "A union may be invited." We are not quite sure how "a union" shall be read since union is defined in the definitions clause as the AEU. So we are not particularly concerned by the change from "the union" to "a union". However, we do say there is a significant change from "shall be invited" to "may be invited."

PN431

SENIOR DEPUTY PRESIDENT WATSON: Where does this appear in the final award?

PN432

MS GALE: In the final award? It is in clause 11.

PN433

SENIOR DEPUTY PRESIDENT WATSON: It is a bit like saying something in the Act is in section 170.

PN434

MS GALE: It is at 11.5.8(c)(ii).

PN435

SENIOR DEPUTY PRESIDENT WATSON: 5.8(c)(ii). Thank you.

PN436

MS GALE: And similarly in relation to the classification of Curriculum Officer 1, which was the old Appendix 6 and is the new 11.5.3(e)(ii), exactly the same change of wording has occurred. This was not flagged to the parties in the February draft order or in the proceedings. It simply appeared in the final order and we were not given any opportunity to address the question.

PN437

SENIOR DEPUTY PRESIDENT WATSON: Ms Gale, were any of these issues, the baggage allowance, rail fares or the selection issue dealt with in either the February or August decisions?

PN438

MS GALE: They certainly were flagged clearly to the parties in conciliation and in the February draft order.

PN439

SENIOR DEPUTY PRESIDENT WATSON: The draft order excludes them but is there any explanation of why those particular provisions are excluded in either of the decisions?

PN440

MS GALE: Yes. In the February decision, the decision of 14 February, at paragraph 11, there are a series of dot points which explain the manner in which the particular clauses have been addressed. For example, in relation to relocation allowance, his Honour said:

PN441

I have modified this clause to simplify its operation but I consider that the parties should be able to agree on further simplification of these provisions through a common sense approach. In relation to vacation, travel concessions simply I have endeavoured to simplify these provisions.

PN442

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN443

MS GALE: In the context of his earlier paragraphs in that decision and the remarks that his Honour made on transcript during the May proceedings, it was certainly the impression of the parties that he had removed those provisions because of a view about their plain English operation or their ease of comprehensibility.

PN444

COMMISSIONER THATCHER: Although, Ms Gale, I think at P/N 595 when he is talking about - his Honour talks about the excessive baggage, he asked you the question: Are they referred into the current certified agreement? So that may have been exercising his mind. And also when talking about the first class rail fares in here, in 637, I see he is asking, asked you the question: was the entitlement sought consistent with section 89A of the Act. So there was no further discussion at the hearing further than those comments or questions?

PN445

MS GALE: No, that is the last point, I believe, when the provisions were discussed. His Honour had asked at the end of the first day's proceedings that we identify each point in the draft order that we wish to see changes made to and so the first part of the second day's proceedings goes in numerical order through those points. And I don't believe they were returned to.

PN446

COMMISSIONER THATCHER: Yes.

PN447

SENIOR DEPUTY PRESIDENT WATSON: On the long service leave, was the portability issue the only one that the union now complains of? Were there any others, I suppose is the first question.

PN448

MS GALE: Well, sir, the provision was re-drafted successively at the urging of the Senior Deputy President O'Callaghan to simplify it.

PN449

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN450

MS GALE: And the parties expressed a view in our written submissions in April that we felt that it had been pushed as far as it should go in terms of simplification. We certainly were open to the proposition of simplifying it from the very convoluted provisions that are set out in the old award and we did considerable work in that direction. The version that was put forward in the proceedings in May was probably further than the parties wished to see it go but it was an attempt to meet the concerns that his Honour had expressed.

PN451

We think that the version that we put forward is a preferable formulation but I'm afraid I can't take you through step by step exactly where the differences are.

PN452

SENIOR DEPUTY PRESIDENT WATSON: Okay. Well, there seems to be some degree of commonality at least until you get down to 17.6. Maybe there is not - no, there seems to be some degree of commonality and Senior Deputy President O'Callaghan seems to have put in place what the parties proposed in AEU6 in place of essentially two pages of provision, 7.16, 17.16.1, 17.16.2 and 17.16.3. Does 17.16 have the effect of preserving the entitlement of accrued leave under the State and Commonwealth provisions without providing guides as to how one calculates it?

PN453

MS GALE: The difference in effect as I understand it is that the previous provisions carried over an accrued entitlement calculated as though the person had accrued it under their previous award, whereas this one provides that the service will be recognised but as though the person had been employed under this award.

PN454

SENIOR DEPUTY PRESIDENT MARSH: Which are the more beneficial provisions, the old or the new? The old are the more beneficial? I'm sorry, I thought I heard Mr Farrell say the old.

PN455

MS GALE: Yes, we think the old is the answer.

PN456

SENIOR DEPUTY PRESIDENT WATSON: I see. So you say the Senior Deputy President requires that service be recognised but would be recognised in accordance with the lesser current provision, whereas the old award preserves that entitlement on the more beneficial basis?

PN457

MS GALE: We believe so.

PN458

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN459

SENIOR DEPUTY PRESIDENT MARSH: So both the previous continuous service and the calculation of the accrual of the long service leave would apply under the old award in a way that would benefit the employee rather than having just a continuous accruing under the old award but the calculation would be made under the new formula?

PN460

MS GALE: Yes.

PN461

SENIOR DEPUTY PRESIDENT MARSH: Yes, I follow. Thank you.

PN462

MS GALE: I have here an extract that has been prepared from the certified agreement which contains the provision relating to progression.

PN463

SENIOR DEPUTY PRESIDENT MARSH: Thank you.

PN464

MS GALE: This is an extract from the current certified agreement, the one which has recently come into operation. It was not in operation at the time of the hearings before his Honour, but I think was in operation at the time of the decision. Nevertheless the provisions are identical.

PN465

SENIOR DEPUTY PRESIDENT WATSON: Thank you.

PN466

MS GALE: I would also like to tender a revised draft of clause 11.

EXHIBIT #G7 REVISED DRAFT OF CLAUSE 11

PN467

MS GALE: This draft differs from the earlier draft submitted to Senior Deputy President O'Callaghan in three significant ways. I will explain those in a moment. It is submitted on the basis that the parties urge that if you are inclined to allow the appeal and to, as a result, overturn the decision and order of Senior Deputy President O'Callaghan, we would urge that you exercise your authority to make an award in the terms sought by the parties before Senior Deputy President O'Callaghan with the exception of this clause. And we would urge that this revised clause be included in place of the old AEU4. The differences are as follows. Firstly, we have reordered the clause to put all of the wage rates together in one part, that is under 11.2.

PN468

They previously were set out for each classification separately throughout the clause, putting them together means that the safety net adjustment statement is clearly applicable to the full spread of rates without having to scratch ones head and think twice about it and it also simply means there is a direct point of reference where there are rates that, in dollar terms, are identical. For example, advanced skills lecturer 1 and regional co-ordinator, we have consolidated them into one reference rather than as they were in the previous draft a separate rates table under each of those classifications. The second significant difference is that we have included some rates and these rates are taken from the spreadsheet that was provided earlier today and with the amendment necessary to reflect the error in calculation that was there in that spreadsheet that amendment has been made in a handwritten form at grade 2 in this draft clause.

PN469

The third and we would suggest more significant change is to what is now numbered 11.4, it was the old 11.2. The renumbering results from the reordering of the salaries table and a few other provisions, but it is now 11.4, it is the provision dealing with advancement within the lecturer and advanced skills lecturer classifications. Importantly, at 11.4.2 where the old wording referred to the review criteria we have elaborated those criteria directly in 11.4.2 to emphasise the proposition that movement from one grade to another should be based on work value improvements. The words in bold in this draft are new words, so it now proposes that movement to the next salary point within those classifications will occur when a staff member has acquired and used skills and knowledge through experience and/or professional development within the ambit of the classification and in accordance with college priorities.

PN470

For this purpose the staff member will be assessed against the following criteria: demonstrated competency at the current salary point or grade; demonstrated acquisition and utilisation of skills and knowledge through teaching experience and/or professional development activities and the ability to teach at the level and to undertake the duties and responsibilities expected of the next salary point or grade within the classification. In 11.4.4 the words: and knowledge; have been added. The last sentence has been slightly amended to make it clear that where someone has acquired the skills required for the next classification level they can seek an earlier review date, particularly where that relates to them gaining a formal qualification.

PN471

At 11.4.7 the aims of the review have been amended to clarify that the assessment of performance against the requirements of the classification is expressly including an assessment of the attainment and use of skills and knowledge. Moving on to 11.5.3, this is one of the introductory paragraphs to the lecturer grades. It is a cross-reference back to that review process and it has been reworded slightly to emphasise that the requirement is that the employee meet the classification standard for the next grade and that they have to satisfy the criteria for progression in accordance with the new 11.4.2 to 11.4.5 above. And further on at 11.6.2 exactly the same reformulated words in relation to progression through the grades have been inserted in relation to advanced skills lecturer.

PN472

So we say that this provides an even stronger foundation than the earlier drafts for including in the award rates and classification structures which bear appropriate relativities to the rates and classification structures for TAFE teachers in other simplified awards and to the rates in the Metals Award. The submissions today and indeed before Senior Deputy President O'Callaghan have focussed primarily on the lecturer classification. It is, nevertheless, also the case that there are incremental points at the advanced skills lecturer 1 classification and the curriculum officer 1 classification. Those incremental points are founded on the same history of award fixation as those below grade 10.

PN473

The national benchmarking of teacher rates included the introduction of the advanced skills teacher classification as part of the restructuring of teacher career paths. That classification was introduced in school and TAFE awards across the country although it has had various titles, being a master teacher or a leading teacher or an advanced skills teacher or a teacher of exemplary practice, or an experienced teacher with responsibility, the labels have changed but the classification reflects part of that national benchmarking process. It reflects the same work value considerations and the same relativity considerations as occurred in relation to the lecturer grades.

PN474

We say that there was also evidence before his Honour, particularly in the witness statements from Mr Farrell and Mr Hewitt in relation to that point. In his decision at paragraph 17, Senior Deputy President O'Callaghan makes the finding that on the witness evidence it was not possible to specify the competencies associated with teaching experience. He said:

PN475

The witness evidence was to the effect that lecturing experience was critical to the level of expertise, but that it was not possible to specify the competencies associated with this experience.

PN476

The witness evidence indeed was that the gaining of skills, knowledge and responsibility in the performance of lecturing duties is difficult to describe in a way which enables you to say after one year of lecturing a person will have this degree of teaching skill, exactly that degree of expertise in their subject area, exactly this degree of responsibility in relation to their teaching duties. After two years we can move each of these measures and say this much more here, this much more there. The evidence was, in fact, that different people develop across the range of skills required of a TAFE tutor, a TAFE teacher. They develop different skills at different rates.

PN477

Everyone is developing and everyone is developing in their teaching practice and that everyone is gaining in work value, but to attempt to describe in the classification structure, in the manner of listing the competency standard units that are set out in a TAFE subject, for example, would result in an award that ran for many lever arch files. That the actual, possible combinations of elements of skill that are gained are complex and will vary from subject area to subject area. Nevertheless, we say what his Honour overlooked was that the evidence was overwhelmingly that there is a clear increase in skill, that there is a comparability in that increase in skill across subject areas, across colleges and indeed across the nation.

PN478

And that within the industry there is no difficulty at all in applying these classification structures proposed by the parties in a rigorous and exacting manner, which will make sure that incremental progression is based on work value and that work value is measured and ascertained in relation to each lecturer, in relation to each incremental point. At paragraph 19 and 20 Senior Deputy President O'Callaghan discusses the issue of recognition of prior learning and suggests that Mr Hewitt's evidence was that the acquisition of skills through experience as a teacher was consistent with the principle of recognition of prior learning. We say that this is a misconstruction of Mr Hewitt's evidence.

PN479

Mr Hewitt was not directly equating lecturing experience with recognition of prior learning at all. He was pointing to some similarities between the two processes. He was also pointing to the formulation proposed by the union in relation to qualifications. In the old award there was an absolute requirement in relation to qualification levels, a three year trained lecturer is a lecturer with three years tertiary degree. There is a provision in there or alternative, as recognised by the director of the college. We have proposed, the parties have proposed in the revised formulation in AEU4 and in G7 that there should be a more explicit recognition of the new approach to qualifications and to competencies which is common not only in TAFE but across all industry standards and qualifications that TAFE in fact delivers, which is that there is a process of recognition of prior learning and that what is required in order to satisfy a work value level is the competencies which are associated with that qualification.

PN480

If you have gained those competencies some other way and you can demonstrate that you have those competencies then the equivalent of a qualification in competencies should be recognised. And it was in the context of that change in the formulation being proposed by the unions that Mr Hewitt was discussing the concept of recognition of prior learning We were not suggesting that the process of gaining skill through the actual work of being a teacher would be reviewed on the basis of recognition of prior learning. It is not prior learning, it is learning that is going on in the workplace under the eye of the employer not something which the employee brings to the job from elsewhere.

PN481

Those other things are issues for the level of appointment when they commence employment with TAFE, not for their progression through the grades once they have commenced employment. So we say that recognition of prior learning was not the foundation of the classification structure proposed, as his Honour suggests at paragraph 21 of his decision. At paragraph 25 his Honour refers to the distinction of whether classifications reflect positions that are distinguishable on the basis of skills, competencies or qualifications. We say that in fact the issue is skills, competencies and qualifications and that his decision to implement a classification structure based on qualifications alone reflects this misunderstanding of the basis of an assessment of skill level.

PN482

In summary then, we say that this is a significant award which applies to a large number of employees in a significant sector in the Australian economy. TAFE is the largest provider of post school education in Australia and an important provider of skills to industry. The people employed under this award should have a safety net which provides them with a recognition of their skill and their work value and provides them with a place in a national framework of TAFE teaching awards. We say that under the principles established by the paid rates review and the supplementary decision, the previous award structure as proposed to be amended by the parties should have been adopted, accepted as an appropriately structured and set minimum rates award.

PN483

That an examination of the skill, responsibility and the conditions under which the work is performed should have resulted in the retention of the grade 10 classification, should have resulted in the retention of the entire incremental structure at the lecturer and advanced skill lecturer levels. And that the relativities urged by the parties should have been adopted. We ask you to allow the appeal, to quash the decision and the order in their entirety and to order the parties to prepare a draft order reflecting the position of the parties in the proceedings in May, together with the new salaries clause presented as G7 today. We ask that if there are any further matters, outstanding matters requiring settlement that you refer those to a single member of this Bench, thank you.

PN484

SENIOR DEPUTY PRESIDENT MARSH: Yes. Thank you very much, Ms Gale. Mr Andretich, how long would you be with your submissions?

PN485

MR ANDRETICH: Well, I don't know that I am going to have a whole lot to say. If I understand the submission that has been made to you, in terms of the position that we would take should leave be granted and the appeal be allowed that approach and our submission would be that what should occur is what Ms Gale has said, that is that the award is already reflective of minimum rates of pay and we get to that point either as a result of the history which resulted in the setting of that $41,000 benchmark back in December of 1991 and the application of that benchmark salary nationally. Now, what has subsequently occurred of course is there are a number of TAFE Federal awards which have been through a simplification process.

PN486

The rates contained in those awards, which have their genesis back in 1991 we would say, have been by and large simply accepted on the say so of the parties that the position they put forward is a consent one, which we did initially. Now, whilst a consent position may not be determinative of the issue that a Tribunal such as this has to grapple with it at least goes some way to providing evidence that the rates contained in the award are at least accepted by the parties as being minimum. There are other means, of course, of checking that and we would say that the statistical evidence that has been put forward to you today in great detail is illustrative of the fact that the award has been operating effectively as a minimum award for some period of time.

PN487

The range of relativities can be assessed by reference to that key grade 10 lecturer rate and we would accept the submissions put forward to you in that regard. That the grade 10 rate has always been the reference point for comparisons, either internally within the award or externally with other TAFE awards, it simply has operated that way. The problem, of course, by selecting that level as the reference point is that the incremental rate has been stripped out of the award in accordance with the decision at first instance. Now, why should the incremental rate be retained, my friend has in great detail again provided you with submissions as to why that should occur.

PN488

It arose out of the structural efficiency examination of the predecessor to the award back in the 1990s. It is reasonable to infer from that the award was rigorously examined with reference to that principle and accepted as having been set according to work value. Notwithstanding that it does provide for progressions on an incremental basis. Why should it do that, well, it is part of a career structure, it is part of what most institutions provide by way of progression. People do acquire skills, they acquire seniority. Now, that doesn't necessarily mean by sitting in your seat from year to year that you should be paid more.

PN489

But when I have regard to a profession such as my own, you do progress according to you meeting the necessary criteria for progression. As you become senior you do acquire skills, you apply those skills to more senior positions as you go up the ladder. Now, accepting that the levels may have been set by reference to work value, there wasn't much that was required at first instance to make the provision comply with what was in the nurses case. It wasn't very much at all, it was simply a couple of words that said: demonstrate a capacity to discharge the duties in accordance with the next point in the salary level; they were the only words that were added according to my recollection of the paid rates review case. That was all that was there.

PN490

Now, if the objection was initially that all you do is time serve to move up the next level in a salary scale then there is no doubt, I would submit, that the revised form of the clause meets all of those objections. My friend has more than comprehensively addressed you on why. Even the clause in its original form should have been accepted and that the evidence from Mr Hawke, Mr Farrell and Mr Hewitt should have satisfied the Senior Deputy President that it wasn't simply a case of time serving. That people did acquire skills, there were mechanisms within the clause which provided for an assessment whether additional skills had been acquired and whether progression should occur in accordance with the clause.

PN491

SENIOR DEPUTY PRESIDENT WATSON: Mr Andretich, by the revised provision I take it you are referring to the most recently - - -

PN492

MS GALE: The most iteration of the - - -

PN493

SENIOR DEPUTY PRESIDENT WATSON: G7, exhibit G7?

PN494

MR ANDRETICH: Yes.

PN495

SENIOR DEPUTY PRESIDENT WATSON: And that your client is supporting that form of provision in respect of salary scale?

PN496

MR ANDRETICH: Certainly. If we can't go back to the original form of the award, then we say that this should more than address the deficiencies which may have been identified by Senior Deputy President O'Callaghan. And we say that is what should have occurred at first instance if there had been - if you find that there is an error then there was the capacity for the clause to be amended at first instance by minor amendment and my friend has referred profusely to a decision which supports the capacity of the parties to, with minor amendment, rectify a deficiency in a clause.I don't understand my friend to be submitting to you that any other approach should be taken to fixing the minimum rates for the award, in the event of you not accepting the submission that has been made.

PN497

It would be tedious for me and certainly no use to go through all of the evidence which he has more comprehensively than I could and with much skill. I don't think there is any necessity for me to indicate to you how we would propose the matter should proceed in the event of you not being accepting of the submission that the award as it presently exists is reflective of minimum rates and if there is a deficiency in the progression clause, that it can't be remedied by the revised clause that we have put up. That is a consent position. We do agree with the proposed clause which is put up to you but if that is not going to be good enough, then my submission to you respectfully would be that it probably should go back to a single Commissioner for further consideration.

PN498

I have got written submissions that I can put up to you but I don't know that they are going to be of much value, given the comprehensiveness with which my friend has addressed you, but they are here should you wish them.

PN499

SENIOR DEPUTY PRESIDENT WATSON: It is up to you, I think, whether you want them formally in the proceedings.

PN500

MR ANDRETICH: Well, I think you got a fair amount of paper today so this is probably not going to make a whole lot of difference to you, so I will hand it up in any event and I will provide my friend with a copy. There is nothing untoward in that.

PN501

SENIOR DEPUTY PRESIDENT MARSH: Thank you very much, Mr Andretich.

PN502

MR ANDRETICH: There was some useful statistical information that was put up to you and there is only probably two pieces of paper that I would refer you to and that is exhibit G6 and exhibit G5, which set out a number of things but most importantly it is the G6 exhibit that I would refer you to and the Lecturer Grade 1. It is reflective of a relativity to the base tradesman rate in the Metals Award at C10, already at 130 per cent. Now, if there is any force in my friend's submission that there are increased skills which a lecturer at Grade 1 needs and will acquire, then we would say that that 130 per cent existing relativity is reflective of a minimum which has already been effectively set and if it needs to be used as a check rate, it is there. Thank you.

PN503

SENIOR DEPUTY PRESIDENT MARSH: Thank you very much. Yes, Ms Gale?

PN504

MS GALE: I'm sorry.

PN505

SENIOR DEPUTY PRESIDENT MARSH: That is all right.

PN506

MS GALE: I have forgotten to mention - I should put on record that we have seen the submissions of the ACTU and we also adopt and support those submissions.

PN507

SENIOR DEPUTY PRESIDENT MARSH: Very well. Thank you for the submissions. We will reserve our decision. We will adjourn sine die.

ADJOURNED INDEFINITELY [4.01pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #G1 TABLE ILLUSTRATING ALIGNMENT OF TEACHER RATES OF PAY PN133
EXHIBIT #G2 TABLE ILLUSTRATING OUTCOME OF REVIEWS PN139
EXHIBIT #G3 GRAPH OF INTERSTATE COMPARISON OF TAFE TEACHING RATES PN145
EXHIBIT #G4 SPREADSHEET WITH RELATIVITIES OF SAFETY NET ADJUSTMENTS PN210
EXHIBIT #G5 TABLE WITH A HEADING,
EXHIBIT #G6 RELATIVITIES TABLE PN283
EXHIBIT #G7 REVISED DRAFT OF CLAUSE 11 PN467