C2004/3368, Transcript of Proceedings [2004] AIRCTrans 2087 (4 June 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N 11452
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT DUNCAN

C2004/3368

ENGLISH COLLEGES AWARD 1998

Application under section 113 of the Act
by the Independent Education Union of
Australia to vary the above award re
payment of wages

SYDNEY

10.17 AM, TUESDAY, 25 MAY 2004

PN1

MS C. MATTHEWS: I appear for the Independent Education Union and on my immediate right is MS L. COTTER and also MS V. HERON for the union.

PN2

MR C. POLLARD: I appear for Study Group Australia and I am from Ross Jones and I am seeking leave to appear in this matter.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you. Study Group Australia I take it has colleges in the relevant states?

PN4

MR POLLARD: Yes, it does, your Honour. Yes.

PN5

THE SENIOR DEPUTY PRESIDENT: You know what I mean by that?

PN6

MR POLLARD: Yes.

PN7

THE SENIOR DEPUTY PRESIDENT: Yes. Well, I presume no objections is taken to Mr Pollard's appearance.

PN8

MS MATTHEWS: No.

PN9

THE SENIOR DEPUTY PRESIDENT: Leave is granted. Any other appearances?

PN10

MS C. MORAN: I am appearing for the Universal English College and this morning also for Billy Blue English School and Magill English Language College.

PN11

THE SENIOR DEPUTY PRESIDENT: M-a-g-i-l-l?

PN12

MS MORAN: M-a-g-i-l-l.

PN13

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN14

MR J. DONNELLY: I am a solicitor and to the extent that it is necessary I seek leave to appear for en employer by the name of the Illawarra Technology Corporation Limited. That employer your Honour, is a employer to whom the English College award applies.

PN15

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Donnelly. Leave is granted. Any other appearances?

PN16

MS J. DURHAM: I am an employee of International House Sydney.

PN17

MR D. MATTHEWS: Representing Australian College of English.

PN18

THE SENIOR DEPUTY PRESIDENT: You are en employee, Mr Matthews?

PN19

MR MATTHEWS: Yes, I am.

PN20

THE SENIOR DEPUTY PRESIDENT: Yes, I am.

PN21

MR K. GUTHRIE: I represent St Marks' International College, Sydney and I am also an employee.

PN22

MS E. McDONALD: I represent Aspect ILA, Sydney and I am an employee.

PN23

MS S. FISHER: I represent EF International Language School, Sydney and I am also an employee.

PN24

MR R. MYERS: I represent Sydney College of English. I am also an employee.

PN25

MR D. YOO: I represent Australian Pacific college, also an employee - spelt Y-o-o.

PN26

THE SENIOR DEPUTY PRESIDENT: Thank you. Ms Matthews?

PN27

MS MATTHEWS: Yes, your Honour. Perhaps if Ms Moran could either clarify today or on the next occasion whether the colleges she has entered an appearance to - appearance for in this matter - of which she is not en employee, the basis of her authority to represent them.

PN28

THE SENIOR DEPUTY PRESIDENT: You are not an employee?

PN29

MS MORAN: No, your Honour. Most of the colleges here today have for the last - I don't know, 7 or 8 years negotiated as a group in the situation of our certified agreement. So we have identical certified agreements, so we have a loose association of people who act together.

PN30

THE SENIOR DEPUTY PRESIDENT: I see.

PN31

MS MORAN: The two colleges that I mentioned other than Universal English Colleges are members of that group. They indicated to me that they wanted to express their interest in this matter and asked that I should mention their interest.

PN32

THE SENIOR DEPUTY PRESIDENT: Thank you. Ms Matthews?

PN33

MS MATTHEWS: Thank you, your Honour. In the other matter which is 3367/04 I tendered a written statement by Ms Cotter going to service on the respondents of the application in 3367 and in this application. I request that the transcript note that such statement in relation to service in this matter is contained on the file in the other matter.

PN34

THE SENIOR DEPUTY PRESIDENT: Yes, Ms Matthews. It is noted that exhibit IEUA1 in matter 2004/3367 is relevantly before the Commission in matter C2004/3368.

PN35

MS MATTHEWS: Thank you. I should indicate, I think that in the covering letter to the Registry there was a suggestion that it might be appropriate for the two matters to be joined. However, I think that might be a bit premature and at this stage it is probably more convenient that the matter simply be heard on the same occasion.

PN36

THE SENIOR DEPUTY PRESIDENT: Yes, I agree.

PN37

MS MATTHEWS: I should indicate that the application in relation to the English Colleges Award also contains three schedule A, B and C, and the effect of those schedules is similar to the ones in the other matter. However, in this award there is currently no relevant provision for payment of wages whereas in the other award there was some such provision. The other provisions in relation to schedule A in our view are also similarly straight forward, and if i can take you to those. There is however one provision in relation to 5.5.2. The existing award provides that:

PN38

The maximum step on which a short term casual teacher shall be paid is step 7 of the award.

PN39

That is contained in the existing provision in the award, and the award contemplates both short-term casual and extended casual teachers, and the effect of that ceiling is that it only applies to short-term teachers. However, there is a provision that if a short-term teacher remains in engagement beyond the 4 weeks specified that the moneys or the rate of pay above step 7 must be - are then fall due to the teacher. Now, it is our experience that in those circumstances such moneys are never paid or very rarely paid. Effectively this step 7 ceiling reflects a provision and scores awards which recognises the limited role of a relief teacher.

PN40

In other words, a teacher who is in for the day does not perform the usual programming, marking and so on duties that a ordinary teacher does, but in this award casual teachers are the norm and they are rarely engaged for relief purposes. They are most often engaged in an ongoing way and it is the union view that that step 7 ceiling should be limited to true relief engagements and should not apply to casual teachers effectively at the commencement of their engagement. Even though that teacher may have the full responsibility for a class and in fact, their work is indistinguishable from that of an extended casual teacher.

PN41

We say that the analogy with the school award provisions is inappropriate. I should indicate that these awards go back a long way, but when they were first negotiated in 1989 there was a State Award negotiated and that was a provision that was referred to by the parties in relation to the Schools Award. We simply we say that the way in which casual engagement has been utilised in this industry, as it has turned out, is not appropriate.

PN42

So that is that step 7 issue which is point (b) of schedule A, and we are also concerned about 5.3.6 which enables deduction of experience when a teacher is out of the industry. Now, this can have a rather odd operation. The existing provision says, and I read:

PN43

Five points shall be deducted from the experience table for every 2 years continuous absence from teaching at a school or relevant institution up to a maximum of half the points which the teacher had accumulated for experience rounded where necessary to the next whole figure. For the purpose of this provision a teacher shall be taken to have been absent in a year if the teacher has been engaged as a teacher for less than 40 hours in that year.

PN44

Now, the effect of that, for example, is that a teacher who was absent for child-rearing purposes, or maternity leave, would loose their experience. In some cases it has been put to the union that - let us say a teacher has had 6 months experience, is then out of the industry for 2 years, and then has 5 years subsequent experience, that it could even - this provision could even cause loss of points for the subsequent experience so that irrespective of the fact that the period of service prior to the break was very short.

PN45

So, for example, irrespective of the fact that the period of service prior to the break was very short. So, for example, if you had a month's service, you had 2 years out, and then you came back, well, you still loose 5 points for every 2 years continuous absence, irrespective of what you actually had prior to that. It does not say 5 years deducted from the proceeding balance. We are also concerned that it will operate unfairly for people taking leave for family purposes. Such provisions have been removed from other analogous awards in the education industry, such as the schools awards, where they used to exist at the time this award was made.

PN46

There's no corresponding provision in the Teachers (English Colleges) Award. So we would like employees to have a look at that and, as I said, we think there is now no warrant for such a provision. The amendment to clause 5.5.9 is consequential on the amendment in relation to the step 7 sealing, which I went to earlier. I should also indicate that the step 7 sealing does not apply in the Teachers (English Colleges) Award either, so we say it is anonymous. Okay, schedule B, essentially, the provision here in schedule B is similar to that which I outlined in relation to the other application, and the application seeks to set a period of engagement, which should apply to sessional teachers, and specify the circumstances in which they can be appointed.

PN47

I should just add as a note that this award refers to sessional teachers. The other award refers to temporary teachers, but they are essentially the same form of engagement. Schedule C, similarly, contains an amendment, or an increase in the loading, and a casual conversion clause, I think, in identical terms to that are contained in the other applications. Your Honour, we think it would be appropriate that a similar course was taken, obviously, after hearing from the parties this morning, as we have taken in the other matter.

PN48

THE SENIOR DEPUTY PRESIDENT: Very well, thank you, Ms Matthews. Mr Pollard?

PN49

MR POLLARD: Thank you, your Honour. Look, your Honour, we simply rely on the earlier submission made in the previous matter. We agree that a similar cause of action should be taken to the former matter before the Commission hearing, and report backs on the same day. We have no objection to the matters being heard together, until a course of action is properly decided and I can receive permanent instructions as to how my clients wish this matter to proceed but, certainly, for the sake of convenience in the short term, having the matters heard together would make a lot of sense as far as we are concerned. In relation to all the other submissions made by my friend from the union, we simply rely on our submissions made in the former matter.

PN50

THE SENIOR DEPUTY PRESIDENT: Very well. Thank you, Mr Pollard. Ms Moran?

PN51

MS MORAN: Your Honour, you were seeking a report back in 4 weeks time in the other matter.

PN52

THE SENIOR DEPUTY PRESIDENT: Yes.

PN53

MS MORAN: I'm not sure what your intentions will be in this matter.

PN54

THE SENIOR DEPUTY PRESIDENT: Well, currently, my intention is to do the same.

PN55

MS MORAN: At this stage, this group of people represented today are uncertain about how we will be represented down the track, but the people that you see in front of you today are only a very small proportion of those who are affected by this award, and it would be our hope and, in fact, our intention to rally the support of other respondents to the award. Whether or not this is able to be achieved within to any degree within a 4-week period we are unsure, but that would be our intent.

PN56

THE SENIOR DEPUTY PRESIDENT: Yes, all right.

PN57

MR DONNELLY: Your Honour, at this stage, at least as far as concerns my client, I can indicate that my client is opposed to the union's application in its entirety. That position may change subject to the outcome of conciliation, at least, to some extent, your Honour. In relation to the joinder issue, at this stage I would ask that the matters not be formally joined. I am yet to seek instructions.

PN58

THE SENIOR DEPUTY PRESIDENT: There's no request that they be joined at this stage, Mr Donnelly.

PN59

MR DONNELLY: Yes, thank you, your Honour. Your Honour, just finally, I note that the application in relation to the (English Colleges) Award may also raise some Full Bench considerations. I'm not sure if that is currently under consideration by the President.

PN60

THE SENIOR DEPUTY PRESIDENT: They are both before the President.

PN61

MR DONNELLY: Thank you.

PN62

THE SENIOR DEPUTY PRESIDENT: Ms Durham, anything to add?

PN63

MS DURHAM: No, I would just like to concur with my colleague.

PN64

THE SENIOR DEPUTY PRESIDENT: All right, then, is there anybody who has appeared in this matter this morning who wishes to add to or disagree with what Mr Pollard has said? If there's not, I will take the position as having been expressed by Mr Pollard, Ms Moran, and Mr Donnelly. Ms Matthews, I've received a letter from the ACTU, advising that they will seek leave to intervene in both matters, and it is their intention if they are granted intervention to make brief written submissions in support at the appropriate time.

PN65

I don't deal with that at the present time, that is obviously a matter that will have to be dealt with by whoever - the Full Bench or myself. It is the case, so I just put that on the record at the moment. In this matter, having heard the parties this morning, I adjourn it until 9.30 am on Thursday 24 June for further report. I adjourn the Commission today indefinitely.

ADJOURNED INDEFINITELY [10.35am]