AM2008/33, Transcript of Proceedings [2009] FWATrans 158 (26 March 2009)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 19996-1

COMMISSIONER WHELAN

AM2008/33

s.576E - Award modernisation

Application by
(AM2008/33)





Melbourne

10.10AM, TUESDAY, 17 MARCH 2009

PN1

THE COMMISSIONER: Good morning everyone. Thank you for your attendance. I’m sorry that we’re a bit squished in this court room but hopefully as people finish, they’ll move on and somebody else can grab their seat. We’ll formally take the appearances before I deal with a few housekeeping matters. So could people, in an orderly fashion, stand and indicate who they are and who they’re representing. Yes?

PN2

MR R WEST If it pleases, the Commission, I appear for the National Catholic Education Commission.

PN3

THE COMMISSIONER: Thank you.

PN4

MR R DURBRIDGE: If the Commission pleases, Robert Durbridge for the Australian Education Union.

PN5

MR M PERICA: If the Commission pleases, Mark Perica for the Community and Public Sector Union.

PN6

MR S MAXWELL: If the Commission pleases, I appear on behalf of the Construction Forestry Mining Energy Union.

PN7

MR K MAKELKINE: If the Commission pleases, I appear on behalf of the National Tertiary Education Union.

PN8

MR WARREN: If the Commission pleases, I appear by leave for the Australian Federation of Employers.

PN9

MS J UDY: If the Commission pleases, Genie Udy, CEO of SDN Children’s Services.

PN10

MR J NUCIFORA: If the Commission pleases, I appear for the Australian Services Union.

PN11

MR R SHAW: If the Commission pleases, I appear on behalf of KU Children’s Services.

PN12

MR S PILL: If the Commission pleases, I seek leave to appear on behalf of the Group of Eight Universities, which I can list for you if you wish, Commissioner.

PN13

THE COMMISSIONER: No, I know who they are.

PN14

MR PILL: Thank you.

PN15

MR I HOLLINGWORTH: If the Commission pleases, I appear for the Department of Education and Early Childhood Development.

PN16

MS C PUGSLEY: If the Commission pleases, I appear for the Australian Higher Education Industrial Association.

PN17

MR A ODGERS: I appear together with MS MATTHEWS on behalf of the Independent Education Union.

PN18

THE COMMISSIONER: Thank you.

PN19

MR P TILBROOK: I appear for the Australian College of Physical Education.

PN20

MR N TAYLOR.: If the Commission pleases, I appear for Livingstones Australia. I seek leave to appear on behalf of the Australian Childcare Centres Association, and also the Australian Community Services Employers Association, both registered unions of the industrial organisations of employers.

PN21

THE COMMISSIONER: Thank you.

PN22

MS K KNOPP: If the Commission pleases, I appear for the Associations of Independent Schools of the ACT, NSW, Northern Territory, South Australia, Tasmania, Victoria, Western Australia and Independent Schools Queensland, together with MS C LOVELL.

PN23

THE COMMISSIONER: Thank you.

PN24

MR SWANCOTT: Commissioner, I appear for the LHMEU.

PN25

THE COMMISSIONER: That’s it? And I have an appearance in Sydney.

PN26

MR J HANARAHAN: If the Commission pleases, I seek leave to appear on behalf of the Education Providers Industrial Association.

PN27

THE COMMISSIONER: Thank you. All right, thank you everyone. As I said, there are a few housekeeping matters and one of those is that we have, as you can see, a video link to Sydney at the moment, and I will be dealing with that submission first, before others. There will also be a video link at 12 noon to Perth, where I’ll be dealing with a submission from Perth, and there will be a video link to Brisbane at 3 o’clock, where I’ll be dealing with a submission from Brisbane. So we’ll work everybody else around that. I also have a statement to make on behalf of Commissioner Smith, who is a member of the Full Bench in this matter. Commissioner Smith wishes to disclose to the parties that he is on the council of an independent school; that if anybody has any objections to him participating on the Full Bench in relation to this matter on that basis, they should notify the Full Bench of that. Those are the only matters of general business which I wish to deal with. Have the parties had any discussions amongst themselves as to the order in which they intend to make submissions?

PN28

MR DURBRIDGE: Well, the union parties have, Commissioner.

PN29

THE COMMISSIONER: Right.

PN30

MR DURBRIDGE: Or most of them.

PN31

THE COMMISSIONER: All right. Well, perhaps if you’ve sorted that out I’ll hear from Sydney first and then I’ll hear from whoever is going to go next.

PN32

MR HANARAHAN: Thank you, Commissioner. I’m indebted to be going first.

PN33

THE COMMISSIONER: Thank you.

PN34

MR HANARAHAN: May I proceed?

PN35

THE COMMISSIONER: Yes.

PN36

MR HANARAHAN: I appear for the Education Providers Industrial Association which is an unincorporated association of nine English language colleges.

PN37

THE COMMISSIONER: Yes.

PN38

MR HANARAHAN: We rely upon our written submissions filed in the Commission on 11 March 2009.

PN39

THE COMMISSIONER: Yes.

PN40

MR HANARAHAN: I understand, Commissioner, you’ve read those written submissions and I don’t propose to traverse those in too much detail.

PN41

THE COMMISSIONER: I have.

PN42

MR HANARAHAN: I would just like to emphasise one or two of the points we make in our submissions and then briefly respond to some of the submissions made by other interested parties.

PN43

THE COMMISSIONER: Sure.

PN44

MR HANARAHAN: Commissioner, while there’s clearly a focus on this process on reducing the number of awards, at the same time there are other relevant considerations that need to be taken into account by the Commission, including not completely changing the terms and conditions of employees; and ensuring the employees and the - the employers and employees alike are not ..... in creating awards that are simple and easy to understand. In light of these considerations, Commissioner, we submit that it’s not appropriate for the English language industry to be lumped with what effectively, for want of a better term, an all other award which is - which basically lumps everyone together, apart from government schools, early childcare facilities and TAFEs, which seems to be what is submitted by other interested parties in these proceedings.

PN45

The size of the industry is relevant, as well as the fact that English language teaching - the English language teaching industry is very different to other educational services industries. As set out on pages 5, 6 and 7 of our submissions, our primary position is that a single modern award should be created in respect of the provision of English language teaching services by English colleges. I know that might be a bit too much to hope for in this process, Commissioner, but
our - alternatively our - - -

PN46

THE COMMISSIONER: Start with your ..... position.

PN47

MR HANARAHAN: Alternatively, Commissioner, we submit that a single modern award should be created for the education services, adult education private sector, which would include English colleges and business colleges, but would exclude TAFEs, non government schools, kindergartens and early childhood facilities. If the Commission was minded to create an all others award that would include English colleges, we would strongly submit that it should include specific streams that would take into account the unique and different terms and conditions of English language teachers. In any event, Commissioner, whichever approach the Commission decides to take, in terms of whether it’s a stream for English colleges or it’s a standalone English college award, we say the Federal English Colleges Award 1998 should be used as a basis, instead of the terms and conditions of that modern award, to cover English language teachers. That’s with one exception, Commissioner, and that’s in our submissions.

PN48

We say the classification structure that - in that award, which is effectively - which is commonly known in the industry as the STEP system, should not be included in a modern award because it is not a skills based classification career structure as provided in section 576J of the Act. We submit that the AIRC should include in a modern award for English college that appear in a broad sense as a three band structure that’s at schedule A of the NTEU’s proposed draft award. That’s used as a basis for ..... classification structure for English language teachers. If I can just quickly move now to our responses to submissions made by other interested parties and proposed draft awards that have been submitted. Firstly, we note that the NTEU has submitted a draft award which is endorsed by the IEU and it’s entitled the Community and Private Sector Post School Education Award 2010, which is proposed it will cover, among others, English language teachers.

PN49

We would like to make the following submissions in relation to that proposed draft award. In drafting that award the NTEU does not appear to have made regard to the Federal English Colleges Award, even though it is the principal federal award covering English language teachers and it purports to cover those teachers with this award. It also fails to include provisions that are industry standard and should be included in a modern award for English colleges, such as the options to engage a casual teacher on a daily or hourly rate. We say that any modern award should include a daily rate provision for the casual teachers. Under their proposed award casual teachers, I think, would be paid both the four - is it four - four hours a week? We say that it should be 38 hours a week divided by five, not for any teaching hours divided by five. The option to engage short term or extended casual teachers should be included. Importantly, the engagement of sessional teachers, and we also submit that there should be qualifications on the circumstances in which annual leave loading is paid, which is set out at clauses 8.6 and 8.7 of the Federal English Colleges Award. Rather than a general right to annual leave loading which is proposed in their draft award.

PN50

We say that these flexibilities are appropriate and they’re necessary because of seasonal fluctuations in enrolments in the industry. Large numbers of short term enrolments; the inability to plan classes and staffing ahead of time due to the need to test all students on arrival to determine their English level, and therefore their class; classes change every week, as colleges enrol students to start every week; and colleges don’t know until the Monday afternoon how many classes they need for the Tuesday. We also submit that this draft award that has been submitted by the NTEU including provisions that are not industry standard or appropriate to cover English colleges, and including, and as I mentioned earlier, the assumption that a full-time teaching load for teaches is 20 hours. That’s in clause 10.1. This notion can’t be supported either educationally or organisationally. Twenty teachers - 20 teaching hours per week is the minimum requirement for a NEAS accredit course, which is the accrediting body for English colleges.

PN51

Most English colleges have accredited courses of 22 to 25 hours per week. If a teacher can only teach 20 hours per week the college would have to employ additional teachers to make up the daily shortfall, which could be anywhere from 25 to 60 ..... per day. In that - tied in with that is the fact that this award requires minimum engagement for a casual teacher to be two hours’ of pay. So that just doesn’t sit, Commissioner. Also it provides for the payment of various allowances, which we say is not an industry standard or appropriate for English colleges, and also for provisions regarding overtime and time off in lieu. We also submit, Commissioner, that the modern award for English colleges should include the AIRC model award flexibility clause. In the NTEU’s draft it excludes - it only provides for this flexibility clause to relate to annual leave loading. We say it should also extend to arrangements for when work is performed. They’re our submissions in relation to the NTEU draft award which is endorsed by the IEU.

PN52

THE COMMISSIONER: Yes.

PN53

MR HANARAHAN: Just very briefly, two points on another award that has been submitted by the Australian College of Physical Education.

PN54

THE COMMISSIONER: Yes.

PN55

MR HANARAHAN: Which is titled Post Secondary and Other Educational Services Teaching Staff Award, again proposed to cover English language teachers. Again, we would make a couple of submissions about that. It also fails to include provisions about industry standards, including extended and short term casual teaching and sessional teaching, and again it includes provisions that aren’t industry standards or appropriate, such as allowances and a general right to annual leave loading. They’re our submissions, Commissioner.

PN56

THE COMMISSIONER: Thank you. Thank you very much, I’ve taken some notes and I’ll read the transcript in relation to what has been put there. I noticed in your submission that was made that the view is expressed that if there was to be an award for the sector, that should exclude TAFE?

PN57

MR HANARAHAN: That should exclude TAFE.

PN58

THE COMMISSIONER: That’s correct? That is your position.

PN59

MR HANARAHAN: That’s our position, Commissioner.

PN60

THE COMMISSIONER: All right then. Thank you very much.

PN61

MR HANARAHAN: Thank you, Commissioner.

PN62

THE COMMISSIONER: Thank you for your attendance this morning, and we will now turn your way.

PN63

UNIDENTIFIED PERSON Thank you, Commissioner. I won’t take it personally.

PN64

THE COMMISSIONER: Thank you. All right, who is going next?

PN65

MR DURBRIDGE: Commissioner, if the Commission pleases. The AEU has filed a written submission on which we rely.

PN66

THE COMMISSIONER: Yes.

PN67

MR DURBRIDGE: I would just like to make some additional points. Firstly on the application to adjourn, which is included in our submission and is on the - has been on the Commission site.

PN68

THE COMMISSIONER: Yes.

PN69

MR DURBRIDGE: We have not found any employer or other part who opposes that application. We’ve written to all employers of our members in every state and territory and met with the Victorian Government, which has also put in a similar request.

PN70

THE COMMISSIONER: Yes, we’ve heard directly from the Victorian Government, Mr Durbridge, but I haven’t heard anything from any of the other state governments.

PN71

MR DURBRIDGE: No.

PN72

THE COMMISSIONER: Or the ACT or the Northern Territory Government.

PN73

MR DURBRIDGE: No, well perhaps silence means consent, Commissioner. I can only interpret it that way.

PN74

THE COMMISSIONER: Which in industrial relations is generally hazardous.

PN75

MR DURBRIDGE: And the ACTU has supported that position, and also there has been no draft award filed for the government education services at all.

PN76

THE COMMISSIONER: No.

PN77

MR DURBRIDGE: By any employer, or comprehensively by any other party. So I think it would be useful, however, to put forward some views about the other submissions and just briefly cover the field, subject to that adjournment being considered. We propose that the award that’s created for the government services sector of educational services cover the teaching and support staff in government services. This is not to create a whole lot of small sectors. It is a very big industry and within government education services is a big industry of - in which governments spend about $30 billion per year and employ about 200,000 people. I think we have to consider that distinctly from “Well, how far is the jurisdiction going to go?” because that is the nature of the industry. It’s a discrete industry, it always has been. It operates on the basis of government legislation, government policy, government funding and government control, and all awards that have been made which bind the employers are only government awards, in the whole of the country, and always have been.

PN78

So that sets a - that’s for schools, preschools and TAFE employees in all states and territories. And so we then look at the - at that section of the industry and advocate an occupational award for teaching staff and an industry award for educational support staff. That replicates the pattern that was adopted by the Commission in higher education and as I say, would in itself create a very large - would cover a very large industry by an occupational and an industry award. It would replace many awards. We’ve listed them in our submission.

PN79

THE COMMISSIONER: Yes.

PN80

MR DURBRIDGE: I haven’t actually counted them, but it must be 50. There has been no submission made against this proposal, in a global sense, and - although there have been a number of specials and sectoral interests put forward by various parties who come forward today. But of those who address the issues of the nature of the industry as a whole, and there are about nine detailed submissions that do that; our friends from Catholic education, our friends from the independent schools all agree that the industry should be divided into government and non-government education.

PN81

THE COMMISSIONER: Can I just interrupt you for one minute, Mr Durbridge?

PN82

Is there anybody in here who has their mobile phone turned on, because it’s being picked up by the recording? So if you have your mobile phone turned on, could you please turn it off now. Thank you.

PN83

Sorry, Mr Durbridge, proceed.

PN84

MR DURBRIDGE: Yes. So looking at the 39 submissions that have been filed, 13 of them really deal with specific issues, 26 of them deal with - when I say specific issues I mean specific issues like which default superannuation fund.

PN85

THE COMMISSIONER: Yes.

PN86

MR DURBRIDGE: So they’re very specific and don’t go to the sort of global division of the industry. Then there’s another group of 26. Seven of those deal with the interface between educational services and childhood service - children’s’ services, and I’ll come back to that; six deal with post school education, mainly in the private non-government sector; one deals with local government; and two others seek deferral. So when I say that of those which put forward a global view, and that’s nine, there isn’t any that contradicts fundamentally the view we’re putting forward about how the modern award should be constructed; government and non-government and teaching and support staff. We’ve tried to deal with the issue of the interface between educational services and children’s’ services.

PN87

At paragraph 70, section O of our submission you're aware the history of this area of provision has evolved, as they all do.

PN88

THE COMMISSIONER: And continue to evolve.

PN89

MR DURBRIDGE: Kindergartens really began as part of welfare provision for working class children beginning in Germany so welfare services were the first place this service was located. It then moved to childcare and we obviously support the increasing provision of education within long day care and childcare services and the two are going to overlap. It's inevitable that modern awards in a lot of areas are going to overlap and the Commissioner Smith decision which we've included there, was the way he dealt with it and we say it's quite an analogous position. It was a common rule declaration process about Victorian awards which, as a result of the referral, had common rule effect and this award, too, will have common rule effect. We think that the role of the employee, and particularly the qualified teacher, is the way to make that interface but I'm sure you've looked at that section.

PN90

When it comes to TAFE we've got a submission that TAFE in Victoria is different.

PN91

THE COMMISSIONER: Yes, and they've made their own submission which indicates that.

PN92

MR DURBRIDGE: Yes, and they will. TAFE in Victoria is different and that's the first point to make, that in all other states and territories TAFE is provided by the department of whatever it's called, Education and Training, and the employees are employed by government. In Victoria the TAFE system is established by an act of parliament, it's under the control of - the governance of the TAFE colleges is under the control of the minister, it's regulated and funded by government so we say it's part of government services broadly defined. They're not public servants but that doesn't mean they're not government services, it's not part of government services.

PN93

We believe that you can safely make an award that covers government TAFE teachers and support staff in New South Wales, for example, or the ACT definitely and Victoria without worrying that the position in Victoria is somehow radically different. You'll be told otherwise. You'll be told that this is part of the great provision of VET across the private sector.

PN94

THE COMMISSIONER: Yes, they specifically say in their submission that they are independent corporations and that their proposal is for essentially a VET award.

PN95

MR DURBRIDGE: They are corporations but I wouldn't say they are independent. They are funded, established and regulated by the minister and subject to ministerial direction in the end. I don't know why they haven't been directed in this event, but anyway.

PN96

THE COMMISSIONER: Perhaps the department can tell us that. I don't know.

PN97

MR DURBRIDGE: We can only wonder. Another area you'll be taken to is Local Government. We do have Local Government provision in Victoria again of early childhood education and we can see no reason why an Occupational Award for preschool or kindergarten teachers in Victoria shouldn't also cover them in their work for Local Government.

PN98

Finally, there an exceptional award called the Higher Education Practice Teaching Supervision Award which was created in 1990. The employer respondents are universities. The work that teachers do for those universities is to supervise and coordinate the practicum for student teachers. This has been a bugbear, this award, because whenever an application has been made to vary it or to improve the rates in it, there's been a flurry of jurisdictional challenges about well, who's the real employer. We think the Modern Award will probably overcome that problem because whoever the employer is will be bound to pay but the rates have not been adjusted for all the reasons that rates have been adjusted since 1990 so, in our submission, they would be increased substantially. If that doesn't happen, the current difficulties that we have getting teachers to undertake this work will continue.

PN99

THE COMMISSIONER: You're saying that they should be in a general award covering government teachers.

PN100

MR DURBRIDGE: Yes, well, and non-government.

PN101

THE COMMISSIONER: Even if the respondents are the universities.

PN102

MR DURBRIDGE: Yes, because these people work in schools and this award will apply to people who work in schools. I know that the business of the employer - but it is such a tenuous and has proven such a difficult relationship to make work effectively, that we think the Commission should include the terms of the High Ed Practice Teaching Supervision Award in a Modern Award that applies to schools at least in the government sector and our friends in the non-government schools I'm sure have their own views too. If the Commission pleases.

PN103

THE COMMISSIONER: I did notice that what some people might describe as fudging the line between government funded and government provided services. There's tended to have been a distinction made between those two. Particularly in the preschool area you seem to be suggesting that there shouldn't be any distinction.

PN104

MR DURBRIDGE: The preschool area in Victoria you mean?

PN105

THE COMMISSIONER: I know that in some states there is government provided preschool. I think that's South Australia and I'm not quite sure - - -

PN106

MR DURBRIDGE: ACT, Northern Territory.

PN107

THE COMMISSIONER: ACT, yes, and Northern Territory. The preschools are actually government run. In other places they are not government run although they are significantly funded by government. Your submission seems to indicate that you should put both of them in together, not have a distinction in relation to government provided as you have said with school education, that there should be a separate award for government schools and for non-government schools but in the preschool area you seem to be suggesting that there should be one award whether they're government funded or government provided.

PN108

MR DURBRIDGE: In our definitions we try to cover that by talking about government funded. It's the way that the service in Victoria is provided that se think makes the difference. It's provided on the basis of a contract to the Department of Education and Early Childhood Development which makes it a different animal to a non-government school.

PN109

THE COMMISSIONER: I thought they had transferred it to the Education - - -

PN110

MR DURBRIDGE: Yes, it's the Department of Education and Early Childhood Development, its new name, which is a good thing. The funding comes from the government and the control comes from that department so we say it's part of generic government services. We don't claim they're public servants but we say it's a part of government provision and should be treated as such in the same way as the Commission treats the preschool which is located on the primary school grounds in South Australia, the teachers move between those schools, and the same in the ACT.

PN111

THE COMMISSIONER: I'm quite clear about that area. That's a different situation.

PN112

MR DURBRIDGE: It's different but we think not so different as to make it not part of government services broadly defined.

PN113

THE COMMISSIONER: Who's going next?

PN114

MR M PERICA: Given that we're dealing with public sector union, Commission, I though I'd go next.

PN115

THE COMMISSIONER: You'll go next, right.

PN116

MR PERICA: As you're probably aware, Commissioner, the CPSU has an interest in TAFE employment, teaching employment in government schools and in preschools in South Australia, in a statutory corporation in Victoria known as the Adult Multicultural Education Services and of course, we commend to you our filed written submissions on this and our draft joint award with the NTU, the Government Education Non-Teaching Award 2010.

PN117

I won't rehearse the arguments in relation to what Mr Durbridge called the adjournment application, either you accept it or reject it. It's covered in our submissions. I won't take that further other than to press it.

PN118

On the understanding that you're not satisfied that the Full Bench will do that, I just wanted to say a few other things about this area and our draft award. I think Mr Durbridge said it's the shared opinion of the vast majority of written submissions that the historical separation between the award regulation for public sector educational workers and private sector educational workers will continue.

PN119

As far as the make-up of the awards, we don't say anything in relation to the private sector. In relation to the public sector we agree with the NTEU that it's entirely appropriate and consistent with the process of award modernisation if all government education services could be incorporated into two awards, an Occupational Award for persons qualified as teachers, as Mr Durbridge has referred to, and a General non-Teaching Award covering all other callings and occupations. In our submission, the Non-teaching Award should extend to all government non-teaching staff, including those employed in preschools, kindergartens, schools, the Adult Multicultural Education Services and TAFE.

PN120

The consolidation of these Non-Teaching Staff Awards of course meets the obligations of the Commission to reduce the number of awards. In relation to government schools, awards covering non-teaching staff in government schools are easily identifiable and lend themselves to being incorporated into single awards. Kindergartens and preschools, we rely on the submissions of the ERU in that respect but we do say that the increasing incidence of co-located kindergartens and preschools in government schools, who all employ non-teaching staff in the same or similar work, support an argument for a safety net of conditions of those workers to reside in the same Modern Award.

PN121

In relation to TAFE, the Government Non-Teaching Award should extend to employment in TAFE campuses. I won't take you to it but if you examine the list of TAFE Awards which cover non-teaching employees throughout Australia, particularly outside of Victoria, which is at pages 8 to 10 of our submission, you'll see the majority of TAFE non-teaching employment is totally integrated with the award regulations for the general public service. Outside of Victoria, transfers occur between TAFE institutes and the broader public service.

PN122

It's a theme in these oral submissions that the Commission should not ignore the industry outside the jurisdictional reach in the created of a Modern Industry Award. You should take into account the integrated character of TAFE within the public sector both within and outside Victoria. All TAFE institutes are distinguished from other VET providers by the fact they are creatures of statute performing statutory functions under the control of the minister.

PN123

The Victorian ..... sought to be established by the Victorian TAFE Association should not be followed. The fact is TAFEs are government institutions bound by ministerial direction and public policy and if you turn to the submission of the VET - - -

PN124

THE COMMISSIONER: The Victorian TAFE. Is that the one you're referring to?

PN125

MR PERICA: Yes. The first page, third paragraph of their submission, "We note the Victorian department" et cetera:

PN126

Sent a letter dated 18 February 2001 to the Commission. DIIRD verbally advised the VAT that its letter does not prevent the VTA from making submissions to the Commission.

PN127

Is that evocative of freedom or control? I'd say the latter.

PN128

THE COMMISSIONER: That says go ahead if you want to.

PN129

MR PERICA: Yes, well, you could read it that way. As for the AMES, the Adult Multicultural Education Services Victoria, that provide English language and settlement services in Victoria. Like TAFE, AMES is a creature of statute which operates under statutory conditions and powers and by order of the Governor of Victoria in counsel. In our submission AMES should be included in the scope of Government Education Services Non-Teaching Award.

PN130

That deals globally with the things that it does apply to. In relation to the exceptions, the first exception that we think you should do, given the state that government administration is going to modernised in stage 4, employees involved in state government administration of education should be excluded from any Modern Award.

PN131

THE COMMISSIONER: These are the departmental - - -

PN132

MR PERICA: Yes. It's been traditional that it stops at the campus and school gate and that retains that reality in the Federal Award regulation. Otherwise, and this our continued trope in all our submissions in Modern Awards, that is state government administration will disappear if they were incorporated into the industries which they regulate so that should be maintained here.

PN133

Student unions, we'd also argue that student unions have no place in an Education Services Award. We'd say the range of services provided by student unions is markedly different from those provided by non-teachers in schools and TAFEs and we say that it makes sense from a plain English and commonsense standpoint that student unions are considered part of higher education rather than the education services industry.

PN134

THE COMMISSIONER: I have received one submission which suggests that they have a stand-alone award for student unions. Have you given any consideration to that proposal?

PN135

MR PERICA: No.

PN136

THE COMMISSIONER: It has actually ..... draft.

PN137

MR PERICA: Has it?

PN138

THE COMMISSIONER: Yes.

PN139

MR PERICA: When was that procedure - - -

PN140

THE COMMISSIONER: I've just lost my computer so I can't tell you but it was one of the more recent submissions .

PN141

MR MOORDEALLY: It was put in by the AFEI.

PN142

MR PERICA: Sorry?

PN143

MR MOORDEALLY: I was merely assisting. It was put in by the AFEI. I thought it was filed last Friday but it may not have been put on the site until - - -

PN144

THE COMMISSIONER: It is on the site but it was only recently on the site so there has been a proposal put in for a separate award covering only - - -

PN145

MR PERICA: My friend, Mr McAlpine, is going to bail me out on that score in a good comradely way.

PN146

THE COMMISSIONER: He will, fine.

PN147

MR PERICA: I just want to talk to you about the ..... assuming that the Commission makes a Government Services Non-Teaching Award, I just want to take you to the considerations in constructing a Safety Net Award for public sector employees. In creating a safety net of fair minimum standards for government education workers, the relevant comparatives, in our submission, are not Private Sector Awards but Public Sector Awards, Education Awards. They have their own history and have generally been vanguard awards containing superior terms and conditions than the private sector.

PN148

You should create an award of fair public sector standards in drafting this award. It would not constitute a fair minimum standard if you were to impose the lower Private Sector Award standards to public sector employees. What has provoked me to say this is, the exposure drafts in the Banking Finance and Insurance Industry Award, the Commission made an exposure draft award based on the inferior Credit Union Awards and our friend, Mr Warren, was the magician that pulled it off, in circumstances where those inferior standards were only operative to 2 per cent of the finance sector, 2 per cent, so we have the inferior standards of 2 per cent imposed on the entire industry. That, in our submission, is not fair and we wouldn't like that to be replicated in this exercise.

PN149

To create a safety net on the basis of standards that are lower than those apply to possibly the majority of the industry is not fair, so I've said. In creating the Government Non-Teaching Award, the Commission should keep in mind that it is creating an industry award and if you look at the list of government TAFE Awards that we have in our submission, the majority of the industry is employed outside the jurisdiction of the Commission on generally superior conditions. In making an industry award for the TIP, that is federally regulated, the Commission must show due cognisance to the iceberg of state regulated workers in the area.

PN150

I just wanted to take you to some of the terms of our draft award which we submit together with our colleagues at the NTEU. I've covered the application ..... and the exceptions we think ..... in the award and we rely on the particulars of our award which are set out in the particulars of the written submissions we make in relation to the content of the order on pages 20 to 28 of our submissions. The joint draft is proposed on the basis of the terms of AP830232, which is the Professional Administrative Clerical Computing and Technical Staff TAFE Victoria Award 1999 and AP799002 which is the School Services Government Schools Victoria Award.

PN151

You will note from our submissions and the written submissions of the Victoria Department of Education and Early Childhood Development there is an issue of whether the SSO Award is an enterprise award as defined in section 476U and expressed in section 576V(3). The state of Victoria argues that the SSI is an enterprise award. Now, it would be novel if there is such a thing as a multi-employer enterprise award but it is possible that the words of section 576U and 576B(3) could be enterprise awards without doing violence to the language of those sections. So, leaving aside the issue of - - -

PN152

THE COMMISSIONER: I have to declare that at one stage I was on a school council of a primary public school in Victoria and we did employ people under that award.

PN153

MR PERICA: Yes.

PN154

THE COMMISSIONER: The school council was the employer.

PN155

MR PERICA: I have covered that in our submissions in relation to the statutory source, et cetera. But leaving aside that issue, as I say the majority of that the provisions in our draft arise either from the TAFE Act, award or from the Victorian SSO Award. The exact origins of the particular clauses are in our written submissions. There are couple I would like to refer you to. Clause 4 of our award refers to minimum wages and conditions. The SSO classification structure and descriptors, which are in schedule A, derive from the structure that presently are applying in Victoria through the Victorian SSO Agreement. It has the structure but the rates within the structure are referable to the SSO Awards. They’re properly fixed minimums fixed under the Victorian SSO Award.

PN156

The PACT structure and descriptors that tie in to TAFE are directly from the Victorian TAFE PACT Award. The only other condition that - and it lends to our tip iceberg argument is parental leave. The only other specific matter I wish to raise with you is the entitlement to paid parental adoption leave. Both the Victorian PACT TAFE Award and the SSO Award have a safety net entitlement to paid parental and adoption leave. It is my our submission, it is difficult to comprehend how the Commission could meet its obligation to provide a fair minimum safety net that gives appropriate weight to the requirement to assist employees to balance their work and family responsibilities if it took away a stake in their condition for paid parental leave.

PN157

I mean, it’s - saving their entitlements are rare as hen’s teeth amongst the caucus of award regulation. Insofar as it is there in a modern award in relation to a public sector, where there’s no issue of cost to the employer, in my submission, it should continue and be included. We have the precedent of the higher ed awards which both contained a parental.

PN158

THE COMMISSIONER: Yes.

PN159

MR PERICA: So that’s - as I say, we commend the draft to you and we commend our submissions, subject to our primary submission that you should refrain from modernising awards which cover the government education service industry. We commend our joint draft to you as a fair and appropriate safety net for government school and TAFE-based non-teaching staff.

PN160

Now, do you have any questions for me, Commissioner?

PN161

THE COMMISSIONER: No, I think the issues that I thought were relevant I raised during the course of your submissions.

PN162

MR PERICA: Thank you.

PN163

THE COMMISSIONER: Thank you. Mr Maxwell, you’re going to have a short submission, I hope.

PN164

MR MAXWELL: I do have a short submission, Commissioner. Commissioner, our concern is in regard to the proposals contained in a number of the parties’ draft awards to include maintenance trades. Our submission is that we seek an exclusion for the maintenance trades from these awards and to ensure there is no ambiguity with regard to the coverage of any of these awards which seek specific exclusions for the Building and Construction Industry General Onsite Award which is currently in stage 2 of the Full Bench proceedings and the Joinery and Building Trades Award which is also in stage 2 of the Full Bench proceedings.

PN165

Commissioner, we would rely on the statement of the Full Bench that deals with the issue of maintenance trades where to summarise the position they said that if maintenance trades were not covered by the awards, the modern awards we’re replacing, then generally it’s not appropriate to include the maintenance classifications within the modern awards that are created. And if you look at the overwhelming majority of the awards that are covered within this area, it’s very hard to find any that cover maintenance trades.

PN166

We would also rely on paragraph 72 of the Minister’s submission in regards to the stage 1 proceedings where the Minister indicated the government’s position that where similar classifications were contained in various modern awards that the conditions should as far as possible be the same, we would point out that the conditions of employment for building trades employees under the joinery - under the current national Joinery Building Trades Products Award and the National Building and Construction Industry Award are significantly different to those that are proposed in the modern awards in regard to areas such as redundancy and overtime. If the Commission pleases.

PN167

THE COMMISSIONER: Thank you. Thanks, Mr Maxwell. Mr McAlpine.

PN168

MR MCALPINE: Thank you, Commissioner. As with the other parties we don’t intend to summarise or even explain our written submissions.

PN169

THE COMMISSIONER: No, no, I’m capable of reading. I have done a lot of it.

PN170

MR MCALPINE: Yes. We should say at the outset that the awards we seek to have made are a community and private sector award and a government non-teaching staff award and in those respectively we’re united with the IEU and the CPSU. I think Mr Perica’s submissions in relation to an award for government non-teaching staff cover virtually all of the matters that we wanted to cover. We strongly endorse the suggestion for an adjournment in relation to those matters but we also completely reject the submissions of the Victorian TAFE Association as regards the making of an award for public and private VET providers.

PN171

The AIG submission specifically, I think, says that in relation to non-government providers at least that the private sector clerical award should be sufficient to cover non-teaching staff in the, if you like, private adult, et cetera, education sector. We think that that brief statement by them betrays an ignorance of the nature of the work undertaken by non-teaching staff in an educational setting. We think whatever the Commission does in relation to non-teaching educational institution employees it should not go down that path. It should have a structure, a career structure and a salary structure that is designed to recognise the skills of people in that sector.

PN172

We think that is reflected in the Victorian TAFE PACT Staff Award. It is also reflected in another major award that didn’t get much of a mention in these proceedings which is the Victorian Adult Education PACT Staff award.

PN173

THE COMMISSIONER: Yes.

PN174

MR MCALPINE: Which applies to a significant number of employees.

PN175

I’ll speak mainly about the Private Sector Community and Private Sector Award which we propose. The sources of those awards are limited and that’s partly because a very large sector of the industry is either completely award free or may be covered by NAPSAs that perhaps the employer and employee don’t even know they’re covered by in some states. I suspect there is a very limited - well, it’s a proportion I think - I think there is only a small proportion of the sector that is properly covered by federal awards.

PN176

THE COMMISSIONER: Arguably also, Mr McAlpine, some of those registered training organisations that are part of an industry may in fact be covered by the industry within which they operate.

PN177

MR MCALPINE: Covered by, what, an industry association?

PN178

THE COMMISSIONER: Well, where industry associations have - where registered training organisations have been set up by companies that operate in a particular industry to provide training in that industry.

PN179

MR MCALPINE: Yes.

PN180

THE COMMISSIONER: But they’re not totally separate, if I can put it in that sense, from the sponsoring of the company that set them up.

PN181

MR MCALPINE: Yes. I accept that. There are certainly some RTOs that are in fact branches of bigger organisations.

PN182

THE COMMISSIONER: Yes.

PN183

MR MCALPINE: That’s true.

PN184

THE COMMISSIONER: Yes, they’re part of a larger organisation.

PN185

MR MCALPINE: But we say that the proper place to start with is the Adult Education PACT Staff Award. We accept the earlier submissions of the EPIA which is that the - you also have to look at the largest awards which apply to teaching staff, which I would actually say the English Language Colleges of Australian Universities Award and the other federal award that was referred to earlier are both significant awards in that sector.

PN186

I make no particular bid for one or the other. I think it’s just a question of looking at the two and coming up with an appropriate mix. We don’t accept that there should be a separate - it wasn’t entirely clear to me what was being argued for, whether it was an occupational award for language teachers or whether it was an award that applied to language colleges because there are many - - -

PN187

THE COMMISSIONER: I think it was an award applied to language colleges.

PN188

MR MCALPINE: Yes.

PN189

THE COMMISSIONER: The members of the organisation who were making the submission, yes.

PN190

MR MCALPINE: Yes. And my submission in relation to that is that there are in fact - a language college may in fact engage in other educational activities as well.

PN191

THE COMMISSIONER: Yes.

PN192

MR MCALPINE: So their suggestion, at least one of their members runs a range of other training courses that go well beyond language education so they seem to be arguing that they’re sort of entirely separate industry but we would say in fact they’re not. For example, even within the government TAFE system there are people who do the same work in language education as there are in these areas.

PN193

We don’t believe that on the basis either of their size or other considerations of flexibility and operation across a range of areas it’s appropriate to establish a separate award or necessary to establish a separate award for language education.

PN194

THE COMMISSIONER: Yes.

PN195

MR MCALPINE: In relation to the non-teaching staff in those areas we would say their work was very similar to the non-teaching staff in other relatively small providers of post-secondary education.

PN196

Although we have said that the Adult Education Award is a good place to start for small providers of educational services in respect of educational services in respect of non-teaching staff. The Adult Education PACT Staff Award, although it has a salary structure its classification structure is idiosyncratic in that it’s based upon a Cullen, Egan and Dell classification system.

PN197

THE COMMISSIONER: I didn’t think anybody used that any more but, yes.

PN198

MR MCALPINE: No. I suspect Cullen, Egan and Dell don’t even use it. But so therefore we didn’t think it was appropriate to draw upon that award as the basis for classification of non-teaching staff in that private sector area. And we looked around and in fact we thought that the best model to use was - on a balance of considerations we thought that something that a few of the employees have said which is the scale of the organisation is quite important, we have proposed two classification structures, one for larger employers and one for smaller employers. And we have drawn from two minimum rates awards a set of classification descriptors which we have altered only to delete things like “school” and insert “employer”.

PN199

THE COMMISSIONER: Yes.

PN200

MR MCALPINE: What we have done is we have taken the Victorian Catholic Schools classification structure and said that should apply to small employers and we have taken the Victorian TAFE PACT descriptors and said that that should apply to large employers. We think that that is the best model that’s certainly been put forward by any of the parties and I think the other serious contribution that we have had in relation to this has been from the Australian Collect of Physical Education.

PN201

THE COMMISSIONER: That’s right, yes.

PN202

MR MCALPINE: And we think that in relation to this and a number of other matters at least they seem to have had a serious attempt to come up with a minimum safety net award. We don’t agree with their classification structure because it’s drawn from - primarily from universities and there’s a whole lot of activities referred to in the typical activities and organisational knowledge which are drawn from vary large organisations - - -

PN203

THE COMMISSIONER: The higher level.

PN204

MR MCALPINE: - - - such as universities and which include research and references to research and a range of other things that we don’t believe are appropriate to the great bulk of private sector tertiary education providers.

PN205

So while we were involved intimately in drafting those and know them very well, and like them in a sense, we don’t actually think they’re appropriate for the small private sector.

PN206

THE COMMISSIONER: They don’t translate easily.

PN207

MR MCALPINE: Right.

PN208

THE COMMISSIONER: All right.

PN209

MR MCALPINE: And that’s why we have gone for the model that we have. We don’t - we think that it’s important that there is a proper classification structure that covers the professional, administrative, clerical and technical staff. That covers people from education psychologists, librarians, administrative staff and we don’t think that those should be split up into different occupational awards. We think an integrated structure is appropriate but it is really not possible to do that in the context where you may have one adult education provider, the Patchy Warlock Living and Learning Centre with two employees and another Homes Business College with a very large number of people.

PN210

THE COMMISSIONER: Yes.

PN211

MR MCALPINE: And that’s the basis on which we have drafted those classification structures and salary structures.

PN212

Turning now to the issue of academic rates, we note that both ourselves and the Australian College of Physical Education have proposed the insertion of academic based rates into this area. The reason for that is essentially that there has been a significant growth in the provision of higher education services in the private sector. So there are many small providers who are accredited to teach degree level courses or courses at degree level equivalents and we think it’s essentially to an effective minimum safety net that that should be - that those rates should be inserted and we note that the ACPE at least in that broad sense, agrees with us.

PN213

We have not proposed, given the draft - the way the Act is drafted and the legislative commands about modern awards, we have not proposed to insert the whole classification structure from the Higher Education Academic Staff Award. We have only proposed to insert levels A, B and C of what is in universities a five-level structure. So the level that’s commonly known as “associate professor and professor”, we’re not proposing be included in this private sector award.

PN214

Another difference between ourselves and the Australian College of Physical Education I need to take you, Commissioner, I suppose to the tradition of the higher education sector. The classification standards that are used for academic staff in higher education operate in a different way to classification descriptors in every other award I have seen. The reason for the - - -

PN215

THE COMMISSIONER: They look different.

PN216

MR MCALPINE: Well, they are different both in context but they’re also different in their function. Universities operate merit-based promotion systems and the union in the university sector accepts that you can’t use a duties-based classification system to essentially say, well, I’m now - you know, I have now got the Nobel prize or I have now discovered this or I’m working at this level, therefore I should be classified at this particular level.

PN217

The movement through the career through the career structure depends upon academic merit and that’s and that’s a peer review process. Now, we say that that is not appropriate nor is it in fact used within the private higher education system which means the minimum standards for academic levels need to be revamped in a way that they actually are classification descriptors and that’s what we have proposed to do. The Australian College of Physical Education have taken the words from the Academic Higher Education Award and said - - -

PN218

THE COMMISSIONER: And adapted the - - -

PN219

MR MCALPINE: - - - that they cannot be used as a bass for reclassification. Now, we say that generally speaking with that sort of unusual exception in higher education, that’s precisely the purpose of classification descriptors, to determine what rate of pay is applicable unto the award and that therefore a statement that you can’t use them as a basis for ..... is - renders the award in this sector in effective.

PN220

So what we have done is we have taken the higher education descriptors, we have modified them by taking out various references to research and other things without doing them any violence, we think, in terms of their work value, and we have said that these are - these describe the type of work performed at the three rather than the five levels. The other thing that we’ve done is just in relation to the casual rates and I’m really just drawing the distinction so that - it would be easy if you’re not that familiar with the awards to overlook this.

PN221

THE COMMISSIONER: Well there’s a plethora of them.

PN222

MR MCALPINE: Yes. The academic casual rates - in higher education there is a thing called a basic lecturer, a developed lecturer and a specialist lecturer.

PN223

THE COMMISSIONER: Yes.

PN224

MR MCALPINE: And what we have - which are - you get three hours’ pay for each hour of delivery, or four or five respectively under those. Now, given there’s no descriptor in the Higher Ed. Award as to what those mean and that they rely upon, you know, cultural and other things that, in view of the university system, what we have proposed is a single rate for lectures at 3.5 hours. So instead of three hours, four hours and five hours we’ve proposed a single rate of 3.5. Now, in relation to academic staff - to hours of work for teaching staff, and I include within that what are predominantly language teachers but also - sorry, not predominantly; what are language teachers but also other types of people teaching at the VET level, and people teaching at the higher education level. We’ve put various proposals which are found in existing awards applying to teachers, and are implied in the university awards for academic staff in so far as they relate to casual teaching; which is, we have put a proposal for contact hours within the award.

PN225

Now, contrary to what will be said and what is already being said by the EPIA, we are not proposing that that is the only way in which an employee can be employed. What we are proposing is that the employer at their choice can either employ teaching staff on a 38 hour week, and that if that occurs, given the large amount of work that’s done off site in all educational contexts, that the employer requires the employee to record their hours of work. So the employer can simply say “You’re employed 38 hours a week. Make sure you record the hours you work and let me know”. Or the employer can say “You don’t have to record your hours of work. These are the contact hours”.

PN226

THE COMMISSIONER: Yes.

PN227

MR MCALPINE: So we are not - and in fact I think we’ve got a proposal there which essentially allows that there can be a mix of those two formulas. Which is to take account of the fact that a teacher in one place might in fact be - and there are such people -a teacher in one place may be in fact providing student consultation from nine to five, with students by email. And for them the model is “Well, you know, you clock on at nine and you knock off at 5.30 and you have however many minutes for lunch”. Whereas the person who is just delivering classes, we say, it’s an effective - it’s an award - it exists in other awards, that there should be an award base of contact hours, as the alternative way in which the employer can, without having to measure the hours of work, can nevertheless limit them in a reasonable way. And it might be - - -

PN228

THE COMMISSIONER: The contact hours approach assumes that there will be an average of 38 hours.

PN229

MR MCALPINE: That’s right.

PN230

THE COMMISSIONER: Based on this number of contact teaching hours.

PN231

MR MCALPINE: That’s right.

PN232

THE COMMISSIONER: Yes.

PN233

MR MCALPINE: That’s right. Now, it might be asked why we’re seeking
to - there’s a version of that which we have imported from higher education.

PN234

THE COMMISSIONER: Yes.

PN235

MR MCALPINE: Now it might be asked if it’s such a good idea, why isn’t it in the Higher Education and Academic Staff Award? The reason for that is that the Higher Education and Academic Staff Award covers academics who are engaged to do teaching and research and community services and consultancy - and it’s always been a difficult issue to say well, you can specify a number of contact hours for university staff, because one university staff member may have a big research project and their full-time teaching load might in effect be six hours a week; whereas another junior academic who is not heavily involved in research may in fact be teaching 16 hours. Now in this sector we say that these - and we are told - these are essentially higher education teachers. We say that you can in fact import the higher education casual rates formula across, and say well in the Higher Ed. Award if you do a tutorial, that’s counted as three hours’ work.

PN236

THE COMMISSIONER: Yes.

PN237

MR MCALPINE: So therefore if you did 13 tutorials well you’d have done about a 38 hour week.

PN238

THE COMMISSIONER: Yes, all right.

PN239

MR MCALPINE: So that’s the proposal we have about hours of work. The only other specific things I wanted to say were to underline that the Adult Education PAT Staff Award, which I think applies to about a thousand people, has paid maternity leave within it. We haven’t proposed in our draft award the inclusion of paid maternity leave but we would argue, Commissioner, that there should be a savings provision in whatever award is made that applies to those people that preserves their paid maternity leave entitlement in the same manner as has been done in the two higher education awards. I just want to say a few remarks about the Australian College of Physical Education Award and some differences between our proposal and theirs. We strongly reject their proposal, which I think is put on page 12 of their award, to have an exclusion rate for overtime, penalty rates, higher duties et cetera, et cetera, which I think is about $44,000.

PN240

We say in particular it’s a very odd proposition to say that people above $44,000 are excluded from the higher duties provisions. That seems particularly bizarre to us because that means you can be appointed at a salary that attracted 40,000 and put into a higher position, but not be entitled to the higher rate because your salary was above the threshold. That just seems to us to be unfair in principle, and we think that the types of exclusions for overtime and shift penalties that exist in the existing awards, which we have proposed, should be carried over; which I think are about in the low 50s. In relation to there’s a proposal on page 16 of the award proposed by the Australian College of Physical Education about averaging payment of wages. We think that that’s not necessary. We don’t think that where hours vary, the wages can be held over. We think that the concept of an annual salary with flexible hours, which I think is a proposal that we both share, is a better way to go than saying salary entitlements are linked specifically to hours.

PN241

THE COMMISSIONER: Yes.

PN242

MR MCALPINE: The Australian College of Physical Education propose shift - a shift regime. We’re not necessarily opposed to that. We haven’t included one. We haven’t seen one in an existing award applying to these sorts of employers, but we would be open to having one. I suppose we’re just not sure that it’s necessary for these type of employers. And we note that the ACPE Award doesn’t include a personal and carer’s leave for casuals, which we have included in ours and which I think is a fairly standard provision. As I said, we were - compared to some of the other documents we’ve seen, we were relatively - relatively surprised at the work that the ACPE have put in, and think that their proposals should not be dismissed out of hand. And if the Commission were to seek any further process for conferring between the parties, or gave us an indication that that was a goer - - -

PN243

THE COMMISSIONER: I think it’s always a good idea if you talk to each other.

PN244

MR MCALPINE: Then notwithstanding the fact that we’re rather surprised that there are no employer associations that have proposed anything - we’re dealing with one employer there - we would be happy to talk to them. I just want to very quickly say a couple of things about student unions.

PN245

THE COMMISSIONER: Yes, I would like you to address that one.

PN246

MR MCALPINE: Yes, well we think that the - we think that the student union employees should be included in higher education, for the same reasons as apply in areas like adult education. If one actually looks at the variety and types of work which span professional, clerical, technical, theatre workers, all sorts of people, that - we think that the idea that they can be left to the Private Sector Clerical Award is not a good idea, and would not properly reflect the type of work they perform. Student organisations employ welfare officers, counsellors, theatre technicians, all sorts of people who - across a range of duties. So in fact we would say that there isn’t a single student union employee who isn’t doing the same type of work employed by their colleague who works in the university. There was always - there’s a university employee doing a similar type of work to every student union employee in the country.

PN247

THE COMMISSIONER: Yes.

PN248

MR MCALPINE: Now, the - - -

PN249

THE COMMISSIONER: And you’re not attracted to the proposal of having a separate award for student unions?

PN250

MR MCALPINE: We have no problem with having a separate award for student unions.

PN251

THE COMMISSIONER: All right.

PN252

MR MCALPINE: If the Commission is minded to do that, we would be happy to confer. We don’t think it should be called the University Unions Award because a university union is a narrower concept than student organisations of students.

PN253

THE COMMISSIONER: Yes.

PN254

MR MCALPINE: But we would be happy to confer - we haven’t had a chance, given that it was put in fairly late, we haven’t had a chance to properly look at that award, but we would be happy to confer. If the Commission were minded to make a separate award, we would be very happy with that. We - I suppose we’ve been operating on the assumption that the Commission wouldn’t be so minded, but - - -

PN255

THE COMMISSIONER: Well, until the issue was certainly raised by the Australian Federation of Employers and Industries, it had not entered my mind. But it has now been raised.

PN256

MR MCALPINE: Yes. Well, we would say that I suppose in order of preference - and we have about 400 members employed by student organisations, and they’re concerned about this. We have a range of non - we already have a range of non-enterprise awards that apply to a significant number of employees.

PN257

THE COMMISSIONER: Yes.

PN258

MR MCALPINE: And so I suppose our order of preference would be that they - our - I suppose our order of preference would be, ideally if the Commission was minded to do, which we’ve never thought of, that there was a separate award. Our second option would be that they should be covered by the Higher Education Award and we think, at a pinch, given the descriptors and classification structure in our proposed Community and Private Sector Award, that in fact they could be covered by that award.

PN259

THE COMMISSIONER: They could be covered.

PN260

MR MCALPINE: That the classification descriptors are sufficiently broad and generic to encompass them, and the salary rates are not that different from the salary rates in the Non Enterprise Student Union Awards.

PN261

THE COMMISSIONER: Can I just ask you the other issue which is in some sense related, because I think it was also discussed in the context of higher education, and that’s the university controlled entities.

PN262

MR MCALPINE: Well, again our position remains the same, which is that the university controlled entities whose primary business is the delivery of education, should be covered by the Higher Education Award. However - - -

PN263

THE COMMISSIONER: What about the ones that are research institutes?

PN264

MR MCALPINE: Well I’ll - can I deal with those - - -

PN265

THE COMMISSIONER: Yes.

PN266

MR MCALPINE: Yes,

PN267

THE COMMISSIONER: All right, sorry.

PN268

MR MCALPINE: The university controlled entities that are research institutes are very small in number.

PN269

THE COMMISSIONER: Yes.

PN270

MR MCALPINE: As in separate employers.

PN271

THE COMMISSIONER: Yes.

PN272

MR MCALPINE: So, for example, a university - there may be a university - there’s the, you know, Western Australian Medical Research Institute, which is huge.

PN273

THE COMMISSIONER: Yes.

PN274

MR MCALPINE: And everybody who works for that is an employee of the University of Western Australia.

PN275

THE COMMISSIONER: Of the university, yes.

PN276

MR MCALPINE: It’s more things like the Monash International Group of companies et cetera, et cetera, that run various foundation programs, in some cases even run - well, for example, Campus Management Services or whatever it’s called this year, which is a controlled entity of the university - of Central Queensland University. Last time I looked, it provided 40 per cent of all the undergraduate education provided by Central Queensland University. Now, it is a wholly owned subsidiary of Central Queensland University. The students who go to it are students of Central Queensland University. If we walk up here to, I think, Lonsdale Street, we’ll walk past a sign that says “Central Queensland University” and you walk in and the person who greets you at the reception desk is employed by the university controlled entity.

PN277

THE COMMISSIONER: Right.

PN278

MR MCALPINE: So there - it’s - they’re like BHP and BHP Steel, you know, they’re two - when that existed, sorry. I’m showing my age. But the - - -

PN279

THE COMMISSIONER: They don’t own it anymore.

PN280

MR MCALPINE: Now that’s at one extreme.

PN281

THE COMMISSIONER: Yes.

PN282

MR MCALPINE: That’s at one extreme, and then there are other university controlled entities who do things like own property and maintain buildings, which are - which we have no interest in.

PN283

THE COMMISSIONER: Yes.

PN284

MR MCALPINE: Now, we put proposals about university controlled entities in our earlier submissions to the Full Bench regarding higher education. We have assumed, I suppose partly not wanting to look recalcitrant and persistent, we have assumed that in relation to those we’ve lost that argument, and that they should be included in this Private Sector and Community Award, so that’s actually our formal proposal today.

PN285

THE COMMISSIONER: Yes.

PN286

MR MCALPINE: But I suppose we do say that - - -

PN287

THE COMMISSIONER: Well, all I can say is that I don’t believe that any avenue are always totally closed.

PN288

MR MCALPINE: Now in relation to research institutes, research institutes are rarely controlled entities of universities. However, they employ people who have academic titles and there’s a significant award that provides for salaries, effectively for research and academic staff employed at a lot of those research institutes. We put a proposal for a scope for research institutes which was fairly - which was quite limited. It obviously excluded the CSIRO, it excludes state government research institutes and it excluded for profit corporations. But that leaves a group of organisations like the Howard Florey Institute, the Baker Institute, the Lions Eye Institute in WA. There’s a series of about 20 or 30 of those that have close affiliation arrangements with universities, are involved in the teaching and supervision of postgraduate students, and I think it’s the Florey Institute, for example, is constituted as a department of the university, even though it’s actually a separate body.

PN289

THE COMMISSIONER: Yes.

PN290

MR MCALPINE: We genuinely can’t see any reason why those institutions, given the character of their business, the distinction between for example, the WA - the University of Western Australia Medical Research Institute and the Howard Florey Institute in terms of the type of work that is done, seems to us to be - you know, the distinction is very small and if the university descriptors, the university conditions and the university salary structures are appropriate to the UWA Medical Research Institute, then they’re appropriate to the Howard Florey Institute. And we think that the alternative is that these institutions who have their own enterprise based awards and with whom we negotiate, the alternative would seem to me that they’re going to be split up amongst about six different occupational awards; which can’t be - can’t be very efficient, because the way things are heading we presumably have an award for professional scientists, and engineers. We have another award for clerical staff. I don’t know who would cover the technical staff. So we think whatever you do, they should be in one - they should be in an integrated award. Now, traditionally - just one last thing. Traditionally in the university sector we have had agreements and awards that apply to everyone, from - from, as we always say, from professors to cleaners to trades people et cetera.

PN291

THE COMMISSIONER: Ground staff.

PN292

MR MCALPINE: I accept - the NTEU accepts that in relation to the private sector area - and I think it’s reflected in our draft - that to the extent - to the unlikely extent there are such persons as trades and services type staff, we think that they’re probably best included in an award applying to those relevant industries.

PN293

THE COMMISSIONER: Yes, thank you.

PN294

MR MCALPINE: Unless, Commissioner, you have any other questions?

PN295

THE COMMISSIONER: No, I don’t. Thank you.

PN296

MR MCALPINE: Those conclude my submissions. Thank you.

PN297

THE COMMISSIONER: Who is going to go next?

PN298

MR TILBROOK: I apologise for the ....., Commissioner.

PN299

THE COMMISSIONER: That’s all right. That was a dramatic submission, yes.

PN300

MR P TILBROOK: I'll try and make my submissions somewhat less dramatic. Commissioner, this is the third submission made by the Australian College of Physical Education in the award modernisation process. Our earlier submissions set out matters relating to the structure and regulation of higher education in Australia, including higher education provided by non-self accrediting institutions. We indicate in paragraph 1 of our submissions that we rely on those earlier submissions.

PN301

Commissioner, the college can be categorised as a boutique provider of higher education services and consistent with the remarks attributed to Mr Adrian McColm in the extract from The Australian at schedule A of the union's submissions.

PN302

The draft awards and the written submissions as to the principles underpinning their structure have been the subject of consultation from a range of providers, post-secondary, higher education and other educational services and the award that we propose for teaching staff is structured to reflect the fact that those consultations did take place. The body of the award, Commissioner, reflects common conditions of employment with the particular conditions of employment relevant to the various forms of teaching proposed to be dealt with in the schedules.

PN303

Commissioner, the consideration leading to the making of our proposal for two awards, briefly referred to in paragraphs 5 and 11 of our submissions, and of these considerations the most practical from the employers' perspective are the characteristics of providers of post-secondary, non-self accrediting higher education and other education services which we set out in paragraph 11. these characteristics, we say are small student load, reliance on student fee based income streams, diversity in operational requirements, limited size of employee cohorts and variability in the composition of those employee cohorts other than in clerical employment. Put simply, the student load is roughly comparable with a department in a largish university or a medium to larger sized high school, if that gives the Commissioner some indication of the scope of the enterprise she's dealing with and the range across which it span.

PN304

Consequently, Commissioner, employee cohorts are small and are unlikely to contain human resource management staff but if they do contain human resource management staff, those staff will usually not have other than general skills. These characteristics and their consequences, in our view, are those contemplated by paragraph (a) of part 1 of the Minister's Request and make it necessary for modern award instruments in this industry to be both accessible and simple in application.

PN305

We say that the making of two awards which distinguish between the two functional groups of employees within these organisations, that is teaching and support, would facilitate accessibility and that a drafting approach based on a modern award intended for application by both large and small employers would facilitate application in an environment where, at best, only general human resource management skills are likely to be available.

PN306

As we say in paragraph 12 of our submission, in the absence of an industry award applying to all non-teaching staff of providers of post-secondary non-self accrediting higher education providers and providers of other educational services, the Clerks Private Sector Award 2010, that is the Clerks Modern Award would cover the clerical employees of such providers. This Modern Award is intended for application by a wide range of employers. There's also derived from the Common Rule State Awards, that is those awards that have now become NAPSAs, which have been really the sole regulatory instruments applying to and applied by what is a diverse group of education service providers and it's to those providers that the awards we propose would apply.

PN307

This derivation is particularly relevant, Commissioner, because the NAPSAs have significantly influenced the day-to-day operation of institutions and have also formed the basis of the employment practices of many, if not most of them. In developing our proposals for a Modern Award coverage on non-teaching staff, these considerations have led to us to adopt the Clerks Modern Award as providing a fair minimum safety net of terms and conditions of employment without increasing the regulatory burden on employers - - -

PN308

THE COMMISSIONER: Sorry, could I just ask. You heard the submission that Mr McAlpine made and in relation to this he talk about the Victorian Adult Education - PACT Award I think it's generally referred to. Is that an award which you gave any consideration to?

PN309

MR TILBROOK: It is indeed, Commissioner, and I'll deal with that as I proceed.

PN310

THE COMMISSIONER: Certainly.

PN311

MR TILBROOK: Commissioner, if I might perhaps refer to the various provisions of the awards we propose to cover clerical, administrative, professional and technical employees. Can I refer you to in particular the coverage provision in clause 4.2 and say that in addition to what we say in paragraph 15 and 16 of our submissions, the adoption of the drafting approach of naming the types of teaching by way of inclusion, makes the award simpler to understand and easier to apply, consistent with the Minister's Request.

PN312

The inclusion of the exception relating to undergraduate and postgraduate teaching in an institution that performs research to support and inform the curriculum has been included to ensure that against the possibility of an overlap between the coverage of the proposed awards and that of the University General Staff Modern Award and the University Academic Staff Award.

PN313

THE COMMISSIONER: You could actually do it by making a specific exclusion of employees covered by those awards, could you not?

PN314

MR TILBROOK: That is an alternative approach, Commissioner, and we would be quite comfortable with that approach. The inclusion of a definition of research therefore, Commissioner, is consistent with our drafting approach in that respect. We do, however, oppose the exclusion of employees engaged in trades, cleaning or maintenance work as the classification descriptors we've developed clearly embrace that work and as that work is also embraced by the Modern Award from which the descriptors that we've used were in part derived, that award is the University General Staff Modern Award. There would appear to be no practical justification for the exclusion. Furthermore, the exclusion would unnecessarily increase the regulatory burden on employers as the number of awards to be understood and applied by an enterprise would be increased rather than reduced.

PN315

THE COMMISSIONER: Would there be many employers in the sector who directly employ tradespeople? I would have thought that they primarily would have used contractors to deliver those sort of services. You're talking about organisations that are certainly significantly smaller than a university.

PN316

MR TILBROOK: I can only speak for our organisation with any degree of certainty - of absolute certainty. We don't, we contract in but by the same token it's quite possible - - -

PN317

THE COMMISSIONER: There may be some application.

PN318

MR TILBROOK: Yes, that people with a largish campus, for instance, they require trades staff for generalist work from gardening onwards.

PN319

In relation to clause 10.2, Commissioner. in addition to the matters referred to in paragraphs 17 and 18 of our submission, we note that the award proposed by the union doesn't make provision for part time work in circumstances where attendance is not required during particular periods of the year. The employees most likely to be engaged on such a part time basis are predominantly engaged in technical or professional work associated with library or laboratory services and are at present not subject to an award or a NAPSA.

PN320

What my friend says, incidentally, about the paucity of regulation in the industry is something we would echo.

PN321

THE COMMISSIONER: It's fairly patchy.

PN322

MR TILBROOK: If part time employment on the basis we're suggesting is not to be provided for in a Modern Award, a provision for the averaging of hours over a year would be required if the employees were not to be disadvantaged by the loss of the benefits of their present part time continuing employment as only casual employment would be allowed to employers to continue their employment without unduly increasing employment costs by employing them continuously throughout the year. We say in this regard that paragraphs (c) and (d) of part 2 of the Minister's Request are relevant. It is a practice that is followed in university libraries and it's a practice that is followed in at least the library at my organisation.

PN323

In relation to clause 14.1, that's minimum rates of pay,. We rely on our submissions set out under the heading Classification Descriptors and annual Salary Rates and also in attachments A(1) and A(2) where we demonstrate how we derive those. In circumstances where classes of employees have not proved to be covered by awards, as in the case with the classes of employees who are covered by classification levels 5 to 9 inclusive, we submit that the provisions of a single minimum rate for each classification level is appropriate to provide a fair minimum safety net for employees without increasing the costs to employers.

PN324

In relation to the proposal for salaries and classifications proposed by the union in schedule C of their joint draft award, we say firstly, that although the college doesn't fit within the definition of small workplace suggested by the union, our view is that the classification descriptors and wage rates that we propose meet the requirement of paragraph (a) of part 1 of the Minister's Request and are sufficiently flexible to cover employees of institutions of various sizes, including small institutions.

PN325

Secondly, we note that the classifications and rates in schedule C of the union's award are those in the Adult and Community Education Professional Administrative Clerical and Computing and Technical - that's the PACT Staff Award 1999. Commissioner, the employer respondents to that award are not only a single subgroup of the employers whose employees are likely to be covered by the proposed award, but also they're located exclusively in Victoria. We don't concede that the rates in that award are properly set minimum rates and we - - -

PN326

THE COMMISSIONER: Why not? The award has been through the process - as I understand it, it's been through the Commission processes in relation to that.

PN327

MR TILBROOK: If that's the case, Commissioner, I withdraw that. Commissioner, no employer which is not a provider of adult and community education services located in Victoria had an opportunity to be heard by the Commission at the time the award was made and neither had the opportunity on any subsequent occasion. Of course, that's largely because awards are made by reference to a group of employer respondents. We say that if the PACT Award is to apply, it's application should be limited to the existing respondents to that award and this could easily be done by adopting the approach adopted by the Full Bench when dealing with the higher education industry in the priority stage of the award modernisation process. On that occasion it considered submissions by Bond University which was not a respondent to an existing award which contained provisions regulating the incidence of fixed termination contract employment. That award was known as the Higher Education contract of Employment Award 1998.

PN328

In both of the modern awards subsequently made by the Full Bench the application of the relevant clause is qualified in the following terms.

PN329

THE COMMISSIONER: I have read those.

PN330

MR TILBROOK: We submit that should the Commission be persuaded that the classification and wage rates appropriate for the employees in Victoria who are covered by the Community and Adult Education PACT Award should continue to apply to them, then an appropriate course of action would be for the Commission to follow the decision of the Full Bench in the priority round.

PN331

Turning to clause 15, exception rate, the drafting approach in the Clerks Modern Award was adopted. The rationale for the adoption of the clause, Commissioner, is that no existing employer is required to pay any of the entitlements. They were excluded from the Clerks Modern Award above that exception rate and to required them to do so would, of course, potentially increase the cost to employers.

PN332

We note also that the union's proposed award doesn't make provision for junior rates and we say that the inclusion of junior rates is consistent with protecting the position in the labour market of young people, and that's referred to in paragraph (b) of part 3 of the Minister's Request. It's also consistent with the existing award regulatory structure under the NAPSAs that apply to the employers in this segment of the industry.

PN333

Allowances in clause 15, Commissioner, adopt the Clerks Modern Award and again the observation in paragraph 7 of our submission regarding the influence of the provisions of that award on the day-to-day operation of employers is relevant.

PN334

The hours of work proposed in clause 23 reflect those presently available to accommodate the operational requirements of employers. The provisions in clause 20.5, however, of the union's draft award would effectively eliminate the working of ordinary hours on a Saturday morning and would be likely to increase the cost to employers which operate on Saturdays and a number of them do, including ourselves from time to time, by requiring the payment of double time, overtime penalty rates to employees required to support teaching operations as part of their ordinary duties. And at present, of course, under the NAPSAs the penalty rate for Saturday morning work is time and a quarter.

PN335

The draft awards advanced by the unions don’t make provision for shift work and the working of shifts, particularly afternoon shifts is not uncommon to support operations of institutions when teaching extends - - -

PN336

THE COMMISSIONER: Into the evening.

PN337

MR TILBROOK: - - - quite often up to 10 pm at night. And that support particularly in higher education institutions is likely to be in the nature of library or laboratory services.

PN338

THE COMMISSIONER: Yes.

PN339

MR TILBROOK: And we submit that the inclusion of shift work is required on that basis, Commissioner. Part 6 of our draft award relates to leave and public holidays and consistent with the drafting approach that we followed we have adopted the provisions of the Clerks Modern Award to supplement the NES. And we note that those provisions haven’t been incorporated into the union’s draft award and we submit the inclusion of the supplementary material is appropriate as it clearly satisfies the requirements of part 23 of the Minister’s Request.

PN340

Now, Commissioner, if I might take you to the award that we - - -

PN341

THE COMMISSIONER: Teaching staff?

PN342

MR TILBROOK: Yes, Commissioner.

PN343

THE COMMISSIONER: You can take it that I have read the submissions.

PN344

MR TILBROOK: Thank you, Commissioner. In drafting our proposal we’ve replicated as far appropriate the terms of the award which we proposed for clerical and administrative, professional and technical employees and the primary focus is then, therefore, Commissioner, on the classification standards and minimum rates and in paragraphs 44 to 49 we demonstrate - or we refer to the centrality of the revised national protocols for high education approval processes and refer to their importance in the consideration of teaching in an institution providing higher education teaching generally.

PN345

And in summary the protocols necessarily require that those employees teaching in universities and those employees teaching in non-self accrediting higher educational institutions each exercise the same teaching skills at the level and quality necessary to meet the requirements of learning outcomes in Australian universities. This necessarily requires that the minimum level and skill and the work value of employees engaged directly in higher education course delivery must always be the same as in Australian universities.

PN346

I should perhaps refer the Commission to the distinctions that exist between the classification standards that we propose and those that appear in the minimum standards in the Higher Education Modern Award. The principal distinction, your Honour, is that reference to research is not included. A further significant distinction is that the contribution to quality assurance processes and to higher education award accreditation and reaccreditation process is included and that starts to appear from the second classification level onwards and that the fourth classification level that we propose the contribution not only to that activity but also to the academic governance and strategic management of the institution is required. In our submission - - -

PN347

THE COMMISSIONER: That’s serving on committees, as I recall, yes.

PN348

MR TILBROOK: Well, it’s somewhat broader than that in as much as in a small institution serving on committees may well entail serving on a committee that deals with the entire budget.

PN349

THE COMMISSIONER: Yes.

PN350

MR TILBROOK: And it may - - -

PN351

THE COMMISSIONER: No, I understand.

PN352

MR TILBROOK: - - - involve serving on committees that deal with, for instance, human resource management policies rather than just academic policies.

PN353

THE COMMISSIONER: Yes. No, I understand.

PN354

MR TILBROOK: Commissioner, in our submission a modern award we think would not provide a fair safety net for employees. Neither would it assist employers. If it didn’t describe precisely what employers require of their teaching staff and for that reason, Commissioner, we say that the classification standards that we propose which include the reference to the quality assurance, accreditation, reaccreditation and the participation in strategic management are a more appropriate model than those suggested by the unions.

PN355

Commissioner, I note that it’s nearly midday.

PN356

THE COMMISSIONER: Yes.

PN357

MR TILBROOK: And that you have another commitment at midday, perhaps this might be a convenient time for me to stop and resume after your commitment. I’ll only be a short time after that.

PN358

THE COMMISSIONER: How much longer do you think you might be?

PN359

MR TILBROOK: Probably 10 minutes, at the most.

PN360

THE COMMISSIONER: Well, if we need to resume we will. If there is material that’s not in your submission, that’s what I want to hear. I have read the submission and I have read your drafts so I am familiar with it. This goes for everybody - nobody needs to repeat what’s in a written submission.

PN361

But we will need to adjourn very briefly while we get Perth online. You can all remain within the body of the Commission while that’s occurring but I do have to get Perth online at this stage. I’m going to take a short break and the rest of you can, if you would like.

<SHORT ADJOURNMENT [11.58AM]
<RESUMED [12.06PM]

PN362

THE COMMISSIONER: Thank you. I have in Western Australia Mr Bibby and Ms Nickerson, is that right?

PN363

MR S BIBBY: Yes, Commissioner, that’s correct.

PN364

THE COMMISSIONER: Thank you. You can sit down, if it’s easier.

PN365

MR BIBBY: Thank you.

PN366

THE COMMISSIONER: We can all see you. Right, Mr Bibby, you asked to make a short submission in relation to the matters that I need to consider, so here’s your opportunity.

PN367

MR BIBBY: Thank you, Commissioner, and thank you for giving us the opportunity to appear through the video conference. Commissioner, the reason for the submission is simply that we noted that on 6 March the Miscellaneous Workers Union had submitted a proposal for the Child Services Industry Award or for an award they titled the Child Services Industry Award and for the reasons that I’m just going to give - - -

PN368

THE COMMISSIONER: I’m sorry. Thank you.

PN369

MR BIBBY: For the reasons that I’m just going to outline for the Commission our members in Western Australia have grave concerns about that award being submitted in its present form.

PN370

Commissioner, we simply note that we are supportive of award modernisation and in the childcare industry and certainly we are very supportive of the aims and objectives of award modernisation as it is outlined in the Act and in the Minister’s Request. However, in regard to this matter, we would want to put on the record the following matters

PN371

If one looks at the Miscellaneous Workers Union proposal, we submit that this fundamentally affects the child care industry which, as we understand it, is earmarked for stage 4 and on that basis we are submitting that if their proposal were to go forward and taken on board by the Commission in regard to this particular industry sector we would say that employers would have missed out on an opportunity to put submissions in regard to issues relating to their industry. In our view, it would be a denial of natural justice and it would also raise the likelihood that the objectives of the award modernisation process as outlined under 576B of the Act and in the Minister’s Request would not be met given that adequate consultation would not have occurred.

PN372

Commissioner, we note that the proposal in that particular submission by the union would effectively mean that in the child care industry in Western Australia both annual leave and specific hours clauses would be different from other staff within the organisation and we’re saying that that would cause significant disruption to the services that are provided to the community through this important industry. And on that basis, we believe that particular proposal put by the union should be set aside and considered in stage 4.

PN373

I don’t attend to address anything in detail in terms of the cost impact but there are proposals put forward which would increase allowances, which would obviously have an impact on costs and that is of concern to our members. But in short we submit that the proposals that have been put by other employer groups and we note particularly the submission by Livingstones Australia at 4.6, 4.7 and 5.1 and 5.2 of their submission which was put on behalf of the Australian Child Care Centres Association and the Australian Community Service Employers Association we are fundamentally in agreement with and believe on that basis that consideration of the child and children’s services in regard to this particular ..... that should actually be considered in stage 4 and not in stage 3.

PN374

If it pleases the Commission, that is, in effect, the essence of our submission.

PN375

THE COMMISSIONER: Thank you, Mr Bibby. To the extent that the concept of a Children’s Services Award which also covered pre-school teachers was being advanced, you would say that consideration of preschool teachers should also be deferred for stage 4; is that what you’re saying?

PN376

MR BIBBY: Yes, Commissioner, in those facilities which are divided - the child care services.

PN377

THE COMMISSIONER: Yes. Thank you very much, Mr Bibby, I don’t have any other questions. Thank you.

PN378

MR BIBBY: Thank you, Madam Commissioner.

PN379

THE COMMISSIONER: That’s all right. Thank you for making yourself available. We’ll turn you off now.

PN380

MR BIBBY: Thank you.

PN381

THE COMMISSIONER: Speaking of turning off, there is somebody in this conference room who has a phone on silent or vibrate or something that is not actually turned off. If it’s not turned off then you won’t have any transcript. So please, if you’re that person, will you turn it off. Thank you.

PN382

Now, Mr Tilbrook, you were going to finish what you were putting to me?

PN383

MR TILBROOK: thank you, Commissioner. Commissioner, if I could refer to the casual rates that are proposed. We say they reflect the actuality of what happens in a - in particular in a higher education institution run by a private - non-self accredited provider. We have included provision for marking which I note with the union’s award doesn’t and also for musical accompaniment because we know there are such providers that do provide degrees in music and musical education.

PN384

We note that in 1.8 - I’m sorry, clause A1.8 of the union’s draft, a single rate is provided for an original lecture. That, Commissioner, doesn’t reflect the operational realities of a teaching programme for an institution such as the college where lectures requiring differing levels of preparation are given by casual staff and where such lectures are given a higher rate than the basic rate is paid.

PN385

And we know, Commissioner, from our consultations that there are other higher education providers who offer Masters degrees and Doctorates where the use of casual teaching at a developed and a specialised level is likely to be required.

PN386

Turning to the NTU’s suggestion for the provision of a single rate for casual higher education teaching and one that is based on the second salary point in the second classification level which is higher than the rate we pay at present, and would include 2.5 hours of associated work as compared with the two hours that we pay at present, largely because the market requires us to reflect what happens in university casual teaching.

PN387

We say that would cost us quite considerable extra costs. 480 original basic lectures were given at the college in 2008 and if the cost of those was to increase by the $17.05 that the union proposes, we would incur a cost increase on our teaching budget of approximately $8,184.

PN388

Commissioner, turning to the union’s submission and the proposed award condition regulating the hours of work of employees engaged in higher education teaching, we say those proceed on the basis that much of the work such employees as performed away from work and need not be done at specific times, well, we say that the operational requirements of the college and other non-self accrediting institutions are different from those of universities and that’s demonstrated by the classification standards we’ve drafted, and they don’t permit extensive absences from campus. Taken together with the expectation of a student cohort, which is fee paying and expects a high level of contact and consultations with teaching staff, those factors mitigate against any particular absences from campus. The award conditions that the union proposes for regulating the hours of work of employees engaged in higher education teaching, in our submission, are inappropriate to the operational requirements of employers. But they’re also inconsistent with the Minister’s Request, and we - particularly as we canvass at paragraphs 48 and 49 the revised Mercita protocols are quite important when it comes to the issue of quality.

PN389

Can I say that if compliance with a provision set out in clause 21.3 of the union’s joint draft award was required, the effect would be to deprive them of the ability to deploy workload allocation and management systems that they presently rely upon to ensure the quality of course offerings and learning outcomes will be the same as at Australian universities, as is required by the revised Mercita protocols. From a practical perspective, your Honour, the alternatives that are proposed would cause some difficulty because general observance of either the recording - either of the recording alternatives in clause 21.3 would be difficult to achieve. Employers at present are not required to record work activities, and particular detail would either resent the imposition of the requirement and be serially uncooperative, or they would be dismissive of the efficacy of the requirement and just feign compliance; and neither of those outcomes, we say, is desirable.

PN390

Your Honour, we finally say that in relation to clause 21.3 of the union’s
request - draft award, I’m sorry - that the proposals are inconsistent with the Minister’s Request because they are neither easily understood nor are they - nor would they be prove to be easily applied. There’s just one other matter, Commissioner, that I might refer to and that’s the matter of the proposed allowance for practice teaching supervision and its incorporation into an allowance in the award proposed for both government and private teachers.

PN391

THE COMMISSIONER: Yes.

PN392

MR TILBROOK: Commissioner, the reality for a - I say for both universities and for private providers is that the creation of an allowance that was at a higher rate than the rate which is at present in the award would - would cause considerable cost impact in the conduct of the practicum. While I should say that the present award has been the subject of the problems that the various people that have addressed you on it have outlined - - -

PN393

THE COMMISSIONER: Yes.

PN394

MR TILBROOK: The reality is that at the end of the day someone has to pay and people have paid in a variety of ways. We do not employ, or do not purport to employ, school teachers in either private or public schools that supervise our students on practicum, and we probably have in the vicinity of 800 placements a year. The cost impact of the cost for the flow on of the cost to school employers of the - of an allowance that exceeded the present rate, would invariably impact on the cost that we have to charge for our courses and may render them less attractive to students; in which case there would be not just consequences for our bottom line, but also consequences for the people that teach the students that have to be placed on any practicum, to comply with the registration requirements.

PN395

THE COMMISSIONER: Thank you.

PN396

MR TILBROOK: Thank you, Commissioner.

PN397

THE COMMISSIONER: Who is up next?

PN398

MR PILL: Commissioner, I’m - - -

PN399

THE COMMISSIONER: I think someone has got in front of you, Mr Pill.

PN400

Mr Swancott.

PN401

MR SWANCOTT: I’m not scared, Commissioner.

PN402

THE COMMISSIONER: Go for it.

PN403

MR SWANCOTT: I’ll go first. Commissioner, we have an interest in a range of matters before you, including in the government school sector.

PN404

THE COMMISSIONER: Yes.

PN405

MR SWANCOTT: With school assistance. Suffice it to say that in relation to that sector we support the submissions of the AEU and the other unions.

PN406

THE COMMISSIONER: Yes.

PN407

MR SWANCOTT: Our - we also have a significant interest in the children’s services sector as we’ve called it, and they - and those interests were manifest in a submission that we filed by the due date, along with an attached draft award.

PN408

THE COMMISSIONER: It certainly got a lot of response, Mr Swancott.

PN409

MR SWANCOTT: We like to please, Commissioner. Commissioner, the major private employers in this sector, who are represented by Mr Moloney, or - well, we’ll give him that title anyway, but there are other interests represented by AFEI.

PN410

THE COMMISSIONER: Yes.

PN411

MR SWANCOTT: But certainly in the case of the group of employers that Mr Moloney represents, we did battle over a three year period before a Full Bench of this Commission in 2004 - 2003, four and five, bringing the rates of pay for AQF qualified childcare workers up to their present levels, which are aligned on properly fixed minimum rates principles with their metals counterpart. So Mr Moloney and I have a bit of history and we have - his organisations and mine have met on a number of occasions in the lead up to today. Mr Moloney has filed a draft award and I notice that AFEI has also filed a draft award, as has the Independent Education Union, in relation to teachers in the private sector children’s services industry, if I can call it that. We’ve not - there are significant differences between the drafts supplied by ACCCA and the LHMU. I’m not proposing to go through those differences in detail, or advance particular arguments clause by clause. It’s agreed between Mr Moloney and his clients and my union that we will continue discussions with a view to narrowing those differences, and identifying any areas of irreconcilable difference in the next phase of stage 3, if these matters remain in stage 3. Or in the lead up to stage 4 if they’re deferred till then.

PN412

THE COMMISSIONER: Well, you might have got a bit ahead of yourself if it’s going to be dealt with in stage 4, and it should be much easier by the time it comes up then.

PN413

MR SWANCOTT: Yes, that was in the back of my mind, I assure you. Commissioner, just on that, we have no - we have no fixed position on whether these matters should be dealt with in stage 3 or stage 4. As we said in our submission, the awards that are relevant to this sector are spread across a number of Commission panels historically. The list that the Commission put together for stage 3, while predominantly from the education sector, included hybrid awards.

PN414

THE COMMISSIONER: Yes.

PN415

MR SWANCOTT: That covered the entire workforce; in particular childcare services, from NAPSAs, and the lists that were included in the stage 4 health and welfare services group also included hybrid awards that covered teaching qualified people as well. So we thought for an abundance of caution we should bring all of those awards together at the beginning of stage 3, lest we be
pre-empted or done over in the dark without our knowledge, while waiting for stage - - -

PN416

THE COMMISSIONER: Heaven forbid, Mr Swancott, for that to happen.

PN417

MR SWANCOTT: While waiting for stage 4. Commissioner, the major difference that has emerged between the unions is the issue of occupational versus industry award coverage, and that’s in the private sector predominantly. Now, again we reject any suggestion that by bringing the whole of the workforce in the private sector children’s services together under one award, that this somehow diminishes the rights or the potential or future conditions or salaries of any class of employee within that workforce. We reject that. We don’t think that that follows at all, and certainly won’t follow at the hands of my union while I’m involved with it. The issue is one of - not one of representation rights or coverage, it’s one of the appropriate shape of the Children’s Services Award in the context that we’ve set out in our submission at page - I’m sorry, at paragraph 19 onwards.

PN418

THE COMMISSIONER: Yes.

PN419

MR SWANCOTT: The context in which the developments within early education, early childhood education are being activated and actioned by the Commonwealth Government and the state governments are the context in which existing childcare workers will be encouraged to stay in the industry, through a combination of proper rates of pay and through accelerated access and supported access to upgraded qualifications. So we see our proposal for an industry award, if I can put it that way, as opposed to two awards, one dealing with - - -

PN420

THE COMMISSIONER: Covering teachers.

PN421

MR SWANCOTT: - - - with teachers occupationally and the other covering the rest of the workforce. We see the industry approach, which combines all of those classifications as complementary to the government strategy that’s outlined, as I say, from paragraphs 19 onwards of our submission. We don’t pull out the rifles or the barricades on this issue. We acknowledge and respect the position put by the Independent Education Union. We note that there are differences in the children’s sector in terms of NAPSA and pre-reform award coverage to the kind of issues that arose, for example, in nursing and in higher education. Because in children’s services - and I think that this is also set out quite succinctly in the submission of the Australian Federation - or Employers First - AFEI.

PN422

THE COMMISSIONER: Yes.

PN423

MR SWANCOTT: That some pre-reform and awards and NAPSAs covering employees in this sector have dealt with a hybrid, the combined workforce.

PN424

THE COMMISSIONER: Yes.

PN425

MR SWANCOTT: Others have separated them, unlike for example the nurses, where there was a tradition of substantially nurses only enterprise bargaining or award coverage, and also, as I say, in the context of this matter developing. If I can turn from that private s sector issue - and in the private sector I include the not for profit.

PN426

THE COMMISSIONER: Yes.

PN427

MR SWANCOTT: The non-government sector, to the government sector, and there’s a minor issue that has been identified between my union and the Australian Education Union in Victoria, which comes from the peculiar political history of this state, and the - well, essentially the privatisation of preschool education, as I would describe it, in Victoria. And it’s true that our draft award and our proposed scope clause, in focussing on the employer of the employee, because we have sought to exclude employees of state government.

PN428

THE COMMISSIONER: State and local government, I understand.

PN429

MR SWANCOTT: Yes.

PN430

THE COMMISSIONER: Yes.

PN431

MR SWANCOTT: From - now state governments we have sought to exclude in an unqualified way.

PN432

THE COMMISSIONER: Yes.

PN433

MR SWANCOTT: Local governments we have proposed to exclude, pending determination of their constitutional status.

PN434

THE COMMISSIONER: Right.

PN435

MR SWANCOTT: It follows that if the state government is not the employer of children’s services workers in particular parts of the industry in Victoria, that they would be caught by our proposed scope clause.

PN436

THE COMMISSIONER: Yes, because they’re generally employed - well, those who are employed in standalone preschools are employed usually by a committee of parents.

PN437

MR SWANCOTT: Yes, or schools - or school councils.

PN438

THE COMMISSIONER: Yes.

PN439

MR SWANCOTT: That may or may not be incorporated.

PN440

THE COMMISSIONER: Yes.

PN441

MR SWANCOTT: Now, we appreciate that that is a - that that is a consequence of our draft. We don’t see how it’s possible for the Commission or for us to deem people to be public servants or government employees.

PN442

THE COMMISSIONER: Yes.

PN443

MR SWANCOTT: For the purposes of award coverage, as much as we might see that as a potential solution. We don’t have a solution to that issue, except to say well, the question is, who is the employer? And who will be bound to apply the terms of any award made by the Commission?

PN444

THE COMMISSIONER: Right.

PN445

MR SWANCOTT: My final issue, Commissioner, is in relation to university unions, where the LHMU has, on the hospitality side of its vast empire, considerable interests.

PN446

THE COMMISSIONER: Yes.

PN447

MR SWANCOTT: As with the submission made by the NTEU, Mr McAlpine, we haven’t read the detail of it. We are not in principle against a university union’s award. We’re happy to consult the other relevant unions, which - of whom there are a number, and also with the employer interests, in due course.

PN448

THE COMMISSIONER: All right.

PN449

MR SWANCOTT: Thank you, Commissioner.

PN450

UNIDENTIFIED SPEAKER: Sorry, Commissioner. I was going to add, would you prefer to - I’m sorry to interrupt my friend - to have - to hear from all the unions or - and those employers who need to leave before lunch, or all the unions?

PN451

THE COMMISSIONER: No, I’m happy to hear from whoever gets to the microphone first, quite frankly. Unless somebody puts their hand up and says “I can’t be here this afternoon. Can I be heard now?”

PN452

MR MOLONEY: ....., Commissioner. Commissioner, I thought it might be appropriate - - -

PN453

THE COMMISSIONER: You follow it on from Mr Swancott, yes.

PN454

MR MOLONEY: To make my submissions, to provide some continuity.

PN455

THE COMMISSIONER: Yes.

PN456

MR MOLONEY: Thankfully I’m ..... today for the day without liberty. Simply put, Commissioner, on behalf of the Australian Childcare Centres Association and also the Australian Community Services Employers Association, we confirm our submissions filed on 6 March and the attachments contained therein. Both organisations clearly seek a single award, covering what we say is the children’s services and early education industry. The industry is diverse and it is growing in terms of the services it provides, and ..... over the years with the expansion of early childhood education programs, that is formal education programs, being delivered not just in community kindergartens or sessional kindergartens or preschools, but clearly in long day care settings as well; both run privately and also run by committees that the community run. We certainly seek the exclusion and do not seek to cover those services of both employers and employees who are attached to schools and tertiary institutions where those staff are directly employed by the school or the institution so that's a very clear distinction. I won't delve into the argument about local authorities. That's a matter that still yet to be determined in full but we note that the LHMU also seeks effectively the same outcome to this award modernisation process.

PN457

Commissioner, the other parties have an interest in the children's services industry and who have provided the Commission with their submissions. Shortly put, to say the AEU says they want a deferral to stage 4 but they want teachers' conditions maintained for early childhood teachers. The Independent Education Union Australia is seeking separate awards for teachers and childcare workers within the education services industry in stage 3 and they've provided a draft award.

PN458

The Australian Federation of Employers and Industry New South Wales seeks the creation of a single modern award for the childcare services industry and I'd suggest that's probably not all that dissimilar to our position as well, although I haven't had the opportunity to read their draft award. KU Children's Services supports the AFEI position. SDN, Sydney Day Nursery Children's Services broadly supports the inclusion of the relevant awards into the educational services sector and supports the separation of teachers and childcare workers into separate awards. Kindergarten Parents Victoria Inc seeks a single award in educational services stage 3 entitled Early Education Industry Award 2010 covering both teachers and childcare workers. The Victorian Children's Association Incorporated supports the KPU submission.

PN459

Commissioner, having read the submissions of both the IEUA and the AEU the debate clearly and essentially in our opinion focuses on whether the award should be in each case in the model for stage 3 or children's services model in stage 4. A combined award covering children's services workers and teachers seems to be a common objective and given the size of the industry, we say it should be treated separately and included in stage 4. The information referred to by the LHMU contained in the Ibis World January '09 report indicated that there's some
15,700 services which includes four types of services that we list in our submission at paragraph 3.3. Those services employ about 115,000 employees, a sizeable sector and we say that's the non-government sector that we seek to cover.

PN460

Teachers who are engaged as teachers delivering an education program do have some different conditions of employment which in turn differ again, depending on whether or not the service where they are employed follows the school year or not.

PN461

THE COMMISSIONER: Essentially they're in a long day care service as well. Roughly speaking, if they're working in a long day care service or if they're working in what is referred in various states as different things but which I'm referring as preschool centres.

PN462

MR MOLONEY: Preschools, kindergartens.

PN463

THE COMMISSIONER: Kindergartens, yes, I know.

PN464

MR MOLONEY: Nurseries, whatever, but they do differ, depending on whether they follow the school year or not.

PN465

THE COMMISSIONER: Yes. That seems to be the major difference in the conditions which relate to whether they follow the pattern of the delivery of the program.

PN466

MR MOLONEY: There's often some differences between the award conditions regarding hours of work, non-contact time preparation, et cetera. We say that it's not rocket science to work all those things out and we did provide in our submissions and attachment, setting out a summary spreadsheet of conditions in various awards. We say those differences can be accommodated into a single award. Our submission is that one award can accommodate all of those sectors and paragraph 3.3 of our submission sets out the scope of the services we say should be covered which effectively are all services.

PN467

As Mr Swancott mentioned the marathon 2003, 4, 5 pay equity cases in this Commission, I think I wore out two of his other advocates in those cases, we had a common classification structure across the various states contained in pre-reform and NAPSA awards. That's set out in attachment B to our submissions, Commissioner, and that table sets out the three pre-reform awards and various state awards. Both our own and the LHMU drafts adopt this structure. Our draft has no wage rates in it at this stage but we're continuing the discussions with the union. Where we currently differ is on the conditions or the provisions of our teachers' salaries but we think we can reach some level of agreement there. We've undertaken discussions with the LHMU. I can confirm what Mr Swancott says there on the terms of our drafts and those discussions will continue.

PN468

We, obviously, Commissioner, seek the exclusion of this industry from stage 3 and it should be included in stage 4 but if the Commission is not minded to do so, then we would obviously reserve our rights to further argue in relation to the content of the Draft Award. We did have some submissions about that but we'll probably have more things to say about that if that's the case. Those are our submissions, if the Commission pleases.

PN469

THE COMMISSIONER: Mr Moloney, there was an article in the Age newspaper. I don't know whether other people read it in the last few days about the difficulty in recruiting preschool teachers because of the fact that they are essentially having the same training as primary school teachers but they're not being paid the same. The issue of the nexus between preschool teachers and teachers in either the government or the independent sector seems to be a hot issue in the industry at the moment mainly because of the fact that there's a greater demand and they're having difficulty in filling them. How do you think that issue can should be addressed in this process, or would you like to take that on notice?

PN470

MR MOLONEY: Far be it for me to advise the relevant unions, Commissioner, but it was addressed to a certain extent - we say to a large extent, I should say, in terms of the Children's Services Award ..... pay equity. It may not be the same ability to do that with teachers and you do have the difficulty - we do acknowledge that it is sometimes difficult to recruit teachers in a setting where they're operating 52 weeks of the year versus the school terms. That can sometimes cause the same difficulties. It suits some employees to do that because they may do it on a part time basis rather than a fulltime basis. The recruitment and difficulty of recruitment of preschool teachers has always been problematic. They do have slightly different qualifications in that you can't simply be a primary teacher and then march in and be a children's services - - -

PN471

THE COMMISSIONER: In Victoria you can.

PN472

MR MOLONEY: In other states you have to have another 12 months of training to do early childhood education so that puts them into a special category again but if the salary levels, if they say that they're not up to scratch then it's not up to us to do something about that ..... legislation to do something about it.

PN473

THE COMMISSIONER: No, no, it was an issue I thought that raised itself in perhaps some of the other submissions.

PN474

MR MOLONEY: It raised itself in a whole range of industries comparing public sector employment conditions and salaries to private sector conditions and salaries, Commissioner. It's an age old argument perhaps in teachers, nurses, all sorts of professions. If the Commission pleases.

PN475

THE COMMISSIONER: Mr Pill, you're going to sneak in now, are you?

PN476

MR S PILL: Yes, I would put myself in that category of seeking your indulgence squeezing myself in before lunch. Unfortunately, there's no continuity from the previous gentleman. I have nothing to say about preschoolers. I have nothing to say about primary schools and with the exception of practice teaching supervision I have nothing to say about secondary schools.

PN477

THE COMMISSIONER: No, you're going to talk about the interface with higher education, aren't you?

PN478

MR PILL: A little bit, Commissioner. I act obviously for eight universities and they are the primary employers who are regulated by the awards already made by the Full Bench in the priority stage and are safely despatched as such. Their interest in this stage 3 is defined by post-secondary private provision of educational services, other than, as I say, the prac teaching supervision question and their interest in post-secondary education is two things. There is a financial interest, there are a number of companies in which universities have varying degrees of interests, whether it be that they own all of the shares or some of the shares or they have some other affiliation or relationship, some of those companies will most likely be caught by the proposed awards that have been put forward, for example, by the NTEU. I do not appear for those companies and so my comments about the award proposed by the NTEU will really go to the issue of costs rather than the minutiae rather than the minutiae of the particular terms. That's the first interest.

PN479

The second interest is a direct interest and it relates to ELICOS teachers in language centres of universities. I have four clients, the University of Queensland, Sydney, Adelaide and Western Australia who directly employ staff in language centres at universities and I will make some brief submissions about the award coverage and content for those.

PN480

Commissioner, there's a number of draft awards, notably two, that have been put forward in relation to the post-school private sector, that being the Community and Private Sector post-School Education Award of 2010 put forward by the NTEU with the support of the IEU and that put forward by the Australian College of Physical Education. My comments will be directed to the NTEU's draft.

PN481

I'd like to make some comments about the definition or the coverage clause in that award, Commissioner, and if I could seek your indulgence it might assist you to have it in front of you.

PN482

THE COMMISSIONER: You're talking about the NTEU's draft?

PN483

MR PILL: The NTEU's draft for the private sector. On my reading of the submissions no one has sought to tackle the question of what is educational services or indeed what is education and I'm not going to enlighten you, Commissioner, partly because I have limited instructions but what I do have instructions to do is to raise some general concerns about this definition that we'd ask be taken into account in the framing of any exposure draft.

PN484

The first is that - this is 4.1, it states that it covers employers in the education industry. You'll observe that's not defined. It requires, if you read on through the definition, an examination of whether something is a geographically or organisationally distinct part of the business of the employer and we say that's not something the Commission should do. The Full Bench has made it clear, in our submission, that you should focus on the industry of the employer and not embark on an exercise of carving up the employers.

PN485

What is essentially proposed here it a bit of a hybrid of an occupational approach and an employer based approach and we say that neither employers nor employees nor unions should have to undertake that level of analysis to determine whether the award applies. That's reinforced by section 576A, that the award be easy to understand, simple to apply and reduce the regulatory burden on business. Any definition should focus on the exclusive and primary purpose of the employer. It is also, under this definition, not limited to employees who fall within the classifications in the award and we say that that's inconsistent with the general approach of the Commission and it's also inconsistent with the objects of the Act.

PN486

We also note that it talks about parts of businesses that are exclusively or primarily engaged in activities involved in the provision of training and education. They're also not defined. For the large part of the octopus that you're grappling with, Commissioner, that may not be important. It's clear that schools are in the educational industry. When you look at the adult private sector educational industry, I think it is incumbent upon the Commission to tackle the question about where is the boundary, what is the definition of training and education, noting, of course, that all employers one way or another would say that they are engaged in training and education of their staff. There is, in our submission, a need for a degree of formality, essentially a form of program of training and education to warrant inclusion in an award such as this.

PN487

There's one discrete matter which relates to the exclusion in 4.1(c) which seeks to exclude any employer in respect of an employee to whom either Higher Education Awards apply. That exclusion, in my submission, is too narrow for a couple of reasons. When one looks to those awards there are some staff members who are technically employed by universities that are specifically excluded and with the exception of ELICOS staff they were excluded on the basis that they weren't part of education and so, for example, employees who work in commercial theatre operations that might be owned by a university were never intended to be covered by a Higher Education Award and would not be intended to be covered by this award. It really should, in our submission, exclude any employer engaged in the higher education industry as defined in those awards. That's all I wish to say about definition at this stage.

In terms of the general terms that are contained in the NTEU Award, as I say my clients are clearly not covered by it, other than in respect of ELICOS staff so I'll keep my submission at a high level. In our submission the position about patchy award coverage is respectfully overstated. It is patchy in some areas but it's certainly no absent and there is a significant number of awards for business colleges and language teachers in particular but the predominant regulation is the Clerical Awards that apply either as NAPSAs in states other than Victoria and in Victoria the Victorian Clerical and Administrative Award. The union, to some extent, glosses over that and seeks to extrapolate two Victorian awards to set the terms and conditions for all employees across Australia to fall within the scope of the award.

PN488

All we really say about that is that the universities oppose changes that will result in additional cost to employers that the universities own and the Commission should exercise extreme care, can I submit, in extending awards into areas where there have traditionally not been either any awards or that the awards are Clerical Awards and there should be some pressure testing, in my submission, against the existing award regulation if the Commission is minded to adopt what is in effect a completely new set of award regulation where none previously existed.

PN489

It certainly is, in my submission, open to the Commission to look primarily to the Private Sector Clerical Award 2010. We would accept that it's not a complete answer to the question, there are - - -

PN490

THE COMMISSIONER: There will be classifications that it clearly doesn't cover.

PN491

MR PILL: That's correct, Commissioner, and there are other examples in other stages of this award modernisation process where the Commission has looked to the Clerical Award and then supplemented the classification structure in that award and that may be something that the Commission wishes to do here. I would emphasise again my client's interest is not so much to get into the minutiae of the terms but that the overall level of costs to the employers who it does cover should not be increased.

PN492

I raise that by way of one example. The formula for the calculation of casual rates which Mr McAlpine described for academic teachers as being a low average of
3 and a half hours, drawing from the University Awards. The University Awards do have three rates for casual teachers based upon whether they're a basic lecture, a developed lecture or a specialised lecture. The point that respectfully is glossed over is that the vast majority of lectures are basic lectures and so whilst it is taking three hours, four hours and five hours and coming up with 3 and half, they're not equally weighted and again, it's an area where extreme care should be taken less there be unknown and unintended consequences.

PN493

In relation to the other ..... Commissioner, my client's position is that there should be - it's not opposed to there being one award but in endorsing the submissions that were put, to some extent by the EPIA from Sydney, there should be a separate schedule. There is Federal Award regulation. It’s relatively straightforward, it’s easy to understand, it almost requires no change to enable it to meet the Modern Award and objects. What we submit, being universities, is that the university regulation is set out in the Teachers English Language Centres of Australian Universities Conditions of Employment Award 1998, and we are apart with the EPIA on that issue. We say that that’s the award that the Commission should have primary regard to in establishing a schedule for ELICOS teachers.

PN494

The EPIA made a number of submissions about what they described as being non-industry standards that have been included in the union draft. They pointed to allowances. They pointed to a new construct about powers. We would endorse and support those submissions. There are adequate provisions, in our submission, in the ELICOS Award.

PN495

We would also note that the ELICOS Award presently has a 20 per cent casual loading. I’m not going to waste my time - - -

PN496

THE COMMISSIONER: Arguing that one, no.

PN497

MR PILL: - - - Commissioner, but I would ask that you note that as a starting point there will be a cost increase for employers and the EPIA outlined some of the nature of English language teaching for overseas students. It is very fluid. There is a high level of casualisation and the majority of employees are employed as casuals. So that five per cent is no small thing for ELICOS providers.

PN498

We would also seek that there be some provision regarding the direction of annual leave included in the schedule for ELICOS teachers. There is currently a clause in the ELICOS Award to the effect that annual leave must be taken each year and not accumulated and by agreement can be accumulated up to a maximum of two years entitlement. We acknowledge that that’s unlikely to survive the NESs. What we would is a provision that enables the direction of annual leave and we would seek to adopt the provision that was included for academic staff in the Higher Education Academic Staff Award.

PN499

So, in short, our submission about ELICOS staff, Commissioner, is there is effectively a status quo for my clients. There is no need to be extrapolating and imposing a new set drawn from essentially Victorian PACT Awards for such staff. There seems to be uncertainty with the EPIA as to whether their ELICOS teachers would be seen as academic teachers with that three level classification structure. In my submission, the ELICOS would clearly not fall into the description of academic teacher. They would be classified in accordance with schedule B which is unpopulated in the draft.

PN500

THE COMMISSIONER: Yes.

PN501

MR PILL: And we say that you should populate it with the 12 level classification structure and rates from the ELICOS Award. I would note that that award also exists in the Teachers English - sorry, that classification structure also exists in the Teachers English Colleges Award of 1999. So there are effectively three awards that cover, in one way or another, English language and ELICOS teaching and the Commission has a decision to make about where the emphasis lies.

PN502

THE COMMISSIONER: What’s the most appropriate, yes.

PN503

MR PILL: There are some differences between those three awards. Can I briefly say a couple of things about practice teaching supervision. The AEU made some submissions today and there are three paragraphs in their submissions. It is a much more complex and significant issue that is suggested by the brief submissions that have been put.

PN504

The first point that I would make is that that award that purports to bind universities was before the Commission in the priority stage to the extent that the AEU submits that their employees at the university, the Commission has chosen not to include an allowance in the Higher Education Awards. There were no submissions about it but the award was clearly on the list and it was clear that the terms and conditions for universities were being considered by the Full Bench.

PN505

Moving past that though, Commissioner, we say that there is no sound basis for the inclusion any allowance in any award. It is the case that there is this vexed question about whose employees are they - and I would add if they are employees at all for the purposes of doing the supervision work. They are employees, in my client’s submission, of the schools, the government departments. They work on school grounds with school equipment. They are tasked with delivering an outcome, the manner in which they perform the supervision, the way they go about it is a matter for them and for the school so the degree of control is exercised by the universities is minimal.

PN506

These doubts are shared by the two most Senior Members of this Commission who have in different contexts expressed this is a legal contrivance. In my client’s submission it’s time to bring the contrivance to an end. It is a more complicated question because there’s a chequered position across Australia. The award that’s referred to does not apply in Queensland. There is a complicating factor in Victoria where as a result of the restructure of the teaching profession the rates for certain classes of teachers was specifically set to reflect the fact that these were part of the teaching duties.

PN507

And so if, amongst things, you acceded to the submission and just included an allowance and didn’t take that into account in the rates for teachers, there would be a double dipping issue.

PN508

We say for present purposes that the complexity of the issue is such that the appropriate course is not to include the allowance. There may be an appropriate forum in which to resolve this issue and that forum may well be discussions between the federal/state governments, schools and universities but it’s respectfully an issue that shouldn’t be dealt with by the swift strike of a pen and inclusion of an allowance in schools awards where that allowance has never existed in schools awards in the past.

PN509

My client’s recognise that there is a real conundrum here. The AEU referred to the fact that there is difficulty in getting teachers to undertake this work and that’s not ignored. The flipside is that the funding that is provided for this work is already deficient based upon the current rates that are paid and the money promised, budgeted by the Commonwealth is not being met and there is correspondence from the Minister to that effect.

PN510

So there’s no spare money to pay for an increase in allowance. What that means obviously, Commissioner, is not only is it difficult to get the teachers to do the work it means that less students will become qualified teachers. And in a priority area of Australian employment - I won’t try to digress into the big picture too much but it’s not the role of this Commission to impose what would be a significant increase in cost for practice teaching supervision to the detriment of the number of teachers that would come out of Departments of Education.

PN511

Can I conclude very quickly by making a couple of very, very brief comments about research institutes and student unions. It doesn’t appear to be suggested that there should be and inclusion based upon research institutes. It seems to be more a question about the scope of the coverage clause generally. We would observe that research institutes are a very diverse group and it doesn’t surprise me that none of them are here. If I am a research institute that, for example, is a railway technology institute, I’m much more likely to see myself as part of the rail industry plan than I am perhaps as part of the educational industry.

PN512

Research and design is a part of almost every industry. Again, it’s a question of extent. What we say in respect of the Higher Ed. Awards is that the Full Bench has defined the scope of that award by a definition of higher education. If a research institute satisfies that definition then it will fall within the scope of that award. If it doesn’t, then it won’t.

PN513

If the Commission is minded to look to expressly include some form of description of research institute then I suspect that my clients would have a lot more to say about the issue.

PN514

In relation to student unions, none of my clients are employers of student union staff. They are separate entities.

PN515

THE COMMISSIONER: Yes.

PN516

MR PILL: The CPSU seemed to submit that they shouldn’t be part of educational services but then go on to say because they’re not part of education but then go on to say they should be part of higher education, respectfully that submission is inconsistent. Student unions - and I understand people go to this more fully - form an extraordinarily diverse range of activities and employ waiters and bookshop staff as well as the sorts of people that Mr McAlpine described.

PN517

My clients would support to the extent that there is a need for award regulation for these staff separate to occupational awards. The making of a separate award rather than lumping what is clearly non-educational service in with higher education. If the Commission pleases.

PN518

THE COMMISSIONER: Thank you, Mr Pill. Is there anybody who has a short submission before we break? Yes.

PN519

MR D WILLIAMS: If the Commission pleases, I represent the Victorian TAFE Association.

PN520

THE COMMISSIONER: Thank you.

PN521

MR WILLIAMS: I must acknowledge that I did not put in a notice of appearance at the commencement of proceedings. We had not intended to say anything until some questions in other submissions were drawn to our attention. Very briefly, the industry that we are part of in the TAFE sector is the VET sector, not the school sector, as has been outlined by the AEU.

PN522

Across Australia there are 1.67 million students as at last - 2008, in fact, more students than university in the VET sector, with operating revenues across the providers of in excess of $6 billion. There are 4,000 registered training organisations that make up the VET sector, of which 57 nationally are TAFE institutes, 18 of those in Victoria, four being dual sectors with universities that my association represents.

PN523

Although a considerable proportion of the funding for TAFE institutes comes from the state and federal government, more than 30 per cent of the income in the Victorian TAFE sector is generated by commercial fee-for-service revenue and more and more with the changes in the Victorian skills reform system all funding as of 1 July this year at diploma and advanced diploma level as well as fee-for-service commercial income will be subject to open contestability. And that is actually being broadened out on the national stage.

PN524

On 5 March this year the Deputy Prime Minister, the Honourable Julia Gillard gave a speech to the Big Skills Conference - I just want to read four short quotes:

PN525

There must be an emphasis on choice, quality, benchmark outcomes and full public transparency.

PN526

All providers must play a role in raising quality but I want to emphasise just how important TAFE and the community sectors are. They are the engine rooms for much of Australia’s training effort. Much will depend upon the continued health and sustainability of these public providers.

PN527

And it is correct that TAFE across Australia does provide approximately 80 per cent of the government funded vocational education and training. But the key comments that come in to and tying into our written submission is:

PN528

Regulation in the VET sector is currently fragmented between jurisdictions. The auditing and monitoring of provider performance varies from state to state. The benchmarks used to assess providers can lack transparency. To counter this, the government will work with states and territories to develop strong and cohesive national regulatory arrangements for VET. It is important that this work progresses alongside the establishment of the proposed higher education regulator.

PN529

So right throughout the speech there was reference to VET with specific reference to TAFE, not reference to it being part of the school sector. The National Centre for Vocational Education and Research, all its statistics across the nation are collected for the VET sector, VET being the industry.

PN530

Therefore, we submit that there should be a modern award for the VET sector. In the context of the English language services where they form part of TAFE delivery or private provider - private registered training organisation delivery, they should come under the scope of that one modern award.

PN531

The key feature is, in our submission, that the nature of work in many respects undertaken in the TAFE and registered training organisation environment is not aligned to schools. It is driven by industry in an arrangement through a national structure through qualifications frameworks, through industry skills councils, delivering to industry’s needs in a tertiary educational environment with being a bridging education at times towards higher education.

PN532

We submitted in the higher education round 1 - phase 1 review that VET should not be part of Higher Ed. and at the national level the Deputy Prime Minister has in fact shied away from creating one overall regulatory framework but has created one ministerial council for vocational education and training and higher education. One body, Skills Australia, which as for VET is now for VET and Higher Ed. in assessing the nation’s skill needs.

PN533

Thank you for the opportunity to submit.

PN534

THE COMMISSIONER: Thank you. Is there anybody else who has short submission, otherwise you will have to hold your breath until quarter to two. All right. We’ll resume at quarter to two.

<LUNCHEON ADJOURNMENT [1.11PM]
<RESUMED [1.47PM]

PN535

THE COMMISSIONER: Thank you. Right, who is next in the fray?

PN536

MR HOLLINGWORTH: If the Commission pleases, we had a bit of a pow wow, Commissioner, and my friends here were - - -

PN537

THE COMMISSIONER: The department got the gong .

PN538

MR HOLLINGWORTH: - - - kind enough to let me go first, on the basis that I would be very brief.

PN539

THE COMMISSIONER: Thank you.

PN540

MR HOLLINGWORTH: So I’m beholden to that. Commissioner, the Department of Education and Early Childhood Development Victoria. I am here today - and rely totally on our written submissions to you, Commissioner.

PN541

THE COMMISSIONER: Yes.

PN542

MR HOLLINGWORTH: I have no intention of talking to those. Commissioner, I really just want to make a couple of brief comments in respect of submissions that have been made before you today.

PN543

THE COMMISSIONER: Yes.

PN544

MR HOLLINGWORTH: Mr Perica from the CPSU submitted to you, Commissioner, the - an argument of a very close linkage of public sector conditions of employment to non-teaching staff in our schools. Commissioner, I know you have a strong familiarity with our employment instruments there, but I would just probably, for the record, like to point out that the recent Employment Training and Reform Act that was introduced, which incorporated the old Teaching Service Act and the Education Act, the Education Act on which we employed non-teaching staff, and created a teaching service in - which now incorporates all teacher class, principal class and what we call now education support class employees.

PN545

THE COMMISSIONER: Right.

PN546

MR HOLLINGWORTH: In terms of our most recent agreement which came into effect on 9 December. The - within that teaching service, Commissioner - and it’s in our written submissions - there is about approximately 50,000 equivalent full-time staff; 10,000 of those are non-teaching staff and in respect to that legislation, Commissioner, what I’m submitting today is that that legislation provides power for the Minister and the department to administer education services. There has been a strong legislative history that I think does make us different, in that sense, to the public sector as a whole. The public sector employment in our department would probably - as we would understand the VPS, probably constitutes about 4 per cent of our workforce. The linkages that certainly, going way back to non-teaching staff, it would have existed way back when; but tenuous, at the most favourable now(sic), we would say, are largely non-existent in terms of the conditions of employment. As the Commissioner would be aware, the School Services Officer Agreement - Award that came in, in 2000, set minimum rates and we’ve had several agreements since then, and changes to our structure from an eight level to now a five level structure. So
that - I submit to you, Commissioner, that that’s - the linkage to public sector award conditions is not a strong one at all and similarly, the claim that was made in respect to those rates that are in the award, the same again. Mr Maxwell from the forestry union submitted to you the exclusion - correct me if I’m wrong
here - but the exclusion of maintenance work or employment, if that’s how I understood it.

PN547

THE COMMISSIONER: Maintenance trades, I think was the term that he used.

PN548

MR HOLLINGWORTH: Yes, maintenance trades. Yes, and I would submit to you today, Commissioner, that our whole industrial framework for non-teaching staff over a number of years has included a non-teaching structure, albeit changed, that embraces any work that is not teaching in a school. So we would have a significant concern if there was an award rate that we had to go other places to find in respect to work that might be maintenance in a school, and more importantly, if it had an intended consequence of excluding us schools from employing under those - under that - the classification structures that we currently operate. So I submit our concern about that claim, Commissioner. But that is all I wish to submit today.

PN549

THE COMMISSIONER: You don’t have any comments on the issue of the preschool, under your early childhood development hat?

PN550

MR HOLLINGWORTH: No, I don’t.

PN551

THE COMMISSIONER: Right.

PN552

MR HOLLINGWORTH: And I think the issue is well understood in that, and I’ve certainly got no comment to make on that today.

PN553

THE COMMISSIONER: Thank you very much.

PN554

MR HOLLINGWORTH: Thank you.

PN555

THE COMMISSIONER: Who is going next?

PN556

MS UDY: Commissioner.

PN557

THE COMMISSIONER: Thank you.

PN558

MS UDY: Commissioner, I speak on behalf of my organisation, SDN Children’s Services.

PN559

THE COMMISSIONER: Yes.

PN560

MS UDY: We’re predominantly in New South Wales and the ACT. We have 500 employees. We run 21 early childhood education centres and provide a range of other specialist education and family support services. We are a not for profit organisation with limited government funding. Our range of services reflects our longstanding and earliest - since 1905 - interest in children’s and family wellbeing generally. However, since 1930 SDN has trained early childhood teachers to be employed in our own, and other long day care centres, where an educational component was designed. My organisation actually brought out a Miss Gillespie from London in 1930 to institute the nursery school education model in Australia. So this commitment to education or component in long day care is very longstanding in my organisation, to the point which - where we were able to influence our state, the state regulations, that now require that an early childhood teachers is employed in a long day care centre, so long as that centre has 30 or more children. In fact it increases incrementally on the basis of the size of the centre.

PN561

While a thousand long day care centres in New South Wales choose to not adopt that, because they are licensed for 29 children or less, there are another thousand who do provide early childhood education within a long day care centre environment in New South Wales. Our primary consideration in making our submission to the Commissioner is for the quality of what we provide for the children. While we obviously, to stay in business, do need to look to our costs, that is not our primary driver. We believe that the fact that early childhood education and care in Australia is not fully funded, the way other sectors of the education system are, should not be a reason to diminish the pay and conditions of the people who choose to work there. I believe if this was the case, if education was in the - for children below school age was fully funded, and was provided as a right for all children, then several of the submissions that are being presented here today would not need to be; because I believe that that desire - actually, the need to recoup fees from parents is a factor that operates to contain our costs. But I believe that is an unfair consideration to make when children’s wellbeing and the first stage of their education journey is therefore possibly compromised.

PN562

SDN does want to ensure that the early childhood component within our centres continues to be there, and we believe - because we believe this is in children’s best interests. We believe that this will be best ensured through the wrap up of the early childhood education care sector into the one Education Services Award, and therefore we do stand apart from our sister organisation, KU Children’s Services and other employer groups that will be presenting, or have presented today. Because we believe for education - to actually say we’re providing education, we do need to have teachers employed. It’s no good just pretending it’s a learning environment because nice caring, interesting people are employed. Unless you are employing early childhood teachers, degree’d teachers, you cannot in all honesty say that that is an educational environment. To ensure this, we need to have the regulations that require employers to seek to employ teachers. We also need to have teachers being attracted to our field. As we’ve already heard, and you - Commissioner, you have already drawn attention to the fact that the status and standing, particularly of preschool teachers or teachers in the early childhood education sector, I believe is - in fact, of all teachers - I mean, I think over the last few decades we’ve seen the status and standing of all teachers reduced in our society, early childhood teachers even more so. And because we - my organisation is predominantly providing long day care, we struggle even further.

PN563

I think it has already been pointed out that our teachers in our centres have conditions which are quite challenging to work within. I do not believe that’s a reason to reduce their pay. In fact it would be a strong argument to increase it. People - teachers who choose to work in long day care have eight hours a day of contact time with children over 48 weeks a year. This equates to 1800 hours of contact time. Their colleagues in preschool or even the early years, or primary school years, teaching in schools have six hours contact time with children. I think that’s actually quite generous. I have two nieces working in schools and I know they have a lot of - they don’t work six hours contact time with children, and that’s at 40 weeks of the year, which comes to 1200 hours. So in actual fact teachers in long day care centres are working 50 per cent more in terms of contact time.

PN564

We reject the LHMU draft award that will see the pay reducing for teachers. We do not believe that the scale that they are proposing, which is starting at - and I’m changing it to an annual rate of pay because, I don’t know about other people, but maybe some of my - some of the people - - -

PN565

THE COMMISSIONER: No, I think in this sector most people think in annual terms of rate of pay.

PN566

MS UDY: Yes, so that - yes, so I’m going to - I’ve translated the hourly rates
to - - .

PN567

THE COMMISSIONER: Yes.

PN568

MS UDY: Because I think it has more of an impact when you think of it as an annual rate of pay, so the LHMU draft award has proposed a range of starting at 38,000 and rising to about 52,000. That’s a $14,000 range. In New South Wales we - the award currently for teaches starts at - in early childhood, in the early childhood sector, starts at 43,000 and rises to 65,000, which is a $22,000 range. These two pay ranges, I believe, speak to two quite different types of professions. The first is more reflective of a degree’d qualified person who would expect to come out in the early - in their first year of employment on around about 40. They can aspire, over the life of their career to get to at least 65,000, and then if you’re running a centre there’s the director’s allowance on top of that. At SDN we do have - a lot of our centre directors are close to $80,000, being employed, and as I tell them, they must not complain. That is a reasonable wage.

PN569

As we know, the Miscellaneous Workers Award is quite low in terms of the untrained and the diploma staff. I think therein lies one of the difficulties of our sector, in that we do have people with degrees, we have people with a two year TAFE qualification, a diploma level, and we have untrained. I believe those three levels are needed. We are providing an environment that - we have very young children, babies and toddlers through to three, four and five year olds. They do need a range of skill over the day. Some of our babies are there longer than we are. Some of our babies are there 10 hours a day and their needs are quite pressing and need to be provided by very sensitive, warm and caring people. However, if we’re to claim this is an educational environment, we also have to have teachers there as well, and that’s the component that I do not wish to see diluted or diminished by an award that would seek to - to reduce the recompense that our teachers currently can look forward to, in inverted commas.

PN570

I believe that this, at the end of the day, will be - will impact on children’s educational life chances and we will pay for it later as a society, if we’re not prepared to pay now. Therefore SDN Children’s Services does not support any move that would reduce the pay and conditions of teachers employed in early childhood settings, because we do not believe this would be in children’s best interests. We do not believe that - as I said earlier, that because early childhood education and care is not fully funded by our society, that therefore the people who choose or wish to work in this critically important part of the education sector should bear the costs themselves, personally. We believe that it is the nature of the work and the occupation that should be the basis for the pay and conditions, not who you choose to work for. So I would not support an award that was based on a private or a not - a private - a for profit sector and a not for profit sector, or a government or a non government. I believe that if you - your pay and conditions should be on the basis of the work that you choose to do, not on who you choose to work for. Finally, just to correct the record, I did double check our submission and I don’t believe, as was indicated by Mr Mahoney(sic) earlier, that we supported the separation of the award in any way, or two separate awards. We are supporting that one early childhood - one education services award. Thank you, Commissioner.

PN571

THE COMMISSIONER: Thank you very much.

PN572

Who is going next? Do you have agreement on that? Ms Pugsley.

PN573

MS PUGSLEY: If the Commission pleases.

PN574

THE COMMISSIONER: Thank you.

PN575

MS PUGSLEY: Back to the universities.

PN576

THE COMMISSIONER: We’re back to the universities now.

PN577

MS PUGSLEY: Back to the universities.

PN578

THE COMMISSIONER: Yes.

PN579

MS PUGSLEY: Which are a whole different world.

PN580

THE COMMISSIONER: Yes.

PN581

MS PUGSLEY: Commissioner, as you have indicated, you’ve read our submissions.

PN582

THE COMMISSIONER: Yes.

PN583

MS PUGSLEY: So of course I don’t propose to go into - - -

PN584

THE COMMISSIONER: You don’t need to go into - - -

PN585

MS PUGSLEY: - - - anything that has been covered in those submissions, and so you’re aware that our members’ interests are primarily in relation to ELICOS teachers, who are employed by our members. But I would also like to make some brief submissions in response to other issues which have been raised, relating to controlled entities, practice teaching supervisors, student unions and research institutes.

PN586

THE COMMISSIONER: Do you have anything to say about TAFE? Don’t you have - some of your people have TAFE as well, TAFE teachers?

PN587

MS PUGSLEY: They do, Commissioner.

PN588

THE COMMISSIONER: Yes.

PN589

MS PUGSLEY: I don’t have instructions.

PN590

THE COMMISSIONER: Very well.

PN591

MS PUGSLEY: I can speak with the TAFE Association but my understanding is that for these purposes Victorian dual sector universities are represented by the Victorian TAFE Association.

PN592

THE COMMISSIONER: Right.

PN593

MS PUGSLEY: If those instructions are incorrect, I - - -

PN594

THE COMMISSIONER: No, no, that’s good. As long as I understand that that’s how it’s working, that’s fine.

PN595

MS PUGSLEY: Commissioner, there is an award, the Teachers English Centres of Australian Universities Condition of Employment Award, to which the vast majority of universities are respondent. At the time the award was made it - the respondents would have been all of the universities who then existed in Australia. Not all universities of course - in fact only a minority of universities actually employ ELICOS staff direct. We think there are about 10 of our approximately 30 members, so about a third, in addition to the - that there were four of our non members who were referred to by Mr Pill. Clearly, ELICOS teachers are neither academics nor general staff, and for that reason they were not - they were specifically excluded from the first round of award modernisation. So the question now arises how they did - - -

PN596

THE COMMISSIONER: Where they go.

PN597

MS PUGSLEY: Where they go.

PN598

THE COMMISSIONER: Yes.

PN599

MS PUGSLEY: We’re not opposed to the idea of a separate ELICOS award, covering both public and private providers, because of course the majority of providers are private providers. We’re not opposed to one award covering both of those. We’re not opposed to ELICOS teachers being part of a larger omnibus award, but what we say is important, Commissioner, is that the starting point for English language teachers who are employed by universities has to be the existing pre-reform award. That is not the English Colleges Award 1998, which of course never applied to the universities. We note the award that has been filed by the NTEU and we note that the - I think it’s the schedule B has been left blank, which would contain the appropriate salaries and classifications for ELICOS teachers.

PN600

THE COMMISSIONER: Yes.

PN601

MS PUGSLEY: We say that the current classification structure which is the 1 to 12 classification structure should be the one that is included for ELICOS staff. With respect to the EPIA's submissions, the English Colleges Award is not the principal award. We say it can't be said to be a principal award. There are three awards in the sector and again we say that the starting point for those employed by universities should be the pre-reform award that covers universities.

PN602

Just briefly, if I understood Mr McAlpine's submissions about contact hours and non-contact hours, there is nothing in the ELICOS Award currently about contact hours and non-contact hours and we reject the suggestion that there are contact hours and non-contact hours. We say that if contact hours are defined, well then, the employer then should have the right to direct - how to direct attendance for those non-contact hours so that, for example, once the person gets beyond their contact teaching hours, the employer may require them for other purposes, for personal development meetings and all the rest of it. Those are our submissions in relation to ELICOS teachers employed by universities.

PN603

The Practice Teaching Supervision Award, which you've already heard something this morning, is a very strange award indeed. It's a unique award. Mr Durbridge described it as a bugbear for the industry, which is an understatement. What the award purports to do, well, it sets out rates to be paid by universities to employers of government and private schools who are engaged in the supervision of university students who are undertaking the practical component of their teacher training. When the schoolteachers are carrying out this work, they're doing so in their capacity as schoolteachers, they're not entering into a separate employment relationship with the university who's making the payment. They're not actually supervised by the university. They continue to be supervised and controlled by their actual employer, who is either the government department or the private employer.

PN604

Mr Durbridge referred to supervision and coordination by universities, well, coordination perhaps in that there are general staff members at universities who spend a great deal of time on the phone, as I understand it, and doing a lot of spreadsheets trying to find placements at schools. Mr Tilbrook referred to 800 placements alone for ACPI which is a relatively small private institution. In some public universities there are thousands of placements per year so yes, we acknowledge that there may be a coordination role but not a supervision role.

PN605

THE COMMISSIONER: Those people would be covered by - the people who are doing the coordination presumably would be covered by the Higher Education Award.

PN606

MS PUGSLEY: Yes, they are general staff employed by the universities. As has already been brought to your attention, the award has been the subject of challenge in the past. In the early 1990s some parties sought to have the award set aside, arguing that it was invalid because it purported to require respondents to make payments to a class of persons who were not employees of those respondents and the Full Bench said on that occasion that it could not ignore the possibility that the award may at least in part be invalid because it purports to prescribe payments to a class of person who may not be the employees of the employers respondent to the award.

PN607

Those lengthy proceedings didn't ever reach a conclusion so the question of the award's validity or otherwise is still very much an issue and we say - - -

PN608

THE COMMISSIONER: You say it's time to fix that, do you?

PN609

MS PUGSLEY: We say that it might be time to fix it by having these payments not regulated by an award at all. That's our preferred view, Commissioner. To give you a flavour of just how the award doesn't work and how it's not functioning as an award, last year industrial action was going to be taken by public servants in Tasmania. They were employees in the public sector in Tasmania and they were going to take industrial action in the form of bans on the practicum because they wanted to be paid more for offering themselves for that work.

PN610

The case proceeded in a strange way because the Commission member who was hearing the matter was not satisfied that the duty of undertaking the practicum supervision fell outside the statement of duties of public sector teachers, notwithstanding that there was not a specific reference in the statement of duties document for those teachers so the case proceeded on the basis that the university sought orders to prevent - and was successful in obtaining orders to prevent the industrial action from going ahead, not on the basis that it was an employer, it was under section 496(2) on the basis that it was a third party who was being injured.

PN611

That gives you a flavour of the fact if the award is not functioning as you would imagine an award would do and with respect we agree with that Commission member's conclusion that practice teaching supervision should fall within the normal duties carried out by schoolteachers.

PN612

Mr Pill referred to the possibility of double-dipping if the duties do fall within the normal duties and there was a separate allowance payable. That argument did succeed in that case I referred to back in the early 1990s. Practice teaching supervision does form part of the duties of the senior teacher - advanced schools teacher in Victoria and therefore, my association successfully argued back in the early 1990s that the award should be varied so that it excludes those in Victoria because otherwise there would be double-dipping.

PN613

This issue about whether it's appropriate to include such an allowance an award, if it's included as I understand the AEU to be arguing in an award covering schoolteachers, whether that be a GESI, as they call it, Award or non-GESI Award, well then, it's going to increase the costs for someone and all the more so if the rates are increased.

PN614

The other peculiarity about the award is that the rates have not been increased since 1992. The rates were increased once and once only and that was for one national wage increase. The union has not sought to increase the rates since 1992. The award still contains those 1992 rates and for complex reasons, too complex to go into here, Commissioner, connected with the way in which the practicum is funded by the federal government, the funding that universities currently receive, the 2009 rates, doesn't actually cover the cost for funding the practicum at those 1992 rates so even the slightest increase in cost would have extremely adverse financial consequences if they were in any way to be passed on to our members, whether the schools then pay them an allowance which then - - -

PN615

THE COMMISSIONER: They sought to recover.

PN616

MS PUGSLEY: - - - they sought to recover from the universities. Mr Durbridge submitted that the Modern Award would overcome the employment relationship issue. As I understand it, what he was referring to there was to include the allowance - - -

PN617

THE COMMISSIONER: Because it doesn't have specific respondency.

PN618

MS PUGSLEY: Exactly. It doesn't resolve the problem. It doesn't resolve the issue of who is responsible. It doesn't resolve the issue of how it's going to be paid for because it will have to be paid for by someone and it doesn't resolve the issue that perhaps it's time now to consider, like every other profession, that supervision of novitiates in the profession comes under the normal duties of the senior members of the profession. We say in summary, Commissioner, that this issue should be resolved outside the award system.

PN619

Finally, the award, of course, has never operated throughout Australia. For reasons to do with union coverage, as I understand, rather than to do with anything about universities being different or the work being different, it never applied in Queensland so there has never been - so any award coverage, and we say there should be none, should obviously not apply in Queensland because it never has and it should not apply in Victoria because of the variation that was made to the award back in the early 1990s.

PN620

As far as student unions are concerned, we understand that it is possible that there may be some employees of student unions who are actually employees of the universities and if that's the case, well then, they will fall within the classification of general staff employed by universities and that will just operate automatically. We're not opposed in principle to a separate award for university unions where they are separate entities but of course, that doesn't cover the interests of our members if we don't employ those staff directly, but we do note what has been said about appropriate Occupational Awards rather than - a student union is not within the industry of higher education, it's providing a different kind of service.

PN621

Finally, in relation to research institutes, well, the Full Bench has already made two Higher Education Awards and if a research institute falls within the definition of a higher education institution as defined in either of those awards, well then, they are automatically covered by those awards. As far other research institutes, they may or may not fall within the definition of being an educational institution at all and each would have to be looked at on its merits. There doesn't seem to be any general representation here for research institutes, not surprisingly since the industry that's before you is educational services, not research services.

PN622

As far as controlled entities are concerned, of course, we don't represent controlled entities of universities, we represent the universities. Nevertheless, we simply make some general comments about the definition that the NTEU has put forward in its draft award about coverage of institutions in higher education that are not universities or not otherwise covered by those Universities Award.

PN623

Just briefly, we do note that the education industry has not been defined and that in order for an Education Award to operate, education would have to be the sole or primary business of the employer, not a geographically or organisationally distinct part of that employer. if the Commission pleases.

PN624

THE COMMISSIONER: Mr West.

PN625

MR R WEST: Commissioner, I might take the opportunity to introduce you to the non-government, non-preschool sector and put some submissions to you on behalf of the National Catholic Education Commission. In common with all the other parties today we have a detailed written submission - - -

PN626

THE COMMISSIONER: Yes, I have that.

PN627

MR WEST: - - - which I take it that you've read.

PN628

THE COMMISSIONER: I have indeed.

PN629

MR WEST: I don't wish to take you to all of that but I wish to emphasise a couple of key points and to respond to some of the other submissions.

PN630

Commissioner, I think the very important issue that I want to stress about your consideration of the submission on behalf of the National Catholic Education Commission is the very unique nature of employment in the Catholic sector. Set out in our written submission is an explanation by state of the way in which - - -

PN631

THE COMMISSIONER: Who the employer actually is and as to how - yes.

PN632

MR WEST: Yes, and how it's organised

PN633

THE COMMISSIONER: Yes, very complicated.

PN634

MR WEST: It is very complicated and very much reflects the organisational structure, if you like of the church and the way it has evolved under the canon rules of the church. Importantly, for this exercise is award modernisation, it confronts the jurisdiction of the Commission or requires the confrontation of the jurisdiction of the Commission over award modernisation. In this sense, the Catholic sector is quite unique. I mean, in the private sector the Commission would be used to dealing with corporations engaging essentially in commercial activity, broadly speaking.

PN635

In this sense we've got employing entities who are natural persons, bishops, individual priests - - -

PN636

THE COMMISSIONER: Parish priests, yes.

PN637

MR WEST: - - - and the heads of orders. In some cases in Victoria, for example, the Catholic secondary schools are run by a creature known as an Association of ..... Administrators which is an unincorporated association of priests and then there are other corporate intermediaries or entities who fulfil the role of employer but many of those are trusts and trust corporations and there is a very real question in relation to many of them as to whether they would fit the definition of a constitutional corporation.

PN638

We are aware that there will be some - and we readily concede there are some employers in the Catholic system that will definitely be capable to regulation by a modern award. The employers in the Territory, for example. We have conceded in our submission, probably prematurely I think, that Victoria - - -

PN639

THE COMMISSIONER: Victoria is likely to be in.

PN640

MR WEST: Yes, and the Victorian government's submission really raises an issue about the current drafting of the Act which really hasn't transferred the referred employers under schedule 6 into the definition of employer for the purposes of the modern awards so we have a situation where in Victoria, there will not be the capacity for modern awards to cover Catholic employers because they are essentially all natural persons.

PN641

THE COMMISSIONER: Depending on what happens in the discussions between the Victorian and federal government.

PN642

MR WEST: Yes, and that in itself is an important aspect of what we want to submit to you in relation to the award. The nature of employment is one of the issues which distinguishes the Catholic sector but the Catholic sector really stands alone as a recognised part of the school education sector, or part of the industry and it operates - albeit that it has these unique employment arrangements, it does operate on a systemic basis. It does operate on the basis of a common set of principles and beliefs and with its own internal regulation, subject to its own rules. It has a matter of industrial practice operated independently. Many of the awards that are currently applicable are awards specific to the Catholic sector. In some states there is common award coverage with other independent schools but the negotiation of agreements in relation to education in those states is very much done on a Catholic systemic basis and so the whole structure of industrial relations, if you like, of the Catholic sector is separate from the other sectors of the industry, and particularly the independent sector.

PN643

What the Catholic employers seek is really the right going forward to be able to put a position and to have an award which reflects their specific issues. Those issues may in the future raise on occasions issues about their particular religious beliefs and that has been of issue and we've referred at least to one case in New South Wales where that was of issue for the church and it's reflected in the Commission's decision, but there'll be other issues around the structure and organisation in funding for Catholic schools which the Catholic system would need to have its own award to be able to deal with.

PN644

We submit that there's nothing in the Act or the Minister's Request that really does not allow modern awards to accommodate these sorts of differences and the Commission has recognised the need to segment sections in the retail industry, for example, on the basis of essentially commercial bases and we say that the proposal for Catholic schools to have a separate award applicable to them is really not inconsistent with that. It's not a situation like the private universities which were a very small part of the university sector. Catholic education counts for 20 per cent of the national education and employs something like
80,000 employees, it's a substantial sector and in that sense it warrants its own award.

PN645

We draw the Commission's attention to the fact that the Association of Independent School's submission supports the establishment of a separate award for Catholic schools and the AEU's submissions are really based on - as we apprehend it on the basis that they haven't really seen enough of the detail to properly be able to put a position and that's something that we've endeavoured to rectify this morning by providing a draft award which we haven't yet filed. I've got a copy I can hand up if that's appropriate.

PN646

THE COMMISSIONER: Thank you. You are going to lodge that?

PN647

MR WEST: We will lodge it separately, yes, Commissioner. It's a single award covering all employees in Catholic schools, subject to some exclusions which are set out in the coverage clause and it deals with all of the matters that are relevant under the award modernisation principles. It does draw some common elements from the AIS awards but it also adopts some issues relevant to the Catholic sector and very importantly, in relation to transitional arrangements regarding wages and it’s that issue that I would like to take the Commission to.

PN648

THE COMMISSIONER: Yes.

PN649

MR WEST: To explain some background before I actually go to the relevant provision, the difficulty faced by Catholic schools with this uncertain coverage issue is the fact that there will be some schools which are clearly subject to any modern award and they - that will operate in substitution for any state arrangements. There will be some Catholic employers who will clearly be subject to - not subject to a modern award and therefore will remain under whatever their current regulation is. And there will be a lot of employers in the middle whose status will depend on a determination as to whether: (a) there’s a referral of powers; or (b) whether they’re constitutional corporations.

PN650

THE COMMISSIONER: Whether they’re a constitutional corporation, yes.

PN651

MR WEST: Now, leaving the referral of powers issue to one side, the test of whether a corporation is a constitutional corporation is a very fact-based test and until there and until there is a proper determination by a tribunal an employer will never be certain whether they are or are not a constitutional corporation. It’s quite problematic in a lot of examples of whether they are.

PN652

Now, in those circumstances if there is a modern award in place the employer is left in a position of uncertainty as to whether they’re in the modern award or still in the state system, or in most cases from which they have - where they are coming to rely.

PN653

THE COMMISSIONER: Yes.

PN654

MR WEST: In addition to that, even if that issue were clarified with certainty you would end up with a mixed system where some Catholic schools would be under the modern award, some would be under the state award. So in trying to manage a system one would need to deal with this dual award coverage issue.

PN655

Now, the NCEC gave consideration to how to deal with this issue and it selected not to take the sort of course that perhaps the Victorian Government and the AEU have taken which is essentially to say let’s adjourn until this issue is sorted out, for several reasons. One is we recognise that the Commission is trying to get on and get this job done. We also recognise that the national employment standards are going to come and apply and they would have applied to some of our schools, we know that.

PN656

Because of the unique nature of education and skill-based education, there will be a need to put in place some modifications and some adaptations of the national employment standards to suit the particular industry. How do we deal, for example, with school holidays?

PN657

THE COMMISSIONER: School holidays, the hours issue clearly - - -

PN658

MR WEST: That’s just one - the hours issue and so on.

PN659

THE COMMISSIONER: Yes.

PN660

MR WEST: So, I mean, we do need to have an award in place to cater for that, for those who are definitely in but then it creates this problem for those who are problematic or out of the system.

PN661

So what we propose, Commissioner, is that we will be able to adapt and cope with the award other than in relation to wages and we propose a transitional provision until the referral of powers issue is sorted out, which is effectively to preserve the current status quo rates of pay and by necessity the classifications and allowances that go with that, as a transitional measure so that under the draft award that we propose at clause 13.1, we propose that all employees continue to receive as a term of the award, the modern award, the wages they were entitled to under awards existing as at the date it comes into effect which is 1 January 2010, with the facility in 13.2 for thereafter to be adjustments in accordance with the principles to be followed by the Commission.

PN662

So in this way, there will be no disparity between people’s existing wages and those under the modern award, while this issue of referral of powers is sorted out. And this is a problem we would submit that is unique to the Catholic school sector in a suspended sense. There may have been odd employers elsewhere who would have a similar problem but from a systems point of view Catholic schools very much are affected by this particularly.

PN663

I note in passing - and I don’t wish to say this by way of endorsement - but I note that in the IEU’s submissions there are some submissions at paragraph 41 where the IEU suggested wages ought not be included and ..... for different reasons which we don’t - - -

PN664

THE COMMISSIONER: For a different reason, yes.

PN665

MR WEST: And similarly the IEU have an equivocal position in relation to the classifications for non-teachers. So what we have proposed is not necessarily, in the end result, unnecessarily different from what appears in their submission. But certainly we get to that point by a totally different means.

PN666

Now, the other thing that I wanted to mention beyond that is the proposal of the NTEU and the IEU for a community and private sector post-school education award and the inclusion in that of employees in the central administration of Catholic education systems. And I should say that my clients have only become aware of the proposal for this award following its filing in these proceedings.

PN667

THE COMMISSIONER: Right.

PN668

MR WEST: Which is a matter of a few days ago, I think probably six days or so ago and so the response that we put today is merely by way of a preliminary response. We do reserve our right to file some detailed submissions about this issue. But I did want to say a couple of things about it.

PN669

The first point I wanted to make is that there is no central administration of Catholic education in the sense that one might have in a government department. In each of the states and in each of the diocese in each of the states there are Catholic Education offices.

PN670

THE COMMISSIONER: Yes, called Catholic Education Commission, I think sometimes.

PN671

MR WEST: There is a Catholic Education Commission in Victoria, for example.

PN672

THE COMMISSIONER: And WA, I think.

PN673

MR WEST: Yes, I’m not sure on that point. The Catholic Education offices do perform slightly different functions depending on which diocese they’re in but essentially they are bodies who provide administrative, educational and resource support to schools. They don’t actually provide education themselves. They act as a resource and support body, if you like.

PN674

Importantly as well, and coming back to a point I made at the outset, Catholic Education offices are established in each diocese by the Bishop of the diocese and in many cases it’s the Bishop who is the employer of the staff in the Catholic Education office. If I could refer, Commissioner, you to the respondency list for the Victorian award you’ll see there that for each of those it’s actually the Bishop who is known as the employer authority, and in Melbourne the Archbishop. There are in other cases trust corporations and so on.

PN675

THE COMMISSIONER: That seems to be the model in Queensland that they have trust corporations.

PN676

MR WEST: Yes, that act as the employer, that’s right. I think in the Archdiocese of Sydney that the employer is probably the Bishop.

PN677

THE COMMISSIONER: It’s the Archbishop, I think.

PN678

MR WEST: Yes, it’s the Archbishop.

PN679

THE COMMISSIONER: And in the Diocese of Canberra and Goulburn I think it’s the Archbishop.

PN680

MR WEST: I think it may be a trust corporation employing there but I think you have the general theme of where I’m at.

PN681

THE COMMISSIONER: Yes. I have the flavour.

PN682

MR WEST: Well, what that ends up meaning of course is that it’s problematic whether a modern award applicable to CEO staff would ever have any operation for the reason that these people are not going to be employed by a Commonwealth employer unless there is a referral of powers, except perhaps in the territories. So, for that reason, we think it would be inappropriate at this stage to include them in any award but certainly not in this award, or this proposed award.

PN683

If one looks at the scope of coverage of the awards proposed, I think it would be - it wouldn’t be uncharitable to say that it’s really just a grab bag of leftovers thrown together with no particular logic, frankly, and it almost is accepted by that in the NTEU’s submission where they refer to the list of employers under the statement. In plain language what that leaves is covered as the following - it’s really pretty much a statement of leftovers, I think.

PN684

Really, there is no common element or no commonality between the other people proposed to be covered by this award and Catholic Education offices.

PN685

People such as adult education providers, language teachers in universities, private training and educational providers or university controlled entities providing education really don't have anything in common because - - -

PN686

THE COMMISSIONER: Because they're not actually directly providing education.

PN687

MR WEST: Yes, they are providers whereas the Catholic education offices are not providers at all.

PN688

THE COMMISSIONER: Not providers of education.

PN689

MR WEST: No. We submit that really the issue of the staff in Catholic education offices should be excluded from modern award coverage at least until the issue around the referral of powers is sorted out but that it would be, in any event, inappropriate to be included in this proposed award, for the reasons that I've explained, and we would otherwise seek to put submissions in writing ..... a more detailed consideration.

PN690

THE COMMISSIONER: They are covered by the Victorian Award, aren't they?

PN691

MR WEST: Some.

PN692

THE COMMISSIONER: Some of them are covered by the Victorian Award.

PN693

MR WEST: Yes, there are Catholic education officers covered under the Victorian Award, yes. I should say that many people that work in Catholic education offices are covered by Occupational Awards at state level and I presume, if things were left as they are by Modern Award Occupational Awards, Clerical Awards, for example. If it please the Commission, that's our submission.

PN694

THE COMMISSIONER: Mr Nucifora.

PN695

MR NUCIFORA: Commissioner, the ASU with its diverse coverage is in, I guess the word is juxtaposition where we've had - particularly in relation to private sector clerical where the Clerks Private Sector Award was of course one of the priority awards and that has come up repeatedly today and then, of course, we've got Local Government and Social Community Welfare that comes up in stage 4.

PN696

We say, and we're trying to stay on the straight and narrow on this, Commissioner, and I must say we have, of course, tendered written submissions but there's going to have to be some supplementation of that because of some of the submissions that were lodged in writing last week and, of course, verbally today. We want to stay on the straight and narrow and we call on the Commission to stay on the straight and narrow in the context of some of the submissions that have been made by all parties today.

PN697

THE COMMISSIONER: I hope I'm on the straight and narrow.

PN698

MR NUCIFORA: Commissioner, I guess in terms of award modernisation, it's hard to stay on the straight and narrow and even from our point of view, we've tried to keep a general rule but there's been exceptions to the general rule and I think what we mean by the straight and narrow in the context of the proceedings before you is the list of awards that are before you.

PN699

Mr Pill mentioned earlier today that the Commission should act with some caution in relation to venturing any further than the coverage of the existing awards in this matter and we say that there are certainly reasons why we should do that.

PN700

What I was going to say, Commissioner, is earlier today Mr Durbridge on behalf of the AEU, as we would say, quite rightfully summarised the position of what we thought was, of course, the Education Unions and that is government teacher and support - four areas basically, government teacher and support staff and non-government teacher and support staff. We would support that global position if that is the position of all - the straight and narrow, as I call it - of all the major particularly unions in this industry. We'd support that but the areas that I wish to take you to in particular, Commissioner, is - there's four areas, student unions, employers engaged in, as I mentioned, clerical and administrative capacity in non-government areas, Local Government run or owned childcare and family day care facilities and community based training.

PN701

Mr Durbridge, I mentioned earlier, I think summed up what we believe the position in this industry is on the straight and narrow. There is one area that we disagree with, though, Mr Durbridge made a mention, referred to Local Government in Victoria - Local Government childcare workers and we would say they're Local Government employees, they ought be covered by - - -

PN702

THE COMMISSIONER: The Local Government Award.

PN703

MR NUCIFORA: Sorry, I should clarify that because I did ask Mr Durbridge, I think he was talking about people who might be more like teachers working for childcare providers and we say that they're Local Government employees and they ought be covered by Local Government Awards which we'll deal with, of course, in stage 4.

PN704

Of course, there is the question of - that's at least in terms of Victoria and the territories. Of course if Local Government remains in the state system, then Local Government employees - - -

PN705

THE COMMISSIONER: Are councils constitutional corporations? It's still a vexed issue.

PN706

MR NUCIFORA: That's one of the other big questions that we're involved with, Commissioner, but in terms of that, if they are Local Government employees, then they ought remain and we've reached that position with other unions such as the Finance Sector Union where they have financial workers that are employed by Local Government. If they're Local Government employees then they're Local Government owned. We say that all childcare workers - that is a general rule - they will be covered by their Local Government Awards.

PN707

Those states that remain in the state system - I mean, you would have this position if you didn't recognise that, that you might have someone in the federal system with a childcare provider otherwise owned or run by the Local Government and the rest of the employees in the state system so there is that question and I know it was raised in particular by Mr Durbridge and I thought we should raise it again here now.

PN708

It's also raised by the Local Government Association New South Wales.

PN709

THE COMMISSIONER: Yes, I have their submissions.

PN710

MR NUCIFORA: They say that they prefer to exclude childcare workers and I'm talking about, of course, from the - and I'll come back to this, the LHMU Proposed Draft Award for the children's services industry and we support that but they then go on to say if they're not covered by the Local Government Award, then they ought be picked up by some other Federal Award and we say, of course, they ought in the states outside of Victoria and the territories, if they stay in the state system, they should all stay in the state system, including childcare workers. That is certainly a difference of opinion we have with Local Government.

PN711

In terms of student unions, this is something that has changed as a result of the proposal for a single award for student unions. We do have award interests and coverage in some of the student unions and our position was that we would have preferred that the student unions be covered by the Higher Education Awards. We had an interest there and we put - and that's consistent with, as I say the straight and narrow that we'd followed before but we're not opposed, as the NTEU put it today, to in theory considering the option of having a stand-alone award for student unions if the major unions - and if there's merit in that. We need to come back to you on that, Commissioner.

PN712

I think there's a number of issues because it's been raised today that we haven't really defined educational services. I guess there will need to be some opportunity for parties to put further submissions I guess in writing within a particular period of time before the exposure drafts are released.

PN713

THE COMMISSIONER: You know you're welcome to put further submissions. I'll read them and they'll be taken into account.

PN714

MR NUCIFORA: Thank you, Commissioner. In relation to clerical and administrative employees, this is a question of once again trying to stay with the straight and narrow. Our position across various other industry sectors is that - non-government industry sectors is that private sector clerical administrative employees ought be covered by the clerks Private Sector Award, with the exception here, as it was in higher education, and we're trying to follow, as I say, the higher education example, is that there has been a more recent history of - particularly in New South Wales, but a history of clerical admin employees being covered by the Education Award, Non-Government Education Award and we say that's appropriate and we would concede at least to that point that in fact - that clerical admin employees working for non-government independent schools ought remain in the Industry Award.

PN715

We say that because we have found that normally in the classification structures there, there is value added in terms of the traditional areas that we cover, clerical admin employees and it would be immoral for us to seek to hang onto those people under what was traditionally our state common rule Clerical Awards when they would be better of in the Industry Award so we've conceded that and that's historical - - -

PN716

THE COMMISSIONER: There are some issues, I suppose, as well,
Mr Nucifora, in the terms of the way that schools operate on school terms and what implications they'd have which are not - may not necessarily be addressed in the General Clerical Industry Award in terms of the arrangements of hours and holidays and those sorts of things.

PN717

MR NUCIFORA: Yes, Commissioner. It leads me to the point where we say with clerical admin employees, and particularly when we talk about some of those grey areas - you mentioned before registered training organisations, if they're currently covered by state clerical NAPSAs, we wouldn't automatically be conceding that they shouldn't be covered by the Clerical Private Sector Award but at the same time we wouldn't be saying that it is the automatic - it ought be the award that applies.

PN718

The Clerks Private Sector Award is still an award - the Modern Award is still work in progress, even though it has been finalised and released. In terms of who it covers - we believe would only really have the benefit of putting the best interests of private sector clerical employees toward - well, probably towards the end of stage 4. But along the way we would say that we certainly don’t want the Clerical Admin Award - the Clerks Private Sector Award to be used as a reason to hold back clerical admin employees in the educational services industry, who would otherwise have access to value added - what I call value added classification structures. So that’s something we need to speak to, the IEU in particular, about how we properly cover those.

PN719

THE COMMISSIONER: In terms of historical coverage, Mr Nucifora, it would appear that the private schools have tended to have separate awards, although there don’t necessarily appear to have been those sorts of awards in the post secondary education area.

PN720

MR NUCIFORA: Yes, the post secondary education we’ve - - -

PN721

THE COMMISSIONER: Not as much, anyway.

PN722

MR NUCIFORA: Not as much.

PN723

THE COMMISSIONER: There are some.

PN724

MR NUCIFORA: There is - certainly with TAFE there is of course the PACT Award in Victoria.

PN725

THE COMMISSIONER: Yes.

PN726

MR NUCIFORA: And in the other states they’re government services employees.

PN727

THE COMMISSIONER: Yes.

PN728

MR NUCIFORA: We haven’t had a direct interest there. So - but in Victoria we would say the PACT Award applies. It does lead me to that question that I mentioned earlier, that it is the non-traditional educational institutions that are - I guess are a problem here, that we would need some more time to consider whether they ought to be covered by the Clerks Private Sector Award or the industry award. But generally speaking the rule for us is that the Education Industry Award should apply. It applied on higher education. It’s quite consistent in saying that they would apply - certainly would they apply it traditionally.

PN729

THE COMMISSIONER: Yes.

PN730

MR NUCIFORA: It’s when we venture off that path that it becomes a bit more of an issue, and I think it leads me to the example of - you mentioned before - I mean, there is - that’s the private sector clerical side of it, but we do - we also have a concern with the NTEU proposed Community and Private Sector Post Education Award. That is a bit more ambitious than seeking - we understand why the NTEU and IEU would seek to put an award that clarifies some areas that are unclear at the moment, in terms of award coverage, and in other areas better regulates an area that’s seen to be - perceived to be unregulated. It’s not so much the clerical admin side we have a concern with, with that, Commissioner. It is more the community and welfare side, and in particular we have a concern in the draft award where it - it certainly seems to cover, or could arguably cover the labour market assistance program, group training and registered training organisations. Now there is a current award, the Community Employment Training and Support Services Award, for that labour market program area.

PN731

THE COMMISSIONER: Yes.

PN732

MR NUCIFORA: That is something that we have all - as I understood, was being referred in with health and welfare services.

PN733

THE COMMISSIONER: Yes.

PN734

MR NUCIFORA: In stage 4, and we believe that’s where it should be. I think the NTEU certainly - the concern - what it gets down to is this question of is someone - ultimately it would get down to a question of yes, is the provider an educational provider, substantially or principally and educational provider? And how do we define educational? But for us is certainly clerical admin - the NTEU or the IEU are interested in the administrative employees or coordinators, and people like that who would coordinate labour market programs, and group training. Is someone a trainer or are they a teacher, I think is where we’re going to end up with, and Commissioner, we do have coverage of trainers,
particularly - and I’m looking at the other end of the continuum - is with - where registered training organisations that are community based. There are trainers there. Now, are they teachers or are they trainers? Now, that’s something we’re not going to resolve today, but we’ll need to have further discussions with those unions.

PN735

THE COMMISSIONER: Well, I think there’s an issue of qualifications, Mr Nucifora.

PN736

MR NUCIFORA: Yes.

PN737

THE COMMISSIONER: That comes in there.

PN738

MR NUCIFORA: At least that.

PN739

THE COMMISSIONER: Yes.

PN740

MR NUCIFORA: At least that, Commissioner, but we - that’s why we raise the straight and arrow, that that whole - as you mentioned, Commissioner - post education, non-traditional - what we call non-traditional educational institutions - the growth of that area has - not only raises concern about clerical admin employees but we - our biggest concern is the social and welfare side, of particularly labour market programs.

PN741

THE COMMISSIONER: Labour market programs.

PN742

MR NUCIFORA: Yes, and that’s something we would say - we may only be able to get a conclusive position on that after - well, certainly further discussion between the parties, but ultimately at stage 4. It really leaves me then with the - what we say about the Children’s Services Industry Award, and that’s an award of course proposed by the LHMU, and once again we recognise why they have raised it. They don’t really want to get caught on the hop in terms of childcare. The - we say, as a number of parties have said today, that the children’s services industry and a number of awards that come up in that sector should be referred to in stage 4. Now, as I understand it, the LHMU aren’t opposed to that in principal. They have a reason to put it up front now and I totally understand that, because childcare has come up in terms of skill based childcare. They have in their award, their draft award, excluded local government.

PN743

THE COMMISSIONER: Yes.

PN744

MR NUCIFORA: And that’s a major area of concern with a - with our area of coverage, f course, local government. But the other area of coverage is family day care. We do have a Family Day Care Award, that’s AP 12580, that operates in New South Wales and Queensland. Now, that has been referred to in stage 4. So, Commissioner, I guess we’re referring to all those - I mean, those areas of overlap. I say that some are natural because of how the profession - as we say, teaching and the educational services industry, has changed. But there may be some that are artificial and for different reasons we need to resolve that concern, and when I say artificial, it may be that someone who ought to be covered by an award - a clerical admin employee that could be covered by an award we would say is an appropriately drafted one, as part of the education services industry, we would say ought not be then forced to go into the Clerks Private Sector Award just because it would contain labour costs.

PN745

So we have a - I mean, it’s difficult for us because they are the general - the straight and narrow for us and the clerks’ private sector is that in fact in non-government areas, and certainly in the private sector, is that that would be the main award. There’s a history of clerical admin employees being covered by educational industry awards here, and as a general rule we would - we support that. There was mention a bit earlier about exemption provisions. I’ll just briefly say that we’ve made submissions about exemption provisions in stage 2, and we are totally opposed to exemption provisions. And certainly if the employers are wanting to jump on the bandwagon, as they have in other industries, it is an issue that we are seeking to raise at every level that we can, as being one that we see as being inconsistent with the safety net principal. And as the advocate in the clerks’ brewery - the Full Bench Clerks Brewery case, we say it’s one that has been settled.

PN746

So if employers on the other side of the table think we should rush into the Clerks Private Sector Award because of the exemption provision, we say it’s - it ought be history, and we’ll keep putting that, just like preference and other issues that went along with white collar clerical workers. It’s history. It has been determined. It has now come up in the context of award modernisation and we would say it ought not be in any white collar award or in any clerical award. Unless there is any questions, Commissioner?

PN747

THE COMMISSIONER: No I think I’ve raised any issues that I wanted to, Mr Nucifora.

PN748

We’ve actually got somebody coming on line in Brisbane in about five minutes, so perhaps rather than you start, Mr Odgers, we might get that person on line first, if you don’t mind.

PN749

MR ODGERS: No.

PN750

THE COMMISSIONER: So we’ll have a short break while we get him on line. Thank you.

<SHORT ADJOURNMENT [2.56PM]
<RESUMED [3.03PM]

PN751

THE COMMISSIONER: Thank you.

PN752

Right, Ms Taylor, you can hear me?

PN753

MS N TAYLOR: Yes, I can.

PN754

THE COMMISSIONER: Good, I can hear you. So you’re wishing to make a submission in support, I think, of a submission that has already been put in writing to the Commission, and that was done by Livingstones on behalf of a group of schools in Queensland; is that right?

PN755

MS TAYLOR: That’s correct.

PN756

THE COMMISSIONER: All right, then. Thank you.

PN757

MS TAYLOR: There is one - Commissioner, there is one additional school who has now provided us with instructions, and supports the same submissions previously provided, and that school is St Stephens College.

PN758

THE COMMISSIONER: Right.

PN759

MS TAYLOR: Situated on the Gold Coast.

PN760

THE COMMISSIONER: Thank you.

PN761

MS TAYLOR: So as you note, Commissioner, we have already provided written submissions and we appreciate the opportunity to appear by video link today, and will just limit submissions to responding to the submissions filed by some of the other parties.

PN762

THE COMMISSIONER: Thank you.

PN763

MS TAYLOR: So the first area I would like to touch on is the submission by the National Catholic Education Commission to have what is effectively a separate award to cover Catholic schools only, as opposed to independent schools.

PN764

THE COMMISSIONER: Yes.

PN765

MS TAYLOR: None of the schools which I represent are Catholic schools, however some of them are Anglican schools and various other faiths, other Christian faiths. In Queensland historically Catholic schools have not been separately regulated, and certainty my clients consider that Catholic schools are part of the independent school industry, as an industry as a whole, and consider that they should be viewed part of that sector. They recruit staff from the same pool of candidates, they have similar or the same qualifications and they essentially perform the same tasks. They - the Catholic schools with other independent schools to provide private education services, and for that reason our clients support the IEAU’s view that the award should not be divided on the basis of faith, and there should be one Independent Schools Award or an Independent Schools Award which covers non teachers and teaching staff.

PN766

THE COMMISSIONER: Yes.

PN767

MS TAYLOR: I note that the NCC relies on the fact that it operates as a system and also that it negotiates workplace agreements collectively as a system. The reality is that there are other schools of other faiths that do the same thing. Certainly in Queensland the Anglicans and the Lutherans to a large degree operate as a system, and there is some coordination in the way they operate and their funding. They also traditionally have negotiated as a group and there are approximately around 25 schools in each group, both Anglicans and Lutherans. So we don’t see that there is any real distinction between the way the Catholics operate in a practical sense and the way the other systems do, and that there is no real reason to create a separate award for them. So that’s the issue in relation to that submission by the NCC.

PN768

The second issue I would like to turn to is the question of the exclusion of certain managers under the Non-Teaching or Other Employees Award, as proposed by various parties. It appears that most of the parties agree that business managers or bursars should be excluded from award coverage, as they traditionally have been in most states. I note, however, that the NCC in their proposal limits the exclusion to secondary schools, and our clients are of the view that the exclusion should apply to bursars and business managers in all schools, not simply secondary schools. The proposal by NCC creates two, I guess, problems as I see it. Firstly, business managers and bursars who are employed in P to 12 schools work across both primary and secondary functions, and therefore it would be impossible to delineate when they’re working for a primary school and when they’re working for a secondary, and whether they’re covered by an award.

PN769

THE COMMISSIONER: Yes.

PN770

MS TAYLOR: The second problem is, I guess, fairly unique to one of the schools I represent, Toowoomba Preparatory School. It’s a unique school in that it is the only primary only boarding school in Australia and it is quite a large school in terms of the services that it provides. If the NCC’s proposal to limit the exclusion to secondary school bursars was to be put - included in the modern award, Toowoomba Prep would be in the unusual situation where their business manager or bursar, who performs essentially the same functions as other larger independent schools, would actually be covered by the award, rather than excluded. So again we believe that the exclusion should be across all schools.

PN771

The second question in relation to, I guess, managers in the non-teaching area is that over time schools have become more complex and through that, over probably the last 10 years, we’ve started to see the emergence of other positions, managerial positions, in schools which have not traditionally been covered by awards. And examples of those I would give would be human resource managers, IT managers, facilities managers, various different roles like that which would not normally be covered by an award; but are not really envisaged by the existing awards in schools because, as I say, they - they’ve sort of grown into the school environment over a period. Our original submission lodged on 6 March doesn’t specifically exclude these types of positions and the reason for that is that we expected that the classifications within the non-teaching award would not extend to those positions. However, we seek today just to flag it for the Commission’s attention, so that any discussions over award coverage would contemplate the fact that those types of positions really should be excluded from the award as well.

PN772

The next area I would like to look at is hours of work, firstly for teachers. I note the IEUA’s proposal at clause 20.3 of their draft award for teachers. They propose wording that:

PN773

It is acknowledged that the ordinary hours of work for an employee during term weeks are variable. In return an employee is not required to attend for periods of time when the students are not present, subject to the needs of the employer, with regard to professional development, pupil free days and other exceptional circumstances.

PN774

In principle, we believe that this is a generally appropriate clause however, we would propose some small changes to that wording, to remove any possible ambiguity. I believe the ambiguity arises from the question of how long is a period, in terms of periods of time when the students are not present? And I think it’s common sense that schools must be able to require teachers to be present for periods of time before and after school, for example, and I don’t think that they’re the types of periods that the clause is intended to cover. However, it’s not completely clear in terms of how long is a period. So we would propose some alternative wording to say that an employee is not required to attend for weeks, when the students are not present, rather than periods of time when the students are not present. The general practice would be that it is the weeks during the vacation time in which teaching staff are not required to attend.

PN775

THE COMMISSIONER: Yes. Sure.

PN776

MS TAYLOR: All right.

PN777

THE COMMISSIONER: I think that was the intention.

PN778

MS TAYLOR: The second point - - -

PN779

THE COMMISSIONER: I think it was the intention. Well, I understood it to be the intention to cover the vacation period, yes.

PN780

MS TAYLOR: Yes. I thought that would be the case. Thank you, Commissioner.

PN781

THE COMMISSIONER: Yes.

PN782

MS TAYLOR: The second point of the IEUA’s proposal in relation to teaching relates to the averaging of hours over a six month period. We certainly agree and appreciate the union’s proposal that there should be some averaging and the fact that they’ve taken into account the, I guess, unique nature of teaching in that respect. However, our clients are of the view that the averaging should occur over a 12 month period, to make - to allow for more effective averaging over vacation periods. The reality is that the duties of teachers are not evenly spread throughout the months of the year, and so to divide on a six month basis would have some unusual results. In fact, the number of terms in a particular year are not necessarily equally distributed from one semester to anther, so dividing the year in half practically would not allow for sufficient flexibility for employers and teachers to work with. So we support the proposals by other employer representatives that it be averaged over a longer period and we suggest 12 months.

PN783

Turning now to the draft award by the IEUA in relation to non-government schools other employees, which deals with hours of work, there is a proposal within that, that the hours of work for certain categories of employees be 8 am to 6 pm. Those categories are classroom support services, curriculum education resort services, wellbeing services, school administrative services, construction, plumbing and carpentry, painting and other trades, and retail. In our view the hours of work span is far too restrictive for schools and doesn’t reflect the existing arrangements within awards for those types of employees. It’s common for schools to require some classroom support service employees and the others listed there to commence work before 8 am, including school administrative services, for example. There are often meetings, which are held at 8 am in the morning at the school and those speaking at those meetings would often require administrative support before 8 am to prepare for that.

PN784

It’s also common for school reception areas, counselling services and libraries to be open before school. School canteens and uniform shops are also often open before school, and it’s generally accepted, in our view, that maintenance type workers such as construction, plumbing, carpentry et cetera generally commence prior to 8 am, simply to allow them to work in the cool part of the day. We submit that if this spread of hours was accepted it would result in many schools being obliged to pay significant amounts of overtime or having unworkable hours of work arrangements. Accordingly, we have provided in our submission spreads of hours which are suitable for the type of work performed and are generally consistent with the existing arrangements in most awards for those types of employees, although I obviously acknowledge that it does vary from state to state. If the Commission is of a mind to apply one spread to all of those employees rather than a variation of spreads as we have proposed, we would propose 6 am to 7 pm with some contemplation of the ability to make flexible hours of work arrangements at individual schools through the flexibility clause.

PN785

The next area I would like to talk about is the wage rates, in particular the IEUA’s proposal in which they do not contain wage rates for the reason that they believe that the rates of pay for teachers in federal and state awards are no longer fair and effective minimum rates of pay for the industry. We submit that the wage rates are an appropriate minimum and that the IEUA’s proposal is contrary to the award modernisation principles. The process of award modernisation is designed to create appropriate minimum award rates based on industry lines. It’s not a process where the parties can seek the insertion of enterprise bargaining rates into the award or the insertion of market rates, and indeed that would be contrary to the objects of the Act, to create an appropriate safety net. The fact that many schools have negotiated more generous wage rate than the minimum award rates should not be used as a reason to increase the rates in the award. Indeed, doing so would also be contrary to the award modernisation principles and the objects of the Act, in terms of encouraging employers and employees to participate in enterprise bargaining in the future.

PN786

The reality is that many of the increases over the years that have been provided by schools to teachers and to other employees within schools are a reflection of other things that they’ve traded off within the agreements, and it’s important, moving forward in relation to the no disadvantage test, and the proposed better off overall test, that that be taken into account and there still be some ability for employers to trade off arrangements against the benefits available under the award. For that reason we’ve submitted that the classifications and minimum wages should be based on those in the Teachers Non-governmental Schools ACT Award 1999. We think that’s the most appropriate primary federal award to use. In the event that the Commission is not minded to - sorry?

PN787

THE COMMISSIONER: Could I interrupt you?

PN788

MS TAYLOR: Sure.

PN789

THE COMMISSIONER: And ask you to tell me why you think that’s the most appropriate way?

PN790

MS TAYLOR: It is the only federal award which minimises the increase in minimum rates for Queensland schools.

PN791

THE COMMISSIONER: So it’s the closest in rates to the Queensland award, and that’s why you have chosen that one? Is that - - -

PN792

MS TAYLOR: Yes, we tried to - - -

PN793

THE COMMISSIONER: All right.

PN794

MS TAYLOR: That’s correct. We tried to find a federal award which would result in the least cost increase to employers.

PN795

THE COMMISSIONER: Very well.

PN796

MS TAYLOR: In the event that you’re not - the Commission’s not minded to accept that submission, we would support the NCC’s submission for a transitional arrangement to take account of the variation of wage rates across the states.

PN797

THE COMMISSIONER: I can assure you that whatever happens there will be transitional arrangements.

PN798

MS TAYLOR: I’m sure that will be the case too. A complex process. The next area I would like to touch on is leave arrangements. I note that the IEUA is seeking 15 days of personal leave for both teachers and other employees in non-governmental schools. We submit that it’s more appropriate for persona leave to be governed by the NES and to include that increase to personal leave would have a significant financial burden on schools who do not currently have that arrangement; that is including the schools that I represent. The IEUA is also seeking infectious diseases leave under which the employee would be granted special leave without deduction of pay, where they have one of the specified diseases in the clause. We also believe this would be a significant burden on the schools that we represent. The majority of non-government school employers in Australia are not presently obligated to pay such leave.

PN799

The final area I would like to address is in relation to the coverage of nurses under the proposed award. I note that the IEUA has not included in its proposal any coverage of conditions for nurses, because of the ANF’s proposal that all nurses should be covered by their occupational award, and the IEUA has chosen to reserve its position until that matter is clarified. We consider that nurses should not be treated any differently from non-teaching employees at non-government schools, and it would be unnecessarily complex for them to be covered by a different award. It’s our view that the knowledge, skills and responsibilities required to perform nursing functions at schools differ markedly from those required to work in other areas of nursing, and this has been reflected over time in - certainly in the Nurses Award in Queensland, where nurses in schools have traditionally been treated separately, whilst in the same award they’ve had a separate stream to recognise the different obligations and responsibilities that they have.

PN800

In particular the hours of work arrangements that apply to nurses in schools and particularly boarding schools are unique, and require special attention within a school based award. Particularly the need in some schools to have nurses self-directed for a large degree of their work. So it’s submitted that the terms and conditions of nurses be included in the exposure draft for the general employees modern award for non-government schools. Given the impact that the non-government schools award will have on the independent schools we represent, we thank the Commission for taking into consideration our submission today and we would welcome any further opportunity to participate in this process. Thank you.

PN801

THE COMMISSIONER: Thank you very much. I don’t think I - I think the only question I had, I actually asked, in relation to the submissions that you have made. The only other area, I think, that you did raise in the submission which I think is not inconsistent, is the proposal to have annualised salaries in relation to some staff in the non-teaching - proposed non-teaching schools award or non-teachers in schools.

PN802

MS TAYLOR: Yes.

PN803

THE COMMISSIONER: And I think that you suggested that there were some employers but not others who should have annualised salaries, is that right?

PN804

MS TAYLOR: Generally speaking, Commissioner, we do see the value in having annualised salaries for employees. The distinction we made was in relation to how those annualised salaries occur. There’s one approach to annualised salaries which can really apply to all staff, in which their salary is simply annualised over the entire year, despite the fact that they work term time.

PN805

THE COMMISSIONER: All right.

PN806

MS TAYLOR: The distinction we made is in relation to boarding staff and also nursing employees, particularly those in boarding schools where there is an ability to pay them for the full year in exchange for having greater flexibility in relation to hours of work, and that’s really related to the fact that they’re self-directed and it’s very difficult to monitor the number of hours they will be required to work.

PN807

THE COMMISSIONER: All right.

PN808

MS TAYLOR: It has been a practice in the industry for some time to have such arrangements in Queensland.

PN809

THE COMMISSIONER: All right, thank you very much.

PN810

MS TAYLOR: Thank you.

PN811

THE COMMISSIONER: Thank you for your contributions, and we will now return to the people in Melbourne. Thank you.

PN812

Right, Mr Odgers, I think you’re finally get to your feet.

PN813

MR ODGERS: We have agreed on a change.

PN814

THE COMMISSIONER: No?

PN815

MR ODGERS: To assist others - - -

PN816

THE COMMISSIONER: He is not going first instead.

PN817

MR ODGERS: - - - with their flight arrangements.

PN818

THE COMMISSIONER: Right, go ahead.

PN819

MS KNOOP: If the Commission pleases, I’m making this submission on behalf of the eight associations of independent schools in Australia and their members. Appearing with me is Ms Lovell.

PN820

THE COMMISSIONER: Yes.

PN821

MS KNOOP: Ms Lovell will be dealing with the teacher’s aspect of the submission, whereas I’ll deal with the general aspects and then come back and deal with the - some of the comments we would like to make in relation to non-teachers.

PN822

THE COMMISSIONER: Yes.

PN823

MS KNOOP: There has been a comment about the size of the independent - or sorry, the government - the school sector in Australia. We realise that we are in fact the smallest of the sectors but we’re not insignificant. We educate approximately 13.4 per cent of all students in the country and we employ 16.6 per cent of all employees in Australian schools, which I guess means we have slightly better student to staff ratios. We have provided what we think are fairly extensive written submissions. We’ve also provided the Commission with two draft awards that were the subject of extensive consultation with our member schools. They were provided - they were made available to all independent schools on the 13th of February, and their comments have been taken into consideration, in putting a version to the Commission on the 6th of March.

PN824

We recognise in putting these submissions forward, particularly in relation to non-teaching employees, that we are in fact extending award coverage in this country to the non-teaching employees of schools, because in some states some employees are covered, in other states they’re not. So in the interests of having a simple and - a simple award that’s reasonably easy for employers and employees to use and to understand, we acknowledge that there will be costs involved in this process for the employers in this country, but it will be variable. It will depend upon the state and the territory that the employees are in. In relation to the submission of the parties as they relate to independent schools, there seems to be fairly extensive support for the separation of government school education from non-government school education.

PN825

THE COMMISSIONER: I haven’t heard anybody argue that they should all be in the same award yet.

PN826

MS KNOOP: Hopefully that’s one area that has been sorted out, in that case. In relation to non-government school education, it seems as though the majority of the submissions do relate to separating out Catholic schools from independent schools. There are a couple of exceptions, however, and we note those, and I daresay those matters will be resolved in time. There’s also - with the exception of the NCEC, there is support for two awards for the staff of schools, dividing the staff into teaching staff and non-teaching employees, and that’s clearly a position that we actually support as well. In terms of the coverage of those awards, clearly the associations are seeking to cover primary and secondary teachers. We also seek to cover preschool teachers. The award that we have proposed treats preschool teachers in exactly the same way that primary and secondary teachers are being treated, in terms of their salaries and conditions of employment.

PN827

This is probably something that has tended to happen over a period of time, and I think - we think it’s actually supported by the focus of the Australian Government on an early years learning framework for children zero to five, saying that learning starts as soon as a child is born. And there is also talk, for example in Victoria, of a zero to eight early years learning framework, which basically makes early education and going back into childcare almost seamless with school education; and that effectively is what many independent schools around the country have been doing for quite some time. So our submissions - - -

PN828

THE COMMISSIONER: They are in the same award, I think, in New South Wales; is that right?

PN829

MS KNOOP: That is correct.

PN830

THE COMMISSIONER: Yes.

PN831

MS KNOOP: That’s correct. There’s also some variation of award coverage elsewhere.

PN832

THE COMMISSIONER: Yes.

PN833

MS KNOOP: So we seek to include preschool teachers and we seek to include preschool assistants and childcare, where the preschools and the childcare facilities area actually operated or conducted by independent schools. We see that as the total education program of the school. We would also say that - in support of that, that in terms of preschools, clearly they’re not standalone operations within independent schools. They have the support of the administration and all of the operations of the school. So the work of people within those is quite different to the work of people in standalone preschools or independent childcare centres. They’re usually part of a much larger organisation. There was a submission earlier today in terms of excluding the building trades from awards and I note that the NCEC have indicated that they’re an integral part - or maybe it was the government sector, I can’t quite remember which now - indicated that the - - -

PN834

THE COMMISSIONER: It was the Victorian Government submission.

PN835

MS KNOOP: Thank you. That the trades - that that particular group are covered within schools. We would say the same, that the majority of people in those areas in schools aren’t constructing buildings. What they’re actually involved in is maintenance. They might even be shifting chairs for a school function, so there’s a range of functions that they do. What they do within a school really is quite different to what they might do on a building site, and we seek to include them in the Non-Teaching Employees Award. We have also put in our position with respect to nurses. In a number of the states there are separate awards for nurses employed by independent schools, and that’s mostly because we’ve had a residential component as well. We have residential nurses as well as day nurses. Their work is quite different to the work that nurses do in hospitals and other health care centres and we seek to include nurses in the award. We note that with respect to the nurses occupational modern award, secondary school nurses were, at least in the first instance, excluded from the exposure draft. We’re not quite sure why there was a division between - - -

PN836

THE COMMISSIONER: I think maybe they didn’t think they had them in primary schools. I don’t know.

PN837

MS KNOOP: Well, we certainly do have them in primary schools, particularly where many of our schools are in fact P to 12 or K to 12 schools. So there’s no differentiation so it’s - from our perspective it’s quite illogical just to exclude them from one area of school education.

PN838

THE COMMISSIONER: Yes.

PN839

MS KNOOP: So we seek to include nurses. We would also just like to make a comment in relation to one of the questions you asked the previous person, which was Livingstones Australia. In terms of the rates of pay in the Teachers Award, we can actually answer why we chose the ACT Award. It was in the draft award that we circulated to all schools in the country on the 13th of February. We had a look at the rates of pay for teachers in the - across all of the federal awards and of course in all of the NAPSAs as well. We felt that we actually should look at the rates of pay in an award that had not been subjected to a special case. So the reason why we looked at ACT as opposed to Victoria, the Victorian independent schools, is that there was a special case for the Victorian Independent Schools Teachers Award, when it had another name back in 1996, and so therefore that’s the reason why the rates in that pay - in that award are some couple of thousand dollars higher than the rates of pay in virtually all of the other awards around the country. So that was the reason why we selected the ACT award as the base award for teachers rates of pay.

PN840

THE COMMISSIONER: Okay.

PN841

MS KNOOP: We would also submit in relation to both areas that there is in fact no principal award for either teachers or non-teachers and so therefore - our submission indicates how we’ve gone about putting together classification structure - structures, and so on, in relation to those two draft awards.

PN842

THE COMMISSIONER: So do you say that the ACT award represents in the federal sense the properly fixed minimum rates?

PN843

MS KNOOP: We do.

PN844

THE COMMISSIONER: Yes.

PN845

MS KNOOP: On the basis that we have no knowledge of any special case that might have been attached to that particular award.

PN846

THE COMMISSIONER: No, I’m not aware of any either. It was just a question. Yes.

PN847

MS KNOOP: There have been some requests today for the deferral of some aspects of the education sector, or alternatively bringing childcare services into stage 3. Our approach is that, given that we’ve started this process with respect to independent schools, we would actually like to continue it. We would like to see an award being issued on the 4th of September with - covering preschools and childcare, would be our preference. What I would like to do at this stage is hand over to Ms Lovell, who is going to talk about some of the issues relating to teachers.

PN848

THE COMMISSIONER: Yes.

PN849

MS KNOOP: And then I would like to come back for a few moments and speak to the Non-Teachers Award.

PN850

THE COMMISSIONER: Certainly.

PN851

MS LOVELL: If it pleases the Commission. My colleague, Ms Knoop, has really covered the areas of the issues of scope in terms of the draft teachers' award. My submission is brief and specifically focused on two issues that we feel are of critical importance in relation to the employment of teachers in the independent school sector. Of course we rely on our submission and our Draft Teachers' Award which was filed on 6 March, which I'm sure you've read, you seem to have read all the submissions and all of the awards.

PN852

THE COMMISSIONER: I have. I had a very exciting weekend.

PN853

MS LOVELL: It sounds like it. Sorry to do that to you, Commissioner. You will know that it is the intention of that submission to do really - well, you may not know - nothing more than maintain the status quo in the independent school sector. That's our aim. So I'd like to talk about two key points in this verbal submission now. They are the coverage and the necessary exclusion of senior management positions which is dealt with in clause 4 of our draft award and the maximum ordinary hours of work which are dealt with in clause 14 of our award.

PN854

I'd like to add to and support the verbal submission of the Living Standards Australia presentation a moment ago when I talk about coverage and the exclusion of senior management positions. We submit that there's not consistent coverage of principals and deputies and other senior management positions such as heads of schools and heads of department in the relevant awards across Australia. There is some coverage but it certainly isn't consistent. We believe that if the Commission allows coverage of these management positions it will extend coverage contrary to the Minister's request.

PN855

In fact, the exclusion of the most senior leaders in a school is, we say, entirely consistent with clause 2(b) of the Minister's request, that modern awards not result in high income employees being covered by modern awards, that the process not result in high income employees being covered where they previously have not been covered. We say the majority of principals and deputies, in particular, in independent schools are well placed to negotiate their contracts of employment and those contracts usually include high salaries and benefits such as motor vehicles, phones, computers, professional development arrangements, overseas travel, accommodation and sabbatical leave.

PN856

They are very standard conditions for principals and some - not as often - but often deputies in the independent school sector, and I'd just like to draw your attention to the fact that the NCEC, CSA and, as we've just heard, the Livingstone's Australia submission all support that the position that senior managerial staff should be excluded from the coverage of the Modern Teachers' Award. So we submit that we have a consistent position amongst the majority of employer groups covering the industry, the independent school sector.

PN857

If I could just go to maximum ordinary hours, we believe this is the most important issue that the independent school sector faces in terms of the modern award for teachers. The other employer representatives and I can add the Queensland Anglican Schools' Corporation submission to this list, they all submit that the maximum hours of work for teachers must be 38 hours averaged over a 12 month period. We believe this matter cannot be adequately dealt with in the award flexibility clause. We argue that it's imperative that the Modern Teachers' Award contains no prescription around face-to-face or classroom teaching hours, no prescription around co-curricula duties and hours of work outside of the classroom, no maximum ordinary hours per week, fortnight or term and no penalty rates or overtime provisions.

PN858

As you see in our submission, Commissioner, there is a list of independent school teachers' awards across Australia that do not contain prescriptive hours' clauses. Independent schools operate to various school calendars. We have international schools that operate in accordance with the calendar, the school calendar or the school timetable in their country of origin and we would say that the number of term weeks in independent schools varies as broadly as from 36.5 weeks to 41.5 weeks. So there's a huge discrepancy, there's a huge variation there.

PN859

Many of our schools run Saturday sports programs and all of our schools have extensive co-curricula programs of one sort or another, whether they relate to dance, drama, religion, all independent schools have extensive co-curricula activities that involve teachers and we say it's the nature of the role that teachers are available as active members of their school community and so therefore required to participate in those activities. And in contrast to the Livingstone's submission, the submission a moment ago, we say that while teachers are generally not required to attend during non-term time, non-term weeks or student vacation periods due to the busyness and intensity of term weeks at school it is necessary for independent schools to conduct essential planning, preparation, meetings and professional development during those non-term weeks.

PN860

THE COMMISSIONER: Curriculum days and all those things?

PN861

MS LOVELL: That's right, Commissioner, absolutely.

PN862

THE COMMISSIONER: Yes.

PN863

MS LOVELL: Yes. There simply isn't time to fit that into the teaching term, and I also draw your attention to the fact that the submissions from the Queensland Anglican Schools' Commission and Livingstone Australia in relation to Queensland schools state that the maximum number of actual hours provision that currently exists in Queensland has further intensified work during term weeks and arguably compromised educational standards. So we say, we submit strongly that the only option for non-government schools, if the sector is to maintain the status quo, is a provision that allows for the averaging of ordinary hours over a 12 month period.

PN864

I'd just like to add that we don't believe a six month averaging period is sufficient due to, as the verbal submission from Livingstone's outline, the peaks and troughs in the teaching year and the fact that a lot of co-curricula activities happen in the first term or the first semester, that's terms 1 and 2 in the teaching year and often there's a bit of a lull in the second semester of the year in terms 3 and 4, in particular for teachers of senior classes when their students go off and matriculate or do the HSC, whatever they do in their State, and then go off on to stuvac before their exams. So a six months' period simply wouldn't work for the sector. It must be over 12 months.

PN865

THE COMMISSIONER: Yes.

PN866

MS LOVELL: So we say any other form of prescription or restrictions around the ordinary hours of teachers will fundamentally alter the way that independent schools operate and will increase costs and also add additional operational and administrative complexities for schools to manage. Just to finish my submission, Commissioner, I'd just like to update you on some negotiations we've been involved in with the IEUA regarding the Modern Teachers' Award. We've met on three previous occasions and again this morning. We do not have agreement at this stage on the critical issues of coverage and maximum ordinary hours which have been expressed as total teacher attendance days in our negotiations.

PN867

However there are a number of areas where we seem very close in our positions and it is likely that we'll reach agreement, yes, on an IEUA AIS supported or agreed teachers' award and I understand that my colleague from the IEUA will be seeking a further consultation with the Commission to assist the parties to reach a settlement in the near future and the Association is very happy to participate in that consultation or any further meetings should that be the Commission's preference. Thank you, Commissioner.

PN868

THE COMMISSIONER: Thank you. There's just one question I was going to ask you before you run away.

PN869

MS LOVELL: Yes, that's all right.

PN870

THE COMMISSIONER: In looking at the classification structures and rates of pay in these awards, like everybody else, I could see the disparities. My assumption has been that the key classification level is the entry rate for a four year trained teacher. Is that right?

PN871

MS LOVELL: That's our view, Commissioner. We say that anybody who is, say, three year trained is almost always at this point in time at the top of the salary scale because they're not really universities or teachers' colleges run three year training, yes.

PN872

THE COMMISSIONER: Yes, if they went to university or teachers' college when I did.

PN873

MS LOVELL: Yes, thank you, Commissioner.

PN874

MS KNOOP: If the Commission pleases, I'd just like to return to the award that we've proposed for non teaching employees in schools. In the interests of time we propose to provide the Commission with a fairly detailed supplementary submission because there's been quite a lot of issues raised.

PN875

THE COMMISSIONER: There has, yes.

PN876

MS KNOOP: And there are quite a lot of differences with the awards. The critical issues that we see in relation to this award at this stage in time is possibly the exclusions of particular employees from the award. We've sought to exclude certain employees from the award. We've provided reasons for that, and it seems as though that's not agreed by all others so we think we'll provide some additional details on that. The other issue relates to a particular form of, or mode of employment. The IEUA is seeking to include fixed term coverage or fixed term arrangements both for teachers and for non teachers.

PN877

In relation to non teachers we say that those arrangements have not been extensive across the states and territories and therefore we feel that they're restrictive and increase the regulatory burden on employers and not necessary at this stage, but we'll provide more information. The other major are the stand down arrangements that relate to non teaching employees. A teacher's work is fairly clear, they pretty much work term weeks and a few other days, but non teaching employees there's a greater diversity in the way that they actually work. In some cases they'll be there for all weeks of the year except for their four weeks of annual leave.

PN878

THE COMMISSIONER: Their usual holidays, yes.

PN879

MS KNOOP: For some other employees of schools there is no work for them during term time - sorry, during non term weeks, and for others there is some work during the non term weeks but not necessarily enough work to keep them fully employed during - or fully engaged in duties during that period of time. So we seek flexible employment arrangements. Just in passing - we will put this in writing in greater detail - we don't support the IEUA proposal of four categories. Two of the categories that they propose, which is a 48 over 52 arrangement, has only ever applied to our knowledge in Victorian independent schools and Victorian Catholic schools and it seeks to make a four week adjustment of salary, but really the person is not at school for around about eight weeks so therefore it's actually loaded in favour of the employee.

PN880

Similarly, the other arrangement that they propose, 50 over 52, which is four weeks of annual leave and it actually covers three weeks of leave during non term weeks, has only applied to the Victorian Catholic school sector, it hasn't applied to anyone else so it has had fairly limited coverage. The other critical issue that we have relates to the classifications of employees, the minimum wages and schedule A. At the moment it looks like a fairly extensive component of that particular award. We, as I said before, circulated these details on 13 February, we've had a range of discussions with the IEUA and others. We saw the union's structure for the first time on 10 March and although we've looked at it we haven't examined it in great detail.

PN881

I might say that the association spent a great deal of time putting together an industry structure. We haven't had an industry structure in any way across any of the states or territories so we felt that this was an opportunity to put in place a structure that could apply to a new modern flexible award and would allow for what actually occurs in schools, which is that people will be employed in different areas or different parts of classifications. A person might be doing teacher aid type work but also be involved in outside school hours care, which is effectively child care. So we were seeking to implement a reasonably comprehensive industry structure. We recognise that it's novel and it probably needs quite a bit of discussion and we're willing to have discussions with the IEUA and anyone else who would like to talk with us about that.

PN882

We didn't see any real advantage in putting in occupational classification structures from the range of different awards around the country, so we've tried to be comprehensive. So, again, we've got some discussions planned for the next couple of weeks. We have actually agreed on a couple of changes in terms of our draft award but we'll put those into the submissions. We have some issues in relation to the actual allowances. Some of the allowances that we've proposed the IEUA has agreed with respect to those, others are reasonably close. There's only some slight differences that can probably be resolved through discussion. But there's a few allowances that have been inserted that really haven't had any precedent in our sector, allowances such as wet weather allowances, toilet cleaning allowances, and we think tool allowances are redundant because employers in this sector actually provide all tools.

PN883

We have a slight issue with payment of wages. Most of the employees in this sector are either paid fortnightly or monthly. Where there's monthly wages we would not seek to allow them to be paid or for an award to require them to be paid fortnightly in the future. One of our other critical issues is the hours of work, the span of the hours of work. We were proposing a very limited arrangement which basically reflects what happens in most of the states and territories, but we note that the IEUA submission is much more detailed in terms of the span of hours that it would like to see, and I think also Livingstones Australia had a fairly detailed span of hours.

PN884

We think there are a few other issues in relation to the overtime clauses and the shift work clauses, and we'd like to see annualisation of leave loading but I think probably we're best to leave those and to put the details into a supplementary submission. If the Commission was minded to assist us to resolve some of these issues we'd be more than happy to participate in a further conference or discussion. If the Commission pleases.

PN885

THE COMMISSIONER: Thank you very much. Now, who are we - - -

PN886

MR ODGERS: The private sector tail of Mr Perica is a very heavy public sector dog. Can I start, Commissioner, by saying that it's certainly very refreshing to hear that notwithstanding the demise of the clergy in religious schools and the advent of chaplains in public schools that people still strongly support industrially at least the separation of church and state when it comes to award regulation. What I want to do is to spend a very few minutes dealing with some scope issues and award content issues, and then my colleague, Ms Matthews, will deal with some issues arising from the various proposals that have come forward from the industry parties around how awards should be made and what awards should be made in respect of early childhood education.

PN887

Can I just say generally in respect of what's fallen from Mr West for the NCEC today, he's right when he describes the position in our written submissions as one of some scepticism. But we've now had an opportunity to see an award today and that does make some difference. We can see that there are some changes in there. We're certainly going to go away and have a look at that. But I'm not sure that our scepticism is overly diminished by what he had to say. In essence the arguments for a separate award for Catholic schools we say should be seen very much through the prism of the objects of the Act.

PN888

One can say a fair bit about the fact that there is a unique and distinguishable arrangement in respect of funding. One can easily accept that there is a common faith, although that is not unique, as was pointed out by Livingstones in respect of school systems. There are Christian, Anglican and Lutheran school systems today, but a few that operate nationally. In our view the Commission should have regard to as much as anything else what's said to be the commonality of conditions by the NCEC among Catholic schools. What we say is, on any analysis, that commonality might exist between different Catholic schools in one state, but there's nothing that one set of rates and conditions for teachers for example working in Catholic schools in one state would have any more in common with rates of pay and conditions for teachers in Catholic schools in another state than they would have in common with independent schools for example. In other words that - - -

PN889

THE COMMISSIONER: I think that's acknowledged in part by the transitional arrangements for wages and allowances which suggest that there are considerable disparities between Catholic schools across the nation.

PN890

MR ODGERS: Yes, certainly, Commissioner. In any event what we say is that when it comes down to the key issues that various employers have recited mantra like today, and I'm sure everyone here behind me could recite them, no overtime, unlimited working hours, no different prescription of the number of holidays, no fixed maximum of the amount of class run teaching, no part time divisor to ensure that people would be able to manage their work, everyone is at one. The submissions that Mr West makes in relation to content are exactly the same.

PN891

We've also made some comments, and I'll deal with them now, in respect of the appearance of Catholic education staff in the Liquorice Allsorts Award at the end. We actually sat down and spoke with them and those who instruct him in respect of what and where Catholic Education Office staff would go. I think our submission refers to the fact that all we've been advised to date is that there's some sort of opposition to award prescription for those who provide in essence support services, whether they are professional, financial or physical support services, or spiritual support services for that matter for people who are working in schools. As a matter of principle we don't have any objection to there being included in an award for Catholic schools for example if they seem to be a better fit there. On any analysis they might be.

PN892

I want to deal very briefly with submissions raised by the AIS in their written submissions concerning - and backed up today - concerning coverage of principals. They say, and I think the Commission should note this, that it's not just principals that they oppose award coverage for. They oppose award coverage for deputy principals and groups of employees styled as heads of school. In that they seek to rely on those aspects of the Ministerial Request that are universally most quoted, those relating to managerial employees in respect of whom the bar is set lower than it ever has been. There are many people working in industry today I would suggest who would not characterise themselves as managers who had earned the trust of their employer to a sufficient to be labelled as such.

PN893

What we say about this group is, heads of school as such is simply in the ordinary course of events a way of describing teachers with senior responsibilities. They might be said to be very senior responsibilities but they don't run as far as the engagement and dismissal of staff.

PN894

THE COMMISSIONER: They don't hire and fire.

PN895

MR ODGERS: Typically in an award context they will be receiving the top teacher's salary and an allowance of between $3000 and $4000 on analysis of any award in Australia. Now, we say in terms of their relativity with other professional rates and in terms of the rate paid as a whole that's not what should be regarded as a senior employee, a high paid employee or a managerial employee. And we say the same about deputy principals, many of whom will be working in a multiple deputy principal structure in a school where they might have responsibility for pastoral care, they might have curriculum responsibilities. They won't necessarily be standing right behind the principal and filling in for the principal any time they're not there and hiring and firing.

PN896

But in any event a key part of our proposal was that we propose to exclude anyone who had that capacity, the capacity to hire and hire as it were. We also say in relation to rates for deputy principles that, again, if you examine, and you clearly have, the awards, the rates are not - the total remuneration for a deputy principal is not likely to be more than 62 or $63,000.

PN897

THE COMMISSIONER: They're not the $100,000 a year high paid?

PN898

MR ODGERS: Well, they may very well be. In the Catholic sector there's wall to wall bargaining. What we're discussing is mirror images well below the industrial reality in respect of Catholic schools. Nevertheless if the Commission is minded to use the existing rates for deputy principals in the awards where there is prescription then that is likely to be the result, a rate far below the rates for example that have been inserted in to the Higher Education Award. As far as the submissions that are made today are concerned what we say is, well, look, it's really not much of a submission to say that because there's inconsistent award coverage in respect of any group therefore there should be no award coverage and coverage should be withdraw, that's put as a stand alone point by a number of those who have made submissions today, tut just because you can't find blanket coverage there shouldn't be any coverage.

PN899

All we say about that is it's not a point well made in our view. It doesn't reflect the way in which the Full Bench has made awards to date in respect of coverage, and it's not particularly effective when you look at the responsibilities and the pay, as I am now, around principals as well. Going to principals, I think it's asserted in the NCEC’s submissions that there's no award coverage in Tasmania and Queensland. That is not right. The Tasmanian award does not contain rates of pay for principals but the conditions apply to principals. There is award coverage at least for some principals in Queensland.

PN900

In respect of rates of pay for principals what we say is that the adjusted existing federal award rates wouldn't result in any salary in excess of $70,000. Now, when rates of pay were set for teachers - and I go to a question you asked recently - the relativity was in fact established at the top rate through the SEP process when the percentage was drawn with C10. Subsequently I think the award in respect of allowances has been adjusted on the basis, possibly unsurprisingly, that the four year entry rate was the key rate. But the basis on which the rates were created was in respect of the top rate.

PN901

The Metals Award still identifies 180 to 210 per cent as an appropriate range in respect of relativities for professionally qualified engineers with experience. No rate in any award that exists at the moment if it were adjusted and inserted in a modern award would be outside that 180 to 210 per cent band. There are rates however in modern awards that have been made that considerably exceed that. I want to deal also very briefly with scope in respect of ministers of religion. Both the AIS and the NCEC in the same terms want to exclude anyone who - and I'll quote - is a member of a recognised religious teaching order, or any person engaged for the purpose of religious instruction ought to undertake religious non teaching duties. We said some things about this in our submission. I just want to augment them slightly.

PN902

THE COMMISSIONER: There are some awards which exclude ministers of religion and members of religious teaching orders.

PN903

MR ODGERS: There are. Yes, there are. We say the exemption from the scope of the awards was cast too widely though. We propose only to - - -

PN904

THE COMMISSIONER: Because you can have people teaching religious instruction who aren't ministers of religion.

PN905

MR ODGERS: Yes, precisely. Similarly, teachers shouldn't be excluded just because they have a religious vocation or identity, they have a ministry or they've taken holy orders. People will have - and if a process used in the draft awards for the employers have recognised religious order, if only such a concept existed in law where there are legitimate religious orders and illegitimate religious orders.

PN906

THE COMMISSIONER: Registered ones, registered organisations.

PN907

MR ODGERS: Exactly. What we say is the taking of - and I stand to be corrected by anyone here - the taking of perpetual vows of poverty is not a universal constant of Catholic ministry. We'll use the Jesuits as our best example of exceptions. Poverty may be customary, expected and synonymous with teaching but it shouldn't be made obligatory. We also say that ministers of religion without an employment relationship in schools will always identify themselves as such. In Catholic schools they are in receipt of a stipend as opposed to the salary.

PN908

THE COMMISSIONER: Yes, that's right.

PN909

MR ODGERS: In independent schools they're normally identified as a faith based leader of the community who is actually working with the school rather than, you know, as a teacher. A matter of practicality. I want to deal very briefly with the question of the AIS - - -

PN910

THE COMMISSIONER: Sorry, wouldn't they get excluded anyway by that concept of what is a religious teacher?

PN911

MR ODGERS: Not necessarily.

PN912

THE COMMISSIONER: Not necessarily?

PN913

MR ODGERS: Not necessarily, no. There are plenty of clergy who are registered teachers and who teach. There are teaching orders.

PN914

THE COMMISSIONER: Yes, I'm well aware of that. I was taught by some of them.

PN915

MR ODGERS: So was I. I must say I'm starting to feel guilty. The scope clause of the AIS Award for teachers also excludes three year trained teachers and teachers with less than three years training. Four years training became the mandatory standard for registration relatively recently, in Victoria within the last decade. We estimate a small but significant percentage of the workforce is still three year trained.

PN916

THE COMMISSIONER: There's a few still around.

PN917

MR ODGERS: They'll be there.

PN918

THE COMMISSIONER: They're sort of getting a bit long in the tooth now but they are.

PN919

MR ODGERS: Yes, but there are still some of them who haven't reached the top because they have been off on extended periods of parental leave. The fact is that what's put to us is there's no need to include any specific mention of them in the award, for a reason that's not clear to us, because they've "All got to the top anyway". There's no reason why three year trained teachers shouldn't be provided for and the full range of pay points shouldn't be available to them and our award suggests that that should be the case. We also propose that the award provide for teacher
's qualifications other than teaching qualifications and teachers without qualifications and in our draft we propose that there is a limitation in respect of their access to the scale and as I said, 1-5 would be the maximum.

PN920

Speaking in general, schools have a capacity pretty well throughout Australia to, in particular circumstances, recruit persons who are not teacher trained or who don't - - -

PN921

THE COMMISSIONER: Well, often the music teacher isn't.

PN922

MR ODGERS: As I said, we're having a separate dispute about music teachers which I'm not dealing with today so I will keep - - -

PN923

THE COMMISSIONER: I'm just talking about my experience is that you will have music teachers who will have all the AAME, whatever they're called qualifications, but will not necessarily be trained teachers.

PN924

MR ODGERS: Yes. What I’m really referring to here are teachers who predominantly will be language teachers, teachers of religion and mostly gnarled teachers of the physical arts.

PN925

THE COMMISSIONER: Woodwork.

PN926

MR ODGERS: Yes.

PN927

THE COMMISSIONER: Woodwork teachers, yes, right.

PN928

MR ODGERS: It's that class of person that the current federal government went to the last election saying they wanted to reintroduce into schools in very large numbers by way of trade training. However I know that the AIS says relevantly at paragraph 78 of its submissions that it only requires submissions to the contrary to its stated position of excluding such employees from the scope of the award to reverse its position and support their inclusion. To avoid doubt this is a submission to the contrary. The AIS also referred to the fact that we have had had a number of meetings recently to seek to try and narrow the differences between us.

PN929

We have as an aim the presentation of agreed draft awards today. We haven't achieved that. We are mindful of the timelines for drafting. We're also mindful of our new and unexpected irrelevance to parts of the process so nevertheless, we're concerned that we might spend a long time labouring on what is a work of art or piece of art if you like that won't find its way into the award and as we near agreement what we're really asking the Commission is whether it's possible for the Commission to chair a conference of the parties or at least provide the parties with some assistance through that process. If there's some sensitivity about sharing a conference for whatever reason, whether it's time pressures or the way in which the Commission ideologically is approaching this particular issue.

PN930

THE COMMISSIONER: Yes.

PN931

MR ODGERS: We would want to do that I think very soon.

PN932

THE COMMISSIONER: Fairly quickly, yes okay.

PN933

MR ODGERS: Yes.

PN934

THE COMMISSIONER: Well, it's certainly an issue that I will get back to you about.

PN935

MR ODGERS: Thank you.

PN936

MR WEST: Is that in respect of all the parties?

PN937

THE COMMISSIONER: Yes, I think that it might be a question of whether it's all the parties or whether it's looking specifically at schools, for example, or something like that.

PN938

MR ODGERS: We wouldn't want it to go any further than schools. One of the problems - - -

PN939

THE COMMISSIONER: Well certainly, I mean I think that at the end of this process my view at the moment is that there will certainly be more than one draft award. How many there are I'm not quite sure as yet, but the issue of there does seem to be fairly substantially at least in the private sector area, agreement that post secondary education should not be included in a Schools Award.

PN940

MR ODGERS: Yes.

PN941

THE COMMISSIONER: There is still an issue about whether preschool education should be in it or not but given that sort of general flavour there may be some value in having some discussion about just what might go into a Private Sector Schools Award.

PN942

MR ODGERS: But that would assist us greatly. I mean perhaps stating the obvious because the Commission faces the same problems, but in essence it is very difficult to come to - - -

PN943

THE COMMISSIONER: I am well aware of the problems.

PN944

MR ODGERS: - - - a draft proposal when one is not aware of what the constituent awards are that are feeding into the process.

PN945

THE COMMISSIONER: Yes, that's right.

PN946

MR ODGERS: And what Mr West has done today is to provide a new document on behalf of his instructors.

PN947

THE COMMISSIONER: I must say it certainly is of assistance that that has hit the decks, yes.

PN948

MR ODGERS: Yes. That's saved us all another five minutes of me talking. I want to just go very briefly to the matters that we have been discussing and they are, as you would expect, the use of fixed term employment in the industry, the method of calculating the rate of pay to part time teachers, leadership allowances, the sheep stations questions in relation to leave and hours of work, but I don't think that the parties are irreconcilably distant from one another and really all I wanted to say, Commissioner, about that today is there is a recognition I think on both sides of this equation that this is one area where settlement along these lines will greatly assist the industry itself.

PN949

One of the other reasons we think a conference is a good idea is that we can give the Commission some further understanding in greater detail without necessarily having to provide everyone with that detail as to how new awards would operate at the workplace level and particularly because there is a slightly different prescription around that, although the concepts are similar from state to state around that central issue. We also had some brief discussions about pay. I just wanted to correct an impression that Livingstones might have had in relation to our position around pay. We are not looking to insert a paid rates.

PN950

THE COMMISSIONER: I didn't think that that was the case, no. I thought that that had gone by the book a long time ago.

PN951

MR ODGERS: Thank you. We're looking for market rates that they're - we're not looking for market rates. We're looking for rates that bear an appropriate relationship to the market rates that provide fair, effective and relevant minimum rates for the work performed. Really our submissions don't go any further than saying the current rates don't do that. Now, subject to anything that - I think they've left actually, so I can say subject to anything they might say, I think that's the view of the independent sector employers, that those rates have lost relevance.

PN952

Now, we appreciate that the same submissions have been made by our colleagues in the building industry and our colleagues in the metal industry.

PN953

THE COMMISSIONER: Yes.

PN954

MR ODGERS: And we appreciate that there are time pressures in relation to completing this exercise but we want to indicate now that we will be seeking an early review of whatever rates are agreed based on changes and while I'm on the subject of rates, there was a suggestion that a special case was somehow a special case that in literal terms that would apply simply to one very small group of employees and there were no particular standards that applied to it. When we're talking about a special case in relation to the rates that were set in Victoria we're just talking about the principles - - -

PN955

THE COMMISSIONER: There was a special rates case.

PN956

MR ODGERS: In 1996 and - - -

PN957

THE COMMISSIONER: In fact I think if I recall one of the difficulties that I had when I started looking at all of these awards was that awards with quite disparate rates had been found to be properly fixed minimums.

PN958

MR ODGERS: Yes.

PN959

THE COMMISSIONER: So it does it a little difficult.

PN960

MR ODGERS: I think all our submissions start on the premise that everyone began, including the dog and the public sector from the same point in the early 1990s but things happened along the way and one of the - - -

PN961

THE COMMISSIONER: Yes. Clearly there's some awards that says the rates in this award are based on the rates in that award but they don't look the same any more.

PN962

MR ODGERS: No, no.

PN963

THE COMMISSIONER: Yes.

PN964

MR ODGERS: I am advised that we all ultimately came from the same point. We of course agree. But we say there's nothing wrong with those Victorian rates at all. They simply incorporate - the Commission simply was asked to have regard to changes in the work between the fixing of the rates in 1991 and 1996, arguably subject to anything the parties collectively might have to say in the future, they represent the best minimum rates going around, particularly in respect of what we might have to say at a later date about the state of the market.

PN965

THE COMMISSIONER: They undoubtedly probably represent the best minimum rates but whether it's - - -

PN966

MR ODGERS: I haven't got to the part of my submission where I say that nothing everything we say is from self interest. There are some contrasting provisions in the draft awards provided to the Commission which are unlikely to be resolved.

PN967

One deals with the definition which is unlikely to be resolved. One deals with the question of the definitions of "teacher" in the draft awards. The AIS proposes that "teachers" still be defined as such. In the submissions there are some touching references as to the necessity of teachers having perfectly liberty to bake cakes in the yard and wash cars, if I'm right in saying that. No one disputes that extra and co-curricular duties are part of a teacher's role. The definition we have proposed is sufficiently broad to encompass those extra and co-curricular duties. We just want the award, as every award does, to broadly state the nature of the role. In saying that we note that "teacher" is defined in those State instruments that deal with registration State by State - - -

PN968

THE COMMISSIONER: That's what I was going to raise, each State has mechanisms for registering teachers and they define what a teacher is and to work within that state as a registered teacher you have to fulfil that definition.

PN969

MR ODGERS: They universally employ the words "delivery of an educational program" which is what we have sought to put in the award. There are some other matters I intended to go to but I won't, save and except to say some of the submissions that have been made, I won't go to student unions, we have no interest whatsoever.

PN970

THE COMMISSIONER: Good.

PN971

MR ODGERS: We do say about the All Sorts Award that there has been some extraordinary submissions today about what it would look like. I think it was Paul Keating who said you put a brick on top of it and you say it's yours. In particular the suggestion that four of the 5000 registered training organisations in Australia are vocational education providers. The Commission needs to look very carefully at some of the submissions that have been made, because the effect is really to say well, look, this is our part of what is proposed and we want it to stay where it is, and there were two very cogent submissions made on behalf of universities today. But they both at the end of the day said, well, look, you shouldn't use the English Language Colleges Award which applies to 15 times as many people in post-secondary adult education, you should use the university's English Language College Award because that is the right award to use.

PN972

THE COMMISSIONER: Because it's ours.

PN973

MR ODGERS: We are not necessarily opposed to different streams but what ACPE had to say today was in essence that there is a necessity to make an award, it should have a broad scope. There should be a singular award. They are the propositions that we support, the necessity to provide coverage across the sector. In respect of anything that might be said about prac teaching.

PN974

THE COMMISSIONER: Yes.

PN975

MR ODGERS: There was an example quoted from Tasmania earlier on today, it trailed off just before the part where the teachers all received a large increase in the amount of money they got for doing the work.

PN976

THE COMMISSIONER: It solved the problem of that other award though didn't it, because if it became part of their teaching duties under the Teaching Award then they didn't have to worry about this other award.

PN977

MR ODGERS: Exactly.

PN978

THE COMMISSIONER: You can see a logic in that.

PN979

MR ODGERS: Yes. What has also been put finally is that there are extremely complex legal reasons why the amount of money given to universities in respect of prac teaching now would be insufficient to pay the amount of money that was stipulated in the 1990 award. Our submission is that those extremely complex legal reasons amount to nothing more than the university now eats the money rather than passing it on. We think any analysis of the additional moneys given by the Federal Government particularly for prac teaching to universities over the last two or three years, the specific purpose announcements as part of the budget process would show that there is a problem. We are not suggesting a particular form of award regulation at this stage to try and deal with these problems, but we simply want to say this to the Commission, that prac teaching is not part of the ordinary duties of teaching, it is additional and has created problems in the workplace. Some employers pass on the money and have indexed the money and have become quite traditional providers and have formed close relationships with universities. Others do not and teachers tend not to do it. We foreshadow some further written submissions in this respect, but we do think it's a live issue and there is a need to deal with it and there are a range of approaches that can be taken, subject to anything the Commission might have to say.

PN980

THE COMMISSIONER: No, thank you.

PN981

MS C. MATTHEWS: Commissioner, I am Carol Matthews.

PN982

THE COMMISSIONER: Yes, Ms Matthews. The RUA had the difficulty in that we have a broad coverage in relation to many employers who are here represented separately. All we keep trying to do is make, in relation to this particular issue which is Early Childhood, what I would like to do is make some general submissions which are canvassed obviously in our written submissions and possibly put something further in writing. The reason that this is an issue of concern to the IUA is that teachers in Early Childhood have, as I think has been mentioned earlier today, always been the poor cousins of teachers across the spectrum. Teachers in Early Childhood generally are qualified to teach 0-8 years old children. So in other words, if they weren't working for a pre-school or a long day care centre they could be working in an infant school of an ordinary school.

PN983

THE COMMISSIONER: And getting paid the same rate, yes, as a teacher.

PN984

MS MATTHEWS: That's right and getting paid as an ordinary teacher.

PN985

THE COMMISSIONER: Yes.

PN986

MS MATTHEWS: There are of course significant differences in the enterprise awards outcomes in relation to schools and Early Childhood. But we say that insofar as there is an award rate set that teachers in Early Childhood should not get less than teachers in schools. The balance of the way their conditions work and the way their salary progression works should be comparable. In other words, it's pretty well established in all teaching awards that teachers get annual increments and that has survived numerous Full Bench reviews, Paid Rate review decisions and so on. But what I notice in some of the awards proposed by parties to this Commission is that the incremental rates of teachers in Early Childhood should be able to be withheld by the employer subject to satisfactory performance. Let me just remind the Commission about who the employer might be in an Early Childhood Centre. As the Commission may be aware, in a community based centre that would be a committee of - - -

PN987

THE COMMISSIONER: Parents.

PN988

MS MATTHEWS: Of parents.

PN989

THE COMMISSIONER: Yes.

PN990

MS MATTHEWS: Who may or may not have any expertise in Early Childhood, other than as a diligent and hardworking participant within the service. But to suggest, as has been put by some employer representatives, that that committee should be able to withhold increments from a teacher, contrary to the usual process, I think is simply unreasonable. I would also note that it's quite clear that many centres are profit making and there has been a tension within the industry between community-based and profit services and I have to say, your Honour, I think it's long been the experience in any Commission dealing with rates of pay commissioned in this area that private profit making employers will exploit any loophole in the award to provide the lowest possible rate of pay and the worst conditions. I make this submission from many years experience appearing in the New South Wales Commission in relation to rates of pay for teachers in this sector.

PN991

I just think that is a submission I have never made in relation to school employers, but I think there is a significant difference in early childhood, which means the Commission must take particular care in examining what the implications are of any particular proposal. This is even more so because enterprise bargaining is rare in this sector, so they will be on the award rate and on the award conditions, one would anticipate. Now, we say that Early Childhood, that is pre-schools and long day care at least, are clearly within educational services and not part of - should not be considered part of the childcare industry, and that is because of our concern about the link between teachers rates and pre-school long day care and schools, that is the main reason we put that submission. I would also say that in relation to pre-schools, we don't quite accept the submission of the AEU in relation to the status of the Victorian Award in relation to pre-schools, that is that it is a government sector award. We agree with Mr Swancott which is you have to look at the identity of the employer, determining whether it's government - - -

PN992

THE COMMISSIONER: The kindergarten parents of Victoria are not part of the government.

PN993

MS MATTHEWS: That's right. As I understand it that Victorian Award applies both to kindergartens or pre-schools and teachers employed in long day care. But in fact there aren't many teachers in long day care in Victoria, they are primarily employed nationally in New South Wales because of government regulation. We say that for that reason the Commission must have particular regard to the relevant NAPSA applying in New South Wales which is that teachers, non-government, early childhood service centres other than pre-schools State award, and 37 per cent of teachers in long day care nationally are employed in New South Wales under that award. Commissioner, they are census figures but I would guess that of teachers employed in long day care and paid as teachers, many more than 47 per cent of the total are in New South Wales. When I look at the other awards I am not persuaded that it's clear that teachers employed in long day care are in fact actually paid as teachers under some of those child care awards. In that respect I would note that the award put up by Livingstones, for example, distinguishes between Children's Services employees and Early Childhood Education employees.

PN994

THE COMMISSIONER: Yes.

PN995

MS MATTHEWS: It is only in the Early Childhood Education employee that you see the teacher classification, although note that it's not actually called a teacher, it's called a person who has teacher qualifications. That is an example of the status issue. That award does not recognise that there is a classification of "teacher". They are people with teacher qualifications. But they don't seem to exist in childcare services, only in Early Childhood Education which appears to me in pre-schools. So we don't agree with that approach. We say there are teachers in long day care, they should be recognised and paid as such and that the Commission should have close regard to the way the award works in New South Wales to ensure that teachers remain in the industry. If that doesn't happen I would anticipate that teachers will leave long day care in New South Wales, because there is no enterprise bargaining in New South Wales.

PN996

There are a number of ways, probably which I should put in my submission, where the award proposed both by the employers in New South Wales and by Livingstones would significantly downgrade the rate of pay for teachers, both in pre-schools and long day care services. For example, the Livingstone award proposals that teachers not be paid during pre-school holidays. I have never heard that put anywhere in a Teachers Early Childhood Award, teachers not be paid during school holidays. How many teachers will continue to work in pre-schools if that was to occur? RDOs, in my view, rostered days off in long day care are an important way in which teachers can accrue in effect extra leave, because that's how it operates in New South Wales, they can accrue them, both teachers and childcare workers. The employer's first proposal is that essentially the right to RDOs would disappear. That has been hard fought in many cases before the New South Wales Commission because they allow shifts at 7.5 hours. Five times 7.5, you never accrue an RDO, you never get a day away from the children. Eight hours a day on the floor, programming and marking as well. This is tough work and we say the Commission must be really careful in changing little provisions.

PN997

Another is that .8 or more is deemed full time. We don't want to see a situation where employers tell teachers to leave early because the people attendance has dropped and they are no longer required to have a teacher on the staff so they tell the teacher to go home early or they employ the teacher for a slightly shorter period. The teacher as a consequence gets 10 per cent less than a full time teacher rate. That is not viable as a job for a teacher and there has traditionally never been hours of work set in the Pre-Schools Award in New South Wales and we say that that flexibility which is being proposed for schools and which we are negotiating, should apply for pre-schools as well. But we want to see some regulation to ensure that decent jobs are maintained in the industry and we don't think that will occur if it's just another classification in an industry which is based on the Metals spine and the Metals approach to classifications rather than a Teachers Award. I might leave it at that, Commissioner, because I am aware of the lateness of the time.

PN998

THE COMMISSIONER: Thank you, Ms Matthews. The AFEI.

PN999

MR WARREN: Thank you, Commissioner. Commissioner, the AFEI have put in some two draft awards and three submissions with respect to the matters currently before you. The two draft awards cover the Children's Service Industry and the university unions. Yes, they are back on the table and I will discus that briefly in a moment. The three submissions - there is one short submission which goes to general matters and I won't in any way address those other than to refer the Commission to that.

PN1000

THE COMMISSIONER: Yes.

PN1001

MR WARREN: There are two more lengthy submissions which I equally will not in any way read but we refer the Commission to those submissions, one dealing with the university unions and one dealing with the Children's Services Industry.

PN1002

THE COMMISSIONER: Yes.

PN1003

MR WARREN: We merely commend those to the Commission and know the Commission has read the. Can I deal firstly, briefly, other than those comprehensive submissions with firstly the Children's Services Industry. We say quite clearly that there has been identified a separate stand alone industry. That should be recognised by a separate stand alone award. The Children's Services Industry is highly regulated. It is more regulated than other educational industries in Australia and what is more it is regulated separately and differently State by State. That doesn't make the task the Commission have, nor indeed AFEIs task, in coming to a draft award any easier. Can I say this, that AFEI have attempted as it were to riffle together conditions in various NAPSAs to come up with a draft award. They have attempted a balancing approach.

PN1004

One only needs to look at the wide and disparate nature of part time and causal employment between the various States and look at the end result as found in the AFEI Award to recognise that here is a plus and minus approach and that is what they have attempted to do in coming to this draft award. There are indeed in the draft award industry specific provisions quite clearly detailed when one looks at clauses 33 and 34 which deal with meetings and activities and professional development that are obviously clauses that need to be made in a modern award and are appropriately found in a modern award. We say its appropriate for the Commission to deal with it now, not in Stage 4, and that there is clearly a wealth of information before the Commission in draft award form and otherwise that will assist the Commission in coming up with an exposure draft for the Children's Services Industry. Dealing briefly with the matters raised by the IEU just before I stood up.

PN1005

THE COMMISSIONER: Yes.

PN1006

MR WARREN: It is not surprising that they would embrace to an extent the salaries found in the New South Wales NAPSAs. I don't have specific figures for the Commission. The Commission will note in the AFEI Draft Award that specifically salaries were not taken to. It wasn't taken to because if one looks at the salaries they are so varied across Australia with clearly the New South Wales position being far in excess, in many cases up to 50 per cent in excess, of award rates in other states. So it's not surprising that an IEU would embrace the New South Wales rates, but clearly there needs to be, if there are to be in any way considered, there needs to be significant or transitional arrangements introduced, but they are just so different that it is almost the elephant in the room and very difficult to deal with.

PN1007

THE COMMISSIONER: Do you know why that is in the history? I mean, I'm not aware of the history of those rates being fixed in New South Wales, so I don't know.

PN1008

MR WARREN: The rates in New South Wales have long been adjusted by the Industrial Commission of New South Wales. It was when such rates were - or when such words were used as "paid rates awards". It was considered certainly to be an award that there was no overall payments element within it. They, for a long period of time, followed the other schools awards, the other primary, secondary schools et cetera, which it has departed from in recent years, but that's still elevated them to an extent where they had significant increases and significant rates of pay way beyond what happened in other States.

PN1009

This is probably perhaps more appropriate to what happened in other States as to why they remained where they were. But certainly the awards - - -

PN1010

THE COMMISSIONER: Certainly the rates in other States have borne a relationship to the rates of school teachers in independent schools, for example.

PN1011

MR WARREN: Well, the rates in New South Wales so far as children's services, child care areas are concerned, there is two areas, of course. There's the areas of qualified teachers, and then there's the other area of child care workers, or where they've been - - -

PN1012

THE COMMISSIONER: Yes. I know the history in relation to the child care workers. It was the qualified teachers that I was asking about.

PN1013

MR WARREN: Yes. They, for many years, followed other qualified teachers, but they've departed from that with the other qualified teachers moving further ahead, but they were certainly rates that were established by the Industrial Commission following significant work value and some significant Full Bench decisions that were conducted.

PN1014

THE COMMISSIONER: Yes.

PN1015

MR WARREN: And just dealing with the position in New South Wales, or indeed the position with the draft award, ie. an advocate gave an impassioned plea for rostered days off for teachers. If one looks at the AFEIs draft award and one looks at clause 24, there is a comprehensive - and it is hours of work for other than pre-school teachers. In other words, extended day care teachers are included in that batch. It is comprehensive the range of hours that are available to be worked and it includes working a 19 day month, various lengths of shifts, rostered days off in clause 24.3 and all sorts of ways of working or accruing days off within that clause.

PN1016

That has been comprehensively addressed in the AFEI draft and we commend it to the Commission's attention, particularly clause 24, where that is addressed. So it shouldn't be said that teachers in long day care centres - which incidentally, teachers in long day care centres in New South Wales receive a significant additional rate of pay. Their rate of pay - - -

PN1017

THE COMMISSIONER: Because they don't get school holidays.

PN1018

MR WARREN: Precisely right, and that's where you look to the hours clause where there hasn't been an hours clause in the pre-school teachers area because they have been aligned with school holidays and it's been a satisfactory arrangement as I understand it all round to let that tick along as it were.

PN1019

THE COMMISSIONER: Yes.

PN1020

MR WARREN: So, Commissioner, with respect to those hours they are addressed, we say, comprehensively in respect of the rostered days off and we commend that to the Commission. So in essence with respect to children's services there is a comprehensive or a draft award been prepared. We recognize that there are issues between the parties. AFEI, as I am instructed, stands prepared to participate in any further discussions in an attempt to get to an agreed position or a position at least of less disagreement and they stand to re-do just about any of those discussions at all.

PN1021

Now, Commissioner, with respect to the university unions, once again a comprehensive submission has been put in and we commend the Commission to that. There has been a draft award prepared. Just incidentally on the position of there being a suggested stand alone university unions award, that was raised by AFEI back in August of last year in the Higher Education Priority Industry. That may have slipped under some people's radar, but it was - and that submission is attached to the more recent submission filed on 16 March and it details in quite some fashion the stand alone industry that university unions hold.

PN1022

Can I just simply say that by using the term "university unions" it's not suggested that that's what is the term used at all universities.

PN1023

THE COMMISSIONER: No.

PN1024

MR WARREN: But the term "university union" is defined within the draft award to include all measure of operation of food and bar services, support for student clubs, social cultural and recreational activities, et cetera, et cetera, and it's detailed both in the draft award and in the submission that has been filed. Can I simply say this, Commissioner. It is clear from the type of industry that is attempted to be embraced into one, with university unions, that it is appropriate in terms of the charge to the Commission that when making a modern award that the industry of those employers is very wide ranging in the type of employees that are covered.

PN1025

If one looks at paragraph 8 of the submissions, it is crystal clear that the type of employees are university union, however styled, employs people, can range from security work, bus driving, retail, food and beverage, and if a university union is in the position of having to engage people under those disparate and various awards it is something of an administrative nightmare and that was recognized in New South Wales in 2002 when the University Unions Award was made. Reference is made to it in the submissions. That award covered in essence all university unions with the exception of the University of Newcastle, which had a stand alone award which in essence covered the same people in any event, and it was embraced by university unions in New South Wales as being a very practicable way of streamlining their award coverage and having an award that specifically allowed for the employment of persons at the specific times the university unions need for work.

PN1026

Now, the high need for employment in book stores at the start of semester and that sort of thing, and it is very reflective of the type of employees, and as I'm instructed, welcomed by the employees as well as much as they've got to work during semester time and they have long breaks. It allows them also of course to be engaged full time or part time, allows them to obviously - - -

PN1027

THE COMMISSIONER: Well, a lot of them are part time students, aren't they, a lot of the employees?

PN1028

MR WARREN: Certainly, at times, but also persons with other domestic needs to look after school children during holidays et cetera, et cetera, and it's attractive for both sides of the equation and has worked extremely well and we note the number of people before you today, a number of organisations have said they just hadn't thought of it or they want to discuss further. Once again AFEI, it stands to reason that they discuss that further with any of the organizations. But it's a practical approach to establish a sensible modern award which we say meets the criteria of the Commission looking at modern awards.

PN1029

Just on the point of Mr Nucifora, the Commission will note that within the draft award, clerks are not sought to be covered. It's the position that the clerks, the Private Industry Clerks Modern Award is appropriate to cover clerical employees across that industry as well as all other private industries as a matter of principle and it's not sought to be covered in that award. It was Mr Nucifora who has been engaged in any discussions, that's not a problem, but the coverage of clerks is not within that draft at all.

PN1030

THE COMMISSIONER: Is there an issue in relation to that, and there may not be, but I'm only talking about from my experience, that the university union might have some difficulty attracting clerical employees if they would be doing better to be employed under the Higher Education General Staff Award and work directly for the university?

PN1031

MR WARREN: On my instructions and in New South Wales that hasn't been the case.

PN1032

THE COMMISSIONER: Right.

PN1033

MR WARREN: Two things there. We can't dictate who employs them.

PN1034

THE COMMISSIONER: No, no, no. I'm simply saying that if you're looking for a job on a university campus and the rates of pay and conditions for clerical employees under one award operating on that campus are better than the other, then you would think that you would try for a job with the employee that's covered by that award, wouldn't you?

PN1035

MR WARREN: One could hardly hold them back from that. But that being the case, as I understand it, working for university unions or however they're styled, it might be the sports union or as the case may be, is an attractive proposition on hours and working conditions in any event and certainly there isn't a difficulty in obtaining clerical employees. Commissioner, unless there is anything I can be of further assistance on, those are the submissions.

PN1036

THE COMMISSIONER: No, thank you. Thank you for your submission. We've got the lucky last, have we?

PN1037

MR R SHAW: It looks that way, doesn't it? Mr Shaw from AEU Children's Services, and I promise to be brief.

PN1038

THE COMMISSIONER: Thank you.

PN1039

MR SHAW: I guess the first thing I'd like to put is that like SDN we're a very long established employer, in fact, we're now the largest employer in the industry. We run something like 156 centres across the eastern seaboard, mainly domiciled in New South Wales. From where situate our corporation we see that we're running the one company of teachers, child care workers and support staff. In fact, we have the highest ratio of teachers of all the providers, it's about 26 per cent. We have a policy, no matter how small in every long day care centre, pre-school or any of the other operations we run, we have teachers.

PN1040

However, we also see that those teachers work alongside child care workers and they work together and many of our child care workers who have diplomas and are qualified go on to become teachers through their progression. So we think it is a good thing to have the one award which looks after an $8b industry which has been pointed out in some of the submissions, and it employs 126,000 employees, a little bit bigger than the Catholics, 50 per cent bigger. As far as our operational concerns, we do need a lot of flexibility in the award. We have to allow for the fact that we have school hours worked at pre-school centres and we have up to 50 weeks, 51 weeks in some cases for long day care centres.

PN1041

I think I should also point out in the case of New South Wales, New South Wales comprises 31 per cent of the industry, pre-schools and long day care centres are the main combined. Of course there's other programs that are run. I think when we're looking for this one award we're looking for maximum flexibility and I hear today in terms of hours and rostered days off as appropriate, and I hear today various submissions that a lot of submissions have been advocating this one award, so I don't think we're all that far away from reaching a satisfactory salary classification scale and one that can be accommodated by all the parties and in fact, I'm quite encouraged by the fact that that could happen fairly quickly.

PN1042

Just in terms of fees and cost sensitivity of this industry, in terms of New South Wales we run 120 pre-schools. The fees are roughly $40 a day. Subsidy level from the government is 21 per cent. So it's fairly cost sensitive and even more in the long day care centres where our fees are about $80. Although we're high payers for teachers, we pay well, any move to put our teachers to the pay rates of primary school teachers, and I would like to, because we believe in their educational and professional development, would be I would suggest very disastrous in terms of some of those centres and some of the parents because 85 per cent of our cost in running the centres is in wages. So if we put the wages up, the fees go up.

PN1043

But I think we'll probably address that when it becomes clearer later as to what the wages may or may not be, we need to address that point because this is a very cost sensitive industry. It doesn't get anything like the government subsidies that the primary and secondary school education sectors get. It's a poor relation. We have promises from the government, but they're not there yet.

PN1044

THE COMMISSIONER: We'll hold our breath.

PN1045

MR SHAW: If the Commission pleases. I'll leave it at that.

PN1046

THE COMMISSIONER: Thank you very much, Mr Shaw. Well, does that wind us up for today? Thank you, all of those stayers who are still here. Thanks everyone for their submissions. I know that it'll be of assistance. A number of you have indicated that in this process you would appreciate some further discussion and that is a matter that I will be raising with the Full Bench and we'll respond to you in relation to that, thank you.

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