T0652 Dec 212/96 S Print M9746
AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Industrial Relations Act 1988
s.113 application for variation
s.107 reference to a Full Bench
Australian Education Union
(C No. 32548 of 1995)
TEACHERS' (VICTORIAN GOVERNMENT SCHOOLS) CONDITIONS OF EMPLOYMENT AWARD, 1995
(ODN C No. 31325 of 1993)
[Print M3410 [T0652]]
Teachers Educational services
Wage rates - classifications - special case - teachers, educational services - application sought to vary award in respect of salaries and a new career structure applicable to teachers in government schools in Victoria - special case arises particularly from Professional Recognition Program - changes including career structure and salaries to be reflected in the award provisions determined - retrospectivity refused.
JUSTICE MUNRO
DEPUTY PRESIDENT ACTON
COMMISSIONER FRAWLEY SYDNEY, 1 MARCH 1996
DECISION
1. BACKGROUND
This decision concerns an application by the Australian Education Union (AEU), amended during the course of hearings on this matter, to vary the Teachers' (Victorian Government Schools) Conditions of Employment Award, 1995 in respect of salaries and a new career structure for teachers employed in government schools in the State of Victoria.
The application was referred to a Full Bench pursuant to s.107 of the Industrial Relations Act 1988 (the Act).
On 16 October 1995, the Full Bench decided to grant the teachers a 1.8% interim increase in their award rates of pay [Print M6311].
In that decision the Full Bench said:
"On the basis of what has been put to us we are not satisfied there is a reasonable prospect of the parties making an agreement under Part VIB of the Act. In coming to this conclusion we have been particularly influenced by the fact that the "offer" made by the DSE (Directorate of School Education), which extends the PRP (Professional Recognition Program), is unacceptable to the AEU. Further, we consider the DSE has in effect abandoned negotiations for an agreement with the AEU. The unilateral establishment of a three week consultation process with employees about the extended PRP "offer" and the simultaneous unilateral promotion of the PRP through instruments akin to individual contracts or agreements with employees are not realistically compatible with the maintenance of negotiations toward a certified agreement in the circumstances.
We are far from suggesting that there should be no further attempts by the parties to reach a settlement through an agreement, but we are forced to conclude that there is no reasonable prospect of an agreement at this time. We find that there is no longer a basis for refraining from further hearing under section 113(4A). We consider conciliation to be at an end for the purposes of the application before us. Accordingly, in the circumstances we determine that we should arbitrate upon the AEU's application.
In relation to the AEU claim for a 4% interim increase we are not satisfied we should make an award in the terms sought. It is not necessary or appropriate at this stage of the proceeding to develop our reasons other than to state that we are not persuaded that the movement of existing classification rates by 4% on an interim basis is compatible with a proper final determination of the matter. However, we are satisfied in all the circumstances that a modest interim increase to the current award classification structure should be made. We consider that the minimal outcome of our arbitration of a final award will be an increase in excess of 1.8% to the existing interim salary rates. Accordingly, we will grant an interim increase to award rates of 1.8%.
We are satisfied that on the material presented to this point, an increase of that dimension to award classification salary points is justifiable by reference to considerations of significant net additions to work value. There is no issue about there having been work changes since October 1992; it is the character and impact of the general changes in application to the work value principle which are challenged by the DSE. We consider that there is a strong case that there have been significant net additions to work of a character which demonstrably have warranted consideration as factors consistent with upgrading within the existing attenuated classification structure for teachers under the Award. The DSE has acknowledged that work value changes are among the factors taken into account in the decision to introduce the new PRP classification structure as an overaward payment available on election by individual teachers. We note that the effect of an increase of about that size will be that the rates of employees at award classification level Sub 12 will have been adjusted by about 4% over the period which has elapsed since the first arbitrated safety net adjustment of the rates in the Award in December 1994. The annual salary of such employees will be just below the current salary Level 2-11 of the PRP classification structure. Two $8.00 safety net adjustments are also reflected in but absorbed in the PRP classification structure rates currently on offer.
The grant of the increase will be conditional upon the AEU undertaking that no reliance will be placed upon the interim increase for purposes outside the context in which it has been awarded. It will also be conditional upon an undertaking that changes to work and work organisation since 1992 to this point will be given effect without bans or limitations. The increase will take effect from the first pay period commencing on or after the date of the order. The order will be settled by Frawley C, and subject to the conditions that apply to it.
We indicate that we consider the introduction of the PRP and the promotion of it at the expense of the existing interim classification structure is a fact which will need to be addressed in any further arbitration. ..."1
To ensure progress toward further arbitration of the claim the Full Bench also issued directions under s.107(10) of the Act to establish a program and agenda by reference to which further hearings might be planned.
We directed Frawley C to report on the claims and submissions of the parties as to the proper outcome of arbitration of a final award, noting the matters raised in the Commission's provisional view as expressed in paragraph 3 of a Statement we had issued on 1 September 1995 in this matter.
Frawley C reported on the matters referred to him on 12 December 1995 in the terms set out in Attachment A to this decision.
The parties made their final submissions on the evidence and points covered in the report at the hearing on 8 and 9 February 1996. On the resumed hearing Mr K. Bell, of counsel, appeared by leave for the AEU; Mr R. Fenton appeared for the Victorian Affiliated Teachers Federation (VATF), intervening; and Dr C. Jessup QC with him Mr G. Giudice, of counsel, appeared by leave for the State of Victoria and the Minister for Education (Victoria).
At the conclusion of the hearing on 9 February 1996 we gave leave to the AEU and the State of Victoria and the Minister for Education (Victoria) to put additional material on the understanding that any such material would be made available by Monday 12 February 1996 and in the course of the week ending 16 February 1996 respectively. Additional material was lodged by the AEU but not received until 19 February 1996 and 23 February 1996, although it appears that the AEU may have lodged part of the material by facsimile on 14 February 1996, but perhaps not served it then on opposing parties. Partly because of that delay Victoria only lodged additional material on 29 February 1996.
In the circumstances we have not taken into account any of the material lodged after 9 February 1996 and outside the time allowed for its presentation.
2. AEU CLAIM
In their amended application the AEU seek the following salaries and career structure for teachers in government schools in Victoria:
Classification |
Salary per annum |
Leading Teacher: |
|
sub-division 4 |
$55,177 |
sub-division 3 |
$53,831 |
sub-division 2 |
$52,518 |
sub-division 1 |
$51,237 |
|
AST 3 |
$49,987 |
|
AST 2 |
$48,861 |
|
Teacher: |
|
|
Head Teacher |
$46,233 |
|
AST 1 |
$45,973 |
|
3 and 4 Year Trained Scale |
|
sub-division 11 |
$44,818 |
sub-division 10 |
$43,190 |
sub-division 9 |
$40,932 |
sub-division 8 |
$39,467 |
sub-division 7 |
$37,777 |
sub-division 6 |
$35,047 |
sub-division 5 |
$34,215 |
sub-division 4 |
$33,419 |
sub-division 3 |
$31,790 |
sub-division 2 |
$31,455 |
sub-division 1 |
$29,839 |
|
2 Year Trained or Less |
|
|
sub-division 9 |
$34,215 |
sub-division 8 |
$33,610 |
sub-division 7 |
$32,009 |
sub-division 6 |
$30,924 |
sub-division 5 |
$29,839 |
sub-division 4 |
$29,839 |
sub-division 3 |
$29,839 |
sub-division 2 |
$29,839 |
sub-division 1 Footnote: AST is Advanced Skills Teacher |
$29,839 |
The AEU submitted their amended application seeks a 10.67% increase in the current award rates of pay of such teachers. Such an increase together with the two $8 per week arbitrated safety net adjustments already granted and the 1.8% interim increase previously granted by the Commission would result in the award rates of pay of teachers having been increased by 15% since August 1991.
3. PROFESSIONAL RECOGNITION PROGRAM
The State of Victoria and the Minister for Education (Victoria) advocated award prescription of the career structure and most of the salaries in their Professional Recognition Program (PRP). The PRP was instituted out of a review of the existing award career structure for teachers and began on 1 July 1995 as an above award provision. The PRP is presently voluntary in that teachers may join the PRP at any time by signing a form stating they are doing so.
The career structure and salaries under the PRP are as follows:
|
Teacher Classification |
Salary per annum effective from 1 July 1996 |
|
Level 4 |
|
Recognition Incentive 3 |
$53,251 |
Recognition Incentive 2 |
$52,041 |
Recognition Incentive 1 |
$50,831 |
Accreditation |
$49,620 |
Appointment |
$48,410 |
|
Level 3 |
|
Recognition Incentive 3 |
$51,127 |
Recognition Incentive 2 |
$49,964 |
Recognition Incentive 1 |
$48,802 |
Accreditation |
$47,572 |
Appointment |
$46,479 |
|
Level 2 |
|
Sub-division 2-12 |
$43,677 |
Sub-division 2-11 |
$42,558 |
Sub-division 2-10 |
$41,005 |
Sub-division 2-9 |
$39,452 |
Sub-division 2-8 |
$37,898 |
Sub-division 2-7 |
$36,347 |
Sub-division 2-6 |
$34,793 |
|
Level 1 |
|
Sub-division 1-5 |
$33,241 |
Sub-division 1-4 |
$31,687 |
Sub-division 1-3 |
$30,135 |
Sub-division 1-2 |
$29,083 |
Sub-division 1-1 |
$28,030 |
The PRP provides for a four level career structure and salary increases. Movement between the 22 salary points of the structure is, in general terms, dependent upon a scheme of annual reviews, promotion and performance reviews. Levels 3 and 4 are tenured positions.
The beginning teacher levels under both the PRP and the existing award career structure allow for different entry point salaries for 2 year, 3 year or 4 year trained teacher appointments. Under the PRP, an existing AST 1 teacher is translated to the Sub-division 2-12 salary point and the existing AST 2 and AST 3 teachers to the Level 3 appointment and accreditation salary points respectively.
The State of Victoria and the Minister for Education (Victoria) opposed retention of the AST levels as distinctive classifications in the award structure. Further, they did not support award prescription of the accreditation and recognition incentive salary payments above the first salary point in Levels 3 and 4 of the PRP.
Teachers who joined the PRP on or before 30 June 1995 received a 4% salary increase from 1 July 1995 and a further 2% increase on 29 January 1996 and will receive a further 3% increase from 1 July 1996. Teachers joining the PRP after 30 June 1995 now receive the salary increases available before they joined from the date their principal receives notification that they are joining. The salary increases received are to absorb any salary increases granted through the award, although the PRP salary will not at any stage be less than that provided under the Federal award or any agreement certified or approved by the Commission. The period over which the PRP is to operate extends to 1 July 1997, in the sense that it "provides for no further pay claims until July 1997 unless granted by the Australian Industrial Relations Commission".
4. DIFFERENCES BETWEEN AEU CLAIM AND THE PRP
In the proceedings before us the AEU tendered an exhibit (AEU 27) setting out what they saw as the differences between the AEU claim and the PRP. Those differences are as follows:
|
AEU Claim Salary · Non-PRP teachers 2% paid from 22/12/95. · All teachers 8.67% from 29/1/96. Teacher Classifications · Teacher subdivision 1 to 11 · AST 1 · Progression through incremental scale as per current award practice but with opportunity for accelerated advancement by two increments after reaching subdivision 5. Progression to AST 1 subject to performance review after reaching subdivision 11. Promotion Positions: · AST 2 and AST 3 reviewed in fourth year and in 5 year cycles after that (as in current award) · One Leading Teacher classification with 4 incremental points accessed via a voluntary performance review. Tenure 3, 4 or 5 years. · One level of Head Teacher in small schools which do not qualify for a principal class position. Special Payments · Range of $1,500 to $4,000 p.a. allocated for a period of one, two or three years. Annual leave loading 17.5% paid on basis of entitlement to annual leave. |
Current PRP Salary 5% consisting of: 2% increase effective from 29/1/96 plus a 3% increase effective from 1/7/96 Teacher Classifications · Teacher Level 1 · Teacher Level 2 · Progression through incremental range is subject to annual performance review with possibility of accelerated advancement. Promotion Positions: · No AST 1, 2 or 3. · Leading Teacher 3 and Leading Teacher 4. Positions with up to 5 years tenure. Paid within a range giving access to up to 10% performance pay. Salary level within this range determined annually through performance review. · No Head Teacher Special Payments · Range of $500 to $4,000 awarded over 3 months to two years, paid fortnightly or as a lump sum. Annual leave loading No loading provided for in PRP (order 152) (or principal order 136). |
5. SPECIAL CASE
With respect to the Commission's wage fixing principles, the AEU submitted their application in this matter came within the provisions of the Commission's Statement of Principles at Attachment A to the Third Safety Net Adjustment and Section 150A Review October 1995 Decision (the October 1995 decision) [Print M5600] concerning special cases and perhaps work value changes. However, the State of Victoria and the Minister for Education (Victoria) submitted the first award provisions of those principles are relevant.
We believe the Teachers (Victorian Government Schools - Interim) Award, 1994 [Print L3637 [T0426]], made by a Full Bench on 1 June 1994 comprising Boulton J, Harrison DP and Frawley C, constitutes the first award of this Commission for teachers in government schools in Victoria.
In this regard we note that in the decision leading to the establishment of that award, the Full Bench said:
"In all the circumstances we have decided that the Interim Award should provide for the terms and conditions which applied under the State Teachers Award to be maintained pending the outcome of the arbitral proceedings. The Interim Award shall therefore be varied to include the provisions of the State Teachers Award. We consider that this course is appropriate for the following reasons. It will provide a detailed prescription of the terms and conditions covered by the Interim Award and thereby remove some of the uncertainty and scope for argument which has arisen under the current provisions. It will also give effect in the making of the interim order to the established principles of the Commission applied in the making of first awards, namely that in awards regulating the employment of workers previously covered by a State award or determination, existing State award rates and conditions prima facie will be the proper award rates and conditions [see Print K9700]."2
The special case provisions of the Statement of Principles attached to the October 1995 decision are contained in paragraph 3.3 of those principles concerning "Making and Varying an Award Above or Below the Safety Net". Paragraph 3.3 of the Statement of Principles provides as follows:
"Generally an application to make or vary a minimum or paid rates award for wages and/or conditions above or below the award safety net shall be referred to the President for consideration as a special case. A party seeking a special case must make an application pursuant to s.107 supported by material justifying the matter being dealt with as a special case. It will then be a matter for the President to decide whether it is to be dealt with by a Full Bench. Exceptions to this process are applications which fall within the provisions in the Statement of Principles dealing with a Consent Award or Award Variation to Give Effect to an Enterprise Agreement and with a First Award and Extension to an Existing Award."
We are satisfied there is a special case in this matter. It arises out of a combination of circumstances but is constituted particularly by the unilateral implementation of the PRP in response to and as an agent of structural change in teaching work since the current award structure and rates were established through the processes of the Industrial Relations Commission of Victoria (IRCoV) in which there was a significant degree of consensus between the industrial parties. That change is linked with other changes to teaching arrangements and requirements in government schools in Victoria, particularly those associated with the Schools of the Future Program. Further, notwithstanding the changes since 1991 the salaries of the teachers who have not joined the PRP have only moved by the two $8 per week arbitrated safety net adjustments and the 1.8% interim increase awarded by the Commission while PRP teachers, as earlier indicated, have received and are to further receive salary increases substantially in advance of this.
As we said in our Statement of 1 September 1995:
"(The State of) Victoria has acknowledged, and the Commission notes, that some changes to (teachers') work and work organisation since 1992 are already assimilated and are of a character properly to be taken into account as productivity enhancing measures contributing to the classification changes and salary increases reflected in the PRP classification structure. ...
... The Commission accepts that changes to teaching arrangements and requirements in Victoria since 1992 are among factors which may relevantly be taken into account for purposes of an enterprise agreement, or under the work value changes principle, or as part of a special case."
As will become apparent later in this decision, however, the award we have decided to make in this matter also meets the considerations the State of Victoria and the Minister for Education (Victoria) maintained were relevant to the making of a first award by the Commission.
6. CAREER STRUCTURE AND WAGE RATES
· The AEU put that we should recognise and be guided by the fact that the existing award career structure for teachers in government schools in Victoria was established by the former IRCoV after much careful consideration. Accordingly, rather than adopt the career structure in the PRP, we should integrate the changes to teaching arrangements and requirements in Victorian government schools into the present award career structure. The AEU submitted that approach would give necessary recognition to:
· the collaborative and collegiate character of teaching work;
· the need to achieve an appropriate balance between the benefits of individual performance review against the importance of orderly progression through a career path;
· the fact that the existing structure was a response to a need to encourage teachers to pursue a career path in the classroom; and
· the increased management and administrative functions now being performed in schools.
These factors, they maintained, demanded that the career structure proposed by the AEU be accepted.
While we accept there is some force in those contentions and considerations, we are satisfied that they have not been excessively discounted in the alternative career structure proposed by the State of Victoria and the Minister for Education (Victoria) and reflected in the PRP. Moreover we are of the view that we should attach weight to the de facto replacement of the existing award career structure by the PRP structure for those not insignificant number of teachers who have signed up for it. Unless there is good reason to adopt a different approach, we consider the appropriate course is to heed the employer's priorities in identifying duties and classification requirements related to work performance. Accordingly we have decided that we should adopt essentially the career structure in the PRP and its associated classification definitions and other provisions, athough the award will provide for some changes to that career structure.
The changes we determine should be reflected in the award provisions are as follows:
(1) Under the PRP career structure, Level 1 (beginning teacher) has 5 salary increments and Level 2 (experienced teacher) has 7 increments. Incremental advancement for a teacher within each level is determined by an annual review of the teacher against criteria reflecting the professional standards of performance expected of Level 1 and 2 teachers. Advancement from Level 1 to Level 2 is subject to the school principal being satisfied the teacher is performing at a standard expected of a Level 2 teacher.
We support the concept of a satisfactory outcome on the annual review of a teacher's performance for incremental advancement, although we would expect the annual review to operate in a manner such that a satisfactory outcome from it is achievable for nearly all teachers.
However, we are concerned that the PRP requirement for advancement from beginning teacher to experienced teacher does not adequately recognise the role of years of experience in the teaching service in the development of a beginning teacher to an experienced teacher.
Accordingly, we have decided to combine Levels 1 and 2 in the PRP career structure into one level with 12 salary increments. Advancement from one increment to the next is to be generally subject to a satisfactory outcome on the annual review of a teacher's performance. However, the award is to provide for a "hard barrier" to advancement beyond the increment that would normally apply in the fifth year of teaching service of a teacher. That increment on the 12 increment scale will vary for 2 year, 3 year and 4 year trained teachers having regard to the point on the scale at which each commences their teaching service.
It appears to us that generally the standards of performance set out in the PRP for a Level 1 teacher are appropriate criteria to be considered in the annual review for incremental advancement before the hard barrier is reached and those in the PRP for a Level 2 teacher are appropriate for consideration in regard to incremental advancement beyond the hard barrier.
(2) Levels 3 and 4 in the PRP career structure each have 5 salary points with the first salary point being the salary paid on appointment as a Level 3 or 4 and the second salary point being the salary paid on accreditation as a Level 3 or 4. The appointment and accreditation levels attract a substantive salary to which superannuation entitlements apply. The remaining salary points are accessed via the achievement of outcomes specified in a performance plan and the resultant recognition incentive is paid in the following year.
We have decided to renumber Levels 3 and 4 in the PRP career structure as Levels 2 and 3 respectively, as a consequence of our combining the first two levels in the PRP career structure, and prescribe both the appointment and accreditation salary points at each of those levels having regard to the fact that they are regarded as the substantive salaries at those levels.
With respect to wage rates, we are satisfied the 1 July 1996 salaries and special payments under the PRP are, with possibly two exceptions, fair and appropriate for the career structure and associated provisions we have decided to adopt and are set at a relevant level. Our acceptance of those rates as currently appropriate has influenced our view as to the rejection of the AEU's proposed increases.
Under such salaries, 3 or 4 year trained teachers currently on the top award increment will have received a 9.3% increase in their salaries since 1991. We note that under the Statement of Principles attached to the October 1995 decision, a third $8 per week arbitrated safety net adjustment may, on application, be available to teachers at the enterprise level from no earlier than 22 September 1995 and at the award level from no earlier than 22 March 1996.
Although the salaries are less than those sought by the AEU, the internal salary relativities are generally commensurate with those sought by them.
Further, we believe that such salaries, whilst compensating teachers in Victorian government schools for the changes to their teaching arrangements and requirements in recent years, will not create instability in the salaries of teachers across Australia.
With respect to the two possible exceptions we earlier alluded to, we indicate that we do not believe there was sufficient material before us to enable us to decide whether or not an allowance of $500 per annum is adequate for a Head Teacher in charge of a single teacher school, or whether casual replacement teachers should be able to be paid on an hourly basis as opposed to a longer period such as a half day or full day basis. Accordingly, we reserve leave to apply with respect to these two issues. We suggest the parties confer on them on the basis that if necessary the Commission will arbitrate the issues after more detailed submissions are made available.
In regard to special payments, we are not persuaded by the AEU that we should require such payments to be paid for a full year. We accept three months as the appropriate minimum term for such payments. That term broadly coincides with a school term period and constitutes a natural focus for flexible special requirements at the school level. Nor do we accept that an employee should have to be employed for a minimum time fraction, as proposed by the AEU, before being eligible to receive such a payment or that such payments should only be available to teachers, given the reasons for such payments.
The AEU and the State of Victoria and Minister for Education (Victoria) supported inclusion of provisions concerning sabbatical leave and "annual leave loadin" in any order we might make. We are satisfied it is appropriate to include these two provisions in the order giving effect to our decision in this matter.
The modified form of the career structure in the PRP we have decided to adopt absorbs the AST 1 classification at the top of the incremental scale for Level 1 and the AST 2 and 3 classifications within Level 2 and provides skill based career paths.
We are satisfied that the career structure and its associated provisions and the salaries and special payments we have decided to adopt are suited to the efficient performance of work according to the needs of the Victorian Teaching Service whilst properly taking into account teachers' interests, consistent with the requirements of the Act.
In summary, the career structure and salaries to be given award prescription as a result of our decision in this matter are as follows:
|
Teacher Classification |
Salary per annum |
|
Level 3 |
|
Accreditation |
$49,620 |
Appointment |
$48,410 |
|
Level 2 |
|
Accreditation |
$47,572 |
Appointment |
$46,479 |
|
Level 1 |
|
Sub-division 12 |
$43,677 |
Sub-division 11 |
$42,558 |
Sub-division 10 |
$41,005 |
Sub-division 9 |
$39,452 |
Sub-division 8 |
$37,898 (c) |
Sub-division 7 |
$36,347 (b) |
Sub-division 6 |
$34,793 (a) |
Sub-division 5 |
$33,241 |
Sub-division 4 |
$31,687 |
Sub-division 3 |
$30,135 |
Sub-division 2 |
$29,083 |
Sub-division 1 |
$28,030 |
|
Footnotes: (a) Hard barrier for 2 year trained teacher (b) Hard barrier for 3 year trained teacher (c) Hard barrier for 4 year trained teacher |
7. SELECTION AND REVIEW PROCEDURES
The issue of selection and review procedures was not dealt with in detail in the proceedings in this matter. That issue is to be dealt with in separate proceedings before the Full Bench as constituted, in light of the separate reference of that issue to us by the President pursuant to s.107 of the Act.
In the interim, pending the determination of the issue of selection and review procedures, the procedures under the PRP will apply.
The issue of selection and review procedures will be listed for mention shortly after finalisation of the order giving effect to our decision in this matter, so that consideration can be given to future proceedings on it. The parties should report on the operation and effectiveness of the selection and review procedures under the PRP in those future proceedings. In the circumstances we will not issue a provisional direction at this point about further proceedings but we reserve liberty to apply to Frawley C for a direction.
8. OPERATIVE DATE
The order giving effect to our decision in this matter will take effect from the first pay period to commence on or after the date of this decision and shall remain in force for a period of 12 months, but will be subject to leave reserved to apply for a determination in respect of the allowance for a Head Teacher in charge of a single teacher school, casual replacement teacher minimum payments, and access to the third arbitrated safety net adjustment.
We are not persuaded that the grounds advanced by the AEU for granting some retrospectivity in this matter represent exceptional circumstances. The Commission granted teachers in government schools in Victoria an interim salary increase with effect from the first pay period commencing on or after 2 November 1995 pending this decision.
In the hearing of this matter the State of Victoria and the Minister for Education (Victoria) submitted:
"Now, in our submission, there is no reason to back-date any award which the Commission might make, other than we would accept to the date on which the Commission announces its decision on the salary point. That is the normal practice of the Commission. We would not attempt to steal a March, or anything of that kind in relation to the period after then, while the award is being settled, because as the union no doubt thinks, our client also thinks that it is important to get the award right in terms, and that because of the complications which exist in this case, the Commission might think it advisable to announce its decision on the main issues, and to have the award settled thereafter.
I have got instructions to say that if there is a salary fixed by the Commission, then it might operate, and our clients would consent to it operating from the date of the announcement of the outcome, in salary terms."3
Nor given the quantum of the salary increases and special payments we have decided upon and the rationale for them do we consider there is a need to delay the operation of them or the career structure and associated provisions to which they relate.
We have fixed the term of the award and reserved leave to apply with respect to the third arbitrated safety net adjustment after having regard to the timing of the availability of that adjustment, and our view as to the need for the parties to be heard in due course on the applicability of that adjustment should application be made for it.
9. ORDER
As earlier indicated, the application in this matter seeks to vary the Teachers' (Victorian Government Schools) Conditions of Employment Award, 1995. The submissions of the State of Victoria and the Minister for Education (Victoria) were directed towards us prescribing minimum rates. In reply the AEU submitted:
"The character of the Award is that it is not a paid rates award ... the union has had on foot an application with respect to the paid rates status of the Award. That application will be progressed at the appropriate time. The union does not concede that the Award, as it is presently framed, is a minimum rates award. It states that the issue of the Award is yet for determination and will be determined in that case...
... the Commission should not, in my submission in this decision, foreclose the question of the status of the Award as it will have to be determined in the application that stands behind the one presently being determined."4
The form of the Teachers' (Victorian Government Schools) Conditions of Employment Award, 1995 is dealt with in the decisions5 leading to that award. In light of that and the parties' positions, at this stage we indicate only that we are satisfied the wages and conditions we have decided to adopt in this matter are fair and enforceable safety net provisions.
The parties are required to confer with a view to reaching agreement on the form of an order giving effect to this decision, including appropriate translation arrangements. Commissioner Frawley will be available to assist the parties if they are unable to reach agreement and will settle or, if necessary, determine the order giving effect to this decision, with recourse to the Full Bench as he may deem necessary.
BY THE COMMISSION:
JUSTICE P.R. MUNRO
Appearances:
K. Bell with A Lawrence, of counsel, for the Australian Education Union.
C. Jessup QC with G. Giudice and N Green, of counsel, for the State of Victoria and the
Minister for Education.
R. Fenton for the Victorian Affiliated Teachers Federation, intervening.
K Heaney with N Green for the Commonwealth
B Schwab, of counsel, for the Victorian Principals' Federation
J Cairns for the Australian Council of Trade Unions
R Jones, of counsel, for the State of Queensland and the Director General of the Department
of Education of Queensland
J Prickett, of counsel, for the State of Western Australia and the Minster for Education in
Western Australia
M. Evans with J Hankin, of counsel, for the State of South Australia
Hearing details:
1995.
Melbourne:
August 1, 10-11;
September 1;
October 9;
1996.
Melbourne:
February 8-9.
Printed by Authority by the Commonwealth Government Printer
<Price code F>
ATTACHMENT A
AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
REPORT TO FULL BENCH RE C NO. 32548 OF 1995
On 16 October 1995 I was directed by the Full Bench dealing with the application to vary the Teachers (Victoria Government Schools - Interim) Award 1994 [Print M6311] as follows:
"Pursuant to section 107(10), therefore, we direct that:
(i) Commissioner Frawley report upon the claims and submissions of the parties as to the proper outcome of arbitration of a final award, noting the matters raised in the Commission's provisional view expressed in paragraph 3 of the Statement of 1 September 1995;
(ii) for the purposes of that report, Commissioner Frawley will sit on 19 October 1995 at 10.00am in Melbourne for the purpose of programming and issuing directions;
(iii) the availability of the interim increase and of the process for further determination by arbitration of outstanding issues may be conditioned upon there being no industrial action with respect to these matters; and
(iv) Commissioner Frawley shall have recourse at his discretion to the Full Bench for further directions or reference if required."
The provisional view expressed in paragraph 3 of the statement issued by the Full Bench on 1 September, 1995 is as follows:
In formulating draft agreements and in developing their negotiation positions the parties are asked to take into account the Commission's provisional view that:
(a) any certified agreement should address the structure and content of the Professional Recognition Program (PRP) classification, and any further hearing of this matter should address the integration of the existing award classification structure into the PRP model;
(b) Victoria has acknowledged, and the Commission notes, that some changes to work and work organisation since 1992 are already assimilated and are of a character properly to be taken into account as productivity enhancing measures contributing to the classification changes and salary increases reflected in the PRP classification structure;
(c) it is axiomatic that work of the character to which a pay increase related be in fact performed in a manner consistent with reasonable performance standards;
(d) thus, while significant net additions to work requirements may be among the changes made to the Victorian Teaching Service (VTS) operation since 1992, the Commission is unlikely to award increases related to that addition if in practice the performance of the relevant work is being contested in the field. Similarly it is not reasonable for the AEU to expect that the DSE should enter a certified agreement granting increased rates of pay, if the AEU and its membership withhold implementation of working arrangements upon which the pay increases are sought to be based;
(e) the Commission inclines to the view, but has not decided, that the Teachers (Victorian Government Schools - Interim) Award, 1994 is a safety net award made as a first award. The rates were set in 1991 by the Industrial Relations Commission of Victoria (IRCoV) on an "actual rates" basis after a Special Case component of an industrial arbitration process which adopted a national benchmark for teacher's salary in the IRCoV State Teachers Award and the Australian Industrial Relations Commission's ACT Teaching Service Award. The rates set for the VTS have not been independently evaluated by the Commission for changes since 1991, other than by the addition of two safety net adjustments. For the purpose of an interim application there is no adequate reason for contending the rates should now be adjusted unless it be accepted that there is a compelling special case, or at least a strong case based on some other available provision of the Statement of Principles. The Commission accepts that changes to teaching arrangements and requirements in Victoria since 1992 are among factors which may relevantly be taken into account for purposes of an enterprise agreement, or under the work value changes principle, or as part of a special case.
On 19 October, 1995 I issued in transcript the following directions to the parties about the filing of submissions and related documentation.
"I issue the following direction in relation to the preparation of the report I am required to make. The AEU will file by 23 October an amended claim which will traverse salary, career structure and the form and content of an award which the union would seek. On 31 October the AEU will file detail of evidence it seeks to lead, including witness statements, and an outline of argument and other contentions it intends to rely upon. That documentation will not only be filed but will also be made available to the DSE and to the interveners who are present here today.
The DSE will prepare its reply to that documentation and circulate it to those I have already indicated by 21 November, and of course the DSE is not limited necessarily to the response it seeks to make to the AEU application, but of course that documentation would include an outline of its position in all of the matters before the Full bench and set out incidentally in the Full Bench statement of 1 September and reaffirmed in the decision of 16 October as to the scope of the matters before this Commission. Now, the AEU will reply by 28 November to that material, and again it will need to be provided not only to the Commission but to other parties and interveners.
It is my intention then to set aside the 1, 5, 6, 7, 12, 13, 14 and 15 December to hear the parties on these matters. Now, as I have indicated at the outset, of course the rights are reserved to parties to make further submissions to the Full Bench in the light of the report."
The parties complied with these directions and on 1 December, 1995 the matter resumed in the Commission.
On that occasion Mr Bell for the AEU tendered the witness statement of Ms Anne Marie Darke (AEU 18), the AEU'S contentions (AEU 19), and the AEU'S revised application (AEU 20). He submitted that the Full Bench should be convened as soon as practicable to hear submissions from the parties regarding the classification and pay issue.
Dr Jessup for the State of Victoria and the Minister for Education tendered the witness statement of Mr Bugden (Vic 26) and related documents AJB 158 - 165 which are part of Mr Bugden's witness statement, and decisions of the Industrial Relations Commission of Victoria (Vic 27). He also requested that following my consultation with the other members of the Full Bench there might be some consultation with the parties as to the dates upon which the Full Bench would be able to sit and consider this report.
Mr P Hicks (VATF) tendered VATF Contentions (VATF 2) and the witness statement of Mr Fenton (VATF 3).
For completeness I note also that on 1 December, 1995 Mr Bell foreshadowed an application for reference to a Full Bench pursuant to s. 107. That application was heard on 6 December, 1995 and is the subject of a memorandum from me to the President dated 11 December, 1995.
B J Frawley
COMMISSIONER
12 December, 1995
5 Print M2054 at pp.10-11; Print M3409 at p.17; and see also Print L9672 at p5