T0652 Dec 806/96 M Print N2940
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
JUSTICE MUNRO
DEPUTY PRESIDENT ACTON
COMMISSIONER FRAWLEY MELBOURNE, 5 JULY 1996
Salaries and career structure; special case; award variation; settlement of order
DECISION
The Full Bench decision of 1 March 19961 determined an application for variation of the Teachers' (Victorian Government Schools) Conditions of Employment Award, 1995 (the Conditions Award). In doing so, the Full Bench refused the applicant's, the Australian Education Union (the AEU), claim for salary increases to be incorporated around an existing award classification structure. It adopted instead a modified form of the classification structure proposed by the State of Victoria and the Minister for Education (Victoria). In essence, the Full Bench decided to give award prescription to a career structure and salaries based upon a modified form of the Professional Recognition Program (PRP) structure unilaterally implemented by the State of Victoria. In addition, the decision provided for award prescription to be made for sabbatical leave and annual leave loading. The Bench concluded:
"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."2
In accordance with that requirement a conference of the parties was convened on 22 March 1996 by Frawley C to settle the order. This decision on settlement of the order has been prepared by Frawley C in consultation with the Full Bench. The Full Bench has approved the terms of the decision and makes the orders attached in terms proposed by Frawley C.
The AEU and the Director of School Education (the DSE), on behalf of the State of Victoria and the Minister for Education (Victoria), each submitted a form of draft order. The formal classification structure and the scheme of translation of teachers employed as at 4 March 1996 to special salary points designed for the purpose is common to both drafts. Another point in common is that the order should vary both the Conditions Award and the Teachers (Victoria Government Schools - Interim) Award, 1994 (the Interim Award)3. This latter award was the subject of an earlier application by the AEU. However, save for those and some other machinery matters, there was a considerable divergence of views between the drafts submitted. Most of those differences were connected with the effect of superimposing provisions that give effect to the Full Bench decision in the Conditions Award upon conditions and arrangements derived from the Interim Award. Frawley C directed the parties to provide written comments in support of the clauses each contended should be included in the order to give effect to the Full Bench decision of 1 March 1996. We note and emphasise that some issues pursued by the parties with respect to the order relate to points of detail not canvassed in earlier proceedings leading to the 1 March 1996 decision.
However, we accept that, in the circumstances, the order may properly be applied to variation of both the Conditions Award and the Interim Award to give effect to the Full Bench decision. Although we do not determine all points in issue we have given consideration to each of the clauses in contention between the parties. For this purpose, we adopt the sequence set out in the DSE's document but generally use the clause reference as it will appear in the Conditions Award as varied.
In relation to Adult Migrant Education Service (AMES) teachers, the DSE proposes to amend clause 3 of the Conditions Award to exclude those teachers from the application of the award. It contends they cannot be included because they are not employed in government schools and there are separate negotiations taking place between AMES and the AEU on a certified agreement covering the working conditions of those teachers. The DSE also contends that no argument was put in the hearings in support of a salary increase for AMES teachers and until a certified agreement is concluded they should continue to be covered by the Interim Award in its present form.
The AEU seeks to include AMES teachers for salary and allowance purposes only in the order. These teachers were covered by the previous State award, continue to be covered by the Interim Award, received the first and second safety net adjustments and the 1.8% interim increase, and should move with teachers to this award until such time as negotiations to create a separate AMES award result in a transfer to that award. In relation to the SSTS adjustment allowance, the AEU seeks to include the allowance in the amending order.
We are of the view that the AMES teachers employed as such should not be included at this stage in the order but should remain covered by the Interim Award. To achieve that, the deletion of Part 2 of that award will need to be qualified. To that end, we will make any deletion subject to a transitional provision in the order. The deleted provisions will apply and continue to operate in relation to teachers engaged in the AMES in the same manner and to the same extent as applied prior to the deletion of Part 2 of the Interim Award, subject to further order. We reserve leave to apply for a determination in respect of such teachers.
Regarding the School Support Teaching Service (SSTS), the DSE states that because the structure was abolished in 1995, the order should not refer to this structure apart from any essential translation arrangements and mechanisms are available separate from award prescription for the protection of any affected individuals.
We have included the translation arrangements agreed between the parties in the order varying the Conditions Award. We reserve leave for the AEU to apply for the Conditions Award to be varied to include the SSTS adjustment allowance should that be necessary.
The second matter concerns undertakings by the AEU. The DSE's view is that the undertakings in relation to the safety net adjustments and the 1.8% salary increase be included and proposes a three part clause 9 to meet their concerns. The AEU opposes the inclusion of undertakings in the form proposed by the DSE. It considers the earlier undertakings to be inappropriate and redundant.
In addition, after a conference chaired by Frawley C, further representations were made to him by the DSE on 23 May 1996 and more recently on 13 June 1996 about threatened or actual bans with respect to VCE indicative grades. The DSE pressed for "fresh" undertakings by the AEU to be included in the order to give effect to our decision.
In awarding a 1.8% interim increase to teachers in Victorian government schools in November 1995, the Commission required and the AEU gave the following undertakings:
"1. The grant of a 1.8% interim increase to award rates for teachers in Victorian government schools shall not be relied upon by the Australian Education Union for purposes outside the context in which it is awarded.
2. Changes to work and work organisation since 1992 to this date, referred to in the statement of the Full Bench of 1st September, 1995 as `working arrangements upon which the pay increases are sought to be based', shall be given effect without bans or limitations imposed by the Victorian Branch of the Australian Education Union."
Our decision of 1 March 1996 indicated we were granting such teachers further wage increases due to the "implementation of the PRP in response to and as an agent of structural change in teaching work" which "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".
With one proviso, we have decided not to require undertakings to be included in the current order. However, we stress that the career structure and wage increases we have granted and which are included in the order are in response to the abovementioned work changes for teachers in government schools in Victoria. Accordingly, we expect such work changes will be implemented by teachers without any form of industrial action.
Should such industrial action take place, recourse is available to the State of Victoria and the Minister for Education (Victoria) under the Act.
The one proviso to which we have referred is that clause 9.1 will set out the statements associated with the first and second $8 per week arbitrated safety net adjustments as required by the Statement of Principles attached to the Third Safety Net Adjustment and Section 150A Review October 1995 decision4.
Casual Replacement Teachers (CRTs) is the third area of disagreement. The DSE states that its proposed clause 9.4 reflects the employment arrangements currently in place. The clause allows payments of CRTs on a sessional basis with no other entitlements under the Conditions Award, or classification structure. The AEU proposes to transpose in effect clause 2.1.15 and Schedule 1, Part 1, 1.2 updated from the Interim Award. That clause applies to teachers engaged for less than two days per week or four days per fortnight.
In our decision of 1 March 1996, we said that we did not believe there was sufficient material before us to enable us to decide whether or not CRTs should be paid on an hourly basis as opposed to a longer period such as a half day or full day basis. We reserved leave to apply. We suggested the parties confer on the basis that if necessary the Commission would arbitrate the issue after more detailed submissions were made available.
Such submissions have not yet been made and so we continue to reserve leave to apply. In the meantime, the order varying the Interim Award will contain a provision preserving the status quo.
The next area of disagreement concerns the use of the designation "Leading Teacher". The DSE contends that the PRP structure was generally adopted by the Full Bench. In DSE's contention, it is essential to maintain the position title as some 1100 positions of Leading Teacher have been advertised. The DSE also states it has adopted a flexible approach to the specification of the term of appointment for these teachers (any period up to a maximum of five years) which is most likely to meet the needs of individual schools. The DSE states its proposed clause also reflects the PRP arrangements about a teacher returning to the top of the incremental scale (sub-division 12). The AEU considers the order should only specify Level 1, Level 2 and Level 3 and it is opposed to the Leading Teacher terminology.
In our view, adoption of the prevailing designation used by the employer is appropriate. We adopt the DSE's draft in clause 9.5. We have no good reason to depart from the term appointment system currently used. It was associated with the PRP system at the time of the decision.
The DSE considers the order should provide an appropriate "safety net" clause in circumstances where deferment of an increment is contemplated but that it does not need to be overly prescriptive. In its proposed clause 9(6), the condition for any deferment is a determination by a review process determined by the DSE. The AEU proposed clause 9.3.2 is more elaborate. It imports a broad reference to the performance standards relevant to the reviews for incremental advancement. It specifies the "due process" procedures currently operating in the PRP where deferment of an increment is contemplated.
Questions about incremental advancement and deferment of increment are, in our view, matters of importance in establishing enforceable rights to salary in a career service. We consider the formulation proposed by the AEU is appropriate for inclusion at clause 9(6).
The DSE adopts the PRP regime whereby Band 4 teachers translate as teacher Level 1. The AEU proposes that they not translate but be designated as former Band 4 teachers. The AEU contends:
"The AEU proposal on Band 4 translation is that they continue to be designated "Former Band 4" rather than "Teacher Level 1" as the DSE proposes.
It is noted that AST1 (SRP2 - Primary - the former Band 3 positions) translate to Level 1 also (sub-division 12E).
Band 4 teachers are part of a previous classification structure and were in effect vice-principals in primary schools and in terms of salary classification represented the top teacher classification. Band 3 teachers subsequently became AST 1's (SRP2).
It is submitted that in light of the history and current status and salary of the Band 4 classification it would be both unfair, inequitable and highly disadvantageous to translate existing Band 4 Teachers to Teacher Level 1 as proposed by the DSE. Such a translation does not involve recognition of, and movement to, an appropriate or even equivalent classification in respect of status and salary."
There is no disagreement now about the appropriate salary, being on translation sub-division 12I, not 12E. We consider there should be complete translation and therefore adopt the DSE approach.
In addition to the above matters, the AEU wishes to have included in the order clauses relating to the following:
* Professional standards.
* Grievance process.
* Commencing salary ranges.
* Salary leave loading maximum.
* Recognition of prior experience and qualifications.
* Allowances.
* Community Schools and English Language Centres.
* Higher Duties.
* Salary on Promotion, Transfer or Appointment.
* Instructor Classification.
As to these matters, the comments supplied by the DSE and the AEU sufficiently indicate the respective contentions. We set out those comments, followed by our determination on the point.
The DSE commented:
"The AEU's draft Order (in clause 9.3.1) includes the professional standards which are being used as part of the annual review process. The DSE considers that these standards are professional in nature and should not be prescribed by industrial award. The Standards Council of the Teaching Profession, a statutory body established under the Teaching Service Act 1981, has the responsibility for the determination and review of these standards. The DSE opposes Commission prescription of professional standards.
The AEU also seeks to include in its draft Order (as clause 9.3.1(h) and clause 9.4) the accreditation processes including reference to peer review. For reasons set out in the paragraph above, the DSE draft Order makes no reference to the accreditation process for Leading Teachers level 2 or 3: the DSE believes that the award should not deal with matters, particularly when there has been no argument or disagreement over them."
The AEU's comment was:
"The AEU draft on page 2 and 3 cl 9.3.1(a) and (b) includes the professional standards relevant to the reviews for incremental advancement. The DSE opposes their inclusion. We note that this Commission's decision (Print M9746) on page 11 says that:
`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.'"
The identification of the criteria as professional standards obscures their role as both performance indicators and the functional basis of the classification framework. The criteria usefully summarise the general elements and skills of teaching work. They supply an indication of the performance standards expected. Adoption of them in the Conditions Award is not designed to be a prescription of professional standards; rather it would be the use of existing standards to establish the basis of the award classification and the criteria to be applied for advancement within Level 1 and particularly for advancement beyond Sub-divisions 6, 7, or 8.
We consider it appropriate to include reference to the criteria in a manner that links them to the advancement process, including the hard barrier review. We note the AEU's attempted introduction of an award based peer review process for Leading Teacher accreditation. Having regard to the description of the accreditation process for the PRP, we have incorporated in clause 9.2(4) a reference to the accreditation being by experienced, specially trained peers. We have revised the DSE draft clauses 9.2(2)(a) and (2)(b) to include the current standards of performance.
The DSE commented:
"The AEU is seeking to include a new grievance process by modifying the existing clause 7 of the Teachers' (Victorian Government School) Conditions of Employment Award, 1995. This matter was not the subject of argument before, or direction by, the Full Bench. The DSE position is that the Merit Protection Board process has been in place for some time and is the most appropriate mechanism to deal with a grievance in the first instance."
The AEU's contention is:
"The AEU varies the Grievance Procedure. The current Grievance Procedure in cl 7 of the Teachers' (Victorian Government Schools) Conditions of Employment Award 1995 is specific to workload grievances. It needs to be modified to allow for grievances on the matters brought into this award. The AEU draft procedure is an amalgam of the clause in the Interim Award, the clause in the Redundancy Award and the clause in the Workload Award. It allows for grievances about all matters covered by the award. It allows for system wide grievances, but excludes workload grievances from this.
The AEU believes it appropriately adopts relevant aspects from procedures previously approved by this Commission to assist in resolving grievances over all matters now included in this award."
While there is some force in the AEU contention, in the absence of argument and submissions, and of a proper application for variation of clause 7, we are not satisfied we should change the grievance procedure by the order in this matter. It will be open for issues about the extension of that procedure to be raised in the course of the proceedings scheduled to deal with selection and review issues.
The AEU contended:
"The DSE draft on page 3 cl 9.2(3) provides for commencement salaries, but does not specify the maximum access to incremental progression as does the current Interim Award. The AEU draft on page 5 cl 9.5 does do this.
The AEU includes Instrumental Music teachers in this table. They are currently covered In this way in the Interim Award and like AMES teachers should move with teachers into this award."
The DSE responded on this and a related point about an Instructor classification:
"The AEU seeks to specify the various salary ranges available to teachers on commencement of employment according to qualifications held. As all teachers have access to the full incremental salary range, the DSE considers it necessary to only include the commencing salary point according to qualifications held consistent with the `safety net' award approach. ...
The Professional Recognition Program (PRP) assumes teachers have a recognised course of teacher training. From time to time persons with specialist skills in a particular field are employed without a recognised course of teacher training. In these circumstances the individual is not given overall classroom teaching responsibilities nor expected to undertake the broad role expected of a teacher as defined by the professional standards. The most common example of this is in the field of instrumental music.
The DSE intends to establish a separate instructor classification by Teaching Service Order to accommodate this group of employees. If necessary the DSE is prepared to give an undertaking that the salary and conditions of employment for these employees would be no less than their current award entitlements."
We consider that the DSE approach to the level at which an appointee is placed is to be preferred having regard to the detailed nature of the provisions involved on a matter where there is a discretion of wide scope being exercised. As to the extra classifications, we are satisfied that the DSE's undertakings are sufficient in the circumstances, but reserve leave to the AEU to apply.
The AEU Proposed:
"The Salary Loading allowance clause in the AEU draft on page 8 cl 9.10 is the status quo clause from the Interim Award.
The DSE seeks to remove reference to;
"maximum specified in Schedule 2"
and say instead;
"maximum amount specified from time to time."
The maximum specified by the AEU in its draft of Schedule 2 consists of 17.5% of four weeks pay of the top classification salary in the new award, i.e. Level 3 Accreditation."
The DSE responded:
"While the parties agree to the inclusion of salary leave loading, the DSE does not seek to specify the maximum amounts payable, as is proposed by the AEU. The DSE proposes that this matter can be appropriately accommodated by Ministerial Order and undertakes to set the maximum at not less than the maximum currently applying."
We reserve leave to the AEU to apply with respect to the Conditions Award specifying the quantum of the maximum Salary Leave Loading Allowance payable should that become necessary.
The AEU proposal was:
"The AEU draft on page 5 cl 9.6.1 provides for status quo recognition of qualifications, industrial experience and prior teaching experience as provided for in the Interim Award. The DSE seeks to exclude this provision."
The DSE responded:
"The DSE proposed Order has no specification for Qualifications, Industrial Experience and Prior Teaching Service as these are already the subject of Ministerial Order and are not appropriate to the safety net approach of this award. The AEU seeks to preserve the unnecessary prescription of the Interim Award by transfer of those provisions into the Conditions of Employment Award (clause 9.6)"
We adopt the same view on this point as we have expressed in relation to prescribing differential commencing salary ranges by reference to additional qualifications held. The recognition of prior experience and qualifications involves recourse to criteria that are subject to evolution and other changes from time to time. We do not consider it necessary and appropriate to include the detailed provision sought in the Conditions Award. Should a particular issue arise, it may need to be resolved through a process that takes account of the established practice, and the Interim Award provisions.
The AEU's contention was that:
"The DSE draft makes no provision for allowances. The allowances in the AEU draft on page 6 cl 9.7 and in Schedule 2 cl 1.1, 1.2, 1.3 and 1.4 are all current entitlements being paid to teachers.
Specifically the AEU draft makes provision for:
* The Special Payments of $500 to $4000 referred to on page 12 of the Commission's decision [Print M9746] and included on page 6 cl 9.7(2) of the AEU draft.
* Payment of allowance for teachers who occupy positions in charge of Community Schools and English Language Centres. The AEU proposes the Level 3 Accreditation Salary. (This is comparable to the interim award reference of "Principal Level 4")
* A Head Teacher 3 Allowance of $500 p.a. (AEU draft page 7 cl 9.7(7)). We note that the Commission has made the question of whether this is an adequate allowance a reserved matter ( P.12 of the decision).
* Remote Allowances, Special Schools Allowance and Relieving Teachers Allowances are as provided for in the Interim Award.
The School Support Teaching Service Adjustment Allowance is accommodated in Schedule 1, Clause 1.2.2(xxi)."
The DSE's response was that:
"The DSE has not included the various allowances, for example Remote, Special Schools, and Salary Loading maximum, in the Award. These allowances are currently prescribed by Ministerial Order. The AEU considers that these are long standing award provisions, are not affected by the decision, and therefore should remain in the Award (Refer Schedule 2 AEU Draft Order).
The DSE sees these allowances as already prescribed. They were prescribed by DSE in the form of a Ministerial Order at a time (1993-94) when there was no Victorian or Federal award regulation. It is to be noted that not only did DSE not try to `steal the march' at the time, the DSE actually prescribed these allowances. What it does not want now, is double prescription of these matters.
Needless to say, if a future problem arises with the DSE's administration of Ministerial Orders, it is open to the AEU to seek resolution through the Commission."
On the argument and material available to us, we are not disposed to express a concluded view on the issues raised about allowances. We note that a number of allowances in issue are the subject of award provisions that will be supplanted by the deletion of Part 2 of the Interim Award consequential to the orders made in this matter. The pre-existing position, and existing conditions might best be prescribed by leaving the Interim Award in force for the purpose of the relevant allowances. We have considered a possible means of implementing that option by reserving certain clauses from the deletions otherwise made to Part 2 and Schedule 1 of the Interim Award. However, in the circumstances we have not adopted that course. We consider the more appropriate course is to treat the DSE's position as an undertaking to maintain at least the status quo so far as the Interim Award rights are concerned. We reserve leave to the AEU to apply for relevant allowances to be prescribed on the basis that the deletion of such allowances from the Interim Award will be without prejudice to any such claim.
The AEU proposed:
"Payment of allowance for teacher who occupy positions in charge of Community Schools and English Language Centres. The AEU proposes the Level 3 Accreditation Salary. (This is comparable to the Interim Award reference of "Principal Level 4").
The DSE responded:
"The AEU is seeking to include specific classifications for teachers in charge of Community Schools and English Language Centres (Clause 9.7(6)). These positions were not specifically provided for in the Interim Award, nor were they the subject of a specific salary point in the PRP. The DSE would prefer an exchange of letters on this issue rather than award variation in respect of this small group of teachers (Refer clause 9.7(6) AEU Draft Order) as the arrangement proposed by the AEU do not reflect the arrangements which are currently in place."
On the cases presented and determined in the decision of 1 March 1996, and on the material now available, we are not satisfied we should make an award provisions. We reserve leave to the AEU to apply.
The AEU noted:
"The AEU draft on page 7 cl 9.9 brings the Higher Duties clause across from the Interim Award. It is the current and continuing provision but the DSE opposes its inclusion in this award."
The DSE responded:
"Higher Duties are currently covered by Ministerial Order. It is not appropriate to include Higher Duties in a minimum or safety net approach. The AEU seeks the inclusion of Higher Duties in its Draft Order (Refer clause 9.9 AEU Draft Order)."
Provision for a higher duties allowance is one of the provisions deleted from the Interim Award (clause 2.1.13). We consider there to be a continuing need for such a provision. We do not accept that the presence of such a provision is inconsistent with a safety net standard. However, for similar reasons to those we have expressed about other allowances, we are not satisfied that it is necessary to make provision for a higher duty allowance in the Conditions Award at this point. Nor do we accept that the form of the existing Interim Award provision is self evidently appropriate to the changed circumstances of the modified PRP classification structure embodied in the Conditions Award. We reserve leave to apply on the same basis as applies to other allowances.
The AEU proposed the following clause (Refer clause 9.12 AEU Draft Order):
"A member promoted transferred or appointed to a position shall be paid the salary specified for the position in Schedule 1 from the effective date of the promotion, transfer or appointment as the case may be. Provided that if a member changes her/his time fraction, other than by promotion, transfer or appointment the change in proportionate salary shall commence from the date of effect of the changed time fraction."
The DSE's proposed order makes no reference to `Salary on Promotion, Transfer or Appointment' provisions. It contended such provisions are inconsistent with the safety net approach.
It may ordinarily be expected that any position provided for in an award classification structure will have associated with it some identified process whereby a duty to pay the relevant wage or salary rates is given effect. We do not consider such a provision would be outside a safety net standard. The AEU's proposed provision is derived from clause 2.1.16 of the Interim Award. It would carry over to the PRP classification structure some principles framed for a different classification and promotional structure. Moreover, having regard to the term appointment and performance sensitive character of some promotional positions, the Interim Award provisions may need to be reconsidered in the changed context of the Conditions Award structure. The DSE proposal which we have adopted as clause 9.2(4) for the time being serves the purpose of establishing a right to the Leading Teacher salary rates upon appointment to those levels.
In the circumstances we do not consider that the AEU provision is necessary at this point. Nor is it, in our view, sufficiently specific to the promotional positions provided for under the PRP. We will therefore not include a provision to that effect at this stage, but reserve leave with respect to it.
The orders which have the effect of varying the Teachers ( Victorian Government Schools - Interim) Award 1994 and the Teachers' (Victorian Government Schools) Conditions of Employment Award 1995 are published in conjunction with this decision as Prints N2897 and N2783 respectively.
They will come into force on 4 March 1996 and shall remain in operation for a period of 12 months.
BY THE COMMISSION:
COMMISSIONER
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;
March 22.
Wage rates - classification - settlement of orders - teachers, educational services - parties submitted conflicting draft orders - Bench required to determine content of order - issues include; AMES teachers, undertakings, causal replacement teachers, leading teacher, deferment of increments, Band 4 teachers - union sought additional matters be included in award - orders made retrospectively.
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