Industrial Relations Commission of New South Wales CITATION: Community Colleges Tutors (State) Award [2005] NSWIRComm 83 APPLICANTS: New South Wales Teachers Federation NSW/ACT Independent Education Union PARTIES: RESPONDENT: Community Colleges of New South Wales FILE NUMBER(S): IRC 3259 and 4195 of 2004 CORAM: Schmidt J Award - application for variation - new classification agreed - rates of pay disagreed - Adult Migrant English Program - casual and full-time teachers - special case - work value - consideration of Colleges' financial position - public interest - award varied - new classification - wage increases awarded - rates to have incremental scale - retrospectivity refused - phasing in of increases CATCHWORDS: LEGISLATION CITED: Industrial Relations Act 1996 Re Crown Employees (Administrative and Clerical Officers (State) Award and Other Awards (No 2) (1993) 52 IR 243 Re Crown Employees (Teachers) Salaries Award (2004) 133 IR 254 Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award (2004) 133 IR 254 Re Crown Employees (Teachers - Department of Education) Award [1970] AR 345 Re Crown Teachers Casual Award (Unreported, Sweeney J,1 May 1985) Re Health and Community Employees Psychologists (State) Award [(2001) 109 IR 458 CASES CITED: Re Operational Ambulance Officers (State ) Award (2001) 113 IR 384 Re Pastoral Industry (State) Award (2000) 104 IR 168 Re Public Hospitals Nurses (State) Award (2002) 115 IR 183 Re Social and Community Services Employees (State) Award (2001) 113 IR 119 Re Teachers (Non-Government Pre Schools) (State) Award (2001) 120 IR 3 HEARING DATES: 02/16/2005; 02/17/2005; 02/18/2005; 02/21/2005; 02/28/2005; 03/08/2005 DATE OF JUDGMENT: 03/16/2005 APPLICANTS: Mr N Dawson of counsel NEW SOUTH WALES TEACHERS FEDERATION Ms S Tobin, Industrial Officer NEW SOUTH WALES INDEPENDENT EDUCATION UNION LEGAL REPRESENTATIVES: RESPONDENT: Mr D Blackah, solicitor SOLICITORS: Grech Partners JUDGMENT: - 42 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Schmidt J DATE: 16 March 2005 MATTER NUMBER IRC 3259 OF 2004 COMMUNITY COLLEGES TUTORS (STATE) AWARD Application by the New South Wales Teachers' Federation and another for variation re clause 2 - Definitions and Others MATTER NUMBER IRC 4195 OF 2004 COMMUNITY COLLEGES TUTORS (STATE) AWARD Application by Community Colleges NSW for variation re rates of pay JUDGMENT 1 When this award was made by consent in 2004, the parties agreed that they would continue to negotiate the rates of pay and definition for one group of teachers - those employed to teach AMEP. (AMEP is an acronym for 'Adult Migrant English Program'.) Failing agreement, the matter was to be determined by the Commission. The parties eventually agreed that the award should be amended to provide for a new classification, with increased rates of pay. The amount of the increase and its date of operation remained in issue and now require determination. 2 AMEP is funded by the Federal Government through the Department of Immigration and Multicultural and Indigenous Affairs ('DIMIA'). In New South Wales AMEP is offered by Community Colleges, as well as by TAFE and the New South Wales Adult Migrant Education Service ('AMES'). 3 The evidence showed that those who are employed to teach AMEP perform socially important work in delivering a nationally accredited certificate program for refugees and migrants called the Certificate in Spoken and Written English ('CSWE'). This programme provides for up to 510 hours' tuition, at no cost to the student, in three levels, with the aims that the student achieve functional English and be assisted with various settlement issues. A fourth level certificate is available for those going onto further education. This latter certificate is not offered by all Colleges offering AMEP. 4 There are 65 Community Colleges in the State, with 16 earlier offering AMEP, but at the time of the hearing, this had dropped to 12. The claim however, had the potential to affect some 30 Colleges, which might offer AMEP courses under existing arrangements. No permanent teachers are employed by the Colleges presently covered by the award to deliver AMEP. There are only 13 casual teachers employed under the award to teach AMEP. The majority of teachers employed to deliver AMEP are covered by other awards of this Commission and by agreements certified by the Australian Industrial Relations Commission ('AIRC'), which some Colleges have entered with their staff. All these industrial instruments provide for rates higher than those currently provided in this award and higher than those which the Colleges propose be fixed in these proceedings. 5 Evidence was called by the New South Wales Teachers Federation from Penny Carosi, Multicultural Officer/Post School Organiser, New South Wales Teachers Federation and Philip Pryor, casual AMEP teacher. The New South Wales Independent Education Union called Elizabeth Walker, AMEP teacher at Macquarie Community College; Karen Murphy, AMEP teacher at St George and Sutherland Community College and Verena Heron, union officer, New South Wales Independent Education Union. The Community Colleges of New South Wales called John Shugg, Executive Director Community Colleges New South Wales; Ruth Fyfe, Adult Migrant English Program Manager of St George and Sutherland Community College and Georgena Faircloth, Manager of Coffs Coast Community College. 6 It should also be noted that the parties' competing applications were referred to the Acting President, Justice Walton, for consideration in accordance with s193 of the Industrial Relations Act 1996. Walton J determined that the matter should be dealt with by a single member, including any special case aspect. The Wage Increase The respective cases 7 The case advanced by the Unions was that the work of the AMEP tutor classification had never been the subject of a work value assessment by the Commission and that the current award did not fix fair and reasonable rates of pay for the work in question, given current requirements. The current rates undervalued the work required and the evidence satisfied both the Commission's Work Value and Special Case Principles (see State Wage Case 2004 (2004) 132 IR 190), given changes in the AMEP and their affect on the work of teachers. The Unions looked to the award rates fixed for those employed by AMES to deliver the AMEP, (the NSW Adult Migrant English Service Crown Employees (Teachers, Education Officers and Senior Education Officers) Consent Award 2004 Award) as representing fair rates for the work in question. The claim was argued not to adversely affect the public interest and it was further argued that the cost of the claim alone, was not a proper basis upon which to refuse increases otherwise made out on the evidence. 8 The case advanced by the Colleges was that changes in the work of the teachers in question had not been significant and that only a relatively small increase in salary was warranted, in light of those changes. No Special Case had been established. The public interest required that regard be paid to the tight funding arrangements which applied to Community Colleges and the consequences of the increases claimed. For AMEP courses, current funding arrangements were locked in until 30 June 2008, under the relevant contractual arrangements which the Colleges had entered. Consequently, significant pay increases would have a dramatic impact upon the Colleges' ability to continue delivering AMEP courses. The Colleges looked to the 12% increase in rates already agreed over the life of the award and the 16% increase in funding which Colleges had received under the current AMEP funding contracts, to arrive at the increase proposed. Mr Shugg explained that this kept the increase within CPI levels 9 The New South Wales Teachers Federations and the New South Wales Independent Education Union sought an increase in rates in three steps, ranging from 38.3% to 62.6%, over current rates. The Colleges proposed an increase ranging from 3.98% to 8.1%. The competing claims as compared to current rates for casuals were: CURRENT AWARD RATES UNION PROPOSED RATES EMPLOYER PROPOSED RATES AMEP TUTOR AMEP TUTOR 1/1/05 1/1/06 4/06/041/1/051/1/061/1/06 Rate Rate Rate $ Per Hour% Increase 1Rate $ Per Hour% Increase 1Rate $ Per Hour% Increase 1Rate 2% Increase 1 31.91 33.18 50.3957.951.9062.653.7161.933.18*3.98 36.64 38.11 53.0944.954.6849.256.5948.538.11*4.0 41.36 43.01 55.7934.957.4638.959.4738.343.01*3.99 58.4841.460.2345.662.3444.944.738.1 1. Calculated by reference to award as at 1/1/05 * Current award 2. Calculated by reference to award as at 1/1/06 The evidence 10 The current award introduced agreed wage increases of 12%, over three years, for all classifications. The award expires in January 2006, with the last increase agreed operating from 1 January 2006. It replaced the first award, the Adult and Community Colleges Tutors (State) Award 1999, made by consent in 1999, but taking effect in 2000. That award provided for three levels of tutors, having regard to qualifications and courses taught. Each level also provided for various incremental steps. 11 It was the Unions' evidence that the rates fixed in the first award reflected going rates paid at the time. Only one College, then party to a certified agreement, then offered AMEP courses. AMEP was not a matter considered by the parties in the first award negotiations. When the current award was negotiated in 1999, a number of Colleges were offering AMEP. The parties were unable to agree on appropriate rates for such work and hence the leave reserved provision was agreed. This was not challenged in the employers' case. Mr Shugg has only held his position since January 2004. No evidence was called by the employers from those involved in any of the award negotiations. 12 The parties are now agreed that there should be a fourth level of tutor, for those teaching AMEP, reflecting new requirements imposed by DIMIA in 2003. The agreed definition is: "AMEP Tutor" is a tutor who is employed to teach the Adult Migrant English Program who has: A recognised undergraduate degree or diploma qualification awarded by an Australian university or tertiary institution, or its overseas equivalent. It may be a: · Bachelor Degree · Advanced Diploma · Diploma Provided that it is at least three years full-time in length, or its part-time equivalent, and A recognised postgraduate TESOL (or equivalent) qualification which must result from a course of study having at least the following characteristics: a. Content focus on English language, language learning and TESOL methodology; b. practical component including at least sixty (60) hours of supervised and assessed practice teaching in TESOL; and c. No less than one hundred (100) hours in total devoted to (a) above, or the equivalent in distance education programs. Courses in this category are usually at Master, Graduate Certificate or Graduate Diploma level and have an undergraduate degree or equivalent as a normal entrance criterion." 13 Community Colleges deliver a variety of courses for members of the public. The majority are leisure courses, for which students pay a fee. There are also vocational courses offered, including AMEP and other English literacy courses funded by the State Government under the New South Wales Board of Adult Community Education ('BACE') programme. No fees are charged for these courses. Some students also undertake English literacy courses on a fee paying basis, if they are not eligible for funding. The only evidence as to the level of such fees indicated that they were of a nominal nature - $100 for 60 hours tuition at one College. There is also Vocational Education Training & Advisory Board ('VETAB') funding provided for various other occupational courses which the Colleges offer, as well as other fee paying occupational courses. 14 Mr Shugg's evidence was that the financial situations of the various Colleges varies. In general, rural Colleges are in 'dire circumstances' because of the funding which they receive from the Department of Education and Training and from AMES, which does not permit them to make a surplus. Consequently, they run at break even point. Some metropolitan Colleges were in a similar position. On his calculations, the claim would result in additional wages costs of $4,400 to put on a pre-CSWE course and $6,600 for the Certificate 1, 2 and 3 courses, given required minimum hours which the Colleges had to offer. In country areas there were generally insufficient AMEP students to run AMEP classes. AMEP was, therefore, generally there delivered in blended classes, in which other programmes were also taught at the same time. 15 Evidence about the financial position of only one College was, however, led - the Coffs Coast Community College. That College is operated by a voluntary Board of Management, which meets on a monthly basis. Five administrative staff are employed, with 50 casual teachers, of whom only six are English as a Second Language ('ESL') teachers. 80 - 85% of the programs offered are for leisure. 10% of students are enrolled in ESL (including AMEP) and 5% in vocational courses. 16 The evidence as to the College's funding arrangements was somewhat contradictory. On the one hand, Ms Faircloth's affidavit evidence was that there had been no funding increases since 1997 and indeed, funding had been cut by 16%. On the other, the evidence was that current DIMIA funding for the AMEP programme had increased from $7 per student to over $8. Whether all or any of the increase in fees was in fact received by the College, was unclear. The College was a part of the AMES consortium and invoiced AMES, for its AMEP students. Ms Faircloth also clarified in oral evidence that the 16% funding cuts she had referred to, had so far affected only metropolitan Colleges. Regional Colleges such as hers had, however, also been advised to expect funding cuts. The fee for ESL courses which were not funded was $100 for 60 hours. The College does not receive funding from the consortium until after the AMEP is run and costs are incurred by the College. The College also offered paying leisure courses and other occupational courses, although most courses attracted no fees. There was no evidence as to whether fees charged to students had increased over time. Ms Faircloth was also unsure as to the current level of BACE funding per student, but believed it was comparable to AMEP funding. 17 At Coffs Coast Community College there were no teachers employed to teach AMEP funded students alone. All classes have a mix of students with differing funding, with the majority being BACE funded. All such students are, however, taught the AMEP program. The students include those who have not attained functional English in their 510 AMEP funded hours and thereafter continue their studies with BACE funding. 18 The number of AMEP students enrolled at the College fluctuates from year to year. As a result, in 2002, the College received $12,000 AMEP funding and in 2003, $42,000, following the arrival of a large number of Sudanese refugees into the local area. The figures for 2004 were not in evidence, but student numbers were likely to reduce in 2005. 19 The Coffs Coast Community College operates on a global $600,000 per annum budget and hoped to achieve a surplus of over $70,000, by the end of 2004, having been advised by the Department of Education, after an audit, that it was desirable to maintain reserve funds, in order to be able to deal with various exigencies which might arise from time to time. Out of this income the College meets the costs of engaging staff, as well as administration costs and expenses, such as rent and other overheads. 20 Ms Faircloth's evidence was that at Coffs Coast Community College, AMEP funding made an important contribution to the affordability of the whole College and that if the College lost the AMEP program, because of lack of affordability, the College was likely to have to move premises, at considerable expense. The College was presently operating on funding and budget estimates based on the current award wages as fixed for three years. 21 It was apparent that the effect of reduced BACE funding provided by the New South Wales Government has affected the Colleges' ability to meet the increasing costs of their overheads. This was an important background factor to the Colleges' resistance of the Unions' claims, raising on their case, questions of the public interest which the Commission was obliged to consider, in accordance with ss17(3) and 146 of the Industrial Relations Act 1996 ('the Act'). 22 This is the first occasion on which the Commission has had to consider the rates fixed by this award. The evidence was that prior to 1997, since the 1950s, in this State, AMEP was mainly delivered by the State Government's AMES, under Federal Government funding arrangements. In 1998, DIMIA put AMEP out to tender in various regions of the State. AMES was only partially successful in the tender, in two regions. Another consortium, headed by the Australian Centre for Languages, which included some Community Colleges, was also a successful tenderer. The result was that some 500 teachers employed by AMES were then made redundant. Only 157 permanent and 20 casuals were retained by AMES. Some of the redundant teachers gained employment in the Community Colleges. The 1999 consent award does not appear to have applied to the teachers employed by those Colleges, they having entered into agreements certified by the AIRC. 23 In 2003, there was a second tender. AMES was again successful. In 1999, it was awarded two regions of the State. In 2003, it attained a third, on this occasion as part of a consortium with TAFE and some Community Colleges. The second consortium, again including other Community Colleges, was also successful. The current award applies to some of these Colleges. Others are parties to agreements certified by the AIRC. 24 The end result of these developments has been that teachers employed to deliver AMEP in New South Wales are now regulated by a number of different industrial instruments. Whether all those who deliver AMEP, in fact, receive the same level of funding was unclear. The various funding contracts were not in evidence. It was, however, Ms Corosi's unchallenged evidence that 'AMES DET and TAFE have provided for a 12% salary increase for teachers for the period 2004 - 2005'. 25 As the result of these historical developments, rates of pay for teachers now employed at various educational institutions to provide AMEP, vary widely. The Colleges to whom the award applies now generally employ AMEP teachers on a casual basis. The parties agreed that the various relevant casual rates currently are: Current ACE Rates Respondent's Claim Union's Claim AMES (1) ELICOS (2)* Teachers (3) St George (4) Macquarie (5) acl (6)* Insearch (7) Date From 1 Jan 2005 From 1 Jan 2005 From 1 Jan 2005 From 1 Jan 2005 From 9 Nov 2004 From 1 Jan 2005 From 1 Jan 2005 From 1 Jan 2005 From 1 July 2004 From 1 Jan 2005 Rates $38.70 $39.29 $43.30 Tutor Level 3 Level 1 $53.72 $40.58 AMEP Tutor $40.37 $44.16 Step 1 $31.91 $31.91 $51.90 Level 2 $56.59 $43.96 $57.11 Grade A $39.26 Grade 4 $43.84 $42.03 $45.88 Step 2 (400 hrs) $36.64 $36.64 $54.68 Level 3 $59.47 $46.36 Grade B $41.51 $43.72 $47.65 Step 3 (800 hrs) $41.36 $41.36 $57.46 Level 4 $62.34 $48.74 Grade C $42.62 $46.07 $50.40 Step 4 N/A $41.36 $60.23 Level 5 $65.62 $51.13 Grade D $43.75 $47.79 $52.23 $53.51 Grade E $45.99 $49.53 $54.06 $55.91 Grade F $47.67 $51.27 $55.89 $58.29 $53.12 $57.19 $60.68 $55.23 $60.28 $63.04 $57.20 $62.48 $65.95 $59.01 $64.43 Entry $31.91 $31.91 $51.90 $56.59 $43.96 $57.11 $39.26 $43.84 $39.29 $45.88 Max $41.36 $41.36 $60.23 $65.62 $65.95 $57.11 $47.67 $43.84 $59.01 $64.43 Notes: (1) NSW Adult Migrant English Service Crown Employees (Teachers and Related Employees) Award 2004 (2) Teachers Non-Government (English Colleges) (State) Award 2003: *Hourly Rates inclusive of prep time as provided for under award. (3) Crown Employees (Teachers in Schools and TAFE & Related Employees) (Salaries & Conditions Award (4) St George and Sutherland Community College Certified Agreement (5) Macquarie Community College Inc 2002 Certified Agreement (6) acl Pty Ltd Certified Agreement 2003-2005. *Hourly rates inclusive of prep time as provided for under the Certified Agreement. (7) Insearch Ltd English Language Teachers Certified Agreement Rates for (2), (6) & (7) are contained in a 12 step salary scale which ranges from step 0 to Step 11. 26 In 1999, the rates agreed for teachers at the current award level three, applied to two groups with significantly different qualifications. The level three definition, which continues for teachers who are employed by the Colleges to teach other courses apart from AMEP, provides: 3.1.3 "ACE Tutor Level 3" is either: (a) a Vocational Education and Training (VET) tutor who has the qualifications required by the accredited curriculum or training package and who delivers and/or assesses nationally recognised competency based training which may result in a qualification or Statement of Attainment under the Australian Recognition Framework (ARF); or (b) an English Language, Literacy and Numeracy tutor who has an appropriate degree, teaching qualification and experience required by the accredited curriculum or training package deemed necessary by the program funding authority. 27 Under the current AMEP arrangements introduced in 2003, teachers' qualifications must satisfy new and increased DIMIA requirements - a minimum of a degree and post graduate qualification in Teachers of English to Speakers of Other Languages ('TESOL'). These requirements are reflected in the new definition upon which the parties are agreed, as set out at [12]. The qualifications formerly did not require a postgraduate certificate and significantly lesser number of hours experience, 6 hours as opposed to 60. 28 It was the Unions' case that the higher qualifications required of the teachers employed to deliver AMEP, as required by DIMIA, ought to be reflected in the rate of pay. It was the employer's case that this change was adequately reflected in the increases which they proposed and had not, in any event, resulted in additional work requirements. On this point, it was argued for the Colleges, the evidence of Ms Fyfe should be preferred over that of the Unions' witnesses. In cross examination, she agreed that a teacher of a computer course employed by a College was not required to hold qualifications similar those who taught AMEP. Nevertheless, in her view, the DIMIA qualification requirements were about quality provision. They did not impact on teachers' time. Ms Fyfe regarded the qualifications required by way of comparison with other teachers as comparable for the jobs they each did. 29 These new DIMIA requirements have necessitated ongoing professional development. The requirement that AMEP teachers possess TESOL arose in 2003, as the result of DIMIA requirements that AMEP providers be accredited by the National English Accreditation scheme. There are transitional arrangements which apply to existing staff who have not attained those qualifications. Some teachers have also been required to acquire the Certificate IV in Workplace Assessment and Training qualification, in some cases by way of recognition of prior learning. This, nevertheless, appears to have involved additional cost for those teachers. Other Colleges encourage their teachers to pursue further qualifications in TESOL, even at the Masters degree level. Ms Walker, for example, held a Master of Arts in TESOL and a Certificate IV in Workplace Assessment and Training acquired in 2004, after advice from her College that it was required. 30 In Mr Pryor's case the new requirements involved him in completing the graduate certificate in TESOL in 2000 at the Australian Catholic University. He pursued the qualification because, without it, despite holding a teaching qualification, a BA and MA and having 35 years' teaching experience in schools, his qualifications did not suit the AMEP program and this affected what he was paid by the College under its certified agreement. He had also completed the Workplace Assessment and Training certificate more recently, which involved him in a great deal of book work, as well as recognition of past learning. This certificate also cost him $150. 31 Teachers employed to deliver AMEP must all work to the curriculum developed by DIMIA, so that students may attain various levels of the CSWE. That curriculum was altered by DIMIA in 2003. Under the DIMIA funding arrangements, eligible students are entitled to 510 hours of AMEP, at an approved provider, on a cost free basis. Students may choose and alter the provider with whom they pursue their studies, so it is important for providers, including the Colleges, to meet student expectations. AMEP is also available to students on a distance education basis. It was Ms Faircloth's evidence that at the end of each AMEP course, students are surveyed as to their level of satisfaction with the course. That feedback was important to the College to maintain its place in the consortium in future. 32 The evidence showed that the work performed by a teacher in delivering AMEP on occasions involved teaching classes of up to 29 students, although smaller classes were typical, in the range of 10-18. On Ms Fyfe's evidence, classes with less than eight students sometimes commenced, in order to permit late enrolments to be absorbed. The College, however, had the prerogative to discontinue such a class, if it was unviable. 33 Students come from a range of backgrounds. Not all of them have DIMIA funding. In some Colleges there are mixed classes, including private fee paying students not eligible for DIMIA or BACE funding, but all attended classes designed to meet the CSWE requirements. In some cases, mixed classes comprising students at CSWE levels 1, 2 and 3 are held. In other cases, teachers have classes where only some students are pursuing AMEP and others are pursuing non-certificated English literacy or numeracy programs. In some cases, all students are pursuing the same level CSWE certificate. This was the position at Ms Fyfe's College. 34 It was the case advanced by the Unions, it should be noted, that the need for some teachers to deliver more than one CSWE level program in the same class, or an AMEP, together with other literacy and numeracy courses in the one class, would add to the value of the work being performed. In cross examination, the employer witnesses conceded that they were not aware of other teachers in other courses engaged by Colleges to teach such a mix of programs in the one class. 35 Students in one AMEP class may also have a range of abilities, to which teachers must teach. All are non-English speaking. A variety of nationalities are often present in the class. Some students are illiterate in their native languages. Others speak languages with non-Roman script. Some have trade qualifications, others professional and some have none. The students' educational spectrum can range from pre-school level English, to pre-university level. Some students may have a fairly developed English ability in their occupational language, but poor English skills otherwise. Others may have high English oracy, but poor literacy. Others may be in the opposite position. 36 Students' backgrounds also impact upon their progress in class. Some students are business migrants or their spouses, others humanitarian refugees, or family members sponsored by such refugees. Some are impoverished, others have greater means. Many personal factors may also impact on individual student's learning abilities. 37 The result of students with varying personal circumstances and abilities being taught in the one class, is that some students rapidly achieve the required CSWE competencies and attain their certificates. Some students attain functional English within 510 hours, or less. Others never achieve certification, in the 510 DIMIA funded hours. Some continue to pursue their studies in classes which attract BACE funding. 38 For the teachers, complex preparation and teaching requirements can result, even in a small class, given the obligations which the AMEP now imposes. Ms Fyfe, in cross examination, conceded that the nature of the AMEP was different to many other VETAB courses offered, reflected in her view that students have up to 510 hours in the AMEP. Teachers in VETAB were not dealing with a student's career and future life in the same way as AMEP teachers. She did not, however, agree that this was reflected in greater responsibilities for AMEP teachers. 39 The AMEP curriculum now requires that classes be directed to meeting the language needs of the particular students in the class. Each student must initially be formally assessed. This determines the certificate level for which the student is studying. In some cases, these assessments are undertaken by the teacher, in others, a College may engage a co-ordinator who undertakes this initial assessment. At Ms Fyfe's College, this initial assessment aimed to ensure that students in the one class had similar abilities. That did not appear to be a general approach. Other Colleges also operated blended classes, which her College did not. 40 Teachers are then required to develop and maintain an individual learning program for each student in the class, designed to ensure that the student achieves the necessary competencies, to permit certification at the relevant CSWE level. Each student must be interviewed to establish desired language and non-language outcomes. Ms Walker explained her approach as involving a short interview of 5 to 10 minutes, to ascertain the student's desires and an assessment prior to each outcome being taught, to establish where each student is at, in respect of that outcome. 41 Certain outcomes are provided for each CSWE level, some are compulsory and others elective. They cover the areas of speaking, listening, reading and writing. How each outcome is taught and assessed, is a decision which the teacher must make, having regard to the students in the class and their stated desires. A syllabus must also be designed by the teachers, for the students in the class, having regard to their desires and the CSWE outcomes to be taught in the class. This will have to be revisited by the teacher, if there are late enrolments in the class. Those students must also be assessed and have an individual learning program developed, which must then be accommodated by the teacher, by adjustment of the syllabus, if necessary. 42 Students can enter and leave classes during the course of a term, as AMEP providers must have ongoing, or 'rolling', enrolment systems. The evidence showed Colleges accepting new students up to week 7, in a 10 to 12 week term. 43 Teachers must also provide students and the College with various ongoing documentation, to enable the Colleges to satisfy ongoing DIMIA reporting requirements in relation to outcomes achieved by each student, delivered by computer. The system is called the AMEP Reporting and Management System ('ARMS'). Colleges must also establish reasons and report on any student's non-attendance, which can impact on the College's funding arrangements. Retention levels thus have ongoing importance for Colleges. In some cases, this involve teachers telephoning absent students, in others co-ordinators perform this work. On Mr Pryor's evidence, at his College, the system operates on the basis that if students do not attend for two days, the teacher must make contact. This can take a number of calls, with initial contact being with other non-English speaking family members. Ms Fyfe also explained that follow up was important for students, to ensure that students would not lose any of their 510 funded hours. 44 Classes are taught during the day, evening and at weekends, to meet student needs. In some cases, if students need to achieve outcomes for certification which other class members do not require, teachers will provide them with the opportunity to perform work outside class time, which must then also be prepared and assessed, separate from the work of the rest of the class. Most teachers are only paid for face-to-face teaching hours. No additional payment is made for preparation, marking or other development work. 45 The CSWE also has non-language outcomes, directed to areas such as citizenship, employment and computer use. For example, some students may require assistance to use maps and directories. Classes may also be taken on excursions, for history and cultural purposes, during face-to-face hours. The CSWE curriculum requires that teachers provide students with information, in addition to their English studies. For example, at one College, an information pack was prepared for students in relation to domestic violence issues, including legal ramifications and available community assistance. Teachers received professional development in this information pack, so that it could be conveyed to students in class. In Ms Walker's case, she explained that not all professional development took place within paid time. It was usually held once a term and staff were also required to be involved in research and design projects. There were also moderation sessions held once a term and band meetings, once or twice a term. When such work was performed, theoretically outside paid time, a time in lieu system operated to remunerate teachers for their attendance. Moderation sessions were conducted at Ms Walker's College, to ensure that the assessments set by teachers met the national standards which had been established under DIMIA's National English Language Training Accreditation Scheme ('NEAS'). 46 Some teachers also provide counselling and support to students, particularly humanitarian entrants, who may have settlement issues, which can involve liaison with other community organisations, banks and potential employers. Some Colleges require such work and have provided relevant training for teachers. Others do not, but teachers provide students with such assistance in unpaid time. Some Colleges and consortia members employ counsellors to assist with such matters, whereas others did in the past, but do not under present funding arrangements. Rather, they refer students on to other community organisations for assistance. Witnesses spoke of major issues such as sexual harrassment, domestic violence, and threatened suicide arising to be dealt with by teachers, as well as the more regular settlement issues, such as employment, Centrelink and banking. 47 The evidence suggested significant commitment to the welfare of students by Colleges and teaching staff, commendably, even in cases where this is not a requirement of the teacher's employment, or the College's funding arrangements. 48 Most casual teachers are only paid for face-to-face teaching hours. Some Colleges to whom the award does not apply, make additional payment for other work. There is considerable work required AMEP outside class time, for preparation, marking and attending to required documentation. The parties were plainly disagreed as to whether or not the existing award casual rates adequately addressed these requirements. The relationship between the award's full-time and casual rates, is not apparent. It appears that the first award fixed these rates by reference to going rates at the time. There is also an issue between the parties as to the operation of the part-time arrangements in the award. These are matters of background, however and do not arise for determination in these proceedings. 49 Teachers' work also requires them to create resources. On Mr Pryor's evidence, while his College had quite good resources, they were limited usually to one copy. He had spent hundreds of hours creating resources for his classes and adapting resources supplied by the College. Classes ran for two hours and there was significant pressure to make sure that there was good and adequate material available for each class, particularly having regard to the changing composition of the class. He had created 20 folders of material, which had, in the past, enabled him to take classes on short notice, when other teachers were unavailable. He also spent about two hours a day in preparation and other work such as marking, outside his face-to-face classes. Ms Murphy spent a similar amount of time overall. On her evidence, there were various different requirements at different times in a term, which impacted on what was required in this regard. 50 The CSWE curriculum is now in its fourth version, the latest introduced in 2003. It introduced various changes. The first, the increased educational requirements earlier outlined. The second, alterations in course content, with some material added and other material deleted. The third, altered reporting requirements. The fourth, a requirement for individual learning plans to be devised and delivered, through a tailored syllabus, which satisfies the curriculum specified. The curriculum is detailed. 51 While there is also some written syllabus material provided to teachers in accordance with individual College's budgetary constraints, the curriculum requires teachers to prepare a syllabus relevant for each class, having regard to individual class members' learning goals. This requires that teachers collect and develop many resources for students, including the preparation of audio and video materials, both for teaching and assessment tasks. Some resources are provided by the Colleges. Others must be created by the teachers. Some teachers are required to participate in the development of resources for use on a College wide basis. 52 Assessment involves ongoing work, now involving the use of 'Student Achievement Summary' ('SAS') forms, supplied to DIMIA to enable a centralised and ongoing record of student progress to be maintained and available, to whichever provider a student might enrol with from time to time. The aim of the AMEP is that students are assessed whenever they are ready to achieve a particular outcome. Assessment tasks can be conducted on a group or individual basis. Once undertaken, the assessment must be marked against specified criteria. This can be a short process in the case of some of the outcomes fixed for the lower level certificates and a more lengthy process - up to an hour - in the case of higher level outcomes. Such work is undertaken both within and outside face to face classes. It was Ms Fyfe's opinion that recent changes in CSWE had had no effect upon teacher's assessment work, even though she regarded the amount of assessment required to be excessive. 53 It was the evidence of Ms Walker, who has also worked in high schools and English Language Intensive Courses for Overseas Students ('ELICOS'), that AMEP involves considerably more administration than the others areas of teaching in which she has been employed in the past. She has taught beginner English classes in ELICOS and AMES programs and found the AMES students considerably more challenging, given the circumstances in which those students come to be in Australia and the fact that the course seeks to establish a foundation of their future lives here. 54 The evidence also showed that some Colleges adopted different approaches to full-time and casual teachers. In the case of Mr Pryor and Ms Walker, employed at Macquarie Community College, casuals were paid for hours of face-to-face classes, with no preparation or marking time paid for in addition, that work being comprehended in the casual rate. Full-time staff teach four hours face-to-face per day and in addition are paid for two hours' preparation and marking time each day. Negotiations for paid preparation and marking time for casuals has, however, recently been agreed. Consideration 55 Undoubtedly, as was the employer's case, the work of teaching AMEP has always been challenging, involving as it does the teaching of people, many of whom have come to Australia as the result of massive upheaval in their lives. Some are immigrants, others refugees whose lives and education have been interrupted by war, or other disasters. Nowadays, teachers have refugees from Sudan in their classes. In the past it was those escaping the consequences of World War 2, or the war in Vietnam. This does not present a change in the nature of the work, but is a part of the work which here arises for consideration. 56 It is also undoubtedly true, as the employers argued, that teachers, as professionals, have always been required when teaching AMEP, to prepare and teach classes of students of differing abilities and to assess and record their progress. 57 Nevertheless, this is the first occasion upon which the Commission has been called upon to consider the value of their work, in order to determine whether it has been properly assessed by the parties in the consent arrangements earlier reached and whether the changes identified in the evidence, have led to the position where it must be concluded that the work is presently undervalued. 58 I am satisfied, on the evidence, that a case has been made out for a wage increase. Indeed, so much was common ground between the parties. It was only the magnitude of the increase about which they disagreed. 59 I am also satisfied that the requirements of the Special Case Principle have been satisfied. What needs to be established in such a case is well settled. See Re Crown Employees (Administrative and Clerical Officers (State) Award and Other Awards (No 2) (1993) 52 IR 243 at 376; Re Social and Community Services Employees (State) Award (2001) 113 IR 119; Re Operational Ambulance Officers (State ) Award (2001) 113 IR 384; Re Public Hospitals Nurses (State) Award (2002) 115 IR 183. The applicable principles are conveniently summarised in Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award (2004) 133 IR 254 at [30]-[32]). The reasons for that conclusion in this case, are developed below. Suffice it to note at this point, that given the way in which this award and its predecessor came to be agreed and the circumstances in which AMEP has come to be taught in these Colleges, I am well satisfied that the claimed undervaluation has been established. 60 In this case, of course, the Work Value Principle was also relied upon. That principle is designed to assess the nature and value of changes in work over time. On the evidence, there has undoubtedly been change, over time, in the work of teachers employed by Colleges to deliver AMEP. Ms Murphy, who has been involved in the teaching of AMEP since the early 1990s, (at that time whilst in the employ of AMES), described the significant changes which flowed as the result of the introduction of the first CSWE curriculum. Formerly, there were no formal outcomes which teachers had to achieve, no formal curriculum which had to be taught and no formal assessments which had to be conducted. Since the CSWE curriculum was introduced, it has also changed over time, with the changes introduced in 2003, having had significant impact upon the work of AMEP teachers. 61 The Work Value Principle requires that change be measured from a date in 1989, which must here be considered in light of the fact that the award was first made by consent in 1999, when AMEP was not generally being taught in the Colleges directly affected by this application. It has been agreed that these changes are sufficient to be reflected in a new classification. 62 The starting point for a consideration of a claim such as this, is of course, that it must be assumed that the award when made, provided fair and reasonable conditions of employment. The negotiations which led to the leave reserved provision upon which the parties here move, resulted, on the evidence, from the fact that the negotiations which led to the making of the current award were the first occasion that the award parties together considered what is required of teachers employed to deliver the AMEP. 63 The result of that consideration was that they have agreed that a new classification is required, but are not agreed as to rates, a circumstance which appears to raise for consideration the requirements of the First Award and Extension to an Existing Award Principle. That principle requires, amongst other things, that attention be paid to relevant wage rates in other awards and the wage relativities between awards. The Work Value Principle also cautions against over classification, flow on and leapfrogging. I note that in this context, of some significance to a determination of the issues here before the Commission for determination, is a decision of Sweeney J in 1985, when he was considering the rates of pay of casual teachers then employed by AMES. (See Re the Crown Teachers Casual Award (Unreported, 1 May 1985). I will return to this below. 64 Nevertheless, as was observed by the Full Bench in Re Pastoral Industry (State) Award (2000) 104 IR 168 at 184 - 185, existing award conditions are not immutable, particularly in 'contested proceedings, if a case is made out on the evidence, upon the basis that the award conditions in question no longer provide for fair and reasonable conditions of employment'. 65 Before moving to deal with the amount of the increase to be awarded, it is necessary to deal with that aspect of the case vigorously advanced by the Colleges, namely that the public interest and the cost of the Unions' claim, precluded the claims being granted. I have come to the conclusion that this aspect of the Colleges' case had to be approached with some caution, given the evidence which unfolded. 66 As was clarified in opening for the Colleges, these proceedings do not concern an incapacity to pay application brought by the Colleges. This was understandable, given Mr Shugg's explanation in his oral evidence, that while some Colleges face difficult financial circumstances, others do not and the explanation of Ms Faircloth, that it was not the AMEP and the possibility of increased rates for teachers employed to deliver it, which was, of itself, affecting the financial viability of some Colleges. That problem had emerged as the result of other funding cuts imposed by the State Government. 67 As it was argued by Mr Blackah, solicitor, however, in fixing the appropriate rate of pay for these teachers, account must be taken by the Commission of the Colleges' financial position and the Commission must assess the impact which any wage increases might have on the public interest. It was the Colleges' case that the public interest would be adversely affected, if Colleges were no longer able to offer AMEP, as the result of any increases awarded. 68 Despite the case, so advanced, there was, however, no evidence that any particular level of increased rates of pay for these teachers, would lead to Colleges being unable to offer AMEP. Indeed, three aspects of the evidence pointed to this being unlikely. Firstly, the Colleges themselves have proposed a wage increase, albeit considerably more modest than that claimed by the Unions. Secondly, the Colleges, when agreeing to the leave reserved provision in the current award, were undoubtedly aware of both the Unions' claims and the fact that other employers, such as AMES, TAFE and other Colleges, including some members of Community Colleges of New South Wales Incorporated, the industry body which here opposed the Unions' claims, were already paying the teachers they employed to teach AMEP, higher rates. 69 The possibility that these proceedings would lead to increased rates of pay, was something of which the Colleges were thus plainly aware and able to take into account in the approach now adopted to their financial affairs. Indeed, the Colleges' position proved to be that increases of up to 8% were warranted, despite Ms Faircloth's evidence that her College had not budgeted for any further award increases during the life of this award. 70 In this context, another relevant matter was Mr Shugg's evidence in cross examination, that some other teachers employed by these Colleges under this award, are paid considerably in excess of the current award rates. This also demonstrated that the opportunity to consider how their income might be spent in delivering the various courses which the Colleges offer from time to time, is available to them, in their ongoing budgetary processes. 71 Thirdly, some Colleges have agreed to rates of pay higher than those proposed by the Colleges in these proceedings, in agreements certified by the AIRC. It follows that those employers, who it appears receive the same funding from DIMIA as other Colleges covered by the award, are able to pay their AMEP teachers higher rates, without jeopardising the viability of their AMEP. The inference, that to grant the increases here sought by the Unions would make it unviable for Colleges to continue providing AMEP, is difficult to draw in light of that evidence. 72 It is also relevant that AMES and TAFE pay higher rates, again, without it appears, making their AMEP unviable. While Mr Shugg suggested that the funding basis of Colleges was different to that of TAFE and AMES, so far as overheads are concerned, there was no evidence upon which any comparisons could be drawn. Indeed, on his evidence some Colleges pay the Department of Education and Training peppercorn rent for their accommodation, although he understood that AMEP were not necessarily taught at such locations. 73 In this context, it must also be observed that Ms Faircloth's understanding was that TAFE adopted a rigorous approach in conducting AMEP. Classes below 16 are not offered. By way of comparison, Ms Faircloth's views as to the viability of her College conducting AMEP courses, was seemingly based on classes of as few as eight AMEP students. However, on her evidence, the blended classes, which the College in fact offers, contain a minority of AMEP students. She was unsure of the level of BACE funding which the College received for other students, (although believing it was similar to AMEP funding). In cross examination, Ms Faircloth also accepted that her views that the College could not afford the increases claimed was based on a scenario where it was only AMEP students in a class with insufficient numbers. She was also uncertain of whether the College, as a consortium member, received the whole of the DIMIA funding which the consortium received for each of the College's AMEP students. A firm conclusion as to the future viability of any AMEP classes conducted by the Colleges covered by this award, could thus not be drawn on the basis of that evidence, incomplete as it was. 74 As to the public interest, it seems apparent that if the result of the approach adopted in recent years by Government to funding the AMEP, truly be that the cost of delivery of such programs at Colleges becomes unviable, if teachers' rates increase as the result of these proceedings, the end result will presumably be that such Colleges will not continue offering the program on the same basis, or perhaps, at all. The latter outcome would undoubtedly be most regrettable, from the point of view of affected teachers. Whether students would be affected is not so clear, given that AMEP is available by distance education and in many cases students in one location have a choice of provider. 75 In any event, the Act does not permit the Commission to approach its statutory obligations, so as to ensure that unviable Government funded programs are delivered, as the result of teachers being paid less than fair and reasonable rates for their work. 76 Nor would such an outcome be consistent with the public interest. As Sheldon J observed in Re Crown Employees (Teachers - Department of Education) Award [1970] AR 345 at 521, teachers who work for Community Colleges in delivering AMEP, cannot be expected to partially live off their dedication. Nor can they be expected to subsidise the funding arrangements provided for AMEP, a matter which concerned Bauer J as long ago as 1982, when considering the arrangements then provided for casual teachers employed by the AMES. (See Re Crown Teachers Casual Award (Unreported, Sweeney J, 1 May 1985, 729/1981 at p3). 77 It is, of course, always a matter for any Government to consider what funding arrangements it provides for any programs which it may conduct from time to time. It follows that even if the Colleges' current AMEP contracts run until 2008, without provision of review of funding during their terms, that does not preclude the parties to these contracts revisiting the relevant contractual terms, by agreement. 78 In any event, given that the evidence showed that some Colleges and other employers do successfully deliver AMEP, while paying their teachers higher rates than those provided in the award or which were proposed by the Colleges, seemingly pursuant to the same Government funding program, the conclusion that increasing rates for the teachers covered by this award will make AMEP unviable at the Colleges to which the award applies, is not available. 79 This was reinforced by the evidence that other teachers employed by some of these same Colleges are paid over award rates and that at some Colleges, the presence of AMEP students effectively subsidises the delivery of other English programs delivered by the College, in mixed or blended classes. These programs are funded by State Government in different ways, or by fees charged to students. At Ms Faircloth's College, these fees seem to be fixed at levels considerably below the funding provided by Government. Mr Pryor's evidence was that he often had quite a number of fee paying students in his class. What fees they were charged was not in evidence. 80 This evidence, when considered together with the evidence that some Colleges deliver AMEP under sub-contract arrangements, the terms of which were not in evidence, could only lead to the conclusion that the concept that awarding fair and reasonable rates for the work in question would lead any College to cease providing AMEP, was not made out. Nor was it established that even if this were to result, that students would then not have access to AMEP. On the evidence, in country regions AMEP is offered by other providers such as TAFE, although not necessarily in exactly the same town. 81 Examples given included that of the College at Kiama, where students undertaking AMEP might have to travel to Wollongong, or Shell Harbour, to undertake the AMEP, if Kiama no longer offered AMEP. This possibility could not properly lead to the conclusion that teachers engaged by a College to provide AMEP should not be paid appropriately for the work performed. There was no evidence as to where the students in question lived, what their financial circumstances were, how they travelled to their AMEP classes and if they would be inconvenienced by having to travel elsewhere. Nor did the evidence show that a teaching position would be lost at Kiama, if AMEP were no longer offered, given that it appears that the majority of the classes which country Colleges conduct, are not comprised of AMEP students. Assumptions about such possibilities cannot be made. 82 Another example was a group of 10 female members of the Sikh community, who live at Woolgoolga and there attend an AMEP class offered by the Coffs Coast College at the local Neighbourhood Centre. The evidence of Ms Faircloth suggested that if the course was not offered in Woolgoolga, the students concerned would not pursue the AMEP, because their beliefs would not permit them to travel to Coffs Harbour and available public transport might make this difficult, in any event, given the times of day at which buses ran. Ms Faircloth was unaware of the DIMIA requirement that the location where AMEP classes are conducted must be accessible by public transport and there was no evidence called from any of the students to confirm that they would not pursue AMEP if it was not offered at Woolgoolga. Nor was regard paid to the fact that AMEP is offered under a distance education program. The evidence, such as it was, could not permit the conclusion which Ms Faircloth sought to draw, being accepted. 83 Even if it were, I could not thereupon conclude that this one example could provide a proper basis for refusing rates for the teachers covered by this award, otherwise properly established on the evidence. The Colleges, like TAFE and AMES, are government funded and operate on a not for profit basis. I cannot conclude that the possibility that one such not for profit organisation may cease to provide AMEP in one location, has any negative impact on the public interest, which could warrant proper rates of pay for teachers being generally refused. 84 It must also be observed that if an incapacity to pay case were to be mounted by any College, as was here foreshadowed, that employer would have to meet the strict test established by the Incapacity to Pay Principle. That was simply not attempted in these proceedings. To refuse to award appropriate rates at this stage, in circumstances where no individual employer has sought to mount an incapacity to pay case, would have the result that the provisions of the Incapacity to Pay Principle were thereby simply avoided. That outcome cannot be permitted. 85 In all those circumstances, it is impossible to accept the views advanced for the Colleges, that the public interest would be adversely affected by increased rates of pay, greater than they proposed, being awarded to AMEP teachers. Section 10 of the Act requires that in making minimum rate awards, the Commission fix fair and reasonable conditions of employment, including in relation to rates of pay. 86 The evidence showed that as the result of Federal Government initiatives, the socially important AMEP is nowadays being delivered through various not for profit organisations, including the Colleges to whom this award applies. That program requires those who deliver it to adhere to a common curriculum, to employ teachers holding particular qualifications and to ensure that they adhere to specified requirements, all of which impact upon the work the teachers are required to perform. Changes introduced in 2003 have altered that work in various significant ways. The evidence did not suggest that the work differed, if it was performed at a College, at TAFE or at AMES. Indeed, the evidence was that some teachers are employed in more than one place to deliver the same programs. The evidence of Ms Murphy, for example, was that her work was the same, in the College and the TAFE where she was employed to deliver AMEP. 87 The evidence of Ms Fyfe and Ms Faircloth was that employment in their Colleges led to some of their teachers obtaining either employment in TAFE or AMES. Indeed, this was necessary for teachers to obtain a full-time load, in Ms Fyfe's opinion. Despite this necessity and the apparent similarity in the work performed in teaching AMEP, while in the employ of different providers, significantly different rates are fixed by various industrial instruments for that work. This is a part of the factual matrix which here arises for consideration, as the Commission's Wage Fixing principles require. 88 I turn then to the amount of the increase. I have concluded that wage increases greater than those proposed by the Colleges for casual teachers must flow, having regard to the case established on the evidence. I will deal separately with full-time teachers. The cost of the conclusions reached are a relevant matter for consideration, to which I will also return below, but cost is not, of itself, a reason for refusing to award the rates determined. (See Re Health and Community Employees Psychologists (State) Award (2001) 109 IR 458 at [52]). 89 In terms of the Wage Fixing Principles, the parties were agreed that changes in work sufficient to warrant the creation of a new classification had occurred. I agree. The changes are of various kinds, as earlier outlined. They include curriculum changes, coupled with the obligation for teachers to prepare individualised learning programs and a syllabus which delivers what those programs have identified individual student require, by teaching to the outcomes provided in the new curriculum. The evidence of teachers was that the changes resulted in new work, which increased the amount of work required to be performed outside face to face classes. This was, in a context, it must be remembered where casual teachers are generally only paid for their face to face classes and not for necessary work performed outside, whether or not of longer duration than in the past. The casual rate accommodates such work. Increases in the amount of such work, of necessity therefore, must be considered in determining the claims here made. 90 The changes in the teachers' work have been marked. I am unable to accept the views of the witnesses called by the College, that there has been but little change. The evidence of the teachers that the work which they now must perform outside face-to-face classes has increased, was not seriously challenged in cross examination and must be accepted, despite the views expressed by Ms Fyfe. The ongoing necessity to prepare up-to-date resources for the delivery of classes and assessments was accepted by Ms Fyfe in cross examination, as a necessary part of the work. Ms Murphy, for example, spoke of preparing elements of the television news from that morning, or the night before, when preparing an assessment task for a group which was working with understanding news programs. 91 The curriculum required that the assessment tasks be familiar and relevant. The example assessment task provided in the curriculum documents did not meet the criteria, given the syllabus developed for the particular group of students in question. This meant that the resource necessary for the assessment to be conducted, had to be developed by Ms Murphy. Her evidence was consistent with that of other teachers who spoke of increased workload of this kind. I am unable to reject that evidence. 92 Undoubtedly, as was Ms Fyfe's evidence, some parts of a syllabus may be reused for later classes, as may some resources. Nevertheless, given the current requirements that each syllabus developed by a teacher must be tailored to meet the needs of individual class members and their own aspirations, as well as the requirements of the CSWE being pursued, I accept the teachers' evidence that preparation and marking time has increased as the result of the changes introduced in 2003 and that the work itself has altered. 93 I also accept that teachers are professionals with the necessary training to meet these changed requirements. I do not, however, accept that the work and its value has not changed over the relevant time, rather than the changes which DIMIA has introduced simply being a part of the ongoing development of professional practice, which must always be accommodated by teachers. As I have earlier noted, I am also satisfied that the current rates for casuals do represent an undervaluation of the work required. 94 Given the agreement of the parties reached as the result of the leave reserved provision in the award and the conclusions I have reached on the evidence, I am well satisfied, in terms of s17(3) of the Act, that the variation of the award, during its nominal term, to insert the new classification is warranted and in the public interest. 95 In fixing rates, of necessity I have had regard to the other minimum rates fixed by awards applying to teachers employed by others to deliver AMEP. The provisions of the award applying to AMES, plainly cannot be ignored. The rates there fixed are the result of both agreement and arbitration. In 1985, Sweeney J agreed with an observation earlier made by Bauer J, that there was at that time a concern at the exploitation of 'full time casual' teachers at AMES. He also observed that the rates for casuals employed by AMES had in the past been related to rates for part-time teachers at TAFE, but that the AMES teachers were, at that time, performing work similar to that performed by teachers employed by the predecessor to the DET (at p15). His Honour noted that rates for part-time teachers at TAFE had a special history which had taken account of pay factors not relevant to AMES teachers. The rates awarded for casuals therefore departed from those applying to TAFE part-time teachers (at p16). 96 In this case, it was Ms Corosi's unchallenged evidence that the award made in 2004 for AMES, the NSW Adult Migrant English Service Crown Employees (Teachers Education officers and Senior Education Officer) Consent Award 2004, reflected the salaries and conditions applying to teachers employed in schools and TAFE. This general statement was not explored in the evidence. There are however, some obvious and important differences between those awards and the one here before the Commission, to which attention must be paid. 97 For example, casuals employed at TAFE have but one composite rate. At AMES, by way of contrast, there are '400 hour' casuals and 'less than 400 hour' casuals, reflective of the 'number of hours' teaching service in any teaching year' (cl 3.2). The rates for 5 year trained casuals commence on the third step of a combined scale, with progression after 12 months' service, subject to satisfactory performance. The rates range from $48,285 (Step 3) to $66,101 (Step 10) in 8 increments. The award also provides for Sunday work and work between 10pm and 7.30am Mondays to Fridays, in which event penalty rates apply. Casual rates comprehend annual leave. There is a casual leave loading payment, provision for sick leave and family and community service leave, special leave and maternity leave for casuals. Payment is only made for the face-to-face hours casuals teach. Casual rates range in 5 steps from $53.72 to $65.52 per hour. 98 The TAFE award rates range from $35,860 to $66,348 in 13 steps. It is not clear at which step of this scale full-time AMES teachers commence. It was agreed that the casual rate is $57.11 - seemingly a composite rate, which pays no regard to casual teachers' qualifications or years of experience. The parties do not propose such an approach for this award. The award applying to TAFE teachers was not in evidence and so it cannot be otherwise considered in what here arises for determination. Nevertheless, it is pertinent to observe that the rates which flowed to TAFE teachers from the decision of the Full Bench Re Crown Employees (Teachers) Salaries Award (2004) 133 IR 254, had regard, amongst other things, to the environment in which TAFE now operates, where it competes with other providers of training services (see pp350 to 352). The evidence in this case demonstrated such competition in the delivery of AMEP. Students are free to choose their provider; attraction and retention of students is accordingly important and impacts both on teachers' work and the funding which results for the provider, including these Colleges. 99 It was Ms Heron's evidence that the work of AMEP teachers was similar to that of ELICOS teachers. The award for ELICOS teachers, the Teachers (Non Government English Colleges) (State) Award, provides rates for full-time teachers with a top rate of $57,373 per annum and $52.76 per hour for casuals (at Step 11). The New South Wales Independent Education Union is a party to certified agreements with various employers, including another consortium member, the Australian Centre for Languages. There casuals are paid an additional amount for preparation, performed on site. Rates for full-time teachers go to $52,759 and for casuals $48.07 and $18.33 preparation. In the view of the IEU, the certified agreements which Macquarie Community College and St George Community College had negotiated with their staff did not set fair and reasonable rates for their staff. In the absence of those agreements, this award would apply to the teachers employed by these Colleges. At present these Agreement rates are considerably higher than the award rates. 100 As for this award, it provides for a number of steps having regard, (given the definition at clauses 2.8 and 2.9), at steps 2 and 3 of each current level, to 400 and 800 hours 'of face to face tutoring gained in the appropriate level in an organisation providing specifically for adult learning'. This award also provides that the casual rate includes payment for annual leave. Casuals are, however, not entitled to sick leave, bereavement leave, personal carer's leave, paid public holidays, or payment, or time in lieu, for attendance at staff development activities. Casual rates presently range from $31.91 to $41.36 per hour, in three increments. 101 The parties are agreed that the rates in this award should have an incremental scale. The Unions seek an incremental scale of 4 steps, with rates commencing for full-time teachers commencing at the fifth level, rather than the third level, of the AMES scale and finishing on the tenth, with various retrospective increases. The casual rates sought reflect the first to fourth steps of the five step AMES scale. The Unions explained that this reflected a compression of the AMES scale which they proposed, having in mind that AMES employed teachers of very many years experience, not employed at the Colleges. The Colleges proposed three steps, with increases phased in over two years. 102 While not addressed in the case which the parties respectively advanced, it is pertinent that the current rates in the award for full-time teachers are higher than in the AMES award, as are the rates which the Colleges proposed. The rates are: Current Award AMES Unions' Claim Colleges' Claim 1/1/05 1/1/06 1/1/05 4/6/041/1/051/1/06On VariationAfter 12 monthsAfter 24 months $ 50,326 $ 52,339 $ 48,285 $ 49,979 $ 51,478$53,280 $ 48,390 $ 50,326 $ 54,339 $ 52,688 $ 54,796 $ 50,616 $ 52,167 $ 53,732 $ 55,612 $ 50,662 $ 52,688 $ 54,796 $ 55,027 $ 57,229 $ 53,280 $ 54,351 $ 55,982 $ 57,941 $ 52,911 $ 55,027 $ 57,229 $ 55,613 $ 56,539 $ 58,235 $ 60,273 $ 57,941 $ 60,273 $ 63,105 $ 66,101 103 I note that there appears to have been a typographical error in the Colleges' claim, which apart from date of operation, reflects the current award rates for full-time teachers except for the rate $54,339 proposed for the first step, after 24 months. The current award rate is $52,339. 104 As I earlier noted, the parties concentrated their cases on casual teachers, there being no full-time teachers employed under the award. The Colleges' proposal appears to involve an initial decrease in rates for full-time teachers, which I reject, given the conclusions I have reached on the evidence. The Unions' claim involves retrospective increases, which I also reject, for reasons dealt with below. The current award already provides for higher rates for full-time teachers than the AMES award. Relevant to a consideration of the competing claims is that on the case advanced by the parties, there is no obvious relationship between the casual and full-time rates in this award. It is also relevant that the relationship between full-time and casual rates in the AMES award was also not explored and is not clear. 105 Subject to one qualification, the evidence, I am satisfied, does not make out any basis for a conclusion that rates for teachers employed to deliver AMEP under this award, should be any higher than those employed at AMES. The rates fixed by the AMES award have regard, in part so far as casuals are concerned, to hours taught each year, while this award refers to hours taught overall. In that context, to grant the claim advanced by the Unions would appear to give rise to flow on implications, which must be guarded against. Nor, however, am I able to accept the view of the Colleges, that any increases in rates must reflect increases in funding which Colleges have received under current arrangements. Nor could I accept that the view of Ms Faircloth, that the rates paid by Colleges to AMEP teachers were 'quite reasonable in comparison to your average household income in Coffs Harbour', is of relevance to the task which here falls upon the Commission. There was no evidence as to what such income might be, nor was it suggested that such a comparison was an available one under the applicable principles. 106 I am also satisfied that the rates fixed must properly have regard to the qualifications required for the work, as agreed by the parties in the definition, reflective of the DIMIA requirements introduced in 2003. It can only be concluded that the newly required post graduate qualification and significantly enhanced practical requirements, reflect the changes in skill, responsibility and conditions under which the changed AMEP work is now performed by the teachers here in question. 107 In coming to this conclusion, I have had regard to the fact that it has long been accepted that in the case of teachers, their rates of pay should reflect both their qualifications and years of experience, it being accepted that both elements impact upon the value of their work. (See the discussion in Re Teachers (Non-Government Pre Schools) (State) Award (2001) 120 IR 3 at [339] to [344] and more recently by the Full Bench in Re Crown Employees (Teachers) Salaries Award (2004) 133 IR 254 at 283). Ms Fyfe had a different opinion, which I was invited to accept. I am unable to do so given the evidence, and the agreed award definition, which reflect the Colleges' acceptance that teachers other than those employed to teach AMEP, are not required to hold the qualifications DIMIA requires AMEP teachers to have. This must be reflected in the award classification structure. 108 In this case, I cannot accept the views of the Colleges' witnesses, that the increased qualification requirements agreed for the award, do not reflect changed work requirements. I am satisfied that were it truly so, there would have been no necessity for the increased requirements to be imposed, given those previously fixed by DIMIA for the teaching of the CSWE qualifications. 109 I am entirely satisfied that the evidence demonstrated that the change in qualification requirements, accompanied as it was with significant changes in the CSWE curriculum and the other changes to teachers' work and responsibilities earlier described, was a part of the significant alterations to the work the teachers employed by the Colleges are required to perform in delivering AMEP. Those alterations have impacted on the value of that work, which must be reflected in the rates fixed by the award. How this can properly be given effect, is a more difficult question. 110 Having considered the respective cases, I am satisfied that the full-time and casual scales in the award should each have four steps, as the Unions proposed. I am not, however, satisfied that the rates proposed by the Unions, for full-time staff, may fairly be awarded, consistently with the requirements of the Act and the principles. The current rates for full-time employees and casuals, do not bear any apparent relationship, other than reflecting what were the going rates when the first award was made and the increases agreed, when the current award was made. 111 The parties concentrated their cases on casuals, understandably, given that there are no full-time AMEP teachers employed by the Colleges. The current award already contains rates higher than those which the AMES award provides for full-time AMEP teachers. Other than by agreement, as permitted by the Special Case Principle, I cannot see how rates higher than those fixed for AMES can be awarded in these proceedings, consistently with the Act and the principles, in light of the evidence led in the case. The consequence is that I am unable to conclude that there should be any increase in the award full-time rates for the first three steps, they already being higher than the AMES award rates. I fix the fourth step at $60,273, the eighth step of the AMES scale, thereby maintaining still a compressing of the AMES scale for the AMEP teachers employed by the Colleges. The scale in this award will begin with a higher salary for starting full-time AMEP teachers, but will have a shorter and overall, lower scale than that applying at AMES for such teachers. 112 I have also concluded that the rates for casuals should be as claimed by the Unions, reflecting the first four steps of the five step AMES scale. Such a scale is also compressed, but pays proper attention to the evidence as to the qualifications and experience of the staff employed by the Colleges on the one hand and the work they are required to perform on the other. It also takes into account the different approach adopted to 400 and 800 hours staff at AMES and the 400, 800 and 1600 hours here proposed, which I accept properly reflects the evidence as to staff employed, work required and the way in which the agreed classification structure presently in this award operates. 113 In reaching these conclusions as to rates, I have also been influenced by the Unions' own acceptance that some account should properly be taken in these proceedings, of firstly the financial circumstances revealed in the Colleges' evidence and secondly what appears to be teachers employed by AMES with very many years of experience in teaching the AMEP, not a pattern seemingly present at the Colleges covered by this award. In light of the evidence, that concession was properly made. 114 The result of these conclusions is that the scales in this award will be different to those applying under the AMES award and the awards that apply to TAFE, ELICOS and to other employers and teachers under various agreements. It should be observed that comparison with agreements, which provide for paid rates, rather than minimum rates, as awards of this Commission prescribe, must always be approached with caution. Such agreements are also made against a background of the underlying relevant minimum rates award in operation from time to time, which under both the State and Federal industrial relations systems provide a statutory point of comparison for agreements which parties propose be certified or approved. 115 It must also be noted that there was no detailed evidence led as to the way in which the awards applying at AMES, TAFE and ELICOS operate, or the work which teachers there perform, other than in the broad sense that other teachers are or have been, also there employed to deliver AMEP, which was common ground. There was no real contest as to the similarity of that work, but no evidence as to the conditions under which the work is performed. Without a more detailed exploration of the operation of other awards and the conditions under which the work in question is performed, than was attempted in these proceedings, I am unable to conclude that a scale identical or more importantly, more generous than that in the AMES award, can properly result, consistently with the requirements of the Act and the Wage Fixing Principles, absent agreement. (See the discussion in Re Teachers (Non Government Preschools) State Award at [398] to [401].) 116 In coming to these conclusions, I have rejected much of what the Colleges advanced. This result, I also note, is consistent with that in Crown Employees (Teachers Salaries Award) at 365-6, where reference was made to the observations of another Full Bench, in Crown Employees (State) Award (No 2) at pp377-8, where the view was taken that it was appropriate to give Crown evidence and submissions about its preferred levels of increases 'careful and weighty consideration'. Nevertheless, it was concluded that 'the Commission cannot be constrained in its statutory wage-fixing obligations by limiting itself to increases which the Crown submits, on budgetary considerations should not be exceeded'. Here, too, the conclusions I have reached have been appropriately tempered by a recognition of the economic considerations which confront the Colleges and the views they advanced. Their views as to the limitations which their budgetary difficulties imposed, could not, however be accepted, as being conclusive in light of all of the evidence. 117 Like the views reached by Sheldon J in Crown Employees (Teachers - Department of Education) Award, I am here also satisfied that the fact that the increases awarded may involve a great sum of money for an individual teacher or College, is not a legitimate barrier to the teacher's 'right to receive remuneration commensurate with their work and its contribution to the welfare of the community' (at p521). Date of Operation 118 The Unions claimed retrospective wage increases, but also accepted a measure of phasing in, unsurprisingly, given the magnitude of the increases sought. The Colleges proposed that no increases flow until January 2006, when the final phase of the already agreed increases commence operating, at the termination of the nominal term of the award. 119 I am not satisfied that any basis for awarding any measure of retrospectivity has here been established. It would involve a departure from the Commission's usual approach. In reality, no case for any retrospectivity was finally developed in the case which the Unions pressed. Given the magnitude of the increases which I have determined must be awarded, when considered in light of the evidence as to how AMEP operates and is funded at these Colleges, I am satisfied that the increases must operate prospectively and that phasing in, is also warranted. 120 This approach also pays regard in a proper way to the case developed by the Colleges as to the financial impact of the increases awarded. It will assist the Colleges in adjusting budgets to meet these increased costs and will give them an opportunity to consider how AMEP might be offered in the future. 121 The Colleges operate on the basis of four terms per year, of 10 to 12 weeks duration. Term 1 is now well underway. The award currently provides for a further increase for other classifications on 1 January 2006, a 4% increase having already flowed in January 2005. 122 I have concluded that rates here awarded should be increased in three roughly equal steps. The first from the end of term 2 2005, the second from the end of term 3 and the last, from 1 January 2006. The existing increase for full-time teachers due on 1 January 2006 will not be disturbed. The further step of that scale will also operate from that date. Award Variation 123 The parties should confer promptly about the terms of the variation which will give proper effect to the conclusions here reached. In this respect, it might be sensible for them to agree on one date, as reflecting the end of terms 2 and 3 in 2005, given that this might not be a common date for all Colleges. Otherwise, the variation should reflect what was finally proposed by the Unions, other than in two respects. Firstly, in relation to the numbering proposed, which seems is inaccurate given the provisions of the current award and what is proposed in Clause 4 of the amended application. 124 Secondly, in relation to the name of the new classification. The name proposed for the clause 3.1.4 'ACE Tutor Level 4' seems inapt, given the award definitions of 'ACE Provider' and 'Tutor', which seem to have no relevance to AMEP teachers. The new classification will be known as 'AMEP Tutor', which must also be reflected in the new paragraphs proposed in Clauses 5 and 6 of the Unions' application. 125 The parties are directed to confer promptly. The agreed variation should be filed within 14 days from the date of this judgment. In the event of any disagreement, the parties should file their competing versions of the variation, within that timeframe. 126 The matter will be listed for further consideration at 9.30 am on 1 April 2005. ------------------------ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.