Industrial Relations Commission of New South Wales CITATION: Community Colleges Tutors (State) Award [2007] NSWIRComm 213 NSW Teachers Federation PARTIES: NSW Independent Education Union Community Colleges of NSW FILE NUMBER(S): IRC 7/540 of 2007 CORAM: Harrison DP CATCHWORDS: Application for new award - wage increase of 4% per annum. Consolidation of prior award variations - respondent employers failed to appear - absence of contradictor is consent - application industrially reponsible - requirement of s 10 of the Act to set fair and reasonable conditions of employment met - public interest considerations satisfied - Award made. LEGISLATION CITED: Industrial Relations Act 1996 Community College Principals (New South Wales) Award 2006 [2007] NSWIRComm 84 CASES CITED: Secure Employment Test Case (2004) 137 IR 354 Family Provisions Case 2005 (No 2) (205) 152 IR 367 2006 State Wage Case (2006) 153 IR 268 HEARING DATES: 8/8/07, 23/8/07 DATE OF JUDGMENT: 27 August 2007 EXTEMPORE JUDGMENT DATE: 23 August 2007 APPLICANTS Mr M Gibian of counsel for NSW Teachers Federation LEGAL REPRESENTATIVES: Mr G Maniatis for NSW Independent Education Union RESPONDENT No appearances JUDGMENT: - 8 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Monday, 27 August 2007 Matter No IRC 540 of 2007 COMMUNITY COLLEGES TUTORS (STATE) AWARD Application by NSW Independent Education Union and another for a new award DECISION [2007] NSWIRComm 213 1 This is a joint application by the NSW Teachers Federation and the NSW Independent Education Union seeking the making of a new award pursuant to s 10 of the Industrial Relations Act 1996 ("the Act") to regulate wages and conditions for tutors employed in community colleges. 2 The application was filed on 11 May 2007 and progressed as a major industrial case in accordance with Practice Direction No 8A. This procedure led to hearing of the matter on 8 August 2007. 3 Mr Gibian of counsel appeared on behalf of the NSW Teachers Federation with Ms L Hankinson; Mr G Maniatis appeared on behalf of the NSW Independent Education Union ("the Applicants"). 4 There was no appearance from any respondent employer, despite extensive service of the application upon Presidents of individual Commonwealth colleges; Mr John Shugg, Executive Director of Community Colleges New South Wales, a body representative of community colleges; the Honourable Mr John Della Bosca, New South Wales Minister for Education and Training; the New South Wales Department of Education and Training; and Employers First (now known as Australian Federation of Employers and Industries (AFEI)). 5 The Minister responded by correspondence informing the Industrial Registrar that he did not intend to make any submissions in the proceedings. 6 AFEI advised that it had no members affected and sought removal from respondency and to be excused from the proceedings. Leave to be excused was allowed. 7 The Applicants seek a comprehensive award detailing conditions of employment and adjustment of rates of pay from the first full pay period on or after the date of the application, 11 May 2007, by an amount of four percent; and a further four percent from the first full pay period on or after 1 January 2008, and from the first full pay period on or after 1 January 2009. 8 The application also seeks to consolidate a number of variations that have been made to the Award over the past two years, specifically that by her Honour Justice Schmidt in Matters No IRC 3259 and 4195 of 2004 [2005] NSWIRComm 83 which established the classification and rate of pay of Adult Migrant English Program (AMEP) Tutor; and gave effect to the standards enunciated in the Secure Employment Test Case (2004) 137 IR 354 and the Family Provisions Case 2005 (No 2) (205) 152 IR 367. 9 The application (Ex 1) was amended by leave of the Commission to correct minor arithmetical issues (Ex 2). 10 The grounds and reasons in support of the application are set out in Schedule B thereto in the following terms: 1. The nominal term of the 2004 award expired on 31 December 2006. 2. The applicants seek improvements for salaries and rates of pay consistent with the State Wage Case Wage Fixing Principles. 3. Current salaries and rates of pay are below rates of pay for casual teachers under other awards including those awarded by the Industrial Relations Commission in special cases applying to teachers in Government and Catholic schools. 4. The application is in the public interest. 5. Such other grounds and reasons as the Industrial Relations Commission may deem fit and proper. Particulars: 1. The State Wage Case Principle permits claims for increases in salaries and rates of pay to be processed as a special case. 2. Changes in the work value of tutors employed by colleges have occurred which have not been appropriately compensated by increases in salary and rates of pay. 3. There have been significant increases in the value of the work of Community College tutors arising from among other things: ♦ competition with TAFE and private providers so that tutors have had to update their qualifications and other commensurate skills as their TAFE counterparts; ♦ increased community expectations in the implementation of legislation, policies and procedures; ♦ greater accountability in the form of appraisal; ♦ greater flexibility in the type of delivery and hours of service; ♦ increased curriculum diversity has meant constant updating of skills and knowledge base. The work value issues identified above have not been fully assessed and compensated for in salaries and rates of pay presently paid to community college tutors. It is in the public interest that Community College Tutors should receive fair, reasonable and market competitive salaries and rates of pay. 11 The Applicants submitted that while the Award sought was justified on the Work Value and Special Case principles of the Wage Fixation Principles (see 2006 State Wage Case (2006) 153 IR 268), it should, in the absence of a contradictor, be made by consent of the parties in accordance with Principle 2(e). 12 Mr Gibian, supported by Mr Maniatis, referred to a Decision by the Commission as presently constituted in the Community Colleges Principals (New South Wales) Award 2006 [2007] NSWIRComm 84 in which the absence of opposition was determined as consent. The Applicants rely particularly upon para 20 of the Principals Decision: 20 Mr Hatcher submitted that the absence of contradiction should be taken as consent. Mr Hatcher referred to a judgment of Peterson J in Matter No 763 of 1994, Marine Motor Drivers Coxswains &c (State) Award [1994] NSWIRComm 57 wherein his Honour determined that an intention by a party (in that matter Employers' Federation) to make no submission was accepted as an indication of its acquiescence or consent. Mr Hatcher further referred to a decision of a Full Bench of the Commission in Re Transport Industry (State) Award (2002) 120 IR 151 in which the Marine Motor Drivers Coxswains &c (State) Award was cited with approval and the absence of submissions accepted as acquiescence. At para 8 of its judgment (120 IR at 152) the Bench said: As to the non-appearance by Employers' First and the absence therefore of an expression of view of that organisation in these proceedings, and having regard to the expressed view by Full Benches in that regard in the 1996 and 2000 special case judgments, we do not regard the position as affecting the consent which exists in these proceedings. We are satisfied that the matter may be dealt with under principle 2(e). 13 The Applicants submitted that the Award sought and rates of pay were industrially justified and consistent with the history of the Award. 14 Mr Gibian set out the history of the Award in his written submissions (Ex 7) in the following terms: 8. The first Adult and Community Education Tutors (State) Award was made on 9 October 1999 ("the 2000 Award") by consent: see 317 IG 1137. The Award established three classifications of ACE (Adult Community Education) Tutor Level 1, Level 2 and Level 3 to reflect the type of work performed in the industry at the time. The initial award rates were established by agreement by reference to the then "going rates", as required by the First Award and Extension to an Existing Award principle. Each classification contained a three step internal incremental scale based upon the number of hours taught and had separate rates depending upon whether the employee is engaged on a casual/sessional basis or on a full-time basis. 9. The 2000 Award expired on 31 December 2002 and negotiations occurring during 2003 resulted in a consent award being made on 3 March 2004 ("the 2004 Award"): see 344 IG 1471. The 2004 Award maintained the three classifications of Tutor Level 1, Level 2 and Level 3 and made provision for a 12% increase in salaries over three years commencing 1 January 2004. There was no increase in rates between 1 October 2002 and 1 January 2004. … … There have been no rate increases at all since 1 January 2006, over 18 months ago. They have been increased by consent, and consequently have never been subject to a work value assessment by the Commission or State Wage Case adjustment. 10. A further classification of AMEP Tutor was inserted into the award as a result of a decision made by Schmidt J in arbitrated proceedings in 2005: Community Colleges Tutors (State) Award [2005] NSWIRComm 83. In that decision, the Commission did engage in a work value assessment of AMEP (Adult Migrant English Program) Tutors. However, the rates for casual/sessional AMEP Tutors awarded by Schmidt J were explicitly aligned to the first four steps of the five step scale in the public sector NSW Adult Migrant English Service Crown Employees (Teachers, Education Officers and Senior Education Officers) Consent Award (now known as the Crown Employees NSW Adult Migrant English Service (Teachers and Related Employees Award 2006 - "the AMES Award"): see [112]. Similarly, the top step for the full-time AMEP Tutors rate was aligned with the eighth step for full-time teachers in the AMES Award: see[111]. This created a nexus between the AMEP Tutors rate in the Award and the AMES Award rates. As a result of further increases since the judgment of Schmidt J, the rates in the AMES Award are now 6.09% ahead of the rates for AMEP Tutors under the Award, and will be 9.27% ahead absent any adjustment to the AMEP Tutors rates in the Award. 15 The application was first advanced pursuant to the Work Value and Special Case principles and supported by evidence of productivity and changes in work requirements. 16 Mr Gibian relied upon the affidavit of Ms Maree O'Halloran, President of the NSW Teachers Federation (Ex 3); the affidavit of Mr Rex Hewett, Industrial Officer of the NSW Teachers Federation (Ex 4); and the affidavit of Ms Deb Worsley-Pine, Tutor, Sydney Community College (Ex 5). 17 Mr Maniatis relied upon a Statement of Ms Verena Heron, Officer, NSW Independent Education Union (Ex 8). 18 Mr Gibian addressed the productivity considerations and changes in work in the following terms (Ex 7): 11. There have been significant changes in the work and productivity of Community College Tutors since 1 January 2000 when the first award became effective. The main features of these changes are: 11.1 Tutors have maintained the range of services and service standards in Community Colleges despite real reductions in the level of public funding. 11.2 The work of Vocational Education and Training Tutors has become more complex due to the increased community expectations of the quality of the courses that Community Colleges provide. The community now expects professional course delivery which requires high levels of teaching skills and the effective use of technology. 11.3 The increasing registration of Community Colleges as Registered Training Organisations requires these colleges to adhere to rigorous additional accountability requirements demanded by the Australian Quality Training Framework Standards for Registered Training Organisations, July 2005. These standards require Tutors to: • comply with Commonwealth and State and Territory legislation and regulatory requirements; • adhere to government auditing and compliance systems for the delivery of quality training, assessment and professional development systems; • maintain effective financial management, administrative and records management procedures; • comply with recognition of prior learning and qualification guidelines; • develop access and equity guidelines; • develop programs for ensuring quality staff training and development; • develop learning and assessment strategies; and § develop systems for management of student accountability measures. 11.4 Community Colleges have been subject to the adoption of new processes for Vocational Education and Training courses, including the traditional adult education courses including: • New arrangements for entry level training, the delivery of apprenticeships and traineeships through the New Apprenticeship System and a greater emphasis on vocational education in schools and Community Colleges. • The introduction of National Industry Training Packages consisting of material competency standards, assessment guidelines and qualification levels appropriate for the industry, enterprise or occupation and non endorsed components such as learning strategies, assessment resources and professional development material. • Opening the training market to competitive tendering to allow students to choose the Registered Training Organisations most suited to their educational needs including Community Colleges. 11.5 Community Colleges Tutors have experienced widespread changes to the way they work and interact with colleagues within their institutions and more importantly in their relationship with "clients" whether they be individuals, professional groups, industry associations, local employers, group training companies or local community groups. In particular, Tutors have been required to: § be subject to greater flexibility in staffing arrangements. § more closely liaise with individuals, industry, universities, TAFE and private Registered Training Organisations. § give greater emphasis to cooperation, coordination and the implementation of Community College education programs in a variety of locations. § provide flexible delivery of education programs, reflecting changes to work organisation and technological changes as well as the diversity of the type and range of learning abilities in the student population. 11.6 Community College Tutors have had to work in significantly different ways using a variety of current and new skills. Competency based training and assessment approaches, recognition of prior learning, community liaison, flexible delivery, new technology and quality assurance have increasingly contributed to the work of principals and tutors in Community Colleges and have increased their work value over time as has the requirement of Australian Qualifications Framework. 19 The application was further supported on the basis of the placement of the classification in the educational sector and cost of living grounds. 20 Mr Gibian noted that adjustments to rates of pay for community college tutors have fallen well behind recent salary increases for teachers in the education sector generally. 21 Mr Gibian referred to the position of AMEP tutors specifically in the following terms (Ex 7, [13])" 13. The application in this matter proposes the same rate of increases for AMEP Tutors as for the other Tutor classifications over the life of the proposed award. Having regard to the established nexus between the rates for AMEP Tutors and the AMES Award referred to above, the following submissions are made: 13.1 The rate for AMEP Tutors if the application is granted will still be about 1% below the equivalent rates in the AMES Award as at 1 January 2008. Therefore, to the extent that this represents a departure from the nexus, it advantages the employer. 13.2 The proposed award extends into 2009, whilst the AMES Award expires on 31 December 2008. This is the case because the respective commencement dates of the Award and the AMES have not been synchronous. This requires the setting of a rate of increase for AMEP Tutors under the Award for a period in which no rate increase has as yet been agreed or determined under the AMES Award. 13.3 Having regard to the 1% deficit still existing in 2008, a 4% increase for AMEP Tutors under the Award is a reasonable estimation of the amount necessary to maintain the nexus through to 2009, and in any case is a fair rate of increase having regard to salary movements in the educational sector generally, the projected rate of inflation, general improvements in the productivity of Community College Tutors described above, and the need to maintain internal relativities in the Award. 22 I am satisfied on the material put that the application should be granted. I adopted the principles applied in the Principals case in respect to an uncontested application. I am further convinced on the submissions put and the evidence available that the application is not against the public interest and is industrially responsible. The award is varied in terms of the application as amended, which I find satisfies all requirements for the making of an award pursuant to s 10 of the Act. 23 The parties subsequently provided the complete award in hard copy and electronic form (Ex 10). 24 The Community Colleges Tutors Award is made in the terms of exhibit 10 to apply from 11 May 2007 until 31 December 2009. 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.