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T2417, T3611, T3709, T2113, T3690 & T4074 - 27 August

 

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.23 application for award or variation of award

Tasmanian TAFE Staff Society
(T.2417 of 1990)
(T.3611 of 1991)
(T.3709 of 1992)
(T.4074 of 1992)

and

Tasmanian Public Service Association
(T.2113 of 1989)

and

Minister administering the Tasmanian State Service Act 1984
(T.3690 of 1992)
(T.4074 of 1992)

TECHNICAL AND FURTHER EDUCATION STAFF AWARD

 

COMMISSIONER R K GOZZI

HOBART 27 August 1993

Award - Wage Rates and Conditions of Employment - TAFE Award "Special Case" Applications - State wage Case October 1989 - Structural Efficiency Principle

REASONS FOR FURTHER INTERIM DECISION

INTRODUCTION

The Commission gave effect to the second instalment structural efficiency adjustment1 in the Technical and Further Education Staff Award in August 1990. At that time the Commission indicated that the variation increasing award salaries was made on an "interim basis pending the outcome of Special Case proceedings consequential to the arguable case finding of the President in Anomalies Conference T.A. 65 of 1990"2

In varying the award in that way the Commission had regard for the structural efficiency initiatives presented by the Minister administering the Tasmanian State Service Act, 1984 (hereinafter referred to as the Government) and the Tasmanian TAFE Staff Society (the Society). Those initiatives were set out in a Memorandum of Understanding (the Memorandum) between the parties, Exhibit W2 including a framework for achieving the following objectives:

  • "Restructuring the Award so as to establish skill-related career paths which provide an incentive for employees to continue to participate in skill formation;

  • Eliminating impediments to multi-skilling and broadening the range of tasks which an employee may be required to perform;

  • The creation of appropriate relativities between different categories of employees within the Award and at enterprise level;

  • Ensuring that working patterns and arrangements enhance the flexibility and efficiency of the Technical and Further Education System;

  • Removal of administrative and organizational barriers which militate against the most effective use of employees across areas in which they have expertise;

  • The need to achieve improved productivity and efficiency, both as ends in themselves and to avoid adverse Grants Commission adjustments to Tasmania;

  • The development or organizational structures and mechanisms in TAFE colleges which will facilitate multi-skilling and career progression;

  • Rationalisation of the Award in an administratively efficiency manner to accommodate these outcomes and to incorporate, where practicable and/or appropriate, conditions of employment derived from existing Agreements, Regulations, Standing Orders and other Awards."

    Exhibit W2 p.2

The Memorandum also set out the in principle agreement between the Government and the Society for a 16 level classification structure in the award which was specified in the Memorandum in the following terms:

"The parties agree that:

(a)   In-principle agreement has been reached for the introduction of a sixteen level restructured TAFE Staff Award, which will include provision for employees engaged in the following work categories:

Teaching
Technical
Librarian
Clerical/Administrative (non SES)
Operational
Educational Management

(b)   The parties recognise that the clerical/administrative and operational classifications may be derived from the public sector generic restructured awards and that employees falling within those classifications may possibly be more appropriately covered by the generic awards.

It is the preferred position of the Controlling Authority that provision ultimately be made in the finalised restructured Award for all staff employed within the TAFE system. It is, however, recognized that as other State Service Awards proceed towards restructuring finalisation, other logical and practicable options may emerge.

It is the preferred position of the Controlling Authority that the non-teaching classifications contained in the restructured Award will, where relevant, mirror the appropriate segments of the proposed generic State Service Awards.

The rights of all parties to this Memorandum to pursue their preferred positions in relation to this matter are fully preserved, although the parties are confident that the process of consultation and negotiation will result in a mutually acceptable outcome.

(c)    The TAFE Staff Award restructuring process will include:

A joint review of all current positions in relation to definitions and classification standards;

Making provisions in the new award to ensure positions can be classified consistently;

An extensive programme of job redesign.

(d)    Definitions and classifications standards appropriate to the restructured award, including all classifications contained in the current Award, will be developed by 2nd January 1991. Priority will be given to the definitions and classification standards of the Advanced Skills Teacher levels so as to permit their implementation from 2nd January 1991.

(e)    Staff employed under the restructured Award will, as appropriate, be prepared to teach, advise, assess, write courses and provide consultancy services in colleges, industry, and industry training centres."

Exhibit W2 p2/3

The Commission was also informed by the Government's representative in the second instalment structural efficiency matter that:

"...the parties hope to discuss their 16 level structure during the course of the special case negotiations and proceedings."

Transcript p92

This point was reiterated by Mr Holden, who appeared for the Society at that time and also in these Special Case proceedings, when he said:

"There is in-principle agreement that it would move to the 16 level structure, again, if necessary by conciliation or arbitration of the specific rates."

Transcript p161

Clearly the Memorandum was intended to be the focus and to provide the parameters for continuing discussions between the Society and the Government in respect of the Special Case. In that regard the Commission is in no doubt that the Society formulated its claims in this matter on the basis of extensive discussions with the Government. The submissions of Mr Brough, also appearing for the Society were unequivocal on this issue. He submitted that the Society had taken account of:

"... discussions and positions reached with the Government in respect to a new structure. These discussions have been ongoing in the context of the classification committee and in other forums ... for a period of at least 3 years. Quite clearly the intention of the parties was to restructure the award and the manner in which the award was to be restructured we believe was reflected in our claim."

Transcript p4327/28

Notwithstanding the foregoing it became obvious, as the Special Case progressed, that to all intents and purposes the classification structure in the Memorandum was no longer supported by the Government. Mr McCabe, for the Government, acknowledged this at various times in the proceedings, primarily indicating that:

"While there was in principle agreement for a certain number of levels to be used, that agreement has been overtaken by a decision to utilise much more compact and flatter structure with fewer reporting levels. ... on this basis the government submits that it cannot agree with the salary structure which has been submitted by the Staff Society's application. Nor for the reasons which have been put to you in our detailed submissions on work value, economic grounds and public interest, can we agree to any increases in rates of pay for TAFE teachers being awarded as a result of these proceedings."

Transcript p.3692

The Commission is acutely aware of the importance the Society placed on the Memorandum and that it is looking to the Commission to support its stance in that regard. It is therefore important for the Commission to make its position clear at the outset.

The Memorandum was considered by the Commission in the second instalment structural efficiency matter to have provided the framework which would underpin ongoing Special Case negotiations between the Society and the Government. This turned out not to be the case. Whilst the Commission was deeply concerned about what it regarded to be an abandonment by the Government of an in principle agreement between it and the Society, particularly in respect of the classification structure, it made it clear that it would not and indeed could not "constrain"3 the Government from putting its case as it wished. The Commission's obligations in that regard are predicated on Section 20 of the Industrial Relations Act, 1984 (the Act) which requires it to act according to equity, good conscience and the merits of the case put before it. The Commission also has to have regard for Section 36 of the Act.

Given the many frustrations that came to the fore in these proceedings relating to the status of the Memorandum and the apparent inability of the parties to agree on anything, the hearings became very difficult and at times bitter, as the breakdown in any meaningful dialogue between the Society and the Government became irretrievable. Even Commission directed conferences were abandoned by the Commission as every opportunity for even a modicum of consensus evaporated. In my opinion the parties did themselves and TAFE a great disservice in allowing their differences to manifest to such an extent; albeit the Society had reason to view with extreme dismay the Government's apparent turn around from an agreed in principle position.

Against that background these Special Case proceedings became extremely intense and protracted. Over four and one half thousand pages of transcript were produced, in excess of 250 exhibits were tendered and considerable sworn evidence was presented. This was quite apart from the many separate dispute hearings that occurred whilst this case was in progress.

Having regard to what is now before the Commission and the amount of time this case has taken, it is extremely unfortunate that the Government and the Society missed an important opportunity to negotiate outcomes, taking into account all of the issues and circumstances, including economic and public interest matters, to satisfy their competing and yet in many respects, common interests.

Given the shift in the Government's position away from the classification structure in the Memorandum including the creation of Associate Director positions and seeking to have all classifications not involving a direct teaching component removed from the award, there arose, in my opinion the need to allow the Society to amend its application to take account of the changes sought by the Government. In my judgement that was the most expeditious and straightforward manner in dealing with the many issues that were brought before the Commission for determination.

This procedural approach adopted by the Commission was of extreme concern to the Government, prompting the Secretary of the Department of Employment Industrial Relations and Training (the Department) to write to the Commission expressing the strong view that the Government's position would be prejudiced in the event its application was not joined with the Society's application. The Commission made it clear in the proceedings that as all of the relevant subject matter was already before the Commission no good purpose would be served in joining further applications in the manner requested. It was surprising, therefore, in the light of the Commission's ruling, for the Department to have concluded that the Government would be somehow prevented from fully arguing its case. However in order to further reassure the Department on this particular procedural point the Commission issued a separate decision4 indicating that all matters were already comprehended in the Society's application as amended from time to time. The reason for this decision was to provide the Government with the opportunity to test the Commission's ruling in appeal proceedings. This did not eventuate.

OVERVIEW

The Society informed the Commission that it sought to advance its claims from the Datum Point in September 1981 on the basis of three basic criterion. These were that its claims were in the public interest and satisfied the Work Value Changes and Structural Efficiency Principles of the October 1989 Wage Fixing Principles. Mr Holden also indicated that the Society would address changes that had occurred and were continuing to take place as a result of decisions by both the Department and Colleges.

The Society prefaced its submissions on the publication "Skills for Australia" Exhibit H23. Mr Holden submitted that this was the most significant publication in recent years concerning the TAFE sector. He stated that the document formed the "basis"5 of many of the changes which had and were continuing to occur in TAFE. He said:

"...in terms of the productive work force of the country and its impact on the Australian economy, TAFE is equally as important as the general education sector. TAFE is and will remain the major deliverer of vocational education and training needed by the work force if Australia is to become a more productive, flexible and efficient economy. In short, the much heralded clever country.

The general education sector is in the business of preparing students in the 5 to 17 age group for ongoing higher education. TAFE's brief is the vocational and education training of all Australians that will result or will not result in the more effective, efficient and productive work force the Australian government is seeking."

Transcript p.321/22

The foregoing report was extensively referred to by Mr Holden to highlight the major role of TAFE in responding to the economic challenges facing Australia. In the Foreword of "Skills for Australia" the following comments appear:

"The world's most successful economies over the past two decades have given high priority to education, skills and competence at work as vital factors in economic performance, and have supported their skills development policies accordingly. Now we must do likewise."

and later

"2.2.1 The TAFE System

Prior to 1974 there was no recognised system of technical and further education in Australia. Thirteen years later, thanks to the combined efforts of the Commonwealth and State Governments, TAFE is a significant national resource and a key element of Australia's education and training system.

The development of TAFE since the mid 1970s has been a major national achievement, and provides a sound basis for the further developments which must now be pursued over coming years. In the period since 1974 TAFE enrollments in vocational and preparatory courses (Stream 1-b) have almost doubled, rising from 458,000 to more than 850,000. Concurrently, enrollments in recreational, leisure and personal enrichment courses (Stream 6) have risen from 133,000 to 457,000. By 1985 more than 1.3m Australians were participating in TAFE each year, representing a level of student load roughly equivalent to that carried by universities and colleges of advanced education combined.

Of all education sectors, TAFE has the strongest links with the labour market and is the most directly affected by changes in labour market conditions, particularly for young people. A high proportion of TAFE students are participants in TAFE precisely because of their labour market circumstances, whether as apprentices or trainees, unemployed young people seeking to improve their labour market prospects, women seeking to re-enter the workforce after a period of absence, or workers seeking to upgrade their vocational skills within employment. More than three quarters of all TAFE teaching effort is directed to courses with a specifically vocational orientation, and another 19% to courses of a preparatory or remedial nature.

TAFE then, is a key element of Australia's vocational education and training system, and will be central to the Government's concerns to upgrade the quality of our labour force skills. More than this, TAFE is a recognised system in its own right, with a charter which extends well beyond the provision of narrowly-based skills training for industry.

It has a major role in providing broadly-based and adaptable skills to young people seeking to establish a foundation for future career development. Its student population is the most diverse of all the tertiary sectors, as well as the most representative of the general Australian community. TAFE is also the most geographically accessible of the post-school sectors; it has a wide range of bridging programs to facilitate access to mainstream study or employment; and its general ethos is typically sensitive to the needs of the disadvantaged and understanding of their circumstances."

(My underlining) Exhibit H23 pages (iii) & 30 to 32

Mr Holden submitted that "Skills for Australia" comprehended macro changes for TAFE as a result of decisions by the Australian Government. However, he said that "in a micro sense wholesale changes were imposed on the TAFE system by the State Government or by changes in Departmental policy"6 which in many cases had resulted in increased work value. It was also the submission of Mr Holden that the work of TAFE teachers was essentially the same in all States and that changes in the period of review had applied broadly in the same manner.

Mr Holden stated that in the circumstances and given that the Society's claims fell within the Structural Efficiency Wage Fixing Principle (SEP) which was first determined by the Australian Commission, and subsequently adopted by this and other wage fixing tribunals, the Society had an expectation that there would be a "commonality of outcomes"7. On that note Mr Holden submitted that the Society's claim for salary increases was "in line with the national benchmarks as established by the Australian Teachers Union and the ACTU for TAFE teachers"8

Accordingly, in support of that position on salaries, Mr Holden drew comfort from decisions of other tribunals which he contended supported the adoption by this Commission of a national benchmark salary for TAFE teachers in Tasmania.

Mr Holden said:

"The TAFE system is required to respond to the national state training agenda in a fundamental way. It is becoming more national in its focus. The move to competency based training based on the National Training Board's initiatives is a further example. TAFE is more central to the award restructuring process and its effect on the community and the Government's micro-economic reform than any other education or training sector. Therefore, the need for TAFE teachers to be properly rewarded is even more pressing than in other educational sectors."

Transcript p.364

The Commission acknowledges the thrust of Mr Holden's submissions that regard should be had to national developments and decisions. In that context the Commission noted the salary awards made by other tribunals as set out in the various exhibits tendered by Mr Holden. It is therefore relevant to indicate that the Commission adopts the findings of the Full Bench in the Teachers case9 where the Bench said:

"For our part we accept that as a matter of equity, decisions of other tribunals and the reasons advanced for arriving at such outcomes can be useful where the circumstances are the same or very similar. However, as a Tasmanian tribunal our primary task is to determine whether or not the strict tests as to merit and public interest can be met on all of the evidence and other material before us, before considering other relevant material."

Decision p.2

THE SALARY CLAIMS

Many matters were brought before the Commission for determination. As stated earlier new matters and amendments to the Society's applications T.2417 of 1990 and T.3709 of 1992 were permitted by the Commission in an endeavour to address issues arising as a consequence of the altered attitude of the Government to the Memorandum, classification structure and other Departmental developments which were sought to be covered by the Society in these proceedings. Accordingly it is useful at this point, to document events impinging on the classification structure and salaries claims which were before the Commission.

In that regard the Society's application T.2417 of 1990 contained matters going to a 16 level salary structure. Given what transpired with the Memorandum, the Commission directed the parties to identify respective Agenda items for consideration in this Special Case. On 13 May 1991 the Commission received the Society's agenda attached as Appendix A, and the Government's agenda attached as Appendix B on 17 May 1991.

At that stage of the proceedings the Society, among other things, claimed a 15 level classification structure whilst the Government indicated its desire for a reduction in the number of management levels in the award, consideration of removal of Technical Education Employee classifications and for non teaching classifications to "mirror appropriate segments of the proposed generic State Service Awards".

Whilst amendments were made to the classification structure and to the salaries claimed by the Society, the Commission does not intend to document every change. However it should be noted that the Society's final position in T.3709 of 1992 was for a fourteen level classification structure and salary levels. This position including its fallback position was set out in Exhibit H172. Accordingly the structure sought by the Society in Appendix A and that contained in Exhibit H172 is set out hereunder. In addition Exhibit H172 is attached to this decision in its entirety as Appendix C as it details the Society's claim in full including fall back positions.

1.    Society's Claim - Appendix A

LEVEL

SALARY
RATE

TEACHER

AST

D.HOS

HOS

DP

P

EDUC. ADMIN

A/ED

ERC

1

28225 (28931)

*

         

*

*

 

2

30504 (31267)

*

         

*

*

 

3

32783 (33603)

*

         

*

*

 

4

35061 (35938)

*

         

*

*

 

5

37341 (38275)

*

         

*

*

 

6

39620 (40611)

*

       

*

*

*

 

7

41900 (42948)

*

       

*

*

*

 

8

42833 (43904)

 

*

         

*

 

9

43867 (44964)

 

*

     

*

*

*

 

10

45834 (46980)

 

*

*

   

*

*

*

 

11

47800 (48955)

         

*

*

*

 

12

49967 (51216)

         

*

*

*

 

13

52133 (53436)

     

*

*

*

 

*

 

14

55881 (57278)

         

*

*

   

15

59629 (61120)

         

*

*

   

Note: the figures in brackets represent the August 1991 State Wage Case Increase10 and they are as reflected in the Society's Exhibit H22.

2.    Society's Claim in Exhibit H172 - Including Fall Back position as shown in brackets

Level

Annual Salary
$

1

28931

(28931)

2

31267

(30942)

3

33603

(32953)

4

35938

(34964)

5

38275

(36976)

6

40611

(38988)

7

43948

(41000)

8

44964

(42925)

9

46980

(44849)

10

48995

(46773)

11

51216

(48893)

12

53436

(51012)

13

55997

(53457)

14

58559

(55903)

3.    The claim in Exhibit H172 , may be further extrapolated as follows:

Salary Levels Classification

Levels 1 - 7 Teacher and Teacher related classifications
Levels 8 - 10 Advanced Skills Teachers
Levels 9 - 10 Head Teachers (a) and (b)
Levels 8 - 12 Head of Department 1 - 5
Levels 13 - 14 Associate Directors 1 - 2

Adult Education

Levels - 7 Adult Education Officer Grade 1
Levels 8 - 9 Adult Education Officer Grade 2
Levels 10 - 11 Senior Adult Education Officer
Levels 12 - 13 Principal Adult Education Officer

Teaching/Training Administrative

Levels 1 - 7 Technical Education Officer Grade 1
Levels 8 - 9 Technical Education Officer Grade 2
Levels 10 - 11 Principal Education Officer
Levels 12 - 13 Principal Education Officer Grade 1
Level 14 Principal Education Officer Grade 2

Having regard to the foregoing claimed salary levels and classification structure I was informed by Mr Byrne, intervening for the Australian Teachers Union (ATU) of the outcome of TAFE salary claims in other States and Territories, including where agreement had been reached between the union and employer. The details are as follows:

4.     Base Incremental Salary Scale Structure

NSW

VIC

Q'LAND

S.AUST

W.AUST

ACT

NT

TAS

40922

41000

41000

39155

44605

41000

42948

  33240*

38966

38950

39463

37720

42972

39853

41154

32253

37013

36080

37925

36234

41336

38546

37976

31276

35141

33108

36388

34748

39938

37299

36336

30189

33702

30340

34850

33261

39338

35554

34799

29047

31734

28085

33313

31775

37942

34104

33774

27918

29198

 

31775

30289

36133

32544

32749

26951

27245

 

30238

28803

34742

31104

31621

25974

   

28931

 

33370

29879

30494

24371

       

32089

28241

28495

22772

       

30528

 

24600

21644

       

29220

     
       

27926

     
       

26661

     
       

25445

     
       

24205

     
       

21959

     
       

20888

     
       

19832

    * exclusive
       

18727

   

of allowances

I was told by Mr Byrne that the rates for Victoria were phased to January 1993. With regard to the ACT those rates were offered by the employer and included the 2.5 per cent August 1991 National Wage Case adjustment. The Tasmanian rates are exclusive of the allowances that apply to technician and general studies teachers respectively. That is teachers of technician type courses receive an additional allowance of $4185 p.a. whilst general studies teachers receive an additional allowance of $1866 p.a. Accordingly the top figure in the base incremental scale for Tasmania is therefore increased by the allowance applicable to individual teachers. Or put another way the salary for a technician teacher is $37427 p.a. and for a general studies teacher $35106 p.a.

 Having regard to those allowances Mr Byrne indicated that , inclusive of the 2.5 per cent August 1991 National and State Wage Case increases, the maximum and minimum rates of pay in the base incremental scale for teachers throughout Australia were as follows:

MAXIMUM/MINIMUM ON THE INCREMENTAL SCALE

NSW

VIC

Q'LAND

SA

WA

ACT

NT

TAS

 

40992

38431

41000

39155

44605

41000

42948

37425

MAX

27245

26466

28931

28803

18727

28241

24600

21644

MIN

The Victorian rates moved to $41,000 p.a. at the top and $28,085 p.a. at the base in January 1993 following the phasing in of increases.

Mr Byrne submitted the benchmark claim,

"... at $41,900 ($42,948 with the 2.5 per cent adjustment) has not yet been achieved in most states. But a figure a common figure is appearing as a result of the outcome of negotiations and commission decisions of around $40,000 with some variation and adjustment with the 2.5% to bring that figure to approximately $41,000. As many of those top figures tend to indicate."

Transcript p414

The substance of Mr Byrne's submissions on this issue were that the claimed TAFE benchmark of $42,948 (inclusive of 2.5 per cent) had not been achieved anywhere except in the Northern Territory. Apart from that the top incremental base salary rates applying elsewhere in Australia are around the $40,000 p.a. to $41,000 p.a. mark as indicated in the table above.

The Society supported the submissions of Mr Byrne for this Commission to take "a national approach and a national perspective"11 in determining rates of pay for teachers. It was emphasised that the ACTU and teacher unions had given a commitment to nationally consistent benchmarks free from leapfrogging.

By comparison the classification structure and salary levels sought by the Government were set out in Exhibit M36 in the following terms:

5.  Government's Claim
     Exhibit M36 - attached as Appendix D

An employee appointed or promoted to a position within a class or grade prescribed by this award shall, subject to the prescribed requirements, be paid at the salary rate determined for the relevant classification:

DIVISION A - TECHNICAL AND FURTHER EDUCATION COLLEGES

(1)    TECHNICAL TEACHER

SALARY PER ANNUM

   

$

 

1st salary step

25,974

 

2nd salary step

26,951

 

3rd salary step

27,918

 

4th salary step

29,047

 

5th salary step

30,189

 

6th salary step

31,276

 

7th salary step

32,253

 

8th salary step

33,240

Provided that:

(a) The minimum commencing salary of an employee classified in accordance with the above scale shall be the salary prescribed for the first salary step.

(b) Subject to an employee receiving satisfactory annual performance appraisal reports, progression from one salary step to a higher salary step shall be by annual increments.

(c) A beginning teacher shall not progress more than two steps beyond the commencing salary unless he/she has successfully completed a teacher training course acceptable to the controlling authority and has complied with paragraph (b) of this part.

(d) General Studies Teachers, Technician Level Teachers, Head Teachers of approved Technician type certificate courses and Advanced Skills Teachers who are in receipt of the allowance shown below continue to receive those allowances at the commencement of this Award. PROVIDED FURTHER that such allowances shall be reduced commensurate with any salary increase until such time as the allowance component becomes nil.

 

ALLOWANCE
$

General Studies Teachers

1,866

Technician Level Teacher

4,185

Head Teacher - Technician Courses  
Class I

1,398

Class II

976

Class III

559

Advanced Skills Teacher  
I(c)

4,185

I(b)

1,866

   

SALARY

(2)    ADVANCED SKILLS TEACHER

34,463

(3)    HEAD OF DEPARTMENT

42,991

At this stage it is appropriate to make some further observations about the competing claims before analysing their respective merits. In that regard it is to be noted that as Mr Holden and Mr Brough pointed out on many occasions during the proceedings, the Society formulated its classification structure on the basis of Memorandum discussions. In my opinion that approach was totally understandable when regard is had to the fact that the Government did not finally identify its preferred classification structure until it made application to the Commission in matter T.3915 of 1992 on 6 August 1992 after this case had been in progress for over 15 months.

During all of that time the Government would not disclose its position in the Commission, stating only that it would make its structure available at the appropriate time. No wonder there was no scope for any meaningful dialogue that could take place between the parties. Even the Government's agenda items in Appendix C which the Commission directed be submitted in May 1991 did not provide a real insight into what was to follow.

In broad terms the Society continued to seek a review of the award in its entirety, that is, all classifications, structures and salaries to be subject to the Special Case review in the context of work value, structural efficiency and public interest. On the other hand the Government, as reflected by its classification structure in Exhibit M36 sought a restructuring of the award on the basis that only direct teaching classifications should be retained in the award.

Mr McCabe submitted that the Society's classification structure and attendant salary levels did not meet the strict dicta of the October 1989 State Wage Case Wage Fixing Principles which have application in this case. He also emphasised that many issues, including divising of classification structures to facilitate the effective and efficient operation of an agency, was the responsibility of each Head of Agency as set out in Section 33 of the Tasmanian State Service Act 1984 (TSSA). Accordingly it was the strong submission of Mr McCabe that the Commission should not interfere with that management prerogative. Whilst the specific issues raised by Mr McCabe will be addressed later in this decision, I have formed the view, having regard to the submissions made by Mr Holden and Mr McCabe, that the findings in the New South Wales Ministerial Reference Case, as discussed later in this decision should apply. In short that case determined that the Commission is able to determine matters relating to management prerogative as long as those matters are able to be defined as industrial matters. However in dealing with those type of issues the Commission should exercise caution.

CHANGING ENVIRONMENT OF TAFE

A general overview of the changing environment within which TAFE operated was provided by Mr Byrne. His submissions also addressed the work of TAFE teachers over the last decade as well as their role in industry and award restructuring.

Mr Byrne informed the Commission that the 1974 Kangan Report provided a national focus to technical and further education, "bringing together separate state systems"12 Mr Byrne informed the Commission that the Kangan Report created the basis for Commonwealth funding for TAFE. He submitted that in the 1980s there was a much greater focus on TAFE's primary role in providing vocational education "while still maintaining its status as a very important social justice body providing equity and access to training and second chance education for people who are disadvantaged"13 Mr Byrne submitted that the Kirby Report in 1985 was an important step in that regard and that it defined the deficiencies in the entry level training system in Australia. He indicated that the Kirby Report led to the development of the Australian Traineeship System as an adjunct to apprenticeship training and that since 1985 this had been predominantly delivered through the TAFE system.

Mr Byrne indicated that as a result of these developments, industry skill centres were formed and TAFE and industry co-operation increased greatly in the latter part of the 1980's. Mr Byrne indicated that around 1987 TAFE restructuring had begun at two levels; at TAFE system level and at the level of the TAFE workforce through the beginnings of award restructuring. The Commission was told that the TAFE system became much more decentralised with devolution of responsibility to the college level for day-to-day and budgetary matters. Award restructuring and development of career paths was also under way.

The publication "Industry Training In Australia" produced by the federal Government was said by Mr Byrne to have emphasised the need for improvement in the quality and effectiveness of training and the increasing and more demanding role for TAFE. It was submitted by Mr Byrne that this publication also highlighted the anticipated growth in training as a result of award restructuring and the growth in the demand for Associate Diploma and Diploma courses.

A further report referred to by Mr Byrne was the Training Costs of Award Restructuring or the Deveson Report. This report commented on the expectation that delivery of training will take place on the job. Commensurate with that change in focus, Mr Byrne contended that this would change the balance of skills held by teachers as they became more involved with skill audits, training analysis, package learning kits, assistance with skill recognition, training the trainer and curriculum design.

Against this background, or more precisely the changing environment in which TAFE operated, Mr Byrne submitted that the National Training Board Incorporated was established. In 1990 it published guidelines to provide a national framework for the recognition of competencies in occupations and industries. Mr Byrne said:

"The concept is that industries on a tripartite basis will establish the needs regarding the skills of their employees, their workers at all of those levels and will develop competency standards for all aspects of the work of people at those various levels. Those competency standards will be referred to in industrial awards and also will be related to the development of a new range of credentials through the schools, TAFE and, if necessary, higher education systems to reflect that new framework.

and later

"that competency-based framework is going into place, that competency-based training already exists in various industries at various levels, we're now in a situation of both codifying the competency-based system to national - for reference to national levels in all industries, as I've said, by that time line."

Transcript p.400

Commensurate with the developments identified by Mr Byrne he submitted that TAFE teachers work had altered to reflect those changes in TAFE and the training environment. These changes, he submitted, included curriculum related changes which he said referred "to the fact that curriculum now has to be generally developed much more on a local basis to respond to defined needs of clients of TAFE"14 Mr Byrne also referred to intensive development of curriculum arising from the needs of restructured awards. Other changes submitted by Mr Byrne concerned development of learner based competency based materials and competency standards that are transposable across awards and across different TAFE credentials; changes to the method of assessment and accreditation. In relation to this latter aspect, Mr Byrne said:

"Previously, TAFE was almost self-accrediting in that accreditation authorities in the various States were heavily TAFE-based. At the moment there is a major change to accreditation systems which are industry - in which the industry parties play a major role land which are requiring that the systems meet tFE competency standards defined by the industry parties, working through the industry training advisory bodies, and so we have a situation where TAFE now has to respond in the same way as other providers to a common accreditation authority and has lost what could be called a monopoly position in being able to self-accredit in many respects which means a lot of work in developing accreditation applications."

Transcript p.406

Devolution of responsibilities to TAFE colleges was also canvassed by Mr Byrne. This was said to have included devolution of budgetary responsibilities, purchasing of materials, handling enrollments, dealing with organizational matters including the management of part time and sessional teachers, co-ordination of statewide programs, responsibility for staff selection.

The Society supported the submissions of Mr Byrne for the Commission to take "a national approach and a national perspective"15 in determining rates of pay for teachers. It was indicated that the ACTU and teacher unions had given a commitment to nationally consistent benchmarks free from leapfrogging.

The Society emphasised that changes in TAFE, like in other industries had been ongoing. It was submitted by Mr Holden that in TAFE the extension of the college year from 42 to 48 weeks, annualisation and increase in teaching loads, the requirement for teachers to undertake 30 hours staff development in their own time and the reduction in support staff and resources for teachers had produced significant productivity gains for the Government. In that regard Mr Holden highlighted that part of the August 1989 NWC where the Full Bench stated:

"We recognise that there might be some work places where the objectives of the structural efficiency principle have already been achieved and there is no scope for further efficiency improvements. We would expect such instances to be rare, however, any such instances may be processed as special cases."

NWC p16

Mr Holden submitted that this meant that increases over and above the two 3 per cent structural efficiency adjustments could be granted in cases where further structural efficiency improvements were not reasonably available because of earlier efficiencies already implemented in the award.

I do not support that view. That part of the NWC referred to by Mr Holden facilitated the consideration of increasing rates of pay in awards by the amount of the structural efficiency first and second instalments in circumstances where workplaces were already so efficient that there was no scope for further efficiency improvement. Accordingly in the context of this case it is not my intention to take into further account those structural efficiencies which were recognised by the awarding of the two by 3 per cent structural efficiency salary increases or indeed by salary increases flowing from State Wage Case decisions going as far back as the 4 per cent second tier adjustment, which was also frequently referred to in this matter. Therefore on this point the Commission supports the submissions of the Government that previous efficiencies should not be able to be called in aid in this Special Case. To do so would in fact amount to double counting.

To further illustrate the changes within TAFE and the environment within which it now operated, and to set the scene for work value changes Mr Holden provided some historical background.

He submitted that the Kangan Report released in 1974 established TAFE as part of the tertiary education sector. Whilst in most states this meant a separation of TAFE from the respective Departments of Education, this did not occur in Tasmania until 1989 when it became a part of the now Department of Employment, Industrial Relations and Training. Mr Holden submitted that when TAFE was transferred to the Department, TAFE did not have "its own corporate structure in place"16 and that this had prevented achieving "a sensible award restructuring outcome"17

Mr Holden also submitted that the inclusion of TAFE as part of the Department of Employment, Industrial Relations and Training whilst contrary to the recommendations of the earlier (1982) Hughes Report, had meant that there was now a significant change between 1982 and the present. To illustrate the point Mr Holden referred to the 1982 duties of the then Director of Further Education which indicated:

"(a) The authorisation of the appointment of full-time and part-time teachers in accordance with the Education Act, relevant regulations and salary awards and within the approved staffing establishments and financial allocations of the Division.

(b) The provision of planning, curriculum and development services for the Division by staff appointed as members of the central office of the Division.

(c) The conduct of negotiations, in the first instance with registered organisations in relation to conditions of service, industrial matters and other matters related to teachers employed in the Division.

(d) The preparation and presentation to the Treasury Department, with the Director-General, of annual revenue and loan estimates for the operation and development of the Division.

(e) The administration of funds made available to the Division from State and Commonwealth Governments and of those raised by other means."

Exhibit H 44 p. 290

Mr Holden stated that TAFE colleges now have a very high degree of management responsibility in respect of most items referred to above in (a) to (e) and that this was recognised by the General Manager of Industry

Services Division as set out in Exhibit H35. By way of example Mr Holden nominated that staff appointments, curriculum writing, which he said was "overwhelmingly carried out by teachers",18 budgetary and finance responsibilities and devolution with regard to purchase and sale of resources represented responsibilities now undertaken in colleges.

WORK VALUE AND THE WAGE FIXING PRINCIPLES

The demonstration of work value change, which the Commission is required to test against the Work Value Changes Principle, was a fundamental tenet relied upon by the Society in this Special Case. Many work value matters were identified by Mr Holden and Mr Brough including:

Curriculum Development
Technological Change
Competency Based Training and Assessment
Equal Opportunity Employment
Teaching Methodology
Other factors on Methodology and TAFE generally
Student Profile
Response to Industry
Increase in TAFE Programs
College Accountability and Teacher Assessment
TAFE Training Services
Devolution
Fee for Service
Qualifications
National Developments

It is my intention to consider the respective submissions going to work value changes under common headings, concluding with a finding on each matter so identified.

However before progressing these matters in that way it is necessary, having regard to the reasons outlined hereunder, to first address some of the submissions put by Mr McCabe opposing these particular work value changes. He submitted that they did not satisfy the requirements of the Wage Fixing Principles and particularly failed the strict tests for the establishment of work value changes as set out in the Work Value Changes Principle. Further Mr McCabe contended that various TAFE indicators, such as the total number of contact hours delivered by teachers to students had remained relatively the same for the period 1983 to 1990. In his Exhibit M5 he demonstrated that the participation rate of 19 year olds in TAFE for the period specified above had remained almost the same. He said:

"TAFE indicators, however do not show any signs of growth at all, and the industry or market for TAFE could only be described as uniform over the past 9 years, with odd peaks and troughs."

Transcript p2358

Mr McCabe also opposed the claimed work value changes because in his submission those and similar changes were canvassed in matter P No 136 of 1980.

Additionally Mr McCabe referred to the 6 per cent increase awarded under the Structural Efficiency Principle (SEP). He submitted that further major increases were not envisaged to be awarded under that wage fixing principle. He held strongly to the view that as a total of 6 per cent had already been awarded under SEP no further adjustment in salaries could be made under that principle. Mr McCabe said that work value, to the exclusion of everything else, could be the only other vehicle able to be relied upon.

In some respects the submissions of Mr McCabe on these foregoing issues including the operation of the Structural Efficiency Principle could be regarded as threshold matters, particularly as they related to the application of the Wage Fixing Principles, the prohibition on the Commission relying on the concept of averaging and guarding against contrivances in the classification of jobs. On that latter point Mr McCabe contended that the Society's reliance on a pre determined benchmark salary amounted to no more than comparative wage justice which is prohibited under the Wage Fixing Principles.

Keeping the foregoing in mind it seemed logical to the Commission to make some observations and where relevant findings and to apply them to the consideration of the specific matters advanced by the Society. Accordingly I now turn to some of these important issues advanced on behalf of the Government impinging on the Society's claims.

Mr McCabe submitted that:

"...the Government's opposition to the Staff Society's claims currently before the Commission does not rest solely on the basis of lack of funds. We are confident that having heard our arguments on the merits of the Staff Society claim that you will find that they have not been able to sustain their claims when they are tested in the light of the wage fixing principles."

(Underlining mine) Transcript p.2332

At the outset I wish to indicate that there is no doubt that the SEP allows, subject to proper criteria as set out in that Principle i.e. reference to work value and consideration of structural changes, the Commission to award increases beyond 6 per cent provided, as in this case, a Special Case has been found. Indeed reference to the Special Case Principle highlights the fact that Special Cases "should be considered in accordance with the structural efficiency and other relevant principles."19

Mr McCabe agreed that the foregoing was a fundamental issue. He said:

"...if the justification under the work value principle, which we say are very difficult to satisfy are not there then the increases under the structural efficiency principle won't hold up the claim in its entirety ."

Transcript p.2340

That of course would be dependent upon the nature of the structural efficiencies made in the award. Clearly the Special Case Principle contemplates a proper examination of the award and in this case that is a combination of work value examination and structural efficiency considerations. I have no difficulty with the proposition that work value outcomes will impinge greatly on the quantum of increases that may or may not be awarded. Obviously the Society must satisfy the requirements of the Work Value Changes Principle and the Structural Efficiencies Principle. I do not see that each of these principles should be subject to greater or lesser scrutiny. Clearly the work value component claimed by the Society is significant and that is what the Commission will assess.

Mr McCabe emphasised that the Work Value Change Principle may only be applied to those employees whose work has been proven to have changed and that averaging work value increases across all classifications is not permitted. To support this submission Mr McCabe referred the Commission to The Judgement of the Industrial Commission of New South Wales in Court Session in The TAFE Case, Exhibit M.7, where the Commission stated at page 44:

"We consider that reliance on this principle for general wage movements across all classifications in an award is not justified. Consideration of the phrases emphasised show that the purpose of this principle is directed towards specific work changes in specific areas. It was not intended that generalised across the board wage increases should be based upon this principle.

Despite the repeated claim by the witnesses that there had been some qualitative change in the work requirements we are unable to discern that has been made out in the terms required by the wage fixation principle.

We consider that much of what was claimed to have been work value changes amounted to a reflection of the obligation of the professional teacher to maintain professional competence in the relevant subject areas. We are not persuaded that there has been a widespread or significant change in work value demonstrated on the evidence in the sense defined by the work value principle."

"THE TAFE CASE"
Exhibit M.7 p.44

I concur with Mr McCabe that averaging is not permissible and also support Mr McCabe's submissions where he said:

"But the strict requirements of the work value principle say that changes in work by themselves are no justification for a change in wage rates. Now, I think that those words are extremely important in a case which is being prosecuted in the manner which the Staff Society and the TPSA have conducted this case."

Transcript p2905

Mr McCabe emphasised and re-emphasised the dicta of the Work Value Changes Principle including the words:

"The strict test for an alteration in wage rates is that the change in the nature of work should constitute such a significant net addition to work requirements as to warrant the creation of a new classification."

Transcript p2906

In that regard Mr McCabe also submitted that neither the Society or the Tasmanian Public Service Association had satisfied that part of the Principle. He contended that they had only demonstrated change in the work of TAFE teachers but:

"What they have not proven and what they have not even tried to justify as far as we can see is the Commission's strict test for work value."

Transcript p.2907

A further plank in Mr McCabe's submission was that even if the Society was able to establish "substantial grounds for work increases"20 there were further hurdles to overcome. These related to statements arising from the August 1989 SWC Full Bench21 cautioning about expectations of significant general wage increases and that the introduction of new classification structures should have little cost impact.

I support those cautionary statements made by that Bench. However the fact remains that they were not meant to discount in any way, properly assessed outcomes arising from Special Case proceedings. In the SWC decision the Full Bench made it clear that the expectations of significant increases may well prove to be unfounded. That was not intended in my opinion to fetter legitimate outcomes but to indicate that high expectations may not be fulfilled.

Mr McCabe very extensively explained to the Commission the operation and applicability of the August 1989 NWC and October 1989 State Wage Case Principles to this Special Case. In doing so he covered a wide range of topics which are summarised as follows.

DECISIONS OF OTHER TRIBUNALS

With regard to decisions of other tribunals - Queensland22, ACT23, Victoria24 - which awarded increases to TAFE teachers based on work value considerations, Mr McCabe was critical of the approach adopted. He said:

"And that's the whole basis of our argument, is that the work-value principle was never designed or was never intended to be used in the way that it has been used in these cases.

It's, therefore, a completely new job which has completely changed and requires a new classification to undertake that job. That's what it is provided for. It is not provided for giving unwarranted increases just on the basis of some evolutionary change which has taken place; and even less for justifying national benchmark salaries, Mr Commissioner.

So, what has been done in these cases is, in our view, to contravene the principle, because the principle cautions that changes in work by themselves cannot lead to a change in wage rates.

And that caution is directed at precisely these sorts of changes which singly are no justification for a wage rise, and the tribunals in fact admit that.

Now in neither of these decisions has the tribunal said what they think the collective changes, or have said they think the collective changes are so revolutionary or compelling that they warrant the creation of a new classification. They have avoided that question entirely. So, in our view, what reliance can be placed on these decisions?"

and later

"It's very interesting, Mr Commissioner, to note the full bench's comments in the ACT teachers case in the decision at page 7, paragraph 2, where they say they do not accept that:

(1) 'the introduction of fee for service' programs,

(2) the 'fee paying students', or

(3) 'the changing student population constitute a change in work value'.

So, even discounting those changes, which as we know have been so strongly argued by the applicants in this case, they were still able to conclude that the totality of the remaining changes constituted such a significant net addition to work requirements as to warrant the creation of a new classification."

and later

"What the recent decisions in Victoria, the ACT and Queensland seem to be doing is saying, yes, we are satisfied that there has been significant net work value in the TAFE teaching industry, and using that excuse to give averaged work-value increases to all classifications and employees in the name of award restructuring."

(Underlining mine) Transcript p.291/52

AVERAGING

Mr McCabe said that averaging was a feature of the wage indexation period between 1975 to 1981. He submitted that averaging was no longer permitted and referred the Commission to the decision in the National Wage Case for the June and September 1979 Quarters25 which made it clear that the emphasis in work value cases must be that a significant net addition to work value was able to be established. Mr McCabe said that the following extract from that 1980 federal decision provided "a very helpful insight into what the bench meant by the words "significant net addition to work value". The Bench said.:

"We should stress the importance of "significant net addition to work value" as the basis for any wage adjustment under 7(a). New equipment or a new method of organizing work or a new product or service, or the need to retrain employees to cope with these innovations do not in themselves constitute evidence of increased work value. The innovation should also make the work in question on balance significantly more demanding because of the nature of the work, skill and responsibility required or the conditions under which the work is performed."

NWC March 1980 C No 1618 of 1979 p.1259

Mr McCabe extrapolated that in the view of the comments, "new equipment, new ways, presenting or organising work, new products, new types of service, do not of themselves, constitute evidence of increased work value"26 Mr McCabe contended, having regard to the Society's work value evidence and its submissions, that this represented no more than some fairly straight forward changes to the way the work of TAFE teachers was organised, including the introduction of some new services. He said none of these changes were significant in the context of the Work Value principle. Mr McCabe submitted:

"In fact we will put fairly compelling submissions to you that the majority of the changes which are said to have occurred in the last 10 years were comprehensively dealt with in the 1981 case. That gives them even less impact as even innovative let alone revolutionary change."

Transcript p.2971

Mr McCabe highlighted the 1983 National Wage Case decision27 where the Bench made it clear that "the provision in the old work value principle for averaging is no longer appropriate, the work value rounds of 1978/81 having been completed. We will delete it."28

PROPER APPLICATION OF WORK VALUE

Mr McCabe in extensive submissions on the current operation of the work value referred to a number of other tribunal decisions including a decision29 of Commissioner Turbet regarding the classification of Investigation Officers employed in the Health Insurance Commission. The Commissioner held, inter alia:

"After considering the evidence and submissions at some length, I have come to the conclusion that a case for an increase in classification has not been substantiated. The changes identified by the PSU, whilst certainly constituting work functions of a different character or emphasis, are not changes which, in my view, significantly add to the responsibilities of Investigations Officers. They are either functions which clearly fall within the skills and responsibilities of a competent investigator or are functions which are not performed on a regular basis by all within the group.

The claim by the PSU for the re-classification of Investigations Officers within the Health Insurance Commission is therefore dismissed. The Commission orders accordingly."

Exhibit M12

With regard to this finding Mr McCabe said:

"Now this, in our question, the commission is another perfect example of how the work-value principle should be approached, and that is notwithstanding an impressive list of changes to the work of Investigations Officers and evidence from 23 witnesses the commissioner held that a case for an increase in classification has not been substantiated.

Commissioner Turbet acknowledges that the changes have resulted in work of a different character or emphasis but have not significantly added to the responsibility of the employees concerned.

He said that they are the sort of functions which a competent employee is capable of handling, or are functions which are not performed on a regular basis by all within the group.

So, here again, we have reflected the true intent of the work-value principle that changes must be truly significant and they must be performed by all the employees all the time.

Transcript p.2984

BENCHMARK RATES OF PAY

Mr McCabe submitted that the Society's claim was based on a predetermined level of pay which was being sought through the Special Case provisions as this was the only avenue open to it. He contended that the claim, and others relating to Police and Firefighters, was based on comparative wage justice with what happened in other States. Mr McCabe said by seeking pay parity with other States the Society was seeking to maintain relativity in rates of pay and "if thats' not maintenance of relativities by comparative wage justice I don't know what else is"30

It was stated by Mr McCabe stated that the Society's claim for the national benchmark represented contrived arrangements which were expressly cautioned against in the preamble to the 1989 Wage Fixing Principles and in paragraph (f) of the Work Value Principle where the following appeared:

"(f) The Commission should guard against contrived classifications and overclassification of jobs"

Transcript p. 2988

Mr McCabe submitted that the claim for a national benchmark was a "contrivance of the first order"31 because:

(a) it was planned by the ACTU and its affiliates as a national target without any proper justification or industrial grounds.

(b) the national benchmark is artificial because it was devised unilaterally as a predetermined goal irrespective of the merits of the claims and

(c) that the Society was being forced and was under considerable pressure from the ACTU and its TAFE federal counterparts to force this Commission into accepting that the benchmark has some legitimacy.

Mr McCabe also submitted that the Industrial Relations Act 1984 did not provide any justification for the adoption of national rates of pay. He said the Commission had adopted the wage fixing guidelines of the Australian Commission and that restricted the Commission to determining wages outcomes in accordance with the Wage Fixing Principles.

Mr McCabe argued that the minimum rates adjustment process was not available in paid rates awards and therefore that avenue for adjusting rates of pay could not be countenanced.

The Commission was also informed that the quest for the national levelling up of rates of pay was only the first round and that the Australian Teachers Union had already indicated its intention to seek a further advancement on the claimed benchmark. Mr McCabe referred to Exhibit ATU1 where the following comments appeared:

" - we have a revised benchmark claim. It is not the subject of these proceedings, but for your information, which we will be pursuing as an outcome of the current national wage case when the dust settles regarding the components which will be centrally determined versus those which will be enterprise or industry determined. We have in place a claim there based on the tenets of over Accord Mark VI as approved by the ACTU, but that is not the subject of these considerations, whereas page 12 is relevant."

Exhibit ATU p.13

Mr McCabe submitted:

"Where will it all end? These presumptuous methods of wage fixation are in stark contrast to the majority of employees on minimum rates awards whose relativities and benchmark rates, if you like, have been legitimately established on the basis of the tradesman's rate of around $420 per week or $22,000 per year."

and later:

"The audacity of the claim is quite astounding. It doesn't make much sense even in the context of enterprise bargaining if we have - I am sorry, I will put that again. It doesn't make much sense in the context of enterprise bargaining if we have the salary rates already established before the discussions on enterprise efficiencies have had a chance to get under way."

Mr McCabe also brought to the attention of the Commission that part of the submissions of Mr Byrne where he indicated that the claim by the various TAFE unions throughout Australia, had regard to "the salary levels applying to the professions and vocations from which the TAFE teachers are in the main drawn"32

Mr McCabe rejected the notion of market rates having anything to do with this case and by reference to the National Wage Case decision of April 1991 stated that existing paid rates awards should not be adjusted on the basis of market rates considerations.

FINDING

As explained earlier, in order for this case to be progressed in some logical sequence, it is necessary for the Commission to make some comment and indeed express its attitude to these very important issues raised by Mr McCabe. Those issues concerned the strict tests imposed by the Work Value Changes Principle, expectations for high increases, averaging, benchmark rates of pay and decisions of other tribunals.

I indicated that I concur with Mr McCabe that averaging is not permitted. Also that rigorous scrutiny is required to test whether or not the changes in the nature of the work claimed in this case constitute a significant net addition to work. I recognise that Mr McCabe contended that this test was not able to be met by the Society and, in effect, that the Commission would have to resort to averaging if it granted the increases sought.

In that regard my findings on the merit on the work value matters I have taken into account in this case are predicated upon the strict application of the very issues and other, referred to by Mr McCabe. Further to that, in the event work value change is demonstrated to the satisfaction of the Commission, and those changes are the same as those taken into account by other tribunals, there is no impediment to the Commission considering and having regard to the determinations made in those cases concerning salary levels.

I have no difficulty at all with Mr McCabe's submissions concerning the inappropriateness of using market rate surveys. However it is valid for the Society to make the point in these proceedings that in their opinion teachers have lost relativity to other professions and that this has contributed to not attracting highly qualified people to teaching. This does not however mitigate against the onus the Society has to establish its claims on proper criteria. There is no doubt that in this case the Society prosecuted its case in accordance with the requirements of the Wage Fixing Principles, and Public Interest.

Additionally Mr McCabe's reference to the March 1980 NWC33 that new equipment, new methods of organising work, new types of services, or retraining of employees not in themselves constituting evidence of increased work value impinged directly on the operation of the Work Value Changes Principle. In my view reference to this type of material reinforces the strict tests that must be applied to the Society's case. It is up to the Commission in assessing those nominated work value changes if there are, as contended by Mr McCabe, no more than some fairly straight forward changes to the work of teachers or not. In that regard the Commission is also mindful of the fact that Mr McCabe contended that many of the changes claimed were dealt with in the 1981 work value case.

Going to Mr McCabe's submissions on the proper application of the Work Value Changes Principle, I endorse the general thrust of the findings of Mr Commissioner Turbet as outlined in Exhibit M12. Obviously the tests applied, i.e. that change must be truly significant, is the crux of the issue.

DECISION IN MATTER P. NO 136 of 1980

This was a decision of Commissioner Koerbin, as he then was, issued in April 1981 awarding a 5.5 per cent increase across the board to all TAFE teachers.

Mr McCabe submitted that "many of the matters which have been put to the Commission in this case were in fact put to the Public Service Board in 1980 as showing ... a vastly increased and changing workload being undertaken by all technical teachers in this State"34

Mr McCabe said:

Now we consider that this information is so relevant to this matter that we considered - that it's essential we go through the document in some detail."

Transcript p.3030

Mr McCabe stated that this decision was useful in that it established a base for the present case. In that context he said it was important to note that the Work Value Wage Fixing Principle in paragraph (c) stipulated that changes which were or should have been taken into account in previous work value adjustments or in structural efficiency cases could not be included in any subsequent evaluation under that Principle. Accordingly Mr McCabe submitted that changes taken considered in 1981 can not be counted again here.

To support his case Mr McCabe tendered Exhibit M15 which contained the work value submissions of the Society in matter P 136 of 1980 covering work value changes from November 1974 to July 1980. Whilst the document, Exhibit M15, was not included in the transcript as intended, it obviously forms a part of the proceedings and as such has been carefully scrutinised by the Commission. Mr McCabe submitted that this Exhibit highlighted that many work value changes now claimed had already been taken into account in P136 of 1980 including the following:

(i)  Curriculum Development - where teachers claimed that they were expected to undertake subject, course and curriculum revision and development on an extensive and continuing basis.

(ii)  Technological Change - where microprocessors, computerised circuitry computer based information retrieval systems and other innovations were nominated as contributing to work value change.

(iii)  Development of short term specialised courses - these were developed for specific industries, were conducted on weekend and public holidays and were to meet community demands.

(iv)  Access programs for disadvantaged persons, programs for women, youth, aborigines and migrants.

(v)  Student population - this was found to be diverse and Commissioner Koerbin as he then was commented as follows in his decision of 10 April 1981:

"Whether as a result of widespread unemployment difficulties, or whether simply by evolution, I am unsure; but whatever the reason, it is clear that a number of technical teachers observed during inspections were teaching an almost unbelievably wide range of students. The type of student being given simultaneous instruction of one kind or another encompassed retarded or slow learners, unmanageable students from other teaching levels and institutions, such as high schools, apprentices, post-apprenticeship trainees, E.P.U.Y. participants and in one case a septuagenarian."

Exhibit M1 p.24

(vi)  Teaching outside traditional subject areas - the conclusion was that this activity was taking place on an increasing basis.

(vii)  Block release for apprenticeship training - this necessitated curriculum development, increased student counselling and supervision.

(viii)  Liaison with industry - reference was made in the Society's 1980 submissions that there was a very close relationship between technical colleges and industry/commerce. Also that technical colleges performed an increasing consultancy activity on behalf of industry.

(ix)  Advances in Teaching Techniques - it was claimed that teaching techniques methods and practices had become more of a science.

(x)  Staying abreast of developments - this was claimed by the Society as a factor in the 1980 case35

(xi)  Development - this was also acknowledged in the Society's submissions in the context that technical teachers maintained a very high level of professional development.

(xii)  Administrative changes increases resulting from changes in college operations was claimed. Reference was made to teachers accepting an increased responsibility for the preparation and presentation of various submissions.

(xiii)  Committee Work - this included work on curriculum review and development sub-committees, standing committees, advisory committees.

(xiv)  Progressive introduction of semesterisation.

(xv)  Remedial education and literacy and numeracy.

(xvi)  Upgrading of courses to professional level.

Mr McCabe submitted that all of the foregoing changes were taken into account in the 1980 case36 and therefore could not be counted again in the present case He submitted:

"How many of those factors have been put to the Commission in this case as new and demanding skills which have been required since 1980? And I'd suggest that many of those things again have been put forward as new and demanding skills. So they were, in our view, acknowledged as hard fact in 1980 and cannot be paid for again in 1992."

and later:

"So it follows that if these factors which we have looked at in the course of this documents were hard fact at the time and were taken into account at that time, then even though the character of these factors may have changed in the period 1980 to 1991, we say they cannot be taken into consideration again."

and later:

"We would submit that from the evidence put forward by the Staff Society witnesses in the present case none of the factors discussed in this submission37 have changed substantially enough to warrant any increase on work value grounds"

Transcript p.3068/69/70

Mr McCabe also submitted that it was clear from the decision38 of Mr Commissioner Koerbin, that he took into account the factors nominated by the Society in p136 of 1980.

Further in respect of the foregoing decision Mr McCabe again canvassed the averaging approach that was adopted by the Commissioner, which at that time he was entitled to do. Mr McCabe referred to that part of the decision where it was acknowledged that varying degrees of change had occurred. The effect of averaging was that all teachers received the same increase whereas some teachers in the science and technology areas would have received less if averaging had not been relied upon by Commissioner Koerbin.

Mr McCabe contented that as a 5.5 per cent increase was awarded by Commissioner Koerbin discounted by $8.00 per week for another adjustment already granted, the Society was in fact seeking an approximate further 17.8 per cent across the board increase, making a total of approximately 23 per cent based on grounds which had "already been paid for in the 1981 decision39

FINDING

Many of the specific work value headings advanced by the Society in this Special Case were similar or identical to what was considered in P.136 of 1980. The real test however is to ascertain if during the period of this case the strict tests of the Work Value Changes Principle can be satisfied. In the extreme it could be argued that a teacher is a teacher and therefore the work of teachers had not changed. I accept that this is not what the Government was putting and that its submissions were directed to the actual performance of work undertaken now compared to 1981 not having significantly changed. The Commission is faced with a stark contrast between the submissions of the parties and can only resort to assessing change, if any, on appropriate criteria. In that regard the relative merit submissions of the parties have to be weighed in accordance with the Work Value Changes Principle. Accordingly I will have regard to the matters raised and given weight in P No 136 of 1980 when reaching its conclusion on work value.

WITNESSES TO JUSTIFY INCREASES AND THE WAGE FIXING PRINCIPLES

Mr McCabe was critical of the Society because it did not call witnesses and seek to provide evidence from teachers on the base incremental scale. He submitted this was because the Society knew that it would have difficulty in providing quality evidence required to satisfy the strict test of the Work Value Principle. He said -

"Of course, if the society wish to justify work-value increases of some 28 per cent for this classification it would be required to show hard evidence of the changes which have occurred in the last 10 years and which have been of such significant net addition to their work as to justify the creation of a new classification.

Now I think the staff society is well aware of this requirement and they knew it would be extremely difficult to put up evidence and submissions of the quality required to satisfy the strict test. They have attempted, I would suggest, to overwhelm the commission with a plethora of information of a general nature going to mainly organisational changes in TAFE colleges. This information is aimed at creating an impression of extensive change across the TAFE system in a general sense.

I would describe their case as very much of a shotgun approach. They have let fly a lot of small shot which they hope will make enough impression to produce a result. But the work-value bulls eye which they must hit, in our view, is still very much unscathed because they have not produced the precise shot which is required, and that is the hard evidence of change which is enough to satisfy the principles and which is proven to be occurring at the level which is the linchpin of the claim, and that is the top of the incremental teacher scale."

Transcript p.3074

Mr McCabe submitted that in order for the Society to ratify the strict tests of the work value principle, that this "could only be done by the production of witnesses from teacher classifications giving evidence under oath and being cross examined to test the validity of their claims."40 Mr McCabe stated that as these witnesses were not called, the entire salary claim, with $43,000 as the pivotal wage rate, "must be in jeopardy"41 Mr McCabe said:

"Since they have chosen the national benchmark rate as the reference point for creating appropriate relativities between the different categories of employees on the scale, then the whole scale must be in some doubt if the pivotal rate of $43,000 can't be substantiated".

Transcript p.2916/17

Mr McCabe contended that the Structural Efficiency Principle could not be called in aid by combining that Principle with Work Value. He submitted that the intention of the SEP was that there would be little cost impact associated with award restructuring apart from those costs associated with the two by 3 per cent SEP increases. In that regard Mr McCabe referred the Commission to the August 1989 National Wage Case decision where the Bench stated its expectations on the operation of the SEP. Mr McCabe submitted that this part of the NWC decision reported how the Bench considered SEP cases should be handled and in particular -

"...that the translation of workers to new classifications structures in the various awards should occur with little cost impact apart from that resulting from the structural efficiency adjustment."

Transcript p.2920

In a similar vein Mr McCabe referred to paragraph (c) of the Work Value Changes Principle which cautions against taking into account changes comprehended in previous work value and/or structural efficiency exercises. In that context Mr McCabe contended that earlier increases paid to teachers in accordance with the Structural Efficiency Principle, that is the two by 3 per cent SEP increases and $10 a week in March 1989 recognised the move towards structural efficiencies. In particular Mr McCabe submitted that the second SEP adjustment was predicated on Exhibit W2, a Memorandum of Understanding, and that these documents contained items which could not now be used again for justification of work value increases. He said:

"Now, there is no doubt that the matters contained in that somewhat contentious paper were, for all intents and purposes, a structural efficiency exercise.

There is no question that the matters contained in W.2 represent the agreed factors which were taken into account in the structural efficiency exercise which secured the second structural efficiency adjustment of 3% for the Staff Society.

So, in our view, factors which were comprehended in this exercise have been paid for in full and cannot be used again in this special case as justification for work-value increases or for further increases on structural efficiency grounds.

In saying that, we do not think that the finalisation of this case will preclude us from continuing to implement or use any of the agreed matters which have not been implemented or used by the employer thus far."

Transcript p.3083/84

Mr McCabe also informed the Commission that Exhibit W2 in the TAFE case should be read with Exhibit W2 in the wider Public Sector Case42 He submitted that the Work Value Principle made it clear in paragraphs (c) and (g) that no double counting was permitted.

FINDING

The submissions of Mr McCabe demonstrate the extent of the Government's case as it related to the operation of the Work Value Changes Principle the Structural Efficiency Principle and that there was an absolute onus on the Society to provide proof of significant change in the work of teachers. For the incremental range teacher, the Government contended that witnesses from that base range should have been called.

Whilst there is no doubt that direct witness evidence is often the best way to establish the facts this is not mandatory. The Commission's obligations are to satisfy itself having regard to the merits of the case before it and it must of course have a statutory regard to public interest. In many ways the Government's submissions on the Wage Fixing Principles and the requirement for the Society to establish its case on proper criteria, may be regarded as a caution to the Commission. In saying that I understand of course that Government was going further and that it was submitting that having regard to merit, the Society's case would fail in that it would not meet any of the tests imposed.

Having regard to the foregoing I can indicate that I have no different view than that explained by Mr McCabe about not counting again structural efficiency matters previously taken into account. The point needs to be reiterated however, that the Memorandum of Understanding, whilst providing the basis for the endorsement by the Commission of the second instalment increase, also contained an agenda for ongoing discussions. The reason the Commission issued an interim decision was precisely because it was intended that there would be ongoing negotiations between the parties and that this would focus on the incompleted issues in that Memorandum. I had every expectation of concluding this case on the basis of substantial agreement between the parties.

Now that this was not the way it turned out was of great concern to the Commission, as explained earlier, however that does not mean and neither should it, that somehow earlier extinguished efficiency and productivity matters, should again be counted here. They will not. Clearly the Society hold a different view and the thrust of their submissions was that I should have regard to the significant initiatives already implemented in TAFE when determining this Special Case. As I have said I reject that approach.

I have gone to some considerable length to canvass and respond to the completely thorough and in some instances repetitive submissions made by Mr McCabe in respect of the Wage Fixing Principles relevant to this Special Case.

This was necessary because the Government's submissions were in my opinion threshold matters impinging on the entire outcome of this case. So whilst the submissions of Mr McCabe stressed the requirements of how the Work Value Changes and Structural Efficiency Principle should operate, they also addressed the capacity to award significant pay increases. I have attempted to analyse those submissions and have made several findings which I will have regard for in this matter when considering the issues before me.

Turning now to the specific work value changes claimed by the Society.

CURRICULUM DEVELOPMENT

Mr Holden submitted that:

"Curriculum development means the development, delivery and evaluation process in which teachers are the key participants. This is usually, in fact almost always, carried out by teachers in their work hours or their own time. It requires evaluation content, structure, delivery, assessment of material contained in a syllabus or inputs into the material, that is, again going to content, structure, delivery, et cetera, in respect of a new syllabus."

Transcript p. 853

In that regard the evidence of Mr Brough was that in 1981 there was a low emphasis on the development and upgrading of curriculum. He indicated that there is now a very high level of emphasis on the need to:

"...develop new curricula for new courses, new curricula for new types of programs and certainly to update and upgrade courses in terms of the changes in technology procedures, processes and legislation which have occurred and are continuing to occur."43

In making that observation Mr Brough said in his evidence that he was appointed as a TAFE teacher in 1981 and could therefore "speak with some background of experience over the past 10 years44

Mr Brough informed the Commission that a major change in respect of curriculum was the move away from a "shopping list" approach i.e. listing of individual subjects, to the design of curriculum in an objective outcome based format specifying the precise skills and abilities that students needed to be able to demonstrate at the conclusion of their course of study. This change, according to Mr Brough, made the curriculum more difficult to develop because it had become very specific and process in terms of what was expected from students at the end of their course of study.

Mr Brough's evidence was that with the new curriculum developments teachers needed to be able to incorporate industry requirements in the curriculum. He indicated that because syllabus had become more precise a greater demand was placed on teachers from students and industry for the delivery of every aspect of the syllabus. Also teachers were said to be teaching across a wider range of subjects.

With the expansion of the curriculum Mr Brough informed the Commission that materials and resources required to be prepared by teachers had become more sophisticated and complex.

Mr Holden contended that there had been a progressive increase in the demand on teachers and that this would continue as they strived to meet vocational, education and training requirements. It was submitted by Mr Holden that the training reform agenda required the development of a more flexible curriculum for example in self paced models, CBT and assessment methods based on teaching technology including videos and computers. He indicated that virtually all curriculum for TAFE courses had changed since 1980; as had syllabi which now detailed subject aims, expected outcomes, pre requisites and co-requisites examination and assessment requirements. Mr Holden contrasted this to the 1981 "shopping list approach" which set out only the topics to be studied. Mr Holden added that early syllabus was constant until 1989. He said that industry demanded regular change, "but even if industry did not demand it there is Ministerial agreement that all TAFE courses must have their curriculum development reviewed every 5 years at a maximum"45 Mr Holden submitted that these changes represented a substantial increase in work value.

Mr Holden indicated that the number of available courses had doubled in the past 10 years and that curriculum development is now far more detailed and far more complex than it was. He submitted that it now required more skill and knowledge to develop; it required more time to develop; and that with the expansive syllabi now in place, for more work in developing teaching resources was required. The 1991 TAFE Handbook contains 554 courses, which Mr Holden submitted all required curriculum development, syllabus writing and the development of teaching material and resources. Mr Holden said:

"So I think it is very clear that curriculum development is a major input into the work value increase for teachers in the '90s."

Transcript p855

Mr Holden also referred to the increase in the fee for service for one off customised courses provided to industry which required curriculum development because of their specialised nature. Mr Holden regarded this to constitute a greater skill for TAFE teachers because of the breadth of areas that teachers were now required to develop curriculum in. Other issues impacting on curriculum development and the claim for increase work value related to technological change, diversity of students, emphasis on occupational health and safety issues and programs for the unemployed.

It was submitted by Mr Holden that the introduction of teaching methods through ISM and competency based teaching and assessment have also required curriculum development and the rewriting of syllabi. Mr Holden contended that even though the timetabling for the introduction of competency based training standards was not certain, curriculum development work to meet those additional standards was being undertaken and that the necessary skills and knowledge were being exercised by TAFE teachers.

Mr Holden also highlighted that programs for those who are unemployed required teachers to undertake curriculum development. He said:-

"..., on each occasion the government changed policy, particularly in respect of training the unemployed, TAFE teachers have to develop new curriculum for the courses that are required. And as I've said, the latest is the active employment strategy, but before that there have been job training, the Australian traineeship, NEIST - that's N-E-I-S-T - and a host of others. And as I've said before, I do not believe there is an educational sector in this country that's comparable with TAFE in respect of the amount of curriculum development and syllabus preparation, and the variation that TAFE is required to undertake in providing those - that curriculum development and syllabus.

Transcript p. 863.

A further aspect with regard to curriculum development related to the development of computer assisted learning. Mr Holden asserted that computer involvement in virtually all TAFE courses had required constant curriculum updating simply to keep up with developments in computer technology. Mr Holden said that whilst all areas were affected, the changes in the computing area dealing with computing courses, "have been massive"46 Mr Holden referred to the engineering area where the system which was introduced in 1986 had been updated five times requiring syllabus modification each time.

Mr Holden submitted that TAFE curriculum was dynamic and open to all types of influences and changing society values. To illustrate the point Mr Holden referred to the federal Government's approach to the disadvantaged and minority groups which saw the introduction of numerous programs for the disadvantaged. He indicated that curriculum had to be developed for each program and as "one program is deferred or dropped and replaced by another they have to do it all again. It is in effect never ending. TAFE changes are constant, continuous and ongoing."47

In addition Mr Holden submitted that the most significant factors influencing TAFE curriculum changes were changes in student population; changing relationship with industry; more flexible delivery of programs; a vast increase in the number of programs; an increase in the number of government initiatives requiring TAFE to provide programs to minority groups; the introduction of TAFE Training Services and the need for specialised one off programs and industry's requirements that TAFE programs reflect industry's needs as industry sees them.

Mr Holden summarised the main issues on curriculum development as follows:

"1. Curriculum development which was basically static in 1981, and in some instances was not a teacher's responsibility, has now developed into a major and complex responsibility.

2. Teachers now often initiate change and carry them through. This is development, implementation, review. As a result they must accept total responsibility for outcomes.

3. Changes in society and social values have increased the difficulties of curriculum development.

4. Changes in teaching methodology and assessment have increased the difficulty and complexity of curriculum development.

5. Increased variety in the student body has increased the difficulty of curriculum development.

6. Equal employment opportunity has increased the difficulties of curriculum development.

7. Curriculum is now far more detailed than previously.

8. Far more curriculum has to be developed because of the multiplicity of courses and developed in less time available to do it.

9. Curriculum must now be developed for the same course in a number of ways to suit different groups of students."

Transcript p.944

The submissions of the Society on this issue were strongly contested by the Government. The evidence of Mr Leo, General Manager (Training) was that with the movement towards national curriculum the offset was that teachers have a reduced load in writing their own courses and that they "are less involved now than they were in 1980"48

With regard to the move away from the "shopping list" approach referred to by the Society resulting in a much more precise syllabus, Mr Leo said that this "was one of the areas of development that would seem to me to be helpful to teachers rather than impose additional pressures on them"49

Mr Leo agreed that expected course outcomes are now known to students and employers and that this created an expectation which teachers must meet.

Mr Leo's evidence was that teacher involvement in curriculum development was voluntary and was "not part of the required duties of teachers"50 The Commission was informed by Mr Leo that teachers were interpreters of curriculum but not writers of it. He said that sometimes there was confusion between writing of teaching notes to deliver the curriculum, which teachers are expected to be able to do, and the actual writing of the curriculum. Mr Leo acknowledged that teachers are consulted at a preliminary stage of planning for a curriculum review to determine what changes and rewrites are necessary.

The submissions of Mr McCabe were that less and less full time teachers are involved in curriculum development and that in 1992 only 19 full time teachers did this work. Exhibit M56 tendered by Mr McCabe demonstrated that in 1990 development of new courses, as opposed to holding meetings or discussions on what might happen in relation to curriculum was restricted to 127 courses. This involved 57 full time teachers. In 1991 it was 114 courses involving 36 full time teachers.

The thrust of Mr McCabe's submissions were that fewer full time teachers were now undertaking curriculum development and that persons from private industry were significantly involved including part time teachers. The statistics were 73 per cent in 1990, 78 per cent in 1991 and 70 per cent in 1992 came from private industry and 5.8 per cent in 1990 and 21 per cent in 1991 were part time teachers.

FINDING

The material before the Commission demonstrated overwhelmingly that TAFE teachers have been subject to significant work value change both in the context of evaluation of course content and delivery of outcomes arising from the design of curriculum in an objective based format.

Having regard to the submissions of the Society I am also satisfied that with the more extensive syllabi that is now in place a great deal more skill and knowledge is required in preparing teaching materials and resources.

From the submissions of the Society it is obvious that it has a far wider view of curriculum development than has the Government. The Government primarily confined curriculum development to actual course writing. Whilst statistically it was able to demonstrate that over the last few years full time teachers have had less of a direct involvement, I do not accept that such a narrow focus is appropriate in considering work value change under this heading.

Clearly the involvement of teachers in curriculum work is extensive having regard to the material I have summarised. This has resulted in significant change in the work of teachers across the TAFE system. I consider that the submissions of the Society demonstrated that this work value component satisfied the requirements of the Work Value Changes Principle.

Accordingly I reject the submissions of the Government going to the extinguishment of this work value change as a consequence of considerations in matter P136 of 1980. There is no comparison at all between the work required of teachers now with regard to curriculum development and what applied earlier. It is rather trite in my opinion to claim, as the Government did, that because curriculum revision and development was identified as a change in 1980 that no further change is able to be taken account of now. That approach only stands up to scrutiny on the basis that the heading under which work value was claimed in this case was the same as in P136 of 1980. Clearly quantitative change has occurred as outlined above.

Further I consider that the work value changes referred to above have applied equally to the work of all teachers.

TEACHING METHODOLOGY

Mr Holden informed the Commission that teaching methodology had changed significantly in the period under review. He submitted that increased importance was now placed on the learning capacity of the individual and that the focus was now on a learner centred approach rather than the teacher centred approach that applied in 1981; and that vocational education and training is now based on the individual needs of the student. Mr Holden contended that these changes had required teachers to become more knowledgeable and competent in a wide range of teaching methods. He said "the ability to chose and implement the most appropriate method and strategy for each situation and student has become a standard requirement."51

Mr Holden indicated that teaching methods available to teachers had substantially increased. They had to be familiar with face to face learning, integrated learning, off campus or external studies, multi-cultural learning, fleximode teaching, mix mode teaching, open learning, computer based learning, equality of opportunity principles, individualisation and development of non violent and non threatening behaviour management policies, classroom democracy, negotiated learning and self placed learning.

The Commission was informed that teachers must now be capable of involving all students in learning activities and accordingly teachers must understand the concepts of effective education, cooperative learning, group dynamics, negotiated curriculum problem based learning, open ended questioning techniques, discovery learning and the process approach. Mr Holden advocated that to ensure the correct resource and teaching method is selected, teachers have developed skills for monitoring students, assessing programs on a continuous basis, discussing progress and planning future strategies.

Mr Holden submitted that teaching was no longer a case of teachers determining every issue. Students now require involvement in the negotiating and decision making process. He asserted that this was particularly the case in TAFE where many students attend TAFE from their place of employment where they often carried out tasks directly related to what the TAFE teacher was teaching.

Mr Holden also put that individual attention to students had increased including more counselling. He claimed that "as a result of the changed requirements in teaching methods ... the work value of teachers had increased significantly."52

Also with regard to individualised learning programs, I was informed by Mr Holden that as part of the planning process teachers must evaluate the success or otherwise of what they are teaching. Mr Holden submitted that this self assessment process is undertaken by teacher/student liaison thus enabling adjustments in any one program to be made as is necessary. Mr Holden claimed that:

"Under the old examination system this type of self appraisal was hardly necessary at all"

Transcript p.1151

Mr Brough in his evidence confirmed that there had been a move away from chalk and talk to more interactive approaches involving project - based learning, use of case studies, simultations, self paced learning, use of audio visual packages and the introduction of computerised technology. He said there was much more emphasis on student centred learning than teacher focused learning.

FINDING

I accept the submissions of the Society that teaching methodology as a result of the change in focus to the learning capacity of the individual has resulted in a much wider variety of teaching methods. I consider these aspects together with the much wider teaching concepts which are now comprehended by teachers to amount to a significant work value change. The submissions of the Society demonstrated unequivocally that the teacher student relationship has altered and that this has resulted in teachers having had to acquire new skills as discussed. Clearly individual learning programs have also contributed to a significant alteration to the skills required by teachers to ensure that programs meet the needs of students. Nothing that was put by the Government in the context of the Wage Fixing Principles or the earlier findings in matter P.136 of 1980 mitigate, in my opinion, against my determination here.

OTHER FACTORS IMPINGING ON METHODOLOGY AND TAFE GENERALLY

Mr Holden said that it should be recognised that the dynamics of TAFE and the environment within which TAFE operated has altered in a major way. This, he submitted, was demonstrated by various other factors which had not only contributed significantly to work requirements of teachers but which also served to illustrate the undeniable impact on how teachers are now required to approach their tasks and their role in general. Mr Holden submitted that these factors had not only impacted on teaching methodology but on most aspects of their work. Mr Holden referred to the following factors:

(i) in addition to apprentice programs which TAFE had always conducted, TAFE now provided a large range of post trade and TAFE Training Services one off programs,

(ii) the extension of training in areas where previously little training had occurred e.g. hospitality, office services,

(iii) the range of programs for minority groups, for disabled, disadvantaged, unemployed,

(iv) the large scale increase in community interest programs,

(v) the various changes in government policy,

(vi) the upsurge in interest in vocational training and education as a result of award restructuring and the training guarantee levy,

(vii) the specialised fee for service programs.

Mr Holden indicated that TAFE was "driven by current day requirements"53 and was therefore subject to continual change and because of this, and because TAFE is the broadest ranging educational sector there is, it changed more often and more dramatically than any other sector. Mr Holden informed the Commission that the Hughes Report showed that TAFE provided 246 courses in 1981 and that this had grown to 554 in 1991; plus numerous one off courses. Mr Holden said:

"I submit those growth figures make it very clear that all positions in the teaching, administration and management of TAFE have increased in work value simply because of the complexity of organising and accommodating those massive increases. At the same time there has been a large scale transfer of duties to teachers,..."

Transcript p.1118

As well Mr Holden submitted that the level of many programs were upgraded. He referred to developments in Business Studies which was upgraded from the Certificate of Business in 1981 to an associated diploma course in accounting, management and banking. In addition two other associate diploma courses were added, one in marketing and the other in real estate. Also external studies programs were transferred to Business Studies. These were upgraded in concert with face to face programs. Traineeship courses were introduced in banking and finance. A small business program was also introduced. Mr Holden made the point that in 1981 certificate courses were held on a full year basis whereas associate diploma courses were offered on a 16 week semester basis and that this impacted in on teachers because of enrollments twice a year; final exams twice a year; and a shorter period to achieve learning outcomes and to convey essential ideas skills and knowledge.

A further example related to computing studies. Mr Holden submitted that in 1981 the student population in that area was made up of year 10 graduates with a few mature age students. He indicated that now there were four main courses, small business; management computing; ATS certificate - and the associate diploma courses in business computing or Applied Science Computing. In electrical and electronics Mr Holden submitted that a number of advanced courses were now offered "which were not even thought of in 1981"54 He said:

"I submit one thing is obvious: there has been a tremendous increase in the variety of programs taught and the level of many of the programs has been substantially upgraded. The variety of programs, the technological advancement, the diversity of classes and students that the programs are taught to, shows beyond doubt in the Society's view, that there have been substantial additional skills and knowledge acquired and that the load on teachers, administrators and management throughout the TAFE system has increased dramatically."

Transcript p.1120

FINDING

I consider that the weight of the Society submissions can not be tempered in any way by the arguments advanced by Mr McCabe on the Wage Fixing Principles and on matter P.136 of 1980. Any objective assessment will support the contention of the Society that the dynamics of TAFE have altered greatly and that the sheer speed of change and range of courses offered has impacted significantly on the work of teachers. I could not conclude that the extent of change was able to be given the same weight for non teaching employees.

I accept the factors referred to by Mr Holden as satisfying the dicta of the Work Value Principle.

TAFE AND COMMUNITY INVOLVEMENT AND EXPECTATIONS

Mr Holden submitted that community and particularly student attitudes had undergone significant change. He contended that students had become far more questioning of what is being taught and as a result teachers were far more accountable. I was informed by Mr Holden that notwithstanding TAFE's new emphasis on vocational education and training, programs for the general community and in particular for minority and disadvantaged groups had increased dramatically in the 1980's. Mr Holden indicated that across Australia people representing industry and the broader community were actively involved in making decisions which impacted on TAFE colleges and the TAFE system. He referred to peak advisory bodies, college councils, industry training advisory bodies, industry training boards, course committees and other forums, all of which had significant work value implications for TAFE.

FINDING

I am of the opinion that increases in the variety of programs provided by TAFE; the individual approach to learning and all that this entails, as canvassed in this decision; teacher accountability to students which is very much reflective of changed expectations of teachers and the education system generally, including TAFE, are issues which have legitimately contributed to a significant net addition to the work of teachers. I consider these matters to reflect very starkly the changes in the interaction between TAFE, business and the community and that this has created a completely different work environment which has resulted in clearly recognisable changes in the way TAFE teachers now operate.

TECHNOLOGICAL CHANGE

Mr Holden submitted that:

"During the last decade the technological explosion has had a major impact on industry, business, and everyday life. Nowhere have its effects been felt more than in the area of vocational education and training."

Transcript p.987

Mr Holden said that developing an effective response to continual technological change is a constant objective of vocational education and training. He informed the Commission if teachers are not aux fait with technological development it would be difficult for them to teach others. Mr Holden submitted that TAFE had endeavoured to incorporate extensive technological change into its curriculum, equipment and facilities.

The Commission was told that computers in TAFE were virtually unknown in TAFE in 1981 whereas they now are part of almost every program. Mr Holden said this has meant that teachers had to become "computer literate in the 1980's"55 He indicated that it was in 1983 that the "proper"56 teaching of students using computers first started in the Commerce area. Since then equipment had been updated three times and the curriculum re-written five or six times. Mr Holden informed the Commission that time spent on computer calculations had increased from 10 to 45 per cent of teaching time compared to 1983.

A further example relating to the School of Engineering was provided by Mr Holden. He indicated that the AUTOCAD software introduced in 1986 had been updated five times since then. Mr Holden contended that new skills had to be leant and were required to be updated every year. Other examples referred to by Mr Holden related to the Electrical and Electronic School where microprocessor units are now available and the introduction of programmable machines in the Metal Fabrication area of Business Studies.

Mr Holden submitted that technological change had impacted on teaching methodology which, together with the introduction of competency based training and assessment had resulted in TAFE teaching in 1991 being totally different to 1981. Mr Holden said that teachers had to come to grips with dramatic technological innovation at short notice and teach about its use to people, who were in some cases, using those machines on a day to day basis. With the introduction of a greater number of post trade courses, Mr Holden submitted instead of teaching apprentices, teachers were often training far more highly qualified tradespersons.

Mr Holden made the point that teachers, as well as having to be proficient with the use of technology in their work such as curriculum development, administration, they were also required to become familiar with the latest technological disciplines in their own particular areas of expertise.

As with most other work value changes advanced by the Society Mr McCabe relied on the application of the Principles, the absence of witness from the base incremental scale to support the claimed changes and that technological change as with many other work value issues, had already been taken into account in matter P.136 of 1980.

FINDING

The Society established that computer technology has proliferated to almost every program area in the review period. The comparison between what was the case in 1980 and as established in this case is not valid if the submission of the Society that computers in 1981 were virtually unknown, are accepted.

On the material before the Commission I am satisfied that computer technology has been integrated throughout the TAFE system to the extent that it has had a material and significant impact on the work of teachers.

EQUAL EMPLOYMENT OPPORTUNITY

Mr Holden submitted that the Department had been working on an Equal Employment Opportunity Management Plan since it was formed in 1989. A plan was established for 1991-1992, Exhibit H51, which Mr Holden contended was a clear recognition by the Department of the importance of Equal Employment Opportunity policies. Mr Holden said that notwithstanding the efforts made by the Department to implement Equal Employment Opportunities (EEO), TAFE staff have had to work within the changing EEO environment that had developed during the period under review. Mr Holden said:

"It is therefore something that should be recognised if there has been a change in the work-value component of TAFE teachers and staff."

Transcript p.1014

The Hobart Technical College plan for Equal Opportunity for People with Disabilities, Exhibit H51, was also tendered by Mr Holden with the objective of demonstrating that TAFE Colleges had recognised the rights of minority groups "notwithstanding that it can add additional difficulties to the TAFE teachers role"57 Examples of minority groups given included aboriginal students; students with disabilities; students with diverse cultural backgrounds; unemployed and socially disadvantaged students.

Mr Holden submitted that the Australian womens' employment strategy of 1988 had three goals.

1. to improve womens' access to and participation in employment and training;

2. to improve employment and training opportunities for women as part of industry restructuring; and

3. reducing gender segregation in TAFE and higher education, occupations and industry.

Mr Holden said the national focus on these areas had influenced TAFE policy. In Tasmania a number of policy developments had occurred such as equity of opportunity in employment, the establishment of the Women in TAFE Advisory Committee to provide advice for senior management groups on womens access and participation in TAFE and the development needs of women staff in TAFE, all of which had necessitated major changes in the role and responsibilities of TAFE teachers.

Mr Holden informed the Commission that teachers were required to adopt new practices and to change their traditional teaching styles to better accommodate changing social structures and expectations.

The Commission was told that efforts to improve participation in vocational training and education had resulted in changes to the nature of the student population in TAFE. Mr Holden said:

"There has been a change from the typically male part-time student engaged in concurrent relevant employment to a more diverse group, including mature age women, students with disabilities, the young and unemployed people seeking to develop their employment potential."

Transcript p.1015

Mr Holden submitted that through its commitment to social development and equal employment opportunities, TAFE had undergone significant change which had caused all TAFE staff to acquire greater knowledge and skills.

FINDING

The Society has demonstrated that important initiatives were taken with regard to the development and implementation of equal employment opportunity policies and practices. This aspect, together with the improvement in the participation in TAFE of minority groups highlights the diverse framework within which teachers now work and the adaptations they have to make in order to meet social and community expectations. I am satisfied that the consequential associated skills and knowledge required by teachers represent a significant net addition to work requirements.

I do not find that matters determined in P.136 of 1980 have any relevance to these matters here. Similarly the extensive work value principle submissions of Mr McCabe in no way diminish my findings.

TAFE RESPONSE TO INDUSTRY

Mr Holden informed the Commission that in response to industry demands TAFE has provided fee for service courses both in TAFE colleges and for on the job training. Mr Holden contended that this type of training had increased significantly in recent years as a consequence of award restructuring and the introduction of the training guarantee levy.

Mr Holden made the point, by reference to Exhibit H46, School of Electrical and Electrical Studies, Launceston College of TAFE, that those courses were available at various different times of the day and night and that this was indicative of the flexibility of TAFE teachers and their staff and that it indicated a desire to be efficient and productive. Mr Holden submitted that previously this flexibility could have been achieved through the payment of excess hours, which has now disappeared with the introduction of annual teaching loads. Mr Holden stated that the changes over the period were so significant "that they have impacted on the work value"58 of teachers.

As well as providing fee for service courses, Mr Holden submitted that costings of these courses to industry are required to be undertaken by teachers and Heads of School. This also entailed liaison with industry in respect of the recruitment of consultants as appropriate and the purchase of equipment. This was not the case in 1981 and therefore, Mr Holden submitted the skills required are "new skills which add"59 to the work value of teachers.

Mr Holden also contended that customised one off course training packages delivered either on or off the job had developed through the 1980's, increasing dramatically from 1986 onwards. He said:

"...the main point is TAFE teachers have acquired new and necessary skills and knowledge and have been using them in this new field of providing vocational education and training."

Transcript p.954

With regard to the availability of a national data bank or "off the shelf training packages", Exhibit H48, available to TAFE colleges, Mr Holden submitted that notwithstanding access to such packages, they are required to be tailored to the specific enterprise. He indicated that what may be perfect in one enterprise may not apply in another, and accordingly teachers "still end up preparing and delivering a one off course with all the preparation work."60

Mr Holden stated that TAFE also undertook training needs analysis which formed the basis of the training programs to be provided. The Commission was informed that TAFE staff assisted with skills audits and with the development of training plans. Mr Holden indicated that services provided to industry include training for supervisors and managers, customised technical training and the placement of teachers in firms "as in International Catamarans."61

It was submitted by Mr Holden that TAFE teachers had a much greater involvement with industry in 1991 than in 1981 and that this was going to continue to grow. He said:

"TAFE can help industry in many ways. For example, in the areas of award restructuring, skills audit, job design, redesign, training plans, training needs analysis and one can go on. Trainer programs, research on work-based learning, assessment maps, quality control and evaluation, occupational health and safety, equal employment opportunities and can do it through a number of ways, including articulation, accreditation, recognition of prior learning and specialised curriculum development and training services. The list is in fact never ending and is indicative of the important role TAFE has assumed in the second half of the '80s and is continuing to develop into the '90s."

Transcript p. 978

FINDING

With regard to this issue I firstly accept that the interaction between industry and TAFE teachers has dramatically increased during the period of review which extends over a period in excess of ten years. I endorse as legitimate work value claims those aspects dealing with the preparation and delivery of specific training packages to industry. Also the work of TAFE teachers has changed with regard to the conduct of training needs analysis, skills audits and with meeting the training requirements of industry, as outlined by Mr Holden.

I consider that those work areas constitute a quantifiable and significant change in the work of teachers. Again I consider the submissions of Mr McCabe concerning matter P.136 of 1980 and the application of the Work Value Principle not to vitiate those findings in any way.

DEVOLUTION OF AUTHORITY

Mr Brough indicated in his evidence that TAFE was increasingly taking on new areas of responsibility. These related to program budgeting which involved the development of strategic plans and their resourcing requirements. Mr Brough also cited the re introduction of tuition fees, overseas fee paying students and the generation of fees for service activities as having increased the responsibilities of teachers.

The Commission was informed that following the 1990 restructuring program in TAFE there was a consolidation of TAFE programs. At that time also TAFE colleges at Devonport, Burnie and Queenstown were combined into a single administration. Mr Brough indicated that the "college now operated as a single entity with three separate campuses on the sites of the previous individual colleges under the administration of a single principal, with deputy principals or persons appointed under that award classification, deputy principles designated as campus managers in each of the campuses"62 Mr Brough said in his evidence that the effect of the rationalisation was to reduce the number of promotional positions and that those responsible for the programs within the campuses assumed higher levels of responsibility. I was informed by Mr Brough that in his opinion there had been "significant increase in workloads" because there is one person, for example, in Devonport at senior level within the college where previously there were three."63

Mr Holden submitted that staff development had been progressively transferred to colleges and teachers. He contended that teachers often assessed their own performance as well as that of their colleagues. Mr Holden said that in many cases teachers initiated, created and developed their own staff development programs. The general thrust of the submissions of Mr Holden were that colleges now had much greater autonomy with increased accountability for funds used for staff development. They also had responsibility for the purchase of equipment and for negotiations with suppliers.

Financial grants from both the State and Commonwealth were handled directly by colleges on some occasions where previously it was a "head office responsibility."64

Mr Holden also stated that "promotion of staff was a further devolution of authority from Head Office to colleges"65 This had involved teachers in gaining a total understanding of the requirements of the Tasmanian State Service Act, 1984 particularly with regard to merit and equal employment opportunity principles.

It was contended by Mr Holden that colleges are responsible for marketing TAFE courses. Mr Holden informed the Commission that responsibility now rested with "TAFE teachers, in some cases at base level - and in fact including all levels - in a co-operative effort to sell and market and implement fee for service courses"66 Mr Holden said that this was not the case in 1981.

The Commission was informed by Mr Holden that as a result of what he termed "the large scale transfer of many responsibilities from head office to colleges,"67 principals had devolved responsibilities to deputy principals, heads of school, senior teachers and teachers. He advised the Commission that those categories of employees had their roles and duties greatly expanded and as a result their work value had increased.

The Commission was referred to Exhibit H 35 which related to the regionalisation of DEIRT Service Delivery. The correspondence from the General Manager of Industry (Services Division) stated:

"The following proposal is aimed at providing the North and North-West regions with more responsibility and accountability for managing service delivery functions.

A proposal is put forward to provide a basis for the staff involved to properly contribute to its full development and specification.

The TAFE colleges have been excluded as they currently have a much higher degree of management responsibility."

Transcript p.1176

Mr Holden submitted:

"And whilst that exhibit refers specifically to the north and the north-west I submit it is equally true of other areas throughout the state, and that in effect Hobart Technical College, Launceston College of TAFE, as well as the North-West Regional College of TAFE, all possess authority at a much higher level than existed in 1981 and, in effect, a higher level of authority than applies throughout the rest of DEIRT."

Transcript p.1176/77

Mr Leo's evidence on the other hand was that devolution had not taken place and that at this stage TAFE was in the process of "developing a system which will see authority devolved to directors of colleges68 He stated in his evidence that a consultative approach was developed during the 1980's involving teachers, colleges and central staff in discussions on issues before decisions were taken. Mr Leo said that nothing had changed with regard to the consultative approach on budgets, equipment selection and purchases.

FINDING

Having regard to the submissions and evidence I conclude that devolution of authority to colleges has occurred since the datum point in September 1981. Clearly devolution of responsibility has occurred in areas such as staff development, accountability for funds used, negotiations with suppliers, and wider responsibilities for marketing of TAFE courses and their delivery. Additionally at various times in the proceedings the Society articulated devolution to have included responsibilities for purchasing of materials, handling enrollments and dealing with other management and organisational matters including staff selection in accordance with the State Service Act 1984 which also entailed establishing interview panels, attending interviews, preparation of interview reports, post interview counselling and as necessary attend Commissioner for Review hearings.

In my opinion the changes I have referred to demonstrate significant work value change. These changes are different to what was contemplated in P.136 of 1980 under the heading of Administrative change and others. In my opinion the changes I have identified in this decision are far in excess to those discussed in 1980.

STUDENT PROFILE, TUITION FEES, COLLEGE ACCOUNTABILITY AND TEACHER ASSESSMENT

Mr Brough gave evidence that this had altered in a significant way. He said that in 1981 students were in the main mature age students and most of them were studying on a part-time basis. Mr Brough contended that the 1991 student profile had changed. There were more full time students coming from year 12 to TAFE programs. Overseas fee paying students and rehabilitation students were other categories of students in more significant proportion than previously. There was also a wider range of mature age students, e.g. adults requiring retraining including women who had been out of the workforce for many years. Additionally the Australian Traineeship scheme was said by Mr Brough to have resulted in significant numbers of year 10 students undertaking programs involving on and off the job training. The enterprise incentive scheme also brought people of varying educational social and cultural backgrounds together on the basis that the common characteristic was that they received government support to undertake that particular program. Mr Brough indicated that there was a great demand on teachers to be very adaptable and flexible in teaching these mixed groups and that this had a great effect on teachers.

Mr Holden submitted that the increased diversity of students who come from all age groups, different socio-economic backgrounds, from virtually all minority groups, and who possessed widely varying qualifications and skills, had made the role of TAFE teachers more demanding. According to Mr Holden "probably the most demanding in any educational sector"69

Mr Holden submitted that in providing this diverse group with knowledge and skills, TAFE teachers spend more time assisting and counselling students than was the case ten years ago. He indicated that teachers were now concerned to address the holistic needs of students to ensure that each student gained the maximum benefit from their studies at TAFE.

With regard to tuition fees I was informed by Mr Holden that whilst some fees had applied since 1974, with the commencement of TAFE Training Services and the resultant fee for service programs in the mid 1980's and business using the services of teachers, there had been a "large scale move to fee for service"70 He submitted:

"And in fact in 1990 the Tasmanian Government decided in a budget measure to reintroduce TAFE tuition fees, and virtually all courses now attract such fees."

Transcript p.998

Mr Holden indicated that in the result students were much more concerned about getting value for money. Overseas students paid full commercial fees amounting to approximately $6,000 per annum for associate and diploma courses. The point Mr Holden made was that with the time spent collecting fees and dealing with students who may not have paid, that this took up teaching time causing disruption and discontentment to those students waiting to get value for money.

It was submitted by Mr Holden that overseas fee paying students are under great pressure to succeed in their studies and accordingly are far more demanding of their teachers. It was contended by Mr Holden that English language problems and cultural differences create new and significant pressures on teachers, especially in mixed classes, and required additional skills and knowledge that were not required in 1981.

With regard to accountability and teacher assessment Mr Holden claimed that this had increased as the work of teachers had come under very much closer scrutiny. He stated that with the redirection of government union and employer efforts to making Australia the "clever country" the spotlight was focused on vocational and education training. Mr Holden contended that TAFE was also under increased scrutiny from the growing training market which now provided competition for TAFE and TAFE teachers. Fee for service was also referred to by Mr Holden as ensuring a greater degree of scrutiny.

Mr Holden propounded that as Australia's economic position had deteriorated, from fourth in living standards in the OECD to fourteenth, there was a perceived need for a more highly qualified work force. He said that this required highly motivated and competent teachers with the result that scrutiny and accountability of teachers had increased which made the role of teachers more demanding in areas of knowledge, skills, responsibility and workload.

FINDING

I consider that the submissions by the Society demonstrate a significantly changing environment within which TAFE teachers work. Whilst student profile, the impact of tuition fees and fee for service programs was dismissed by the Government as constituting a work value change, sufficient recognition was not given to the additional skills, required by teachers to adapt to a demonstrably much more diverse student body expecting and receiving a holistic approach to their further education. There is no doubt in my mind that teachers have acquired additional skills to deal with the mix of students which now comprise the TAFE system and to cater for fee for service programs which have particularly manifested during the review period. The conclusion I draw is that all of these factors have given rise to a fundamental change in the skills and knowledge required by teachers and that they have contributed significantly to a change to their working environment. I consider that the requirements of the Work Value Changes Principle has been well and truly met; this notwithstanding the comments made by Commissioner Koerbin in P.136 of 1980. In that regard it should also be noted that in making my assessment in this matter I took into account the impact on teachers of the wider counselling role they have and the impact of tuition fees resulting from the 1990 budged. This is clearly different to what occurred previously and this has contributed to my overall assessment that the work environment and the dynamics of it, have added to the work value of teachers.

QUALIFICATIONS AND PROFESSIONAL DEVELOPMENT

Mr Holden submitted that in 1981 TAFE teachers were generally recruited from industry or commerce to teach TAFE courses with the only qualification being an appropriate technical qualification and experience. Those recruited in this way then studied for a certificate of TAFE teaching. Mr Holden said:

"In 1982, the Diploma of Teaching TAFE was introduced as a mandatory aspect of TAFE teachers enrolment by the then Department of Education."

Transcript p.1153

Exhibit H55 indicated that the then Tasmanian College of Advanced Education presented this Diploma, at the UG2 level, "as initial training for those entering the teaching profession within the Technical and Further Education sector."71

Mr Holden referred to the ability of experienced TAFE teachers (those already in the system at that time) to seek to upgrade their qualifications if they wished. He said that the "overwhelming majority did so and they did so in their own time."72

With regard to professional development I was informed by Mr Holden that since 1982 the federal Government had recognised that TAFE teachers required this on a continuing basis and that it had provided grants for this. Since 1989 monies provided had been confined to specific areas of development. Funds provided in this way are referred to as designated grants.

It was stated by Mr Holden that form 1986 - 1989 TAFE development submissions for designated grants focused on five sub categories -

(i) occupational competence, including computer competence;

(ii) professional development;

(iii) curriculum development;

(iv) organisational development;

(v) management.

Within the professional development sub category, the following areas were identified as priorities:

(i) to provide induction for new teachers;

(ii) to provide support for and facilitate new teachers attending initial training courses given by TAFE;

(iii) to continue the development and updating the professional skills of trainee teachers;

(iv) to provide training courses in teaching techniques for part-time teachers and tutors working in colleges and other education centres;

(v) to provide programs for teaching of new groups, for example, trainees in ATS schemes, disabled, et cetera.

Mr Holden submitted that in 1987 the focus was similar but included - Provision for Individual Programs and Conference Attendances. He indicated that other professional development activities, supported under separate funding were industrial release, assistance with some study, secondment, temporary transfer and assignment to special projects.

The Commission was informed that from 1989 to date staff development focus was as follows:

"Staff Development represents the organisation's constant process of improving the skills and competence of its human resources through a range of activities which promote the notion of maximising organisational productivity through individual productivity.

Productivity reflects performance, therefore it is of paramount importance all staff recognise their individual commitment to their own staff development. Each staff member should maintain a personal development portfolio which take account of individual needs for matching with organisational opportunities. Through this process staff will continue to acquire and develop new skills which collectively ensures the organisation's present and future capacity in attaining its goals.

Staff development, while a shared investment is the overall responsibility of management. The staff development program recommended key target priorities to ensure staff development strengthens the ability of the division to achieve its goals and to meet its priorities."

Transcript p.1156

Mr Holden advanced the position that as the overall responsibility for staff development was the responsibility of management, that this gave credence to his submission that some staff development time should be offered and debited against normal hours. He put it this way.

"... the reference to the overall responsibility of management is a basic requirement and is one that I would request the commission to take into account when having regard to my previous request that there should be included in a teacher's contact hours a provision for release for a guaranteed amount of staff development within the normal contact hours.

In fact probably it's - that's probably badly put in terms of contact hours. I think it should probably be in the normal employment hours, because clearly the staff development time would of course take into account DOTT time as well as contact hours."

Transcript p.1156

Other matters considered by Mr Holden to be relevant to work value changes included:

1. Diploma of Teaching (TAFE) introduced in 1982 - in the case of beginning teachers the program is mandatory.

2. In 1985 there was the introduction of the Graduate Diploma of Educational Administration (TAFE).

3. In 1989 30 hours per year staff development in non attendance time.

4. 1989 the Commonwealth/State Resources Agreement for specific staff development activities.

5. 1990 and 1991 Commonwealth/State Resources Agreement requirements.

6. Mr Holden submitted that the need to further develop and upgrade staff development has long been recognised. He referred to the statement by the Employment and Skills Formation Council made in its 1988 publication Industry Training in Australia, where the following comments appeared.

"TAFE is recognised by governments as having a central role in Australia's vocational training arrangements. As with any education provider, TAFE's major resource is its teachers. If TAFE is to respond appropriately to the challenges flowing from industry and award restructuring it will be necessary to ensure that the teaching staff are appropriately equipped in terms of professional and vocational skills."

Transcript p.1161

The submissions of Mr Holden were that teachers had to examine their own skills in relation to those of other training providers to ensure that they can respond appropriately to industry needs, to develop industry customised training programs and to assist industry to meet their training guarantee requirements, in addition to the traditional TAFE courses. Mr Holden stated that the additional skills required by TAFE teachers compared to 1981 included continuing upskilling to keep abreast of new technology, marketing skills, entrepreneurial skills, skills audit methodology, skills to conduct training needs analysis, train the trainer skills, development of competency standards, design of programs for work-based learning, application of recognition of prior learning, assessment and accreditation skills, competency-based curriculum design skills, development of modular programs, assessment of modules, quality control and quality assurance and managerial skills within a flatter organisation structure as well as teaching of transferable skills.

Mr Holden contended that the "professional development which has occurred in the `80s - particularly the late `80s - indicated very clearly that teachers have improved their knowledge and skills in that period and in fact are continuing to improve their knowledge"73

FINDING

Clearly professional development and upgrading of qualifications are matters of great importance to teachers. They have to be because both of these issues go directly to the quality of service delivery. But these issues should not be the sole concern of teachers but also that of the Government's which has a vested interest in the professional quality of its employees.

In the context of work value the point must be made that qualifications are usually regarded as determining entry points and represent prerequisites for entry to a profession. The upgrading of qualifications for entry, as is the case here arguably justifies consideration of whether the current entry point sufficiently recognises the change that has taken place. However once in the profession it is work value which determines the rate of pay. I am satisfied on the basis of what is to follow that the entry point salary adequately comprehends qualification improvements.

With regard to professional development, in my opinion this is one of the fundamental tools to enable teachers to acquire additional skills so that they can keep up with the changes they encounter in their work. Those very changes are now subject to work value scrutiny and in that context professional development should not be counted separately as a work value change.

NATIONAL DEVELOPMENTS

A great deal of weight was given by the Society to the fact that work value changes in TAFE were in its opinion consistent with those that had been found to apply by other industrial tribunals throughout Australia. This was the case with regard to the developments in competency based training requiring a change in the balance of skills held by teachers. Also I was informed that as a result of the establishment of the National Training Board Incorporated, competency based standards are being developed to enable recognition of competencies for all aspects of work undertaken by people in occupations and industries. It was submitted by the Society that these changes had impacted significantly on the work of Teachers.

The linkage of work value changes in TAFE, with developments in the TAFE system throughout Australia was also relied upon to pursue commonality of outcomes with regard to salary increases. In that regard the Society claimed that comparable skills and responsibilities applied to TAFE teachers in Tasmania as elsewhere. Accordingly Mr Holden submitted that the common salary at the top of the incremental scale was around $41,000 per annum.

To further support that comparable work value changes had taken place in TAFE here to that in other States, Mr Holden referred me to a Full Bench decision in the ACT TAFE Case, Exhibit H64. Mr Holden submitted that the ACT Bench accepted national developments as having impacted on the work of teachers in a significant way. Mr Holden said:

"So it's clear that attention has been drawn to the national developments which it states have impacted and have the potential to impact significantly on the work of TAFE teachers at all levels. Now as will be seen later, the bench accepts that the changes are national in character and have an impact throughout Australia. And the bench also states that there has been considerations of these matters in decisions reached in relation to TAFE teachers by state tribunals and that they have already drawn attention to that.

Transcript p. 1596

The impact of award restructuring was referred to by Mr Holden and in that regard he highlighted the findings of the ACT Bench as follows:

"Of significant impact has been the generality of award restructuring itself and the implications for the TAFE sector of the development of national skill standards for related career structures. The impact of award restructuring was summarised by the parties as follows:

TAFE teachers have had to accept the legitimate claims of other stakeholders in the industry training process. To create an environment in which training can be industry driven, ..... (this) has required TAFE teachers to develop new liaison skills ... and to go out into the community and industry. .....

Teaching methodologies are moving away from traditional methods to new methods such as competency based training ..... A more diverse student population. ..... Greater flexibility in course design and delivery."

Transcript p. 1597

Other work value changes relied upon by the Society in this case and given weight by the ACT Bench related to significant changes in course design, delivery and the effect this had on teaching methodology. Mr Holden indicated that the ACT Bench concluded that on the totality of the evidence that there had been a significant net addition to the skills responsibilities and knowledge of teachers. Mr Holden said:

"In effect, that's basically what the society has been saying throughout its work-value case, that the changes when taken collectively represents such an overwhelming change in work value that the society believes a compelling and persuasive case exists in support of its claim. We accept, if you take each one as a little compartment and say, is this worth anything. Some are and some may not be. But when added in total the society submits that there is a compelling case in support of the society's claim.

The bench then quotes part of the work-value principle in respect of internal and external relativities. In effect, once a significant net addition to work value has been proved, other factors can be taken into account. And further down the page it quotes, and I state - sorry, and I'll quote, at the basically the second-last para:

We have also given consideration to the decisions affecting TAFE teachers made by both the NSW and Queensland state tribunals. While these decisions, particularly that of NSW, reflected different grounds from those argued in the case before us, it is clear that both decisions have implicitly if not explicitly taken account of the effects of national changes which form the major basis of this case. In any event in determining the final salary outcome in both those matters the tribunals have properly fixed consistent external and internal relativities.

On that basis we turn to consider the appropriate rates for -

And it then sets out the various band 1, which are the base teachers; band 2 and 3 promotions; AST. And then it goes on to say:

In proposing new rates for Band 1 teachers both the ATU and the ACT Administration take the view that the skills, responsibility and knowledge of an ACT TAFE teacher as the final point on the incremental scale is similar to that required by TAFE teachers across Australia."

Mr Holden, having regard to the foregoing material, informed the Commission that $41,000 p.a. was awarded for the top base incremental salary.

As indicated earlier Mr McCabe was extremely critical of the manner in which other tribunals arrived at their conclusions to award salary increases for TAFE teachers. I will not canvass that material again, suffice to say that it is appropriate for comparisons to be made with other salaries and work requirements if the same changes have occurred.

FINDING

From the material before me I accept without reservation that the same changes as relied upon by other tribunals to support their findings, primarily on work value grounds (apart from NSW) apply to TAFE teachers in Tasmania. In that regard I consider the ACT decision as representative of the work changes that have occurred and which were regarded to sustain near commonality of salary outcomes with regard to the top base incremental salary level.

STRUCTURE OF TAFE AWARD

Having regard to my findings to this point I am satisfied that a sustainable work value case has been made out by the Society. However before considering those findings in the context of the claimed classification structures as they are intended to apply by the Society as outlined in Exhibit H172, I will first consider the wider issues relating to which classifications should be covered by the award. The need to do so arises because of the Government's position seeking only coverage for those classifications where a direct teaching role is involved. Conversely the Society sought to provide for all classifications in the award. That is teacher and teacher related classifications as comprehended in the Society's proposed definition of Teacher, and all other categories of employees in some way associated with TAFE. The approach of the Society could be categorised as seeking an integrated award with rates of pay derived from a common scale, save for Non Teaching Employees currently subject to Division C of the Award. However Division C employees were also requested to be retained in the award.

Mr Holden's submissions on these issues were extremely wide. He canvassed the inclusion in the award of Design and Development Branch classifications, the fact that the Society had based its classification structure on earlier discussions with the Government and that there was now no basis for moving away from this structure albeit that the Government, some 12 months later, put a different position. He examined the functions of employees classified in Divisions A, B and D, referred to VEETAC Working Party documents and the NSW Ministerial Reference Case. All of these issues and others raised by Mr Holden are now addressed.

Mr Holden informed the Commission that in respect of both TAFE teachers in Division A of the award and positions in Division B, the work, skills and responsibilities were the same as in mainland TAFE systems. Mr Holden made the point that the move to a national focus in TAFE had an effect on all TAFE systems throughout Australia and the "Design and Development Branch and head office is simply used as an example of the change"74 He indicated that workplace changes in that area were generally applicable across all head office positions which supported the TAFE system.

He said:

"It's therefore our intention to present a submission in respect of the classifications contained in Division B of the award, which is headed administration. These are generic-type classifications which cover a number of employees of head office, however, my submission will be based primarily in respect of the Design and Development Department which you may well better know under the Curriculum Development Branch Department. The title has been changed."

Transcript p.1582

It was the submission of Mr Holden that employees in the Design and Development Branch are involved in national working parties on curriculum development and that the employees concerned have a high level input to policy meetings on curriculum which in turn required increased knowledge and skill and therefore represented a work value increase. Mr Holden referred to the document "Developing Australia's Skills: TAFE In The 1990s, Exhibit H45, where under the heading "Continuing Renewal of Curriculum" reference was made to curriculum development becoming a continuous process. Further on in that document it was stated that:

"Curriculum development must become a continuous process, even to the point where changes in course content and the emphasis in courses can be negotiated between students and colleges over a course of study. For example, students or employers may feel that they require greater emphasis in particular parts of a course, where technology may have changed rapidly or where there have been changes in work practices.

The establishment of skill standards and moves to competency based training provide the basis for much greater flexibility at the college level in course delivery, while ensuring that essential and required skills are acquired.

With some exceptions - such as in the curriculum required for new courses associated with award restructuring in the Hospitality and Metals Industries - TAFE has not been sufficiently involved at the ground floor in negotiations over training requirements of award restructuring.

Priority has been given to industrial relations issues, with work on training requirements often commencing very late in the process. Expectations of rapid course development and delivery are unrealistic, particularly given financial restraints.

TAFE must be at the forefront of the process. But to be at the forefront it required a much greater understanding of industrial relations issues, of occupational structures and of work organisation in industry. It needs a capacity to quickly relate changes in those structures to required changes in courses and new course requirements.

This approach to curriculum requires an investment in curriculum development to provide the time release for teachers, and it means that most teachers must be capable of curriculum development. For too long curriculum development has been an area of expertise in itself, and something of a mystery to others in the system."

Exhibit H45 p.31

Mr Holden stated that up until 1984 the role of the curriculum section was "nothing more than to act as a record and filing service"75 He indicated that if a teacher required a new course a "shopping" list syllabus was prepared which in turn was submitted to curriculum development which gave it a code number and entered it into the TAFE main frame computer. Mr Holden said "the curriculum branch in filing and recording this brief syllabus had fulfilled its role"76 The Commission was informed that dramatic changes started to occur in 1984 and early 1985. The curriculum branch was enlarged and it was required to ensure that syllabi was relevant to needs of clients. Formal working parties were established in respect of all award courses.

In 1986 the Australian Commission on Tertiary Awards established a national framework which resulted in National Accreditation Guidelines for all award courses. Tasmania had input and set up its own accreditation guidelines as constructed by curriculum development.

Working parties for all major courses were also formed. Skills and tasks lists were established and transposed with competencies and performance criteria standards. Assessment criteria was drawn up and syllabi written. Mr Holden emphasised that this was a significant change for curriculum development resulting in employees having a wide input to the subject matter. Mr Holden submitted:

"The changes that occurred represented a major change in direction, not only for the design and development branch, but also for TAFE, and all TAFE staff, whether employed in design and development or elsewhere, as they are all involved in development, delivery, evaluation of TAFE curricula. As a result, all have gained - all have been required to gain additional knowledge and skills that were not required in 1981"

(Underlining mine) Transcript p.1585/86

I was informed by Mr Holden that in 1988 the emphasis on national curriculum development in TAFE became even greater which required the involvement of design and development officers in national meetings. Forty such meetings were attended in 1991. Mr Holden indicated that teachers at "various levels"77 also attended these meetings to represent the Department. Mr Holden informed the Commission that those attending these meetings had the authority to bind Tasmania in the discussions held.

Mr Holden submitted that design and development employees were subject to work value change on an equal basis to teachers, and on occasion more so where changes concerned national directions. He indicated design and development employees were among the first to be involved when ISM and CBT was introduced. The Commission was informed that Tasmania was involved with 62 national projects. Mr Holden contended that in 1991 Design and Development had a most important role in ensuring that TAFE in Tasmania fitted "in with the national thrust of vocational training and education"78 Additionally, Mr Holden claimed that as teaching methodology had altered due to curriculum changes, design and development officers were required to spend more time with teachers to ensure proper implementation of ISM and CBT.

Mr Holden also identified as a significant change the accreditation of TAFE courses which in 1981 was undertaken by TAFE on its own behalf. Now TAFE is subject to national accreditation criteria. Mr Holden indicated:

"...the move from the head office operations simply researching and filing syllabi or a curriculum to a position where it must meet national objectives is probably one of the most significant work value changes that have occurred in any area in respect of professionals."

Transcript p.1606

Mr Holden also drew attention to the greater interaction between Design and Development and industry as a result of TAFE having become "user" driven instead of "provider" driven. This he said resulted in increased accountability in all tasks at all levels, but particularly with regard to representations concerning national project requirements.

ADULT EDUCATION

With regard to Division D Mr Holden submitted that employees covered by that Division are involved in providing planned learning opportunities for those considered to be beyond the age of compulsory schooling.

Mr Holden informed the Commission that all full time employees either possess qualifications equal to or better than a Diploma of Teaching (TAFE) or they are studying for such a qualification. He said that all employees "undertake regular teaching"79 which in some cases was 2 hours or 4 hours a week. Mr Holden contended that in that context there was a comparability with promotional positions in Division A of the award in as much that in senior promotional positions in Division A teaching contact hours reduce as more management and administrative work is undertaken. Mr Holden submitted:

"...the people who are in Division D are effectively, teachers in a limited sense, and administrators and managers of teacher et cetera in a much greater sense."

Transcript p.1614

The Commission was told by Mr Holden that as well as teaching, Division D classified employees organised and checked and overviewed the work of teachers, ensuring the proper development and delivery of courses and in general assisting teachers to ensure that clients are satisfied with course offerings. Mr Holden was of the view that the factors referred to above showed that employees in Division D performed "basically similar duties to employees covered by Division A"80 Accordingly Mr Holden contended that a firm nexus was established between "all classifications"81 in Division A and Division D.

HISTORY OF ADULT EDUCATION

Adult Education became part of the Education Department as a Division of TAFE in 1976; subsequently in 1989 TAFE was transferred to the Department of Employment Industrial Relations and Training.

Mr Holden indicated there were 15 full time employees subject to the award providing for non graduates and graduates at the base salary level. The salaries for the promotable levels in Division D, Senior Adult Education Employee and Principal Adult Education Employee were said by Mr Holden to have a "direct nexus with Division B and Division A"82 of the award. Mr Holden contended that the current salary structure was outdated, inadequate and unsatisfactory and was in need of change. In support Mr Holden submitted that it was his understanding that no appointment had been made to grade 3 in Class I and Class II and very few at Grade 1 in those respective classes. It was also submitted that there was no progression from the non graduate to the graduate scale, unless the relevant qualification was gained, irrespective of the quality of the work performed.

Mr Holden also submitted that Adult Education employees believed that in 1981 Commissioner Koerbin included Adult Education in the TAFE Award and "gave leave for a case to be put for other changes to occur"83 and that employees were now looking to this case to restructure their classifications and salary levels.

Reference was also made to a Senate Standing Committee Report, The Edgar Report, a 1990 DEIRT Report and extracts from "Fightback", Exhibit H66 sought to highlight that Adult and Community Education was the fastest section of education; that a rigid split between training and adult education should not be accepted; that adult education was one of the "multiple pathways by which adults come to further education, vocational training and retraining;"84 that the DEIRT Report contained the following:

"Mission Statement

Adult Education is a division of the Department of Employment, Industrial Relations and Training, which provides and initiates post-compulsory education for all adult Tasmanians, within the framework of TAFE."

Exhibit H66 p.81

Mr Holden submitted that of Adult Education intended to be fully self funded by 1993-94 and to facilitate this it would pursue entrepreneurial activities and that this was even more fundamental to the work value increases for adult education employees than for the remainder of TAFE.

It was acknowledged by Mr Holden that adult education employees did not receive "teaching conditions" but he submitted that the Society:

"...proposes, having regard to history and the intent of the structural efficiency principle, that is to provide career paths and make awards more easily understood, the current classification structure as we have it in Division A, B, and D should really be scrapped and a new arrangement entered into where the classification are simply accredited to certain levels within the condensed salary scale which is proposed."

Transcript p.1625

Mr Holden also referred to the significant increase in the use of Adult Education by the public. Mr Holden said:

"...we're talking about adult education officers and their seniors who, whilst teaching, are in effect administrators and managers."

Transcript p.1623

In that regard Mr Holden submitted that employees in adult education were no different to teachers in TAFE (Division A) holding promotional positions. Mr Holden indicated that:

"... because adult education has such a great breadth and diversity of programs, involving an incredible number of part-time tutors, the management role of adult education staff has increased very dramatically, as has the organisational requirements of their jobs."

Transcript p.1623

Mr Holden endeavoured to highlight the links and similarity between Adult Education and TAFE. He referred to Commonwealth funding for certain courses which the Federal Government regarded as TAFE activities, the fact that Adult Education plays a much greater role in industrial education than is usually realised. He also indicated that a number of Adult Education employees had completed or were completing TAFE related qualifications and that the interrelationship between TAFE and Adult Education provided a degree of career flexibility.

To further support an integrated award Mr Holden tendered Exhibit H159 Staffing TAFE for the 21st Century - Phase 1 - VEETAC Working Party on TAFE Staffing Issues - where at page 7 it was stated that there is a tendency to combine functions of TAFE teachers and other delivery staff. Mr Holden contended there is an interaction between all staff. To further illustrate this point Mr Holden referred to the following part of the Exhibit:

"5.21 During our consultations we found a tendency to combine the functions of TAFE teachers and other TAFE delivery staff. This highlights one of the difficulties in describing teaching functions as they exist `on the ground'. Whilst awards or duty statements might describe the functions of TAFE teachers, in practice there is considerable variation in their working lives."

and later:

"5.23 Resourcing of support staff will influence the functions of teaching staff. Teachers may find themselves taking on technical, administrative, maintenance, or management functions because of a shortage of support staff.

Exhibit H159

Mr Holden submitted that Exhibit H157 and the extracts referred to highlighted the need for TAFE staff to be able to work together and to continue to be able to be covered by a single award because of the interaction that takes place. He said:

"The society submits once again, Mr Commissioner, there have been no substantive, persuasive or compelling reasons why any of the classifications should be removed from this award. In fact, exactly the opposite is the case."

and later:

"The society believes that it an some of its members would be denied natural justice if the various classifications we've just spoken about and others are removed from the award. We repeat the only good reason put forward is the minister wants a teaching service award and we submit that that submission is worthless without something in support."

Transcript p.4375

A further plank in the submissions of Mr Holden related to the Ministerial Reference case re New South Wales Teachers Federation and Others, Exhibit H124. Mr Holden sought to emphasise that the Full Bench in that matter rejected the view of the Minister that the Commission should, as a matter of course, enact awards designed to give effect to the claim by the Minister that the Government has both a statutory and managerial right to introduce changes which it seeks.

The Full Bench stated that it was empowered to carry out a wide variety of functions and to hear and determine matters referred to it pursuant to the appropriate legislation. The Full Bench said:

"The obligation to "hear and determine" such matters requires the exercising of the jurisdiction conferred by the Act in which the Commission "shall be governed in its procedures and in its decisions by equity and good conscience ..." and the substantial merits of the case presented to it in properly constituted proceedings "Government departments and agencies appearing before this Commission as industrial parties litigating industrial issues have the same rights and privileges as any other party".

Exhibit H124

In discussing management prerogative the Full Bench noted that the subject matters before it fell within the definition of "industrial matter" and accordingly it had "jurisdiction to determine the matters and that the true area of debate related to the exercise of its discretion"85

The Full Bench went further to state that it would consider questions going to prerogative as dealt with by the High Court (Mason CJ Brennan, Deane, Dawson and Toohey JJ) in the Cram: ex parte NSW Colliery Proprietors Association Ltd (1987) 21 IR 165 at 174; 61 ALJR 401 at 406. The High Court said:

"These considerations indicate that the objection raised by O'Connor J in Clancy to the regulation and control of business enterprises by industrial tribunals is not a matter that goes to the jurisdiction of the tribunals. Rather it is an argument why an industrial tribunal should exercise caution before it makes an award in settlement of a dispute where that award amounts to a substantial interference with the autonomy of management to decide how the business enterprise shall be efficiently conducted. The evident importance of arming such tribunals with power to settle industrial disputes capable of disrupting industry is a powerful reason for refusing to read down the wide and general definition of `industrial matters' in the Commonwealth and State Acts by reference to any notion of managerial prerogatives as such"

and later:

"Accordingly, to the extent that the submissions are made by counsel that the ministerial reference is one in which the government "seeks awards which are not arbitrations of work conditions, but endorsements, enforceable through this Commission, of what the government sees as its existing rights", such submissions are not accepted.

The Commission proposes to consider questions going to the prerogatives of management exercising caution as required in Cram's case"

(Underlining mine) Exhibit H124 p.105

The foregoing Full Bench decision requires some comment to be made at this stage. I adopt the conclusions of the Full Bench which in summary were that tribunals should exercise caution in seeking to interfere with management's autonomy in deciding how to conduct or manage its business. In this case however the Commission must also be mindful of the fact that Section 33 of the Tasmanian State Service Act places statutory obligations on Heads of Agencies, in this case the Head of Agency of the of the Department, to ensure that they operate efficiently, economically and practicably. Also Section 42 of the Industrial Relations Act 1984 makes it clear that an award has application subject to the provisions of any Act dealing with the same subject matter.

Whilst these respective Sections impose obligations they do not provide in my opinion an overriding mechanism to what may be determined in proceedings such as this. Section 42 of the Industrial Relations Act relates to specifics, or put another way, where a determination made in an award is in direct conflict with the provisions of another Act, then those provisions in that other Act would apply. I consider that it would be going too far to say that the general provision of Section 33 of the Tasmanian State Service Act create a circumstance whereby specific determinations in an award may be overidden.

Having said all of that and as indicated earlier in this decision, I intend to adopt the conclusion of the Full Bench in the New South Wales - Ministerial Reference Case in determining issues going to management prerogative.

Mr Holden also advanced the ACT TAFE Teachers Case86 decision to support an integrated award. In that matter the Full Bench supported comparable rates of pay but not direct alignment, apart from the top incremental rate in the teachers scale. Nevertheless the Full Bench in the ACT Teachers matter referred to above stated:

"... it is commonsense that there should be properly fixed comparable rates across the TAFE sector. A pattern of disparate rates has the potential to lead to instability and leapfrogging.

We note however that while there is some consistency in conditions across TAFEs (ATU written submission) there is not sufficient consistency in our view to warrant the direct alignment of any but the top incremental rate at the classroom teacher level. Our view is further reinforced by the significant differences in the promotion structures, and the diverse incremental patterns for classroom teachers.

The further pursuit of consistent national rates in the TAFE sector, would require in our view, the attainment of consistent conditions, as well as incremental patterns, career structures, barriers and so forth."

(Underlining mine) C No. 90013 of 1991 page 8

Mr Holden placed heavy emphasis and reliance on this decision for commonality of rates for employees covered by the award. He said:

"... I submit, Mr Commissioner, that the acceptance by the full bench of need for a commonality of salaries, based on the similarities in the nature of work, skills and responsibilities in different TAFE systems throughout Australia, and the opinion of the full bench that it is a commonsense view that there should be properly fixed comparable rates across the TAFE sector, adds considerable weight to the Society's claim before the Commission in respect of all TAFE sector employees covered by this award"

Transcript p1600

I understand the thrust of Mr Holden's submission on this point i.e. that given the similarity of work between Divisions A, B and D of the award, and the application of efficiency and productivity measures from the Memorandum of Understanding, that the ACT decision supported commonality of salaries. However I consider that Mr Holden is taking that point too far as the ACT decision was addressing the question of TAFE teacher salaries only. The Full Bench in that matter did not address the wider question of integration of one salaries scale for all other classifications albeit this was discussed as I have indicated, for teacher classifications. In any event the first test must be to determine whether or not the same degree, or at least significant work value change to satisfy the Work Value Changes Principle, is able to be established for other classifications in the award.

Whilst the thrust of the Society's submissions were for all teacher and teacher related classifications to be covered by the existing award, Mr Holden also specifically referred to employees in Design and Development. He stated employees in that Department had undergone work value change at least equal to employees in other States and therefore they should have a common rate of pay.

A further reason for maintaining the award in its entirety related to what the Society considered to be an existing and historical nexus between Division A, B and D. Mr Holden said:

"Yes. But apparently back in 1980 there were three separate awards covering these areas, and I think I said to you that Class I and Class II really have never been directly related because there are nongraduate and a graduate scale, but levels 2 , 3 and 4, which are the promotional positions, have certainly been in a nexus situation with Division A since 1981.

And Division B is a complete reflection of what's in Division A; that is, there are more salaries in Division A but everyone in Division B is comparable with something in Division A. Exactly. Much more even than Division D."

Transcript p.1637

Additionally Mr Holden reminded the Commission that in the second instalment structural efficiency case in this Award, classifications in Divisions A, B and D were rationalised and moved in respect of salary increased of the same magnitude. Mr Holden submitted that following that interim process of award classification rationalisation the Society was now seeking "the Commission to further the structural efficiency process by further streamlining the award but it is seeking that it be done in accordance with the memorandum of understanding87

Mr McCabe based his submission on the premise that employees in non college based branches of TAFE are not involved in teaching and therefore should be excluded from the award. He stated that the branches he was referring to included Design and Development, which co-ordinated curriculum development;

Planning and Co-ordination responsible for the co-ordination of Commonwealth funded programs including adult migration English services; Quality Assurance which is involved in matters dealing with state examinations, awards for students and accreditation of TAFE courses. Mr McCabe said:

"They are not within the TAFE colleges themselves and have more of a central co-ordinating role and are not actually undertaking teaching duties as such."

Transcript p.2348

With regard to the Design and Development Branch, the evidence of Mr Leo was that it arranged the writing of curriculum by engaging TAFE teachers and other people on contract.

In addressing Division B of the award in respect of all existing classifications - Technical Education, Senior and Principal Technical Education Employees, Mr McCabe stated that the primary function of all of these employees are not involved with teaching. He said the functions are:

"...not that of a teacher in a TAFE college."

Transcript p.3913

Mr McCabe informed the Commission that those employees performed administrative work with regard to TAFE training and education processes.

The Commission was informed that some six employees are engaged in the design and development of curriculum for TAFE Courses. Notwithstanding Mr McCabe submitted that those tasks were also of an "Administrative management function"88 because there was no teaching involved and the employees were not located in TAFE colleges.

Given those circumstances, Mr McCabe advocated that the employees concerned should be transferred "to the appropriate scale in the appropriate award in the four stream public sector proposals"89

With regard to Adult Education classifications Mr McCabe said that the salary levels were the same as for the teaching scale. He submitted that Adult Education employees are not required to teach, but:

"If they do happen to teach then it is either as a result of volunteering to do so for their own satisfaction or interest ...."

Transcript p.3905

Mr McCabe also referred to a position description for a Class 1 Non Graduate and Class II Graduate position, Exhibit H71, which he submitted did not "require or suggest that these employees woute be required to do any hands on teaching"90 He stated that the job description totally supported the Government's position that Adult Education employees are there to develop, promote, organise and evaluate adult education programs. Mr McCabe emphasised that this conclusion was supported by the Acting Principle of Domain House, who in cross examination supported the Government's contention that the primary task of Adult Education employees was "to mount a teaching program"91 and that these employees did not have any prescribed teaching load. In a similar vein the evidence of Mr Nicholls, a Senior Education Employee Class III was that teaching was undertaken but that the primary task of Adult Education was "to mount a teaching program so teaching is but one segment of a wider management task"92 He agreed that these employees did not have a prescribed teaching load.

It was put by Mr McCabe that as Adult Education employees are facilitators, managers and organisers and "not teachers"93 classifications for these type of employees should not be included in the TAFE award; but should be included in the Clerical Employees Award.

I was informed by Mr McCabe that Adult Education was now a "separate division"94 of the Department and for organisational reasons that should be maintained.

On the question of nexus between Division A and D Mr McCabe said:

"Yes, there are certain common salary points. I haven't gone into great detail about the nexus and why the nexus exists, and no doubt we will be doing that at the appropriate time."

Transcript p.1636

Having regard to the Government's submissions for all classifications not directly involved in face to face teaching to be excluded from the award, Mr McCabe in a final submission on this issue said:

"... we would like to make our position clear on ... how we would see these positions being dealt with..."

Transcript p.4686

It was submitted by Mr McCabe that the following classifications should be removed from the award and transferred to other nominated awards.

TAFE Award Classifications Proposed Award
Division C  
Technical Assistants Technical Employees Award
Librarians Librarians & Archivists Award
   
Division B )
Technical Education Employees )
  ) Clerical Employees Award
Division D )
Education Employees )

Mr McCabe also submitted in respect of specifically titled positions i.e. Curriculum Officer, Student Counsellor and TAFE Training Services Manager, that these positions should be classified in the Clerical Employees Award.

SUMMARY AND FINDING

As indicated earlier in this decision, the Government's position regarding the exclusion from the answer of classifications from the TAFE award which do not entail teaching came to the fore when proceedings had been underway for a considerable period of time. This was in marked contrast to what was endorsed by the Commission in the second instalment structural efficiency matter, which, inter alia, gave recognition to award classification rationalisation along the lines set out in the Memorandum.

However, Mr McCabe, in support of the Government's award structure referred to Design and Development employees not undertaking teaching duties and that other employees classified as Technical Education employees not having a requirement to teach. In the same vein Mr McCabe submitted that Adult Education employees, if they taught at all, did so on a voluntary basis. Mr Holden made extensive submissions. He articulated work value changes for employees in Design and Development which he said were representative of changes for all employees in Division B. In that regard a great deal of emphasis was placed on those employees involved in curriculum development work and that changes had impacted equally on all TAFE Staff "whether employed in design and development or elsewhere"95

A comprehensive submission was made by Mr Holden concerning the history and work of Adult Education employees. He submitted that those employees are regularly involved in teaching. However on that point I accept Mr McCabe's submission that this is not a requirement.

Mr Holden referred to employees in promotional positions in Division D undertaking less direct teaching and that they are more involved in administrative and management type duties. Checking the work of those teaching adult education courses was also said by the Society to be a responsibility of these employees which in its view supported the inclusion of these classifications in the award on the same basis as teachers.

The Society emphasised a similarity with Division A having regard to federal Government funding for what it considered to be TAFE programs. Also Mr Holden stated that Adult Education employees had achieved or were in the process of gaining TAFE related qualifications.

Taking a wider view the Society also referred to a VEETAC document which related, among other things, to the interaction between all TAFE delivery staff and the tendency which existed in TAFE systems to combine functions of teachers and other delivery staff.

Full submissions were made on the application of the New South Wales Ministerial Reference Case which I have addressed in some detail, together with Sections 33 and 42 of the Tasmanian State Service Act 1984 and Industrial Relations Act, 1984, respectively.

Having regard to all of the material I have concluded that the award should be rationalised in the terms outlined by Mr McCabe with the exception of employees in the Design and Development Branch concerned with curriculum development work. I accept the Society's submission that these employees have a direct relationship with teachers and that there is necessary interaction on curriculum matters. Also I support the Society with regard to claimed work value changes for these employees. In that regard Design and Development now has a direct involvement in ensuring syllabi meets the needs of clients. I accept that significant change has occurred from 1984/85 onwards and that Design and Development has a clearly defined role concerning the evaluation and delivery of curriculum. Also that its role is to facilitate national training and education objectives which has impacted in work value terms.

However on the material before me the work value changes attributable to those involved in curriculum development is not capable, in my opinion, to be claimed for all other employees in Division B. Certainly I was not satisfied that the work value changes I have taken into account have equal application to those employees concerned with the co-ordination of Commonwealth funded programs including adult migration english services, examinations and accreditation of TAFE courses.

Similarly I am unable to conclude from the material before me that the work requirements of all TAFE employees bear such a relationship to that of teachers that in the context of an integrated award, a finding as for those involved directly with curriculum work, is justified. Simply put the work value considerations applicable to teachers were not able to be substantiated for Division B.

With regard to Adult Education, I concur with Mr McCabe that these employees are administrators and managers. I do not support the submissions of the Society that Adult Education employees perform similar duties to teachers in Division A. Even the Society recognised that in the main Adult Education is involved in managing and administrating teachers and teaching programs. Clearly they facilitate and organise those programs. There is no teaching and teaching qualifications are not required.

Having regard to the New South Wales Ministerial Reference Case to which I was referred to many times by Mr Holden, and the Loty and Holloway case referred to by Mr McCabe, I can find no valid reason why this Commission should interfere with the reorganisation undertaken by the Department. It would be quite wrong for the Commission to impede or prevent that process given that I am satisfied that the classifications involved are more appropriately provided for in other awards. The consequential translations that will need to be made should take into account the level of the work and responsibilities undertaken by the employees concerned. I anticipate that the parties will co-operate positively in this matter and that job specifications will properly reflect the work of these employees to enable proper and equitable translation to the new award.

I turn now to the claim by the Society that it would constitute a denial of natural justice if Adult Education employees and those in other classifications are not continued in the TAFE award with access to an integrated salary scale.

Clearly this submission cannot be sustained. The task of the Commission is to apply Special Case considerations in accordance with the Wage Fixing Principles to the whole of the award. This the Commission has done apart from Division C which has been left to one side. In restructuring the TAFE award in the manner outlined in this part of my decision, I make it crystal clear that I have had regard for work value changes claimed to apply to the award.

I have already stated that sustainable work value change for employees in Division B, other than those involved in curriculum development work was not able to be demonstrated. The same for Adult Education employees. Notwithstanding claims to the contrary by the Society, I was not able to conclude that the work value changes I have endorsed for teachers in Division A apply equally to Adult Education. In my opinion the broad generalities relied upon by the Society designed to underpin work value for Adult Education employees do not meet the strict tests imposed by the Work Value Changes Principle.

Going to the question of nexus, this is not a relevant consideration in this matter. The very nature of this Special Case requires, among other things, consideration of work value changes which clearly means that pre existing salary relationships, relativities inside and outside the award, or a pre existing nexus, which in any event is not precise for the entire TAFE award, may be disturbed. One of the important arguments advanced by the Government, and correctly so, was that averaging increases was not permitted by the Wage Fixing Principles. Each classification must be considered. In doing so I have reached conclusions, as I have indicated, that Adult Education classifications and those I have identified in Division B fail to meet the test of significant work value change.

That leaves Division C - Non-Teaching Staff. The submissions of the Society for the inclusion of rates of pay from the public sector model awards is not a practical solution given the developments in that case. I am of the view that these employees should be assigned classifications in other appropriate public sector awards from which their salaries were derived. Notwithstanding that Special Case proceedings are still open to the Society, I consider the appropriate translation to public sector awards should enable correct classification levels being assigned to the positions involved.

My decision in this matter should not preclude the parties from further discussing award coverage for the classifications I have determined should not continue to be subject to the TAFE award. If required the Commission would be prepared to assist at the request of any of the parties.

CLASSIFICATION STRUCTURE

The determinations I have made thus far may be categorised as follows:

1. Endorsement of work value changes claimed by the Society for employees subject to Division A of the Award and for those employees subject to Division B involved in curriculum development.

2. Rejection of the application of work value changes to the remaining Divisions of the award. However Special Case status is still reserved for Division C employees given the nature of the arguable case finding that was made. Notwithstanding I have indicated that employees subject to these Divisions should be classified in the awards I have nominated.

3. Endorsement of the rationalisation of the TAFE award to a teaching award only save for Division B employees involved in curriculum development for whom salary levels will derive from the classification structure determined hereunder.

Before considering the classification structure for the award I will first endeavour to put in some perspective the work value changes put forward by the Society which I have endorsed. To do this I need to revisit the submissions of Mr McCabe opposing the salary increases sought by the Society including the number of classifications and salary points to be included in the restructured TAFE Award.

As previously indicated Mr McCabe argued that the Society's claim did not meet the dicta of the Wage Fixing Principles. I have addressed those submissions in some detail. However some further specific issues require consideration given the extent to which all of the submissions were interwoven. Having regard to that fact the further following submissions of Mr McCabe have to be addressed as they impinge on the classification structure sought by the Society for teachers.

Mr McCabe submitted that a fatal flaw in the Society's claim for increases in teaching salaries was that it sought to establish salary relativities from the benchmark of $42 948 per annum (decreased to $ 41 000 per annum in the fall back position put by the Society in Exhibit H172) for the top of the base incremental scale. He said the Society could not achieve that outcome as it did not provide any evidence of work value change for this classification. Mr McCabe strongly argued that as this most vital classification link in the salary structure had not been addressed by the Society by not calling supporting witnesses, the Commission could not determine how the work of an incremental scale teacher had changed. He further submitted that if the 1989 Work Value Principle was applied properly than only a handful of teachers could be considered likely to receive an increase or an allowance. Mr McCabe stated that there was such a paucity of information before the Commission that the Government had no case to answer in relation to the incremental scale. There was no evidence from any incremental scale teacher, no inspections were undertaken, and Mr McCabe contended that specific submissions were not made by the Society to support work value changes for incremental scale teachers. Mr McCabe submitted that if the incremental scale teacher can not move then the promotable levels are also in some jeopardy.

In that regard Mr McCabe referred to the establishment of the Advanced Skill Teacher 1 (AST1) classification in the second structural efficiency adjustment case. He said that this was not an interim measure and therefore further consideration on work value grounds could not now be entertained. In any event as this classification was established operative from 16 October 199096 work value could only be measured from that datum point. However Mr McCabe went further and submitted that as the AST1 classification was established under the Structural Efficiency Principle, the Work Value Principle could not again be called in aid as paragraph (g) of that Principle prohibited reliance on work value where another Principle, in this case the SEP, was used to establish a classification in the first instance. In a nutshell Mr McCabe sought to prevent any further consideration of the salary level determined earlier for the AST1 level.

Mr McCabe conceded however that the SEP Principle did not prevent further consideration, in Special Case circumstances, of that classification level. He cautioned against that approach on the basis that a total of 8.5 per cent had already been awarded under SEP and further increase were not permitted unless measures were involved which would contribute to the efficiency of the TAFE system in Tasmania. Mr McCabe informed the Commission that the Society was not even prepared to "discuss further efficiencies"97 and therefore it was a nonsense for the Society to rely on this Principle for further increases.

In a wide ranging submission Mr McCabe also highlighted that part of the April 1991 NWC decision, Exhibit M37, where the Full Bench was concerned that more emphasis was being given to classification restructuring and training but less on other areas associated with structural efficiency. Mr McCabe submitted that the Society lacked commitment to the implementation of structural efficiency issues and therefore it would be totally inconsistent with the Structural Efficiency Principle for it to be granted "massive increases in salaries"98

Mr McCabe stressed that the Government was also mindful that structural efficiency measures should not be approached in a negative and cost cutting manner. He submitted that the efficiencies sought by the Government did not fall into this category but were basically directed at increasing the availability of teachers to the TAFE teaching system by extending the current attendance time at colleges, the span of hours of teaching time availability and a marginal extension of the annual attendance time for teachers. Mr McCabe submitted that these were:

"... reasonable expectations in view of the increases which have already been provided to the TAFE system employees."

Transcript p3736

FINDING

At this stage some assessment and finding is required to be made on those particular submissions made by Mr McCabe. In that regard I have no difficulty with the manner in which the Society presented its case in support of the work value changes. I previously discussed the calling of witnesses or otherwise to substantiate work value change. I concluded that this was not a mandatory requirement. The obligations are for the Commission to satisfy itself that the claimed changes had in fact occurred. For the reasons stated I concluded that to be the case.

With regard to the AST1 classification this was clearly established on an interim basis subject to further consideration in this Special Case. Whilst the arguments advanced by Mr McCabe appear relevant, the manner in which this case progressed puts beyond question that the AST1 classification is able to be considered in the context of the Structural Efficiency Principle upon which the Special Case is predicated. There is no doubt that this Principle contemplated, among other things, including efficiency and productivity measures, new classification structures and award relativities as outlined in the August 1989 NWC decision. Whilst caution was expressed as to the costs involved in these type of exercises, the very fact that an arguable Special Case has been found to exist enables determinations to be made having regard to all of the factors impinging on the classification structure. To that extent I do not regard further work value considerations to be applicable particularly as in the second structural efficiency case the entire structure was put forward on an interim basis with the view to further adjustments being made in the event the arguable Special Case was able to be substantiated.

On the question of further efficiencies being introduced in the award, extensive submissions were made by Mr McCabe to vary conditions of employment in order to achieve further efficiencies in the award. These will be considered later.

Having regard to all of the foregoing I do not find that the Commission is prevented from further considering and adjusting as appropriate the base incremental classification structure for teachers, the AST1 classification or indeed all of the classification proposals put forward by the Society. The Structural Efficiency Principle as applicable to this Special Case facilitates that approach. The real test is whether or not the work value changes I have canvassed together with the operation of the Structural Efficiency Principle in respect of establishing appropriate structures and other productivity and efficiency measures can sustain the salary and classification levels claimed by the Society.

Having regard to my comments concerning work value change, productivity and efficiency measures and comparable rates of pay and the ability of the Commission to have regard to what was determined in other awards in the event changes in work have been found to be the same, as I have, I conclude that in this case a benchmark salary of $41,000 p.a. at the top of the base incremental scale is able to be sustained. In reaching that conclusion I have decided to also rationalise the base incremental scale from 11 to 8 incremental levels in the following manner:

Technical Teacher

Salary per annum
$

1st year of service 27,352.00
2nd year of service 29,305.00
3rd year of service 31,841.00
4th year of service 33,809.00
5th year of service 35,248.00
6th year of service 37,120.00
7th year of service 39,073.00
8th year of service 41,000.00

Currently the award provides for the payment of allowances of $4185 per annum to Technician Teachers and $1866 to General Studies Teachers. This was earlier identified in this decision with the objective of demonstrating that the top of the incremental scale salary inclusive of allowances is $37427 per annum for a Technician Teacher and $35106 for a General Studies Teacher. Those allowances including allowances paid to Head Teachers and Advanced Skills Teachers, as set out on page 13 of this decision, were requested by the Government to be absorbed against salary increases.

In that regard Mr McCabe agreed that the Structural Efficiency Principle supported the elimination of salary differentials, however he indicated that the Commission could not support the extent of increase that would be necessary to "override them"99 Mr Holden also submitted that the Structural Efficiency Principles permitted the addressing of cases where award provisions discriminated against sections of the workforce. In that regard he made specific reference to the October 1989 State Wage Case where the following comments appear in relation to the Structural Efficiency Principle.

"The measures to be considered should include but not be limited to:

addressing any clauses where award provisions discriminate against sections of the workforce."

1989 SWC Attachment "A" p.vi.

The further submissions of Mr Holden were that classifications should be

"accredited to certain levels within the condensed salary scale which is proposed".

Transcript p.1625

Clearly the submissions of the parties support the elimination of allowances and the operation of salary scales exclusive of allowances.

In my opinion, having regard to the determination on the base incremental salary scale and the intent of the Structural Efficiency Principle, I can see no logic in maintaining a long absorption process. In any event the allowances are subsumed in the new salary levels I have determined. Accordingly I consider that appropriate translations to the new salary scale should be made taking into account allowances previously paid. Given that the extent of increase will vary between different categories of teachers as a result of the allowance payments previously made, and in order to mitigate the cost of the salary increases I have decided that a seven point five per cent increase (7.5%) should take effect from the first full pay period to commence on or after the date of this decision and the remainder from the first full pay period to commence on or after 1.1.94. The question of operative date will be further discussed later in this decision.

With regard to the Society claim that teachers holding a diploma or degree from a recognised tertiary education institution not being appointed below Level 3, this was opposed by the Government as was a bar to progression beyond Level 5 for those who had not achieved a Diploma of Teaching (TAFE) or a qualification deemed equivalent. Mr McCabe submitted:

"The Government's position is that the flexibility to appoint and to regulate the movements of employees within the salary increments in the scale is something which the department should be allowed to retain discretion. There are always variables in this area which do not always respond well to highly prescriptive requirements in awards, such as these clauses.

We would seek that the commission put in a far less prescriptive clause as are contained in our exhibit as part 8. And that is part 8.1. (a), (b) and (c). So, we would see those paragraphs (a), (b) and (c) on page 3 of our exhibit replacing the paragraphs (b) to (f) in the staff Society's claim. We would point out that part 12 of our exhibit is a clause which permits the employer to appoint a teacher at any level within the - within the incremental scale depending on the qualifications and practical experience of the appointee."

Transcript p.3767

To put Mr McCabe's submission into context the provisions he was seeking are outlined hereunder:

"(a) The minimum commencing salary of an employee classified in accordance with the above scale shall be the salary prescribed for the first salary step.

(b) Subject to an employee receiving satisfactory annual performance appraisal reports, progression from one salary step to a higher salary step shall be by annual increments.

(c) a beginning teacher shall not progress more than two steps beyond the commencing salary unless he/she has successfully completed a teacher training course acceptable to the controlling authority and has complied with paragraph (b) of this part."

Exhibit M36 Clause 8 (1)

In addition to those provisos Mr McCabe also referred to part 12 of Exhibit M36 concerning "Commencing Salary" provisions which were set out in the following terms:

"COMMENCING SALARY

Except where otherwise specifically determined in this award, the commencing salary of an employee, whether on first appointment, or on promotion to a position within a class or grade of a classification in respect of which salary scales are prescribed by this award, shall be the minimum salary for that position on the appropriate scale except in any case where, in the opinion of the controlling authority, the qualifications and practical experience of such person or employee justify a higher salary."

Mr McCabe submitted that the arrangements sought by the Government were less prescriptive and permitted the employer to appoint teachers at any level within the incremental scale. He contended that the employer should have the flexibility to manage the appointment and promotion of employees subject to the award without having rigidities imposed by additional award prescription.

Given that I have determined a common base incremental scale I am of the opinion that the employer should have the flexibility to appoint teachers as requested by Mr McCabe. Also progression through the scale will not be restricted, as was contemplated by the Society, by the placement of a qualification bar within the base incremental scale. On that basis the commencing salary clause in Exhibit M36 is also supported.

ADVANCED SKILLS TEACHER

The Society sought three separate classification levels to provide for AST1, 2 and 3 respectively. This was opposed by the Government which supported one level for this classification.

The Society submissions may be summarised as follows:

Mr Holden claimed that there was national recognition of the need for an extended career path for school teachers and persons in educative roles. He said that the extended career path was necessary "if good teachers are to remain in the classroom"100 and that this was supported by the Full Bench in the ACT decision referred to earlier. The Bench said:

"The AST concept has been implemented in a number of jurisdictions in awards covering primary and post primary teachers. The generally understood purpose of the AST concept is to reward excellence in teaching thereby encouraging teachers to remain in the classroom as an alternative to seeking promotion and moving away from teaching. It has been seen as an integral part of structural efficiency in the teaching sector. AST classifications have been introduced in some state TAFEs.

The introduction of an AST level is agreed between the parties. The proposal provides for a renewable tenure position after five years, with an incremental pattern as follows:

$43050, $44075.

Access to the second rate is available after one year and on the agreement of the AST to perform certain additional prescribed duties. No quotas are proposed by the parties and they have reserved their positions on the negotiation of a further increment."

Exhibit H64 p10

In that regard Mr Holden submitted that the three AST classification levels should all be criterion based or at the very least two levels rather than including these in the award as promotional positions.

Mr Holden also referred to the Memorandum of Understanding where reference was made to ASTs in the following terms:

"Promotable positions, including AST2 and AST3, will be filled by advertisement, application and merit in accordance with the provisions of the Tasmanian State Service Act."

and later:

"Essential qualification criteria for teaching positions of AST2 and above and for educational management positions will include completion of the (TAFE) Diploma of Teaching or an approved alternative course of study of equivalent standard."

and later:

"The preferred position of the Society is that AST2 and AST3 positions should not be classed as promotable positions, but be subject to progression on meeting established criteria."

Having regard to the foregoing Mr Holden informed the Commission that in effect there was agreement with the Government for three AST levels but this did not extend to whether or not they would be promotable or criterion based positions. Mr Holden reiterated that there should be a discontinuance of differentials between trade, general studies and technician teachers at this level.

Mr Holden also emphasised that as the classification for Senior Teacher was being deleted from the classification structure they should be protected at the AST1 level.

The Government submissions may be summarised in this way.

Mr McCabe indicated that the Government did not see any benefit in extending the AST classification range to include AST 2 and AST 3 levels as claimed by the Society. He stated:

"Having studied the criteria for appointment to ASTII and III, as set out in the Society's claim, we do not see that there are sufficient additional skills and responsibilities required for the ASTII or III classification to warrant the $2000 increase in salary for each additional classification. So, in our view, the classifications are included in the staff society's claim as a mere salary or career advancement level without the necessary work value criteria having been proven."

Transcript p.3778

Mr McCabe drew attention to the Wage Fixing Principles, where paragraph (b) of the Work Value Principle cautioned against "contrived classifications and over classifications of jobs".

The Commission was also informed that the Government did not envisage that AST II's and III's would be needed in future college structures. Mr McCabe went on to say -

"However, if the commission decides that ASTII and III should be included in the award, then we say that they must be clearly designated as separate classifications, which means that they would be subject to access by promotion on merit and that there would be no access on progression by meeting established criteria, as is sought by the society.

We also submit that if the commission intended to include ASTII or III then the commission may consider that the classification criteria should be jointly developed by the parties to the award in a drafting conference or some such process. We would also seek to provide at the next day of hearing classification criteria for ASTII and III which we would see going into the award if the commission decided to adopt the ASTII or III classification.

That is not a measure of support in any way for the classification. It merely seeks to protect our position by offering the commission alternative and more definite criteria for these positions for its consideration."

Transcript p.3779

Mr McLaughlin's evidence was that currently AST1 is regarded by teachers as an additional salary level in the base incremental scale. His evidence was, inter alia:

"..., some of the ridiculous things it seems to me are the fact that you can go to the 10th rung to the 11th rung only after going through a relatively rigorous arrangements where you have to do the six units that were referred to yesterday, and - and five other subjects to get through the, what's called, the, penultimate barrier. Yet I believe that one can go from rung 10 to the AST..."

and later:

"..., my understanding and what I've been told, it's from any rung. And I think that's been a misuse and abuse of the intent"

Transcript p.3207

With regard to ASTII and III levels Mr McLaughlin said that he would not proceed with that classification level until it became clear what the intent of that classification level would be. Following questioning by the Commission Mr McLaughlin indicated that there "may well be a benefit"101 in AST2 and AST3 classification levels if their purpose was clear.

Against that background Mr McCabe provided in Exhibit M51 a comprehensive classification criteria for AST1. A criteria was also provided for AST2 as a protection in the event this level was determined by the Commissioner.

With regard to the AST1 criteria Mr McCabe submitted that the existing criteria based on ability and merit was too lose leading to dispute on the meaning of ability and merit. He said:

"Such criteria are not used in the Teaching Staff Award where teachers must serve 12 months on the top rung of the incremental scale or have reached two rungs below the top level in addition to which they must be endorsed by both their supervisor and superintendent."

Transcript p.4150

Mr McCabe also submitted that applicants should also hold the Diploma of Teaching (TAFE) or Bachelor of Education or the equivalent of those qualifications. He stated that the Certificate of Teaching (TAFE), as requested by the Society, was not sufficient for this level. Mr McCabe considered that as the attainment of the Diploma of Teaching (TAFE) was achieved by most TAFE teachers after 2 years, on average, most would possess that qualification by the time they became eligible to apply for AST 1.

Mr Holden countered by submitting that it was a nonsense for teachers to have to go through the incremental scale before being eligible for AST1 appointment. He said this was against the merit principle in the Tasmanian State Service Act.

Further specific submissions made by Mr McCabe concerning the Functions and Classification Criteria proposed by the Society were as follows in respect of AST1.

He agreed that the Society's criteria, came from the Memorandum but that reference by to technical competence and teaching skills had been omitted. Mr McCabe also indicated that the Government had set up an interdepartmental committee to "look at the criteria which should be applied to employees who have access to personal classifications such as AST1".

It was the submission of Mr McCabe that the Memorandum of Understanding gave recognition for the need to establish a classification standard for ASTs and that the committee that had been established was doing this at the present time. He suggested that the matter be left as leave reserved to allow the committee to progress the matter. Mr McCabe emphasised that the criteria for AST1 in the Memorandum of Understanding was in need of refinement before it was included in the Award.

With regard to the Society's proposed criteria for AST2 Mr McCabe said this was lacking in specifics. He also submitted that the only additional duties over AST1 related to curriculum development and staff development activities.

Mr McCabe indicated that the qualification pre requisites for AST2 put forward by the Society did not mean that the employer required the employee to use these qualifications. Accordingly Mr McCabe contended that the Society's proposal was not in accord with the Structural Efficiency Principle which stipulated that qualifications acquired must be relevant to the job.

It was pointed out that progression from AST1, 2 and indeed AST3 was able to be achieved "merely by acquiring or achieving academic qualifications."102

Mr McCabe was equally concerned about the proposed criteria for AST3. He submitted that the same considerations as for AST2 apply to AST3. He argued that the criteria put forward by the Society was not adequate for the salary levels sought by it. He informed the Commission that there was a need for much firmer work value considerations in the criteria in the event the Commission decided to include AST2 and AST3 classification levels in the award. He said:

"For that reason we would seek to submit our preferred criteria for ASTII and III when they become available."

Transcript p.3831

Mr McCabe also argued if those AST classifications went into the award they should be as promotable positions and not accessible purely on satisfying a set of criteria as requested by the Society.

As I have previously indicated the submission to the Commission became totally interwoven and this made this whole exercise extremely difficult and time consuming. However that may be the fact is that submissions concerning the AST classifications were liberally spread throughout the transcript. In order to put the overall thrust of the submissions in context it is necessary to again canvass some further submissions made by Mr Holden.

He submitted with regard to AST1 that the requirement for a person to be eligible to apply to hold a Diploma of Teaching TAFE or a Bachelor of Education was contradictory to what the Government wanted for incremental scale teachers.

In addition he considered that a further qualification for AST 2, Exhibit M53, would have the effect of Tasmanian AST 2 being "the most highly qualified . .. in the whole of Australia"103 It was contended by Mr Holden that the additional qualifications would mean that "people who wouldn't be able to aspire to AST 2, but who may well have a lot better qualifications"104 then some of the teachers in senior positions to them.

Mr Holden also opposed the removal of "merit and ability" from the criteria for AST1. He submitted that if removed it would lock teachers into a lockstep incremental system.

In addition to the foregoing the Society proposed a fall back position impacting on AST1 and AST2 with a consequential variation for AST3 concerning qualifications in educational teaching. The Society also submitted that as the Government did not put forward a criteria for AST3, I should endorse what it had claimed.

FINDING

At the outset I indicate that I have decided in favour of establishing two AST classifications in the award. AST1 is already there and in addition to that an AST2 classification will be included. In that regard the extent of the increases claimed by the Society are not supported. Accordingly the following salary levels will apply:

AST1 $42364.00 per annum
AST2 $43728.00 per annum

The issue of criteria is complex and I consider it appropriate for this to be further discussed by the parties on the following basis:

(i) AST1 - advancement to this level is not to be available unless the employee concerned has reached level 6 of the base incremental scale and then only if recommended by a supervising officer, or if

(ii) an employee has been on level 8 of the incremental scale for at least 12 months, and that

(iii) ability and merit in the manner relied upon for advancement to AST1 before this determination will no longer apply. Obviously ability and merit will be factors in reaching conclusions on whether or not teachers should progress to AST1 having regard to (i) and (ii) above and that

(iv) AST2 - is to be a promotable position.

It should be noted that in reaching my decision on appropriate salary levels for AST1 and AST2 I have had regard to the existing salary level for AST1. Notwithstanding the submissions of Mr McCabe on this point, which I have addressed earlier, there is no doubt that the AST1 classification was first established on an interim basis subject to further Special Case considerations. That was always the intention which I believe was made perfectly clear in the interim decision in the second instalment structural efficiency matter.

This aspect was also addressed by Mr Holden in Exhibit H161 which was an appeal decision against the determination of a rate of pay on an interim basis. On dismissing the appeal one of the Full Bench Members referred to the rate being determined on an interim basis meaning that further adjustment of that rate could follow in subsequent proceedings.

Mr Holden contended that the same applied to the AST1 rate. That is it was determined on an interim basis and the classification "had not been finally dealt with"105 I concur with the submissions of Mr Holden on this point.

I am not persuaded that an AST3 classification should be introduced at this time. However leave reserved is granted to the Society to pursue this matter when the criterion for AST1 and AST2 has been settled.

As the Senior Teacher classification is not part of the new structure relevant arrangements should be made for the placement of these teachers. In that regard the Society requested that these teachers should be translated or saved at the AST1 level. I do not support this as clearly that would be impractical in the sense that salary levels may attach to individuals which cannot be sustained having regard to the work that they may undertake subsequent to this decision. I expect however that every effort will be made by the Department to place those teachers in appropriate classifications. This should be done in consultation with the Society.

The Society also claimed a $1500 per annum allowance for ASTs and teachers when performing work as set out in its claimed clause 5(i)(e), as set out in Appendix C. I do not support this concept. In my opinion in the event that circumstances arise as contemplated by the Society then this can be addressed by reference to the higher and more responsibility allowance provision. I noted that the Society considered different circumstances to those which may be considered under that particular provision, however that submission is rejected.

HEAD TEACHER AND HEAD OF DEPARTMENT

I intend to discuss those classification levels in the context of the Society's fall back position contained in Exhibit H172. Before doing so I wish to reiterate that I have sympathy for the position that the Society found itself in regarding the preparation of its claims. As indicated the Society prepared its claims on the basis of significant discussions with the Government. Indeed the Government more than acquiesced to these

claims; in many cases it gave in principle support to them in the Memorandum. Accordingly when the Government produced its structure in Exhibit M36, which was significantly different to what had been discussed with the Society, the Commission had no hesitation in allowing the Society to amend its claim. This was the case with many issues including Head Teacher, Head of Department, Head of School which was deleted on 16 November 1992, and Associate Directors whemh will be discussed later in this decision.

Having regard to the submissions on Head Teacher (HT) and Head of Department (HOD) I propose to deal with them together in this part of my decision.

Mr McCabe submitted that the Head Teacher classification requested by the Society should be replaced by Head of Department (HOD). He said that HOD derived from the existing award classification of Head Teacher Class III which attracted a current award rate of $42,991 per annum.

Mr McCabe indicated that the Head of Department in the Governments proposed classification structure as outlined previously in Exhibit M36, would be responsible "for the running of a particular department which specialises in certain disciplines of teaching"106 The Commission was also informed that HOD would have a teaching and a supervisory role.

As for the Head Teacher classification claimed by the Society, Mr McCabe submitted that this was a redundant classification and that it had no place in the proposed new college structure.

Mr McCabe also submitted that the five levels of Head of Department sought by the Society was based on Annual Teaching Hours taught at each level and that this was not a "sound way"107 of determining the salary level for that position.

Mr McCabe explained that the HOD levels claimed by the Society would result, in the case of HOD1, an appointment being made at that level for every 2.5 teachers where they taught 714 hours which equated to their annual teaching load. Those hours together with the teaching that would be required of HOD1 would result in 2000 annual hours at which point a HOD1 would need to be appointed. Mr McCabe said:

"Now, the head of department II as contained in the society's ..... application, would only need four teachers plus his own hours and head of department III would need five teachers to supervise plus his own, head of department IV six and a half teachers plus his own, and head of department V nine teachers full time equivalents plus his own teaching.

So, that is not a reasonable system for appointment of various classifications and we strongly oppose that concept. Those sorts of binding ratios which determine levels of pay are not workable or practical and are generally not favoured by industrial tribunals. They are not in accordance with the structural efficiency principle because they introduce, in our view, rigidities into the system rather than providing flexibilities and allowing the managers to manage."

Transcript p.3784

Mr McCabe also explained what he considered to be an inadequacy with the criterion for Head of Department provided by the Society. This was that in the event of a fall in the number of annual teaching hours in a department, the Head of Department classification may not be able to be substantiated having regard to the annual teaching hours criterion. Mr McCabe said:

"... what do we do with the employee classification levels; with the Head of Department classification level ? If it falls below the required level then we demote the employee.

And you could imagine what sort of uproar would happen if that were to occur"

Transcript p.3785

In response to a question from the Commission about the Government's proposal for only one classification level for HOD compared to the Society's five levels and how this would take into account different department sizes with differing levels of teaching compliments, Mr McCabe submitted:-

"... I would suggest ... if the departments have bigger staff compliments to supervise, then probably the Head of Department would do less teaching, would undertake more administrative supervisory role than a person in a smaller department."

Transcript p.3786

Having regard to the submission of Mr Dinely it appeared that the Government was concerned to avoid the possibility of anomalies arising if classification levels are linked to enrollments or in the case of the Society's criterion for HOD, to annual teaching hours, given that enrollments and/or annual teaching hours could vary with the consequential result that a particular classification level subject to the Society's criterion is not able to be substantiated. In that context Mr Dinely submitted:

"But, picking up the point that seems to be coming out between Mr McCabe and yourself, is that one of the difficulties has been in the past that there is this magical number of 250 enrollments. If a department grows to have an enrolment of 250 students it is reclassified as a school. The difficulties that we have had in the past with down turning enrollments is if that school enrolment drops well below the 250 the person is still classified as the head of school receives a substantial - and receives a substantial salary in comparison to the bloke on the north-west coast who is a head of department class III.

So, it may well be that the head of department class III on the north-west coast has the same enrollments at one point in time that a head of school class I has in a larger college. As an example, if the enrollments in a school dropped off to 200 students he would still be classified as a head of school class I and paid as such. A head of department on the north-west coast could have an enrolment of 200 and still be paid as a head teacher class III. And that has been an anomaly for some time. The Agencies position is that it is a functional responsibility not necessarily a staffing responsibility."

and later:-

"I am trying to make it as clear as I can - the person on the north-west coast with an enrolment of 200 students has the total responsibility for that department whereas if you come to Hobart or Launceston where there are schools the head teacher class III does not appear to have the same sort of responsibility, the overall administrative responsibility of the school because he does not, he only has the charge of a section of it which, in the division's view is much the same in terms of head teacher class III classification.

But one of the anomalies is that it is, at the moment, the classification of head of schools is student based. The staff Society's claim is annual teaching hours base which presumably relates to staff, and that has been an anomaly that the agency has been concerned about for some time."

Transcript p.3787

When the Commission questioned Mr Dinely, given that the current award already contained a Head of School classification, which is ahead of the Head Teacher III classification now being proposed by the Government for Head of Department, why the existing Head of School classification was not being used for the Head of Department, Mr Dinely said:-

"... the group's position is that the associate director, so called, will assume the administrative responsibility - control and responsibility in the new structure. It is intended that not only will it assume the role currently played by Heads of School, but it will certainly be an enhanced role that will be a non teaching role, it will be a purely administrative role. They will form part of the ... indeed the part of the college executive management groups.

And as you adduced from Mr McLaughlin in evidence, their role will not be confined to the administration of the various section, teaching sections of the - teaching units of the college, they will have a responsibility - a much enhanced responsibility for liaising with commerce and industry. And, indeed, we see that as a very major part of their new role, but at the same time it is intended that they will provide educational leadership to the departments under their control.

Each of those departments will then, of course, have a head of department which will provide teaching and teaching leadership. We see the associate directors assuming far more administrative responsibility than heads of schools because as you already know, sir, the head of school, say of business studies Hobart, is only responsible for - currently, for the administration of that school. In the new structure or in the proposed structure that will - that person will assume the responsibility for not only the business studies school but the commercial school and, indeed, the department of computing.

It is the agency's position that given that these teachers - these people will not have a teaching role or a teaching load that they are purely administrative, managerial the result of which will reduce the load, it is intended, the administrative load on the heads of departments within those teaching units. Thus we do not see the - or the agency does not see any reason to seek a salary for heads of departments equivalent to the existing head of school. In fact, I believe the salaries sought or the salaries - I am getting deeper into the minefield now - the salaries for associate directors is not all that much ahead of the head of school class II at the moment, as I understand it.

COMMISSIONER GOZZI: That is for associate director Level I

MR DINELY: Yes.

COMMISSIONER GOZZI: Yes. The associate director level II will be, of course, on a higher rate?

MR DINELY: Yes.

COMMISSIONER GOZZI: All right. So, hence, the reasoning to have heads of department equate to a class III head teacher because of the reduction in administrative load which is intended to be assumed by associate directors level I?

MR DINELY: Yes.

COMMISSIONER GOZZI: And level II?

MR DINELY: Level II associate directors will certainly have an enhanced role. They - in the structures that are being developed they will certainly have a greater role in terms of the day-to-day management of the colleges and, certainly, they will have a greater role in providing leadership to a number of sections of the college that they currently - that they are currently directly responsible to principals or now called directors"

and later Mr McCabe submitted

"And I do not want the last word on the associate directors either, but of course, you know, the commission has raised the question of what might happen about the associate directors. I just make the point at this time that it is quite possible that the TPSA and the staff society, having considered the proposals that have been put to them, may quite well agree to the structure we are looking at in the new colleges."

Transcript p.3789/90 and 3792

The foregoing exchange is important as it places in context the rationale for the Government's classification structure which seeks to remove Head Teacher and Head of Department classifications (Head of School was deleted by the Society) as claimed by the Society and instead seek an alternative Head of Department classification at a significantly lower level of salary.

For the sake of clarifying my exchange with Mr Dinely the following extract from transcript is useful:

"COMMISSIONER GOZZI: .... So, I understand the rationale of it. The head of department classification or salary rate is equated to head teacher class III, the existing rate, on the basis primarily that the head of department will not have the same administrative load that heads of school currently have because that function will be taken over by associate directors level i and therefore lessening the administrative load on the proposed head of department classification and the head of department focus will be more on the delivery of teaching and then the administrative role, hitherto exercised by heads of school.

MR DINELY: That is it, sir, yes.

MR McCABE: Yes, I think that is a very good summary ..."

Transcript p.3794

In addition to the foregoing,Mr McCabe submitted that the Government did not require the several layers of Head of Department, Head Teacher and Head of School. He said:-

"They do not fit with the envisaged flat and efficient structures proposed for colleges and they are not what the employer requires."

Transcript p.3795

Mr McCabe contended that it was the responsibility of the Government to manage TAFE and to organise efficient structures and programs for it. He submitted that this task was not one for the Society. He made the point that it was unfortunate that the Society was attempting to restructure the award at a time when "there were also plans afoot by the Department to restructure TAFE college organisation along industry sector related lines"108 Mr McCabe highlighted that the Society was aware of the Government's proposal for this type of restructuring since April 1992 at which time Mr Brough for the Society indicated:-

"We are seeking to be cooperative by basing our new proposals on matters which have been proposed by the department and which it seems the department is certainly intent on implementing. We believe it would be counterproductive for us to move in a different direction."

Transcript p.3800

Notwithstanding those comments by Mr Brough, concerning co-operation, Mr McCabe indicated that the Society had decided that it would pursue "its own structures for the award irrespective of what the Government's plans were."109 Mr McCabe said:-

"It is evident that if the Staff Society structures were to be adopted that it would pose major problems for the Department in trying to cobble its college structures to an award structure which is out of step with the Department's intentions."

Transcript p.3800.

Mr McCabe contended that this would be out of step with the Structural Efficiency Principle which he submitted intended "to do away with these sort of anomalies and to make awards more relevant to the organisations they regulate."110

The Society's submissions may be summarised as follows.

As already indicated, Mr Brough stated that the Society's claim was formulated on the basis of earlier discussions with the Government. It was pointed out to the Commission that the claim was predicated on the establishment of Super Schools consequential to the amalgamation of Schools and Departments. He informed the Commission that at one stage agreement had nearly been reached in terms of the classification which would head the Super Schools and that was Head of School 3 which was"an associate director type classification".111 He said the agreement also led to the elimination of the Senior Teacher classification. Mr Brough said that the agreement reached was on the basis of the so called one third rule which provided for one third of full-time positions in TAFE colleges to be retained as promotable positions. He submitted that the Government's Exhibit M36 proposition on structure came as a shock because it was significantly different from what the Society "had been given good reason to believe should be put in place"112

Mr Brough submitted that the Government's structure would mean less promotable positions unless a significant number of AST2 and AST3 positions were created to make up the shortfall. He said if that did not occur the career prospects for TAFE will be severely diminished.

In moving to a structure including two HOD, from the five levels claimed, Mr Brough submitted that work responsibilities and requirements would be different and two levels would be appropriate. In the event the Commission opted for one HOD level only, Mr Brough submitted that should be at level (b) or $51012 per annum.

Mr Brough also argued for the retention of Head Teacher classifications. He said:

"The classification, as we see it, provides positions which will carry out administrative duties which require some knowledge and skills in respect to education, such as employment and selection of part time teachers, processing students' applications for recognition of prior learning and advanced standard within courses, interviewing and enrolling students, preparing publicity material which requires some understanding of the course contents involved, certifying that students have not made - sorry, certifying that students have met all the requirements for completion of the course, making arrangements for graduation ceremonies such as seeking appropriate prize donors and approaching guest speakers.

Transcript p.4331

Mr Brough acknowledged that some of those duties would be undertaken by HOD, however the Society believed that the number of HOD positions proposed would not be sufficient to undertake all the duties required.

SUMMARY OF SUBMISSIONS

The main issues in this matter relate to the Society's criteria for appointment and classification levels for Head Teacher and Head of Department. This was countered by the Government which opposed the reliance on an annual teaching hours criterion for appointment and in any event did not want the classification levels claimed by the Society.

Mr Dinely also explained that the Society's structure had created anomalies in the past.

It was submitted by the Government that the Head Teacher classification was redundant.

With regard to the five levels of HOD sought by the Society, the Government only requires one level. Mr McCabe indicated that differences in size in departments would be accommodated by HODs undertaking more or less teaching. The bigger the department, then the HOD would do less teaching and more supervision and vice versa. It was also contended that with the appointment of Associate Directors the administrative load previously undertaken by HODs will be reduced.

Additionally Mr McCabe submitted that making structures more relevant to the needs of the employer was consistent with the Structural Efficiency Principles.

The Society indicated that it had regard to the establishment of Super Schools in formulating its proposals for HODs. Also that agreement had been reached with the Government on the "one third" rule relating to promotable positions.

The retention of the Head Teacher classification was advanced on the basis of administrative duties requiring educational knowledge.

FINDING

I have given this matter anxious consideration and I understand the concern expressed by the Society regarding the availability of promotional path opportunities. However the primary task for the Commission is to determine if the claimed classification levels are sustainable in the first place. On all of the material before me which I have canvassed in detail, I am not able to support the retention of the Head Teacher classification. The justifications put forward by Mr Brough were not sufficiently persuasive, in my opinion, for this classification to be included in the award. Clearly the responsibilities referred to by Mr Brough are envisaged by the Government to be undertaken by HODs and I see no reason why that should not be the case. This is particularly so given the intention for Associate Directors, which I will discuss later, to assume some of the responsibilities held by HODs.

With regard to HOD I consider that two classification levels are appropriate to take into account size differentials.

In determining that issue in that way I recognise that Associate Directors will have responsibilities for providing educational leadership, liaising with industry and commerce and assuming administrative responsibilities, some of which impacted on HODs. I nevertheless consider it appropriate to recognise that there will be differences in the size of Departments which in my opinion directly relates to levels of responsibility. Mr McCabe submitted that those differences would be addressed by adjusting the ratio of teaching and administrative and supervisory responsibilities.

That in my view does not properly deal with this matter. Taking into account the material before me going to structure, for example Exhibit M21, it is clear that Departments are significantly different in size. This was also supported by the evidence of Mr Dinely which I have quoted in this decision. As I have stated I consider that it is appropriate for those differences to be recognised by two HOD classification levels.

In reaching that conclusion the question of criteria to establish the differences arises. The only viable distinction able to be made, on the material before me, is one dependent upon student numbers or annual teaching hours. In the end I have opted for 7000 annual teaching hours to be a reasonable cut off point for Head of Department 1. Accordingly Departments where more than 7000 annual teaching hours are taught a Head of Department 2 classification will apply.

The salary levels I have determined to apply are as follows:

Head of Department 1 $45914 per annum
Head of Department 2 $47838 per annum

With regard to the translation of existing employees consequential to a much flatter award structure than what is currently in place, I consider that these should take place on the basis that no employee should have their salary reduced as a result of the making of this decision. I do not support the submissions of the Society to automatically translate employees to salaries or classification levels which may not fit in with Departmental requirements. I expect the parties to co-operate positively in this matter.

TRANSLATIONS

With regard to the question of translations generally, apart from what I have already indicated in this decision I have deliberately refrained from endorsing the translation proposals put forward by the Society. I accept as realistic the submissions of Mr McCabe that all options available under the State Service Act, 1984 be explored in translating employees both within and outside the award. In that regard the position descriptions and classification standards applicable should determine the appropriate salary level. Existing salary levels should be saved in the event translation is to a lower salary level. The parties are also directed to that part of this decision dealing with Supersession and Savings provisions.

TAFE TRAINING SERVICE MANAGER

Having regard to what I have determined for HODs the fall back position of the Society was that:

"An employee whose primary function is management of the delivery of TAFE Training Services activities shall be classified as Head of Department 5."

As a consequence of my determination the Society's claim equates with HOD2 or $47,838 per annum.

 

SOCIETY SUBMISSIONS

Mr Holden informed the Commission that training for industry had increased enormously. This led to the establishment of TAFE Training Services. To illustrate the extent of growth in this area of activity Mr Holden tendered Exhibit H63, a 62 page directory listing more than 400 training courses offered in 1992 by the Launceston College of TAFE. It was submitted by Mr Holden that the short courses offered varied in length from 3 hours to more than 100 hours and were all aimed at building workplace skills. Mr Holden said that these short courses were in addition to the normal courses conducted by TAFE.

TAFE Training Services offered these courses which were identified "through requests from industry, commerce and the general public"113

The Commission was informed that:

"In determining the programme of courses, consideration has been given to accommodate the concepts of multi-skilling, award restructuring and the Australian Government's requirement to satisfy Training Corporate Legislation"

Exhibit H63

Other TAFE Training Services identified in Exhibit H63 were as follows:

"We can help you plan your training in a way which will get you real value for your training dollar - value than you can measure in productivity and profit. TAFE consultants can analyse the skills of your workforce, identify skills you need and deliver quality training to fill those 'skill gaps'. Your employees can fit into existing courses, or we can design and delivery training to suit your needs - on your site if you prefer and at any time, evenings and weekends included.

TAFE Training Services can also assist if you would like to:

1. Lease facilities and/or hire equipment within the College.

2. Hire specific items of equipment.

3. Arrange demonstrations of 'state-of-the-art' equipment.

4. Arrange testing services or machinery evaluation.

5. Arrange documentation of training plans, brochures or any desk-top publishing projects."

Exhibit H63 P.5

GOVERNMENT SUBMISSION

Against this background Mr McCabe submitted that employees classified as TAFE Training Service Manager would not have a teaching component in their job. He stated that they would be managing a service and would require more administrative, entrepreneurial and management skills than teaching skills. Accordingly Mr McCabe submitted that this classification level should not be in a "teaching award". Mr McCabe also pointed out that the Society had not finalised its claim in respect of a Functions and Classification Criteria, item 7.6 of its claim and therefore, he said, "it seems to be a bit like the Head Teacher classification, they are not sure what .... they want that classification to do."114

Mr Dinely supported the submissions of Mr McCabe by indicating:

"TAFE Training Services, we believe, and as we have stated on a number of occasions as, indeed our two principal witnesses have, that persons appointed to these positions whilst at this point in time and, as pointed out by Mr Holden yesterday, are teachers. They are holding those positions in a temporary capacity until such time as these matters have been resolved.

We regard them as non teachers; we regard them as having different skills to teachers; we regard them as organisers and marketers with those particular skills, and once again, as Mr McCabe has just advised you, we would rather not see them in a teaching award but more appropriate covered by the AC Award."

Transcript p.4693

FINDING

Obviously teaching skills are not required by the employer for the performance of these duties. Apart from that I see this classification as being apart from the work value and structural considerations I have focused on in this matter.

Accordingly I decline to put this classification level into the award.

ASSOCIATE DIRECTORS

The issues relating to Associate Directors were strongly and at times heatedly debated in the Commission. In my opinion there is no value in revisiting the many observations made by the Commission relating to the manner in which the Department arrived at the point where it considered that Associate Director positions should be created. However it should be said that the entire process left a great deal to be desired having regard to the proceedings that were under way.

In making that observation it is important for me to make it clear that one of my principal concerns was that the Society was not provided, in the first instance, with the opportunity to advance its position with regard to Associate Directors. That was because the Department did not regard it as appropriate to have the matter tested in these structural efficiency Special Case proceedings. To enable that to happen and having regard to the extensive submissions relating to Deputy Directors 1 and 2, I permitted the Society to amend its application to put the subject matter before the Commission. This facilitated two primary objectives. These were that the Society could argue its case in full with regard to award structures and that this process would bring under proper scrutiny the claims by the Department that these positions should be classified in another award.

I recognise the arguments advanced by Mr McCabe going to management prerogative and the provisions of the Tasmanian State Service Act. However the New South Wales Ministerial Reference Case, which I have discussed in great detail earlier in this decision, I believe adequately deals with those issues.

Whatever the debate may be on those particular aspects the fundamental point is that the Department should not have ignored that it was a willing participant in earlier discussions with the Society on matters including structures. In my view, given that the Department no longer supported those structures it had a moral obligation, quite apart from anything else, to have the entirety of its proposals, including those for Associate Directors, tested in the Commission thereby giving the Society the opportunity to put its case. The fact that in the end this opportunity was provided by the Commission by allowing an amendment to the Society's claim, which was vigorously opposed on behalf of the Department, does not mitigate against what should have happened in the first place.

Turning now to the submissions made which I have summarised as follows.

The decision of the Department to classify Associate Directors in the Clerical Employees Award rested primarily on the fact that these new positions do not entail teaching duties. Mr McCabe submitted that Associate Directors are concerned with the administration and management of the TAFE College system and college programs. He submitted:

"... we see their functions in reality no different to those other employees throughout the training Division of TAFE, and for that matter all the State service, in that they provide an administrative role with management responsibilities within a TAFE college environment."

Transcript p4132

Mr McCabe pointed out that Associate Directors will not be required to possess the qualifications necessary for appointment as a TAFE teacher. The Commission was informed that the focus of the Associate Director positions is on managerial responsibilities rather than on educational requirements associated with the teaching discipline.

The Associate Director (Administration) positions would assist the Director of a TAFE college with the overall management of the college thus moving away from providing educational leadership.

The Associate Director (Programmes) position is concerned with program management covering a range for disciplines and undertaking a wider college management role. There will be no requirement to undertake teaching duties. Mr McCabe said that these duties would be "completely eliminated"115 He explained that this position will take over the management and administration role of the Head of School. The Head of School positions in the current award undertake 9 hours teaching per week. Mr McCabe submitted:

"Associate directors at all levels will be required to exercise high level communication and marketing skills, including the ability to establish and maintain close working relationships with commerce, industry and the community in order to ensure that training needs are being met.

They may be expected to apply professional knowledge, or provide educational leadership in one or more of the disciplines relevant to the work area, and may be required to have statewide responsibilities, as opposed to responsibilities within a single college. Their capacity to - they will also require the capacity - to applied administrative research or analytical skills, and to enable participation in the planning, development, and implementation of major programs.

So that gives you an outline of the way we see the associate directors providing the management, administrative and leadership role to various programs under their control. They will take on the administrative and managerial loads which will relieve those in teaching positions of such concerns, leaving them to devote the greater part of their attentions to the teaching side of TAFE colleges.

So, we see the role and functions of associate directors as taking a new and different direction to the traditional roles of TAFE college management in that they will have no teaching responsibilities but will provide the support and leadership to those who do the hands-on teaching functions."

Transcript. p.4134

Mr McCabe also referred the Commission to a decision116 of the New South Wales Industrial Commission, Exhibit M45 where Commissioner Buckley quoted His Honour Sheldon J in respect of restructuring within the Award. His Honour in matter 1971 AR95 (Loty and Holloway) said at page 110:

"...the whole job requires close collaboration and mutual confidence between the representative and those controlling the union and it is plain that in these respects the present executive is entitled to decide that Mr Rutherford is more suitable than Mr Loty. I am certainly not prepared to find on the evidence that the preference for Mr Rutherford is no more than a sham designed to justify the victimisation of Mr Loty. A drastic finding of this kind would be necessary to justify intervention by the Commission.

He went on to say that: "there is no doubt that re-organisation has taken place."

Mr Oliver referred to it in his evidence and said: "They are making it fit what they think should be the position." I think it would be wrong on the evidence to find that this is not a bona fide re-organisation and in my view the Commission would not be justified interfering with it. Needless to say, I express no personal opinion as to whether the new organisation is preferable to the old."

Mr McCabe went on to indicate that Commissioner Buckley made the following observations in respect of the above comments by His Honour:

"Now essentially the Judge was stating there what has been said elsewhere in industrial cases that it is not the position of industrial tribunals to exercise management prerogative and to determine that one form of management is preferable to another or that a management decision would have been a different decision had it been made by a Conciliation Commissioner. If there is a decision made by management in connection with a re-organisation or staffing or promotion and it is bona fide and made for apparently good reasons it is not for an industrial tribunal to interfere. I find nothing on the evidence put today that in my view would justify an intervention by myself in this decision by management. I so find."

Mr McCabe Highlighted that the foregoing decision supported the notion that in the event management prerogative is exercised for good reason, that if it is not unjust or unfair to employees, then it is not for industrial tribunals to interfere with that prerogative on to substitute its own views.

Exhibit M46 was tendered by Mr McCabe to further support that the functions of Associate Director (Programs) and Associate Director (Administration) will be administrative and management focused. In particular Exhibit M47 highlighted the functions for those positions in the following terms -

"Functions:

Associate Director (Administration)

Required to manage the human, physical and financial resources directly associated with the delivery of administrative support services in a TAFE college. Required to liaise with higher education, industry, Government departments, commerce, community and professional associations to monitor trends and directions to ensure the College meets identified loads. Required to assist the Director with the overall management of the College and deputise for the Director where appropriate.

Associate Director (programs)

Required to manage the human, physical and financial resources directly associated with the delivery of vocational education and training programs within a section of a TAFE college, covering a range of related disciplines, and participate as a member of the senior management team of the College. Required to liaise with the community, industry and other educational institutions to ensure the long term goals of the Agency and the College are met.

Desirable Qualifications:

Possessions of an appropriate tertiary qualification or industry/professional experience relevant to the position.

Exhibit M46

Exhibit M47 and M48 set out the roles for the Associate Director positions in the following terms:

"ASSOCIATE DIRECTOR 1

A position at this level operates under broad direction and manages a team of professionals and other staff requiring considerable co-ordination. The position is also responsible for the human, physical and financial resources under its control.

The teams may comprise teachers and other specialist staff engaged in the delivery of quality educational programs or other services to a TAFE college.

The management role will require effective leadership and direction over subordinate staff including supervisors. The position will be required to operate with a significant degree of independence and autonomy in day to day activities and be accountable to senior management in terms of strategic direction and meeting objectives.

Managers at this level will be required to exercise high level communication and marketing skills including the ability to establish and maintain close working relationships with commerce, industry and the community in order to ensure that their training needs are met.

A leader at this level may be expected to apply professional knowledge (or provide educational leadership) in one or more of the disciplines relevant to the work area and may be required to have Statewide responsibilities. The capacity to apply administrative research or analytical skills is also required to enable participation in the planning, development and implementation of major programs."

Exhibit M47

"ASSOCIATE DIRECTOR 2

This position operates under broad direction, working closely with and deputising for the College Director, in assisting the Director with the overall management of the college in terms of the human, physical and financial resources and the delivery of College services.

The position will also be required to assist and represent the Director in carrying out functions associated with the relevant training sub program area.

The position will be required to operate with a significant amount of independence, autonomy and a minimal amount of supervision, being accountable to the Director.

As a senior manage the role will require effective leadership and team building skills as well as a high level of interpersonal and communication skills. Further there will be the requirement to develop and maintain close working relationships with appropriate sections of commerce, industry and community in order to ensure an understanding of their needs with respect to vocational training.

Included in the role will be the need to be able to apply a high level of analytical and synthesis skills with respect to strategic and tactical planning."

Exhibit M48

The Society also put many submissions on this matter. It started out by first discussing classification levels for Deputy Directors 1 and 2 to provide for Deputy Principals and Campus Managers. It changed when the Department created Associate Director positions.

With regard to these positions the Society sought a teaching component of 180 hours a year. The need for this was rejected by Mr McCabe. Mr Holden contended however Associate Directors should be included in the award so that these people:

"... maintain an identity and close relationship with teachers and in fact, keep abreast of current educational developments at the classroom levels."

Transcript p.4596

and later:

"..., the society has argued continuously that these are positions that should be in this award. The whole basis of structural efficiency changes and work-value changes are to create new classifications. Structural efficiency wasn't based on the idea of creating new classifications and then spiriting them away from an award to another award.

The functions and classifications criteria proposed by the society for these positions are in line with the controlling authority's position descriptions, except we do have a slight difference in that we propose that a small teaching load for associate directors who will be in charge of programs."

Transcript p.4627

FINDING

Whilst there could be a great deal more discussion on this matter, the respective positions of the parties are clear. In my opinion a strong case has been put forward for these classifications not to be included in the award. Certainly there is no evidence to suggest that the re organisation undertaken by the Department is other than genuine or is one that I should interfere with.

In making my determination I have had regard for the detailed information provided going to the functions for those positions and the skills required as outlined by Mr Dinely and Mr McCabe. I do not find that it is essential or indeed necessary for there to be a teaching component, or to provide teaching conditions for those positions. In reality the Society understandably wishes to extend the career path in the award. For the Commission to support that the first hurdle must be that the classification(s) falls within the parameters of the award, which in this case has been rationalised to reflect rates of pay and conditions for teachers.

Clearly the Government does not require these employees to work as teachers or to have teaching conditions. Associate Director positions will have a marketing and business liaison focus and will not be required to undertake any class activities at all. They will be conduits between TAFE and business.

It is not my intention to impose on the employer a requirement to classify these positions in the award as there is no justification to do so.

STUDENT COUNSELLORS

The Society wanted this classification to be continued in the award whilst the Government asked for it to be removed.

In support of its position the Society relied upon the observations of Allen J in the South Australian TAFE case. Essentially His Honour stated that whilst student counsellors are not involved in teaching, they carry out functions which, whilst not performed in the classroom, are functions performed by teachers.

The Government approached this matter on the basis that teaching was not required and therefore the classification should not be contained in a teaching award. As well as that Mr Dinely informed the Commission on how the classification was established in the first instance.

In that regard Mr Dinely indicated that the Carmel Report on separating TAFE from the Education Department recommended that each college establish a student service unit as was recommended in the Kangan report.

Mr Dinely stated that he was closely involved in establishing these units. He submitted that his recommendation that the position involved should not have a teaching classification was not accepted "and the salary level was determined as for senior teacher"117 Mr Dinely did say that his recommendation for a clerical classification was at a considerably higher salary level than what applied to senior teacher.

In developing his submission Mr Dinely referred to correspondence, Exhibit M60, from the Head of Student Counselling and Director of Hobart Technical College, Mr Upson, to demonstrate that historically counsellors were classified "Teacher Counsellor" and had some teaching duties "alluded to in the relevant position description, in order for the Counsellor to be appointed under the provisions of the TAFE Staff Award"118 The thrust of the submission by Mr Dinely, supported by Exhibit M60 was that formal teaching was not required of Counsellors and that the position description making reference to providing teaching services did not mean or imply a teaching load. Also teaching qualifications or experience was not essential for appointment.

Mr Holden took exception to Exhibit M60 submitted that it was a cobbled together document and its legitimacy was not accepted by the Society.

FINDING

I have no hesitation in accepting that Student Counsellors are integral to the teaching role and accordingly determine that they should continue as a classification in the award. The matter of translation is left to the parties.

PROGRAM CO-ORDINATORS

There is not sufficient information before the Commission for me to reach a conclusion on this matter with regard to this classification continuing in the award or otherwise. Should the parties require it, having regard to the overall context of this decision the Commission will be prepared to assist at the request of any of the parties.

PROMOTABLE POSITIONS

The Society sought endorsement for Student Counsellors (and Program Co-Ordinators) to access AST classifications.

I have no difficulty with that proposition however it would be dependent on meeting the stipulated criteria. The parties are still to develop this further as discussed in the AST part of this decision. I do not support back dating of AST appointments to 1 January 1993.

Also I am not prepared to make a finding or a recommendation with regard to how many times in a year applications for AST should be called. However I commend to the parties the processes outlined on this matter in the Teaching Service (Teaching Staff) Award.

CONDITIONS OF EMPLOYMENT

Mr Holden referred to the TAFE award as one of the "sparsest documents currently existing in terms of award clauses"119 He indicated that it contained a reference to the applicability of the Tasmanian State Service Act 1984 and the Tasmanian State Service Regulations 1985 where conditions of service are not prescribed in the General Conditions of Service Award. Additionally Mr Holden submitted that Standing Orders issued by the Department also addressed some of the more important matters which should be contained in the TAFE award. He said:

"We only seek to include in the award matters which we believe are specific to TAFE or are required to be different to the State public sector provisions because of the different nature of vocational education and training. A number of them reflect exactly what happens at the moment, some of the areas we're referring to are award free. Others apply by virtue of a Memorandum of Understanding, but are not contained in the award.

Some of the other issues we wish to include are drawn from the State Service regulations and we do not accept that the State Service regulations are the proper place for a number of provisions particularly the excess hours provision. The Society firmly believes that that should be before the Commission."

Transcript p.1550/51

Consequential to that approach the Society's application T.3709 of 1992 containing all salary and conditions of employment matters in one consolidated document, was joined with these proceedings on 3 March 1992. That document was amended from time to time. Later a significant number of fall back proposals were put forward by the Society. The claim including fall back positions is attached to this decision as Appendix C.

Given the setting out of the Society's claim in various identifiable PARTS, I propose to commence this section of my decision by considering, sequentially, matters from PART A though to PART F, leaving out those matters identified and determined elsewhere in this decision.

TITLE

The Society asked for the existing title of the award to be retained. The Government submitted that as the award should only apply to teachers this should be reflected in the title.

FINDING

As I have determined to exclude employees currently subject to DIVISION B (apart from Curriculum Development) C and D from the award, the title will be "Technical and Further Education Teaching Staff Award".

Scope

The Government and the Society sought changes to the Scope clause. The existing Scope clause of the award is as follows:

"2. SCOPE

Subject to the exceptions and conditions contained herein, this award shall apply to all persons permanently or temporarily employed under the provisions of the Tasmanian State Service Act 1984 in the Division of Technical and Further Education of the Education Department, and who occupy or are appointed to positions specified in Schedule 5 of the Tasmanian State Service Regulations 1985.

The Society claimed a variation to that clause as amended on 15 April 1992 in the following terms:

"Subject to the exceptions and conditions contained herein, this Award shall apply to all persons employed under the provisions of the Tasmanian State Service Act 12984 in the Tasmanian Department of Employment, Industrial Relations and Training, and who occupy or are appointed to positions of a teaching nature, or teaching support nature or teaching administration, as specified herein".

Mr McCabe submitted that the Scope clause proposed by the Society extended the coverage of the award beyond the positions classified in Schedule 5 of the Tasmanian State Service Regulations. He cited TAFE Training Service managers, deputy directors, advanced skills teachers as examples of classifications not set out in the Schedule but which would be covered by the scope clause sought by the Society.

The thrust of Mr McCabe's submissions were that as the scope clause was requested to be altered, the procedure should be as for the making of a new award. That is the award should be made first in respect of title and scope, followed by determination of interest. Subject to appeals the usual procedure would them be to determine the contents of the award.

A further point of contention raised by Mr McCabe related to the Government's wish to have the scope clause varied to allow for the coverage of those employees involved in teaching duties only. He said other organisations, party to the award, may also wish to have the scope clause changed. He said:-

"It seems to me that it is futile to proceed any further with the making of this award until the fundamental question of the scope clause and the title of the award have been finalised. After all, the title and scope of the restructured award will determine which classifications will be covered by the new award."

and later:-

"I mean it is so radically different (the Scope clause) to the existing award and so would ours be and that's the point. So, what I'm saying is, it would be - it would seem more appropriate to first - to first know what the - what coverage the award has and that it required to be specified by section 34 of the Industrial Relations Act.

Now that is a matter which I leave for the Commission to determine, but if the Commission says that it can hear all the relevant matters before it and then determine the scope and title than that's how it will proceed. We are not unduly concerned about this but would request the Commission's consideration of the question before we proceed too much further into the award.

Should you decide that there is no need to decide the scope of the award at this stage, we would submit that we do not agree with the scope and title of the award as specified in the Staff Society's application"

Transcript p.3684/85
(In brackets mine) and p.3692

The Government's preferred Scope clause is as set out in Exhibit M36 in the following terms:

"Subject to the exceptions and conditions contained herein, this award shall apply to all persons employed under the provisions of the Tasmanian State Service Act, 1984 and who occupy or are appointed to positions specified in this award".

FINDING

The existing Scope clause is out of date with regard to its reference to the "Education Department". Apart from that it has two fundamental features to it. The first is that the scope applies to all persons permanently or temporarily employed under the provisions of the Tasmanian State Service Act 1984. The second is its reference to Schedule 5 of the Tasmanian State Service Regulations 1985.

Reference to Schedule 5 has the effect of limiting the award to nominated positions. However both the Society and the Government proposals would remove that limitation. In my opinion that is entirely appropriate as in the strictest sense the award as it stands right now provides for Advanced Skills Teachers albeit that this classification is not a position identified in the Schedule. Notwithstanding this irregularity, the Scope Clause should reflect that the award can apply to any person employed under the Tasmanian State Service Act, 1984. The only limitations that the Scope clause should contain, are those provided by the words "and who occupy or are appointed to positions specified in this award." These words distinguish, in practical terms, one public sector award from another.

Accordingly the Society's Scope clause contains superfluous verbage where it refers to "in the Tasmanian Department of Employment Industrial Relations and Training" and to the requirement to occupy positions "of a teaching nature, or teaching support nature or teaching administration."

The determinant factors, in my opinion, are the need for the Scope clause to refer to the Tasmanian State Service Act which is the Act under which employees are employed and for the award to specify classifications for positions covered by the award. Accordingly the limitations referred to by Mr McCabe, that is that the award would be limited in its application to Technical teachers, Advanced Skills teachers and Heads of Departments, in the event the Government's Scope clause is adopted by the Commission is correct only in the event his submissions on the classifications that should be subject to the award is successful. Put another way the scope clause sought by the Government is only limited by the classifications that will ultimately be set out in the award. In this case that is dependent on the determinations I have made. Clearly the position of the Government is for the award to reflect the classifications for positions it considered should be subject to the award. On the other hand Mr Holden advocated that the award should apply to positions within TAFE colleges and the Department including adult education, head office, adult migration education services and adult education services. As I have said the Government's scope clause can accommodate that outcome.

With regard to the submissions that the variation of the scope is so significant so as to warrant the making of a new award in respect of Title and Scope only, thereby allowing the normal determination of interest proceedings to follow before progressing to making the remainder of the award, I do not consider this a necessary step in this exercise. Obviously it will be open to any organisation to seek an interest in the award subsequent to the variation I have now determined. It should be noted that in making a new award, no prior interest has been determined. This is not the case here where a variation to an existing award is being made.

SUPERSESSION AND SAVINGS

Mr Holden requested that the existing provisions, updated to include the provisions of the existing award, No 2 of 1991 (Consolidated) be retained. Mr Holden also emphasised that the salary for Mr Burrows should be saved. In that regard Mr Burrows derives his salary from Division B of the award as identified in existing clause 8(5).

Mr McCabe submitted that the Government opposed the claim by the Society. He said:

"... there can be no automatic right to the provisions of an old award when there is a major revision and restructuring of an award such as is occurring in this structural efficiency exercise."

Transcript p.3971

In essence Mr McCabe particularly sought the exclusion of the following provision:

"Provided that no right, obligation or liability incurred under any of the above mentioned provisions shall be affected by the replacement and supersession".

Clause 5 - Society Claim

It was put by Mr McCabe that the Society's clause would result in all employees under the existing award retaining their existing rights. Whereas if the Government's proposed clause was adopted "that wouldn't necessarily occur"120

It was clear from Mr McCabe's submissions that the primary concern of the Government was to ensure, in the event its position for a TAFE teaching staff award was to be adopted by the Commission, that teaching conditions enjoyed by what in the Government's submissions related to non teaching staff in Division A, would not continue to apply. Mr McCabe had no concern about saving salaries to ensure that no individual would be disadvantaged in the event they were classified in other appropriate awards. He said:

"... we see that as being quite equitable, but we couldn't see that the rights to all the conditions of service under the existing award being retained."

Transcript p.3975

Further to that Mr McCabe informed the Commission in the event the Government's classification structure was adopted by the Commission, then because it was a flatter structure, there would be fewer promotional positions.

Mr McCabe stated the intention of the Government was to fill all promotable positions in the new structure under the merit principle and the relevant provisions of the Tasmanian State Service Act including transfer and direct selection processes. He said that those employees not successful in obtaining a promotable position would be treated in the manner as set down by the Full Bench in matter T.2399 of 1990. That is that translation would not take place on a point to point basis but would be subject to task and job redesign. Employees would then be translated into new positions at the appropriate classification and salary level. A savings provision would also apply to ensure that existing employees would not have their salaries reduced.

Mr McCabe submitted that those employees not gaining a promotable position would be classified in one of the classification levels below Head of Department. In the event this was not acceptable to a particular employee, secondment, redeployment or transfer may be relied upon by the Government. Voluntary redundancy may also be an option.

Mr McCabe conceded that until the final structure of the award was settled by the Commission a "firm prognosis on the likely consequences of staff translating into the new college structures"121 could not be given. Mr McCabe made the point however that the Commission could not involve itself in matters going to appointments and promotions.

FINDING

The award has been significantly restructured. Whilst employees hitherto subject to Divisions B, C and D will be able to be translated to other relevant awards relatively easily, this may not be the case for teachers. The teaching structure has undergone major change and at the promotable levels fewer classifications are now in place.

It would not be realistic to save teaching conditions in the case of teachers not being able to be accommodated within the new structure. Accordingly whilst saving all salaries, the conditions of employment should be those applicable to the relevant award.

The parties are requested to draft Supersession and Savings clause to reflect the foregoing.

PARTIES AND PERSONS BOUND

It was submitted by Mr McCabe that Secondary Colleges Staff Association and the Tasmanian Teachers Federation should be deleted as parties to the award. He stated that these organisations had no input to the restructuring exercise and their deletion would be in accordance with the August 1989 National Wage Case decision going to rationalisation of award respondents. However Mr McCabe acknowledged that this was "a matter for the union parties to sort out"122 I concur with that approach. However should any of the parties require the assistance of the Commission at a later date, the matter has been designated leave reserved.

DEFINITIONS

Mr Holden submitted that TAFE should be recognised as a distinct industry which he said was recognised by the Vocational Education Employment and Training Advisory Committee (VEETAC), Exhibit H93. Mr Holden said that TAFE needed to "achieve recognition as a distinct industry and it's for that reason the Society included a substantial number of definitions."123

However Mr McCabe indicated that as the Government's award proposals in Exhibit M36 were different to those of the Society, many definitions in the Society's claim were superfluous.

With regard to the definition for Head of Department, Mr McCabe agreed with the Commission that for the Governments claim in Exhibit M36 which proposed one classification level for Head of Department, the definition in that exhibit would also suffice for a classification criteria.

FINDING

Given what has been determined for this award many of the definitions claimed are no longer relevant. Accordingly the parties are requested, in preparing draft orders, to reflect in the definitions the outcomes contained in this decision.

SALARIES

The Society sought the inclusion of Salaries in the definitions cause. This was apposed by the Government on the basis that Salaries were set out elsewhere in the award. I agree that a salaries definition is not necessary.

HOURS OF WORK AND ATTENDANCE

The Society advanced its claim for attendance time of 30 hours a week for teachers on the basis that this represented the status quo in accordance with Tasmanian State Service Regulation 276 and Standing Order No 2 for 1992.

Mr McCabe sought the following provisions:

"10.   HOURS OF WORK AND ATTENDANCE

(i) The ordinary weekly working hours for Teachers, Advanced Skills Teachers and Heads of Departments shall be 35 hours per week excluding meal breaks.

(ii) Ordinary hours of work shall be between 8 a.m. and 10 p.m. Monday to Saturday.

(iii) Teachers, Advanced Skills Teachers and Heads of Departments shall not be required to attend a TAFE College or other approved places of work for more than 8 hours in any one day.

(iv) No employee shall be required to commence duty less than 10 hours after the conclusion of the previous period of duty."

Exhibit M36 - Clause 10

I was informed by Mr McCabe that the question of Hours of Work should be referred to a Full Bench.

I concur with that requirement as provided for by Section 35(1) of the Industrial Relations Act 1984. Having regard to that Section and the submissions of Mr McCabe I have also referred the following matters to the President for him to consider whether or not they should be dealt with by a Full Bench.

Annual Attendance
Hours of Work and Attendance
Recreation Leave
Recreation Leave for Fixed Term Employees
Recreation Leave Allowance

The remaining claims under this heading related to Hours of Attendance to be reduced by 6 hours in respect of each State Service statutory holiday other than the following:

Christmas Day; Boxing Day; New Year's Day; Good Friday; Easter Monday; Easter Tuesday.

It should be noted that the reduction of 6 hours was calculated having regard to the 30 hours a week attendance time breaking down to 6 hours a day (i.e. 30 hours a week divided by 5 days = 6 hours a day). Whilst the matter of 30 hours a week attendance time was referred to the President, I do not consider that this prevents me from determining this issue ahead of the President's finding. That is whatever the outcome of the referral, my decision on the "public holidays" question may require consequential adjustment in terms of the actual hours that may or may not be offset in respect of the claim. Accordingly the Society's submission on this matter are summarised hereunder.

Mr Holden submitted that prior to the introduction of tuition fees if programs or classes were scheduled whereby teaching would have occurred on a public holiday, the classes were cancelled and teachers received a credit against their annual teaching load equivalent to the number of hours they were scheduled to teach. As tuition fees are now paid TAFE clients required the delivery of the number of hours of instruction paid for. Consequently TAFE rescheduled classes to ensure that clients received the full number of hours allocated to their class. The changed circumstances were addressed by the Commission in matter T.3615 of 1991 with a recommendation that the status quo should be maintained until the issue was determined in this matter. The effect of the Commission recommendation was that in the event a class was scheduled on a public holiday (apart from those which fall during specified leave periods for teachers), the scheduled number of hours are to be offset against teachers' annual teaching loads.

An extensive submission was made by Mr Holden why this arrangement should continue. To clarify the situation it is to be noted that Tasmanian State Service Regulations 251 (1) (a) (ii); (b) and (c) stipulate recreation leave periods for TAFE teachers. The circumstances are that any public holiday falling within the recreation leave periods specified in that regulation is not added to the recreation leave period. Mr Holden informed the Commission, having regard to the foregoing, that "attendance time per week was reduced by 6 hours for every public holiday which fell during the weekday Monday to Friday period, except .... for those public holidays which fell during the fixed recreational periods"124

Mr Holden submitted that if teaching was scheduled, teachers received a credit equivalent to the number of hours they would have taught. It was acknowledged by Mr Holden that as a consequence of the 4 per cent second tier negotiations Easter Tuesday could be removed from the those arrangements. But in any event by taking one week recreation leave over Easter, TAFE teachers have effectively excluded themselves from receiving credits for public holidays falling over that period. Mr Holden indicated however that "at no stage was there ever any discussions about ceasing to schedule classes on public holidays"125 It was submitted by him that the non scheduling of classes on public holidays arose purely and simply because of the introduction of tuition fees in 1990.

Mr Holden requested the Commission to take into account the teaching hours flexibility available to TAFE. Exhibit RB2 demonstrated teaching hours varying between a high of 34.5 hours to a low of 3.5 hours per week . Mr Holden contended that this flexibility should be compared with "normal" school situations where teaching hours are the same each week and all public holidays outside the recreation leave periods are granted.

It was emphasised to the Commission that the change contemplated by the Department was not envisaged when the second tier agreement was negotiated and was now being sought to be introduced 3 years after agreement was reached. The Department in seeking to make the change in timetabled classes issued an instruction which stated in part:

"Teachers cannot be required to attend or teach on public holidays and some confusion has arisen in the minds of clients (students and employers) when it has not been made clear whether or not the services, which they believe have been paid for, will be provided.

Consequently you are instructed to instruct Heads of Schools/Departments that classes and teachers shall not be scheduled (timetabled)) for public holidays indicated above unless it is intended to conduct the classes on those days."

Transcript P.2056

Mr Holden submitted:

"Now, the commission has already heard submissions which were not challenged that to meet the requirements of clients were teaching hours have not been delivered on a public holiday, the teachers have been required - or the college has been required to deliver the additional teaching hours and, in effect, the teachers have been required to teach those hours in accordance with their annual load.

Now, as I repeat, no one disagrees with the clients entitlement to have the hours taught to them, but the requirements of the client or customer have to be met in accordance with reasonable industrial standards and award conditions. The employer or the employing authority cannot say: We must meet these particular clients requirements so reasonable award conditions do not apply. And, in fact, that's one of the points which come out very clearly in respect of the Sheldon decision in the New South Wales Commission in `69.

The commission has also been told that where work time is made up under other awards, penalty payments apply. But that's certainly not the intended position in respect of TAFE in this matter. The simple fact is that due to a government decision to charge fees for courses new circumstances arose and a management decision was taken. The society submit that the commission should have regard for equity, justice and merit."

Transcript p.2057

Mr Holden relied upon decisions126 of the Australian Commission in addressing equity, justice and merit. In effect he said that as the 4 per cent second tier agreement did not seek to deprive teachers of teaching credits for classes scheduled on public holidays, the principles of justice, equity and fairness should be applied to the extent that the current arrangement should continue. That is the Government should not be permitted to reschedule classes away from public holidays that previously attracted a teaching load credit on the basis when those classes were scheduled to take place.

Mr Holden also relied on Standing Order 2 for 1992 which provided for the following in item 2.2:

"2.2 Attendance time will be six (6) hours on average and should not be more than eight (8) hours on any one (1) day unless the circumstances are exceptional, and the teacher is in agreement. Every full-time Departmental employee shall take a lunch break of a minimum of half an hour and a maximum of one hour between the hours of 12 noon and 2 pm except in exceptional circumstances. Lunch breaks are not included in the College attendance time.

Directors may approve the scheduling of a teacher's thirty (30) hours attendance at College over less than five (5) days/week only if special circumstances exist. Such circumstances may include the scheduling of the thirty (30) hours attendance for beginning TAFE teachers over four (4) days (rather than five [5]) to give them a day for study purposes."

It was contended by Mr Holden that it was clear from that part in the Standing Order that the intention was for teachers to work for five days in each week. Only in exceptional circumstances should anything different apply. He said:

"Now, in effect, Mr Commissioner, it seems to me that if you are required to work on 5 days each week, a state public service holiday falling in that week should result in you receiving a proportional credit, otherwise the system is unfair, and it certainly applies that way for all other employees, and it most certainly applies in respect to school teachers, etc."

Transcript p.2062

Mr Holden also informed the Commission that when teaching is undertaken on a public holiday it attracted time and one half which he said was below the prevailing standard. The Society sought the equivalent of double time which Mr Holden contended was also below the standard of two and one half times which he said was granted to TAFE teachers in Victoria.

The submissions of Mr Holden were:

"The society submits, Mr Commissioner, by any criterion all TAFE teachers are entitled to teaching credits for some state service holidays, and the society further submits that the only way they can expect to receive those credits is by this commission including in the award a clear and unambiguous and specific provision, and the proposal put forward by the society is just such a provision.

The intention is that all TAFE teachers will receive a reduction in weekly attendance time of 6 hours for each public holiday falling during a week, and all TAFE teachers will receive the equivalent of the nominal weekly teaching load divided by five and calculated to the nearest hour as a reduction against their annual load; and based on current teaching hours the outcome of that would be it would calculate out to 23.4 hours, which we would reduce to 23 hours for a technician teacher, and a 27.3 or 27 hours for a general studies or trade teacher.

Transcript p.2063

For completeness I have set out the basis of the calculation for a technician teacher as follows:

18 hours nominal load
Therefore 18 hours divided by 5 days = 3.60 hours
3.60 hours x 6.5 public holidays = 23.40 hours credit

Mr McCabe contended that the Society's claim attempted to:

"... to deduct an allowance from the teaching time which may have occurred on a public holiday from the quantum of annual teaching loads for each and every teacher. Now this would occur whether or not that teacher may be scheduled to teach on that particular day on which the holiday falls.

So the clause assumes, quite wrongly we would say, that every teacher would have undertaken a full nominal teaching load on the day that those 6 1/2 public holidays fall on during term time."

Transcript p.4005

Mr McCabe said that teaching schedules vary and on some days teachers have no classes to teach. Mr McCabe indicated that this resulted in a Departmental Instruction in December 1991 to the effect that only where classes are scheduled on a public holiday will there be a teaching load credit. Mr McCabe informed the Commission that the arrangements confirmed the outcome of 4 per cent second tier negotiations which, inter alia, resulted in a 48 week school year and an agreement that "staff and facilities will be available for the conduct of programs subject to client demand."127 He said the intention was that classes and teachers would not be scheduled on public holidays unless those classes were held.

Mr McCabe indicated that in light of the dispute128 in this matter the status quo was being maintained i.e. all teachers are receiving a teaching load credit of 6.5 public holidays whether they would have taught on that holiday or not. He said that this should not be continued in the award.

FINDING

The concept of annual teaching hours and providing credits against those hours when in effect no teaching is undertaken is incongruous. I do not see how teachers are disadvantaged by undertaking teaching to the full equivalent of their annual teaching load. Obviously if teaching is required on a public holiday then the appropriate penalty should apply.

The whole philosophy of crediting teaching time on a penalty basis is absurd in my opinion. The penalty should not be a credit against the annual teaching load. It should be for the inconvenience of working on a public holiday, no more and no less. I find that I totally support the submission of Mr McCabe when he said:

"And in respect of work after 5 pm and teaching on a Saturday, Sunday or holiday, we say that for teaching load purposes the time will count as ordinary time, ordinary hours worked even tough penalty rates may apply for payment purposes, the time for time teaching load undertaken on these occasions will count towards the annual teaching load in the normal manner. And once the annual teaching load has been reached then the teacher will be paid for any additional teaching at the loaded overtime rate prescribed by the General Conditions of Service Award."

(underlining mine) Transcript p4057

The parties are requested to prepare an appropriate draft clause using the General Conditions of Service Award for penalty payment purposes. Other claims advanced by the Society in this part are discussed as follows:

(i)  Averaging Attendance Time over a period not exceeding 40 weeks a year.

In this claim the Society sought the attendance hours of teachers to be scheduled over a 40 weeks period within a 48 week spread. This matter related to the question of annual attendance time of teachers.

As stated by Mr McCabe this matter is directly related to the amount of annual leave teachers are entitled to pursuant to Tasmanian State Service Regulation 251.

Accordingly the submissions by Mr McCabe that this matter should be determined by a Full Bench is supported.

(ii)  Meal Breaks

The Society sought the taking of a minimum 30 minutes and maximum of 1 hour meal break after a maximum of 5 hours has been worked. Meal breaks do not count as attendance time.

I concur with this provision.

(iii) Attendance time to be one continuous period in any one day, unless otherwise mutually agreed.

This is related to Hours of Work and Attendance clause 10 - Exhibit M36, which has been referred to the President pursuant to Section 35 of the Industrial Relations Act, 1984.

(iv) Ordinary Hours to be worked between the hours of 7.45 am and 5.00 pm Monday to Friday inclusive, and

(v) Teaching for a maximum of two days per week after 5.00 pm.

Claims (iv) and (v) above are also interwoven with Clause 10(ii) of Exhibit M36 where the Government is seeking the ordinary hours of work to be between 8.00 am to 10.00 pm Monday to Saturday. Accordingly these matters were also referred to the President pursuant to Section 35 of the Act.

(vi) Attendance shall not be required for a period of three weeks commencing on 24 December and for a period of one week commencing on Good Friday in any year.

Whilst the Society was seeking the inclusion in the award of a matter subject to the 4 per cent second tier agreement, the fact remains that the Industrial Relations Act 1984 requires annual leave matters to be dealt with by a Full Bench. The matter was referred to the President pursuant to Section 35 of the Act.

TEACHING HOURS

The issues relating to the quantum of teaching hours and the calculation of teaching load credits were extensively canvassed by the Society and the Government.

The submissions of the Society and the Government concerning the Society's claims in 2.1 - Annual Teaching loads and Nominal Weekly Teaching Load and in 2.2 - Teaching Load credits, as set out in Appendix C, may be summarised as follows.

Mr Holden submitted that the Society was seeking significant changes in teaching hours. He said:

"The commission will recall that in the Memorandum of Understanding there was provision for significant increases in teaching hours, however, the rights of parties were reserved to address the whole issue again. And the society have looked at it from the point of view of individual teachers rather than a block of teachers, such as trade teachers, general studies or technician teachers.

And what we're proposing is a flexible teaching load. Now, the society believes that there are many factors that are important in determining the weekly or, for that matter, the annual teaching load of the teacher. The society does not believe that the teaching load should just be based on the academic level of the subject."

Transcript p.2042

Mr Holden indicated that subsequent to the Memorandum of Understanding a working party was established to examine teaching hours. It was on the basis of the agreed areas of the working party that Mr Holden said the Society constructed its proposals.

This was for the introduction of variable teaching loads having regard to the work teachers undertake other than teaching. This work would include assessment evaluation, curriculum complexity - having regard to the number of subjects taught, the degree of difficulty of the subject matter, the number of times the subject is taught from year to year, the degree of internal assessment involved, the degree of administrative and technological change, the degree of curriculum change, the use of different teaching process, the degree of teaching resources provided, additional staff development, research work, community and industry liaison, staff meetings and the like.

Having regard to the foregoing the Society proposed the following variable teaching loads:

 

 

Annual
Teaching
Load

 

Nominal Weekly
Teaching
Load

 

Teacher

540 - 720

15 - 20

Advanced Skills Teacher

540 - 720

15 - 20

Head Teacher

432

12

Head of Department 1

432

12

Head of Department 2

432

12

Head of Department 3

432

12

Head of Department 4

324

9

Head of Department 5

252

7

Head of School 1

252

7

Head of School 2

216

6

Head of School 3

180

5

Beginning Teacher

504

14

(It should be noted that teaching loads for Head of School were deleted on 16 November 1992. Also the Society put as a fall back position that in the event the Commission was not persuaded with its submissions that the status quo should be maintained for Teacher and AST classifications.)

The Society submitted that an assessment required to be made by the Head of School what teaching load reduction that should be made having regard to the types of factors identified previously. Mr Holden submitted:

"For example, a teacher with a very substantial number of different subjects that they taught once a week with significant curriculum development and possibly a great deal of counselling might receive a significant reduction. There may well be others who would not receive any of the discretionary reductions".

Transcript p.2044

With regard to teachers in promotional positions the Society proposed a specific annual and weekly teaching load as set out above. The reduction in the annual teaching loads for teachers in those positions would be for performing duties other than teaching. The Society nominated the following:

(a)    Examination assessment.

Mr Holden indicated that the Society sought the retention of the status quo for the teaching load credit for examination and assessment purposes. This is presently 2 weeks. In other words an annual teaching load reduction calculated on the basis of the determined weekly teaching load, multiplied by 2 weeks.

(b)    Professional development.

Presently teachers are required to undertake 30 hours a year professional development in their own time. Mr Holden submitted the Society sought that the Minister permit the same amount of time in the employer's time and that a 30 hour teaching load reduction should apply, or whatever the nominal weekly attendance time may be determined having regard to foreshadowed Full Bench proceedings.

(c)    State Service holidays.

In the event of a gazetted public holiday not falling in the designated recreation leave periods for TAFE teachers the Society claimed a teaching load credit of the nominal teaching load times 1.3 for all teachers to be offset against the annual teaching load.

The Society later advanced 1.1 as a fall back position.

I now turn to the submissions of Mr McCabe concerning the matters raised by the Society in this part. Mr McCabe opposed the Society's claim for defining teaching hours in the manner set out above. He stated that Standing Order No 2 for 1992 defined teaching hours and the method of detailing annual teaching loads and nominal weekly teaching load having regard to Second Tier and Second SEP adjustment agreements.

Mr McCabe submitted that the award should set the overall maximum hours of duty in each week or fortnight. The detail of how the hours should be spent while at work was the responsibility of management in consultation with employee organisations. In support of that position Mr McCabe referred to the Tasmanian State Service Act which in Section 33 details the functions of Heads of Agencies one of which is to ensure that the services of employees are used effectively, efficiently and as economically as is practical. He also referred to the Structural Efficiency Principle in the August 1989 NWC decision where at page 21 it stated that measures should include "ensuring that working patterns and arrangements enhance flexibility and the efficiency of the industry."

Mr McCabe stated that the Society's claim on teaching hours is contrary to the Tasmanian State Service Act 1984 and the SEP.

It was also submitted by Mr McCabe that the annual teaching loads advanced by the Society and which fell into the range of 540 to 720 hours per annum, apart from those nominated for promotable positions, had to be further adjusted by the Society's claim with the result that the nominated hours of teaching would be reduced by 86 hours. This would mean that annual teaching hours would be between 720-86 or 634 hours and 540-86 or 454 hours per annum.

Mr McCabe informed the Commission that against current teaching hours the cost of the Society's claim was estimated at $828,000 per annum as specified in Exhibit M32:

In addition to the foregoing Mr McCabe stated that the adoption of the Society's claim would institutionalise impediments to the flexibility and efficiency of the TAFE system and that this would be contrary to the Structural Efficiency Principle.

Mr McCabe also singled out the Society's claim for professional development of 30 hours to be met by the employer. He referred to the 4 per cent second tier agreement which provided for 30 hours professional development to be undertaken in teachers' own time. The 30 hours in the employers' time was opposed. Mr McCabe said that the amount of professional development undertaken in the employers' time should be left to the employer to decide.

 Later in the proceedings Mr McCabe submitted that it would seem futile to set teaching hours at this point until the question of Hours of Attendance was determine by a Full Bench. He submitted that given the level of increased demand for TAFE services, Exhibit M58, it would be contrary to the public interest to limit further teaching hours which was the effect of the Society's claim. Mr McCabe pointed out that a 35 hour a week attendance time, if this was determined by a Full Bench, would only be useful if teaching time was increased. He said:

"Well, if they are there for 35 hours a week and they are still only teaching up to 21 hours a week, we've got them there for 14 hours a week which is going to be of no practical use to the employer.

COMMISSIONER GOZZI: Well, what are you saying?

MR McCABE: We want them to be teaching, Mr Commissioner, not sitting around doing their DOTT things."

Transcript p4242

It was also the submission of Mr McCabe that it would not be in the public interest to set teaching hours in the award prior to the overall quantum of hours of attendance being settled by a Full Bench.

FINDING

I do not agree that the question of teaching hours should be held over until the general question of attendance time is resolved. I consider it appropriate for this contentious issue to be addressed now having regard to the entirety of what has been decided thus far. I disagree that this matter should be left, as was argued by Mr McCabe, for the employer to set contact hours within overall hours of work on the basis of management prerogative. This issue is clearly an industrial matter capable of determination as a consequence of these proceedings. In any event the argument that the resolution of this issue should be held over until the hours of attendance question has been resolved, is contradictory to the position advanced by Mr McCabe that it would be the intention of the Government to establish teaching loads by reference to the Regulations. The simple fact is that the Government does not wish to have those hours specified, irrespective of the overall hours of attendance that may finally be determined.

I see the inclusion of teaching hours in the award as an essential component of the award restructuring process. It is a key element in the contract of employment.

Accordingly in determining this matter I have concluded that variable teaching loads to cover a whole host of circumstances is not conducive to providing stability. I consider it far more appropriate to include in the award a uniform weekly and annual teaching load. In that regard I consider 21 hours a week for all categories of teachers to be appropriate. This equates to an annual teaching load of 756 hours. In effect that means an increase for technician teachers from 18 to 21 hours a week.

I have rejected the two thirds of attendance time formula put forward by the Government as being appropriate. It should be noted that formula, having regard to existing teaching loads for General Studies and Trade Teachers would have resulted in an 1 hour reduction in available teaching time. No steps along these lines were taken by the Government in the second SEP matter which increased hours for some teachers ahead of the formula now being put forward. Clearly there has been a change of mind commensurate with the claim for increasing attendance hours from 30 to 35 hours a week.

However that may be, I consider 21 hours a week to be a fair and reasonable teaching load. In that regard I endorse the teaching load credits sought by the Society for examination assessment.

On the question of professional development I concur with Mr McCabe that this should be left to management to decide. That is quite apart from the 30 hours professional development that should apply in teachers' own time as a result of the arrangements contained in the 4 per cent second tier agreement.

The State Service holiday teaching load credit matter was earlier determined in this decision.

The next Society claim I will consider was outlined as follows:

"All teaching before 8.00 am or after 5 pm between Monday and Friday inclusive in any week or on a Saturday shall be counted as time and one half and teaching on a Sunday or State Service holiday as double time for the purpose of calculating the number of teaching and duty hours worked. Required evening teaching shall be spread as equitably as practicable across the teaching staff."

Item 2.4 Exhibit H172

In considering this matter I am again mindful of the Government's claim in Exhibit M36 for ordinary hours to be worked between 8.00 am and 10.00 pm. Both the Society and Government claims are interlinked with Hours of Attendance matters referred to the President for Full bench considerations. Notwithstanding I do not consider my determination of these claims on an in principle basis to interfere with any subsequent proceedings as may be decided by the President. Accordingly I intend to proceed in that way.

The issues may be further progressed by reference to the Society's claims as follows:

"2.4 Teaching after 5.00 p.m. from Monday to Friday, or during a weekend or Public Holiday, shall be calculated as time and a half in calculating the teaching load of the teacher. Evening teaching should be spread as equally as practicable across all teaching staff."

Exhibit H96

In that regard Mr Holden submitted that normal industrial standards provided for the payment of overtime "or excess hours as the terminology is used in TAFE"129 at time and one half for the first two or three hours and double time after that, double time on Sundays and double and one half time on Public Holidays.

Mr McCabe said that this claim sought to include with some exception in the award matters set out in Standing Order No 2 for 1992 and the Tasmanian State Service Regulations. The first exception was that Regulation 276 provided for a spread of hours of 7.45am to 5.00pm. The proposed variation to 8.00am effectively sought the alteration of the spread of hours.

Further Standing Order No 2 provided for time and one half for teaching on Saturdays, Sundays and State Service Holidays.

Mr McCabe submitted that the present 50 per cent loading was adequate. He referred to the August 1989 Wage Fixing Principles which discussed at page 10 that Structural Efficiency measures could include consideration of working ordinary hours on any day of the week; extending the spread of ordinary hours and taking time off in lieu of overtime. Mr McCabe urged that the Commission arbitrate on structural efficiency reforms as there needed to be "a new innovative approach to the question of teaching times"130 and "daylight equivalent"131

Mr McCabe said the teaching load credits were in addition to teachers having their hourly rate calculated by using a divisor of 27 and then applying a 50 per cent penalty rate. He said:

"So, not only do teachers receive a pay penalty rate of 50 per cent with a favourable divisor rate, they also receive a 50 per cent premium on all teaching after 5.00pm or on a weekend or holiday."

Transcript p.4036

Mr McCabe also drew my attention to the fact that in the New South Wales TAFE Case, Exhibit M7, the Full Bench held that a strong case was made out for the abolition of daylight equivalent. The term "daylight equivalent" refers to the practice of counting time spent in teaching after 5.00pm Monday to Friday or on a weekend or Public Holiday, as time and one half for teaching load purposes. He referred me to that part of the decision which referred to acceptance by the Full Bench of the employers arguments and the offer made for a 20 per cent loading which the Full Bench altered to 25 per cent. It was his contention that the prescription sought by the Society should not go into the award and that the ordinary hours span should be 8.00am to 10.00pm.

He indicated that there should be no penalty until after the annual teaching load had been reached. Mr McCabe submitted that if teaching loads are credited at time and one half after 5.00 pm that goes to the accumulation of annual teaching loads with the result that the annual load is achieved more quickly than it would be working hour for hour. When the annual load has been reached excess hours apply "which is again another penalty rate with a favourable divisor"132 The effect submitted Mr McCabe was double counting caused by the daylight equivalent factor.

Mr McCabe also highlighted that the combination of claims 2.2(c) and 2.3 in Appendix C would result in a 300 per cent teaching load credit and that this was not in accord with the SEP. He submitted:

"And in respect of work after 5.00pm and teaching on a Saturday, Sunday or holiday, we say that for teaching load purposes the time will count as ordinary time, ordinary hours worked even though penalty rates may apply for payment purposes."

and later:

"Once the annual teaching load has been exceeded overtime should be in accordance with the General Conditions of Service Award."

Transcript p.4057

FINDING

As indicated in the determination on State Service holiday I do no support accumulation of teaching load credits when teachers carry out actual teaching. I consider that the rationale in the New South Wales TAFE case for a loading to be provided when teaching is performed outside the ordinary span of hours, Monday to Friday, to be a logical approach to this matter.

Given that this is a structural efficiency exercise and productivity and efficiency measure in the award are also part of the Special Case processes, reform in the way in which teaching hours are accumulated for annual teaching load purposes is totally consistent with the SEP.

In that regard there is no apparent logic to accumulating teaching hours on a penalty rate basis when to all intents and purposes teachers are performing their ordinary work. I find myself in complete agreement with the submissions of Mr McCabe that teaching time should count as ordinary time until the annual teaching load hours have been reached.

Having regard to the foregoing I am not prepared to alter the existing penalty payments that apply Monday through to Friday for teaching which is performed outside ordinary hours. However teaching load credits will not apply. Teaching on a week end or public holiday will attract overtime payment of time and one half, double time and double time and one half as provided for by the General Conditions of Service Award. This will also be for payment purposes only.

FIFTEEN MINUTE ATTENDANCE BEFORE CLASS

Mr Holden indicated that where teachers taught separate classes and leave campus between each class, they are required to be in attendance 15 minutes before each class. Mr Holden requested that the 15 minutes compulsory attendance time should be counted towards attendance time and a provision should be in the award for this aspect. Mr McCabe informed the Commission that the 15 minutes prior to lessons was counted as part of attendance time. Accordingly this matter is resolved and will be reflected in the award.

Calculation of Annual Teaching Loads

Mr Holden submitted that at the start of each teaching year or when a new teacher is appointed, the relevant Associate Director should determine the teaching load for each teacher having regard to the following factors.

  • number/range of subjects taught

  • degree of complexity of curriculum content

  • initial preparation associated with teaching new subjects

  • extent of internal assessment

  • class/group size

  • extent of technological, legislative or other change in subject area(s)

  • level of administrative and technical support provided

  • extent of curriculum change in subject area(s).

  • spread of subject areas taught

  • extent to which different teaching strategies are required

  • degree of availability of teaching/learning resources

  • special needs of student/client group(s)

  • special needs of individual studentsother factors as may be deemed appropriate by the head of school, or College Hours Committee

I was informed by Mr Holden that some subjects are more difficult and time consuming than others and variable loads taking this into account and the foregoing factors would result in a more efficient, productive and effective use of teachers.

Mr Holden submitted:

"The Society is convinced its proposal is the best path to follow at this time, so much so that if the Commission is not fully convinced of the merit of the Society's proposal, then possibly the Commission could look at the issue of introducing the variable load on a trial period whilst an examination was carried out.

And of course the trial period would have to be probably a minimum of 12 months, maybe 2 years. But of course whilst that is being carried out one also has to remember the VEGTAC national working committees are looking at the question of working conditions on a national basis, state by state and territory by territory."

(Underlining mine) Transcript p.2073

Mr Brough contended that the existing divisions between trade and general studies teachers and technician teachers was no longer appropriate. He also contemplated discussions with the Department on multi skilling in the event that teaching loads were allocated having regard to the foregoing factors. This would facilitate teachers teaching across existing boundaries. Other issues related to:

(i) Approved leave, other than recreation leave, and secondment to other duties, shall attract a teaching load credit calculated as follows:

  • the number of hours the employee was scheduled to teach during the period of leave on secondment, or

  • Number of Days Absent x Nominal Weekly Teaching Load,
                    5
    whichever is the greater.

    For the purposes of this paragraph, "days absent" shall be Monday to Friday, inclusive, except where an employee is scheduled to teach on Saturday or Sunday.

(ii) The General Manager (Training) may grant additional teaching load credits for any purpose which may be deemed appropriate.

With regard to item (ii) above good example of what the Society contemplated related to teachers who are required to undertake duties such as curriculum development. In those circumstances they would receive a teaching `load credit' against their annual teaching load. A further example concerned examination duties i.e. preparation and setting Statewide examinations and marking. Mr Brough indicated piece rates are paid for this work but in the Society's view a teaching load credit should be given instead. Excess hours would be paid when the annual teaching load was exceeded.

Mr McCabe submitted these claims were further examples of the Society seeking to restrict the way management regulate and organise its teaching resources. The thrust of Mr McCabe's submissions were that teaching hours should not be included in the award. He indicated that TAFE operations were diverse and that hours could be different for various TAFE operations both in respect of quantum of teaching hours required to be taught by individual teachers within the same college. He said it was a "fair summary"133 for the Commission to conclude that the intention was to regulate teaching time on an individual basis between the employer and employee.

Later in the proceedings the Commission was informed that there should be no discrimination between the types of work teachers undertake and that there should be one set of hours for all teachers. Those hours should not be contained in the award as this was seen as denying management the flexibility it may require. Mr McCabe also indicated:

"At the moment we would not want it put in the award to - which would pre-empt the staff society - well, it would give them the upper hand in regards to when we get in a negotiating position to be by award prescription before we are able to get into enterprise - look at it on an enterprise basis."

Transcript p.4066

Mr Dinely indicated that in the event teaching hours were not included in the award, it was possible that as a general rule for teaching loads to be calculated on the basis of 2/3 of attendance time. Obviously in the event the Government's claim for a 35 hour week was successful the impact on current teaching hours would not be insignificant i.e. 2/3 of 35 hours = 23.33 hours per week.

Indeed Mr McCabe submitted that in the event teaching hours were to be included in the award, then they could be out of kilter with the ratio of teaching time to attendance time in the event the Government's claim for a 35 hour week was successful.

In summary, Mr McCabe supported the inclusion in the award of overall working hours. However how the workforce was to be deployed during working hours should be left to the employer. This was said to conform with the thrust of the SEP.

FINDING

It is relevant to note that the Society and the Government supported the elimination of existing divisions between trade, general studies and technician teachers. I have endorsed this by levelling up teaching hours for all categories of teachers and putting in place a classification structure which has resulted in significant salary increases and which has eliminated the pay differentials between various categories of teachers having regard to the allowances that were paid to them.

I am not now prepared to include in the award mechanisms for variable teaching loads which were partly recognised by the different rates of pay which existed. In addition to that however the very variables to the teaching loads sought by the Society relate to factors taken into account in this case resulting in significant work value increases. Examples of this include reference to subjects taught, degree and complexity of curriculum content, assessment, technological change, curriculum change, teaching strategies and methodology and needs of clients.

I would not however be opposed to the Society and the Department conducting a proper examination to ascertain the types of circumstances where a teaching load credit, at ordinary time, may be appropriate. That may give real meaning to the Society's claim which contemplated the granting of teaching load credits by the General Manager Training for any purpose which may be deemed appropriate.

I have previously addressed the question of not putting teaching hours in the award as sought by the Government. In that regard I concluded that 21 hours a week was a reasonable teaching load, notwithstanding the two thirds of attendance time formula (i.e. 2/3 of attendance time to produce the number of teaching hours in a week) proposed by the Government. As indicated I do not regard this determination in any way to be out of kilter, as submitted by Mr McCabe would be the case, with what may be later decided with regard to overall hours of attendance.

Other issues for consideration related to:

(i)     Appeals to College House Committee

The proposal outlined by Mr Holden was that in the event a teacher believed that his or her hours were too great, an appeal may be made to a College House Committee. Mr Holden contended that it was essential that a mechanism existed to test decisions on teaching loads. He submitted that appeals should be heard within two weeks of the appeal being lodged.

(ii)    The College House Committee was proposed to be made up of:

one nominee of the Society
one nominee of the College Director, and
one member elected by and from College staff employed subject to the TAFE Award

The nominee of the College Director to chair the Committee and to have a deliberative vote only.

Appeals to a College Hours Committee was opposed by Mr McCabe. He said this represented a prescription to override management responsibilities as set out in the Tasmanian State Service Act. In any event this provision was unnecessary as appeals can be made to the Commissioner for Review. In deciding this matter Mr McCabe requested that I have regard to the requirements of Section 32(5) of the Industrial Relations Act 1984 which provides that I take account of the provision of the Tasmanian State Service Act.

FINDING

On the basis of my finding on the question of variable teaching loads it is not necessary to provide for a College House Committee. Any aggrieved employee is of course able to avail of the provisions in the TSSA.

The following claim was also made by the Society:

  • No employee subject to the provisions of this clause shall be required to teach for more than one hour per week in excess of the relevant nominal weekly teaching load for any period in excess of ten consecutive weeks.

Mr Brough indicated that the Society was attempting to put some limitations on the extent to which a teacher may be required to teach above and beyond what was considered a reasonable load week.

Mr Holden informed the Commission that the Memorandum of Understanding provided that teachers are not required to teach in excess of 4 hours per week above their nominal weekly load for more than 3 weeks and not more than 2 hours above their nominal weekly load for more than 17 weeks.

Mr McCabe highlighted the existing provision in Standing Order No 2 for 1992 permitting a teacher to teach 4 hours over their weekly load for any 3 consecutive weeks; followed by 2 hours for up to 17 consecutive weeks. He indicated that this was a convoluted arrangement, that the Society's claim was opposed and that this type of provision should not go into an award. Mr McCabe submitted that normal industrial practice was for employees to work reasonable overtime, as may be requested.

FINDING

I do not find anything convoluted about the arrangement in Standing Order 2 for 1992. This was also set out in the Memorandum. Notwithstanding the reasonable overtime argument put by Mr McCabe, I do not regard the present arrangements to be unreasonable and they are endorsed for inclusion in the award.

A further claim made by the Society related to:

  • Supervision of students undertaking practical placement is counted as teaching.

Mr Holden submitted that this was the current situation as contained in item 2.8(b) of Standing Order 2 for 1992.

Mr McCabe submitted that "observing, assessing and providing performance feedback to students on practical placement constitutes teaching". He referred to Standing Order 2 for 1992 in clause 2.8 where direct supervision of students is regarded as teaching for teaching load purposes.

Mr McCabe argued that the provisions sought should not be included in the award.

FINDING

The provision sought by the Society does no more than confirm existing arrangements. I consider it appropriate to include it in the award as it impinges directly on weekly and annual teaching loads which have also been included in the award.

The next Society claim related to:

  • Where a teacher is required to teach at a place other than his or her usual place of work, or where travel is required between two or more places of work, a teaching credit equal to 50% of the additional travel time involved shall be granted where the second, or other, place of work is more than 20 kilometres distant from the first, or primary, place of work.

Mr Holden submitted that this claim was to address circumstances when teachers are required to teach at locations other than their normal place of work. He stated that travelling time should be counted as teaching time, but credited at 50 per cent of the additional time involved. By way of example Mr Holden indicated in the event it normally took 30 minutes to travel to the teacher's normal place of work and teaching at another location resulted in one and one half hours travelling, the following teaching credit should apply:

Total travelling time  
to another location = 90 minutes
   
less usual travelling time  
to normal place of work = 30 minutes
   60 minutes

Therefore 50 per cent of the 60 minutes, or 30 minutes would be credited to the teacher's teaching load. Mr Brough submitted that this arrangement reflected existing practice.

Mr McCabe submitted that the Society did not provide any merit argument for this provision. He submitted that this matter should remain subject to administrative control. Currently provisions in relation to this matter are set out in Standing Order 2 for 1992.

FINDING

I can find no logic to the existing practice. All it does for no apparent reason is to provide a 50 per cent teaching load credit based on 50 per cent of the extra time involved in travelling. I could see some sense in this provision if it related to counting the extra time as part of hours of attendance. The parties may wish to further consider this matter taking into account my findings thus far concerning teaching load credits.

Accordingly this issue has been designated Leave Reserved.

EXCESS HOURS

The Society claimed that employees should be entitled to payment for excess hours in the following circumstances.

(a) Where a teacher is scheduled to teach in excess of his/her annual teaching load, as determined in accordance with the variable load factors previously discussed, payment shall be made in quarterly instalments, and shall be paid as soon as practicable, following the last day in March, June, September and December in each year.

(b) Where a teacher is required to conduct a class on notice of less than 48 hours, the whole of such teaching shall be paid as excess hours, and payment shall be made as soon as practicable following the week in which the teaching occurred.

(c) Where a teacher teaches for more than two hours in excess of the nominal weekly teaching load, determined in accordance with the variable load factors previously documented, in any one week, such excess shall be paid as excess hours, due and payable as in paragraph (b).

With regard to item (a) above Mr Holden submitted that where teachers taught in excess of their annual teaching load, they should be paid any entitlement on a quarterly basis i.e. March, June, September and December. At present excess hours payments are made at the end of the year.

Mr Holden contended that whilst it was unfair to teachers to have to wait that long for their excess hours payment, the method of scheduling teaching hours meant that towards the end of the year some teachers may only be required to teach a few hours a week in order for the College to avoid going over individual annual teaching loads to avoid the payment of excess hours.

Mr Holden said:

"Now, quite clearly that's a very foolish use of the resources available to them. You have a teacher sat there in the school compulsory attendance of 30 hours per week, but you don't use him as a teacher because if you do you'll have to pay him excess hours."

Transcript p.2099

Mr Holden also submitted that it was ridiculous for teachers to be required to be in attendance if they were not teaching.

Mr Holden proposed that the annual teaching load should be divided into quarterly periods as this would be fairer to teachers and it would be a better use of their time.

Having regard to the claim in (b) above Mr Holden sought what he claimed was a general standard to apply to employees where they are required to change their hours of work at short notice. Mr Holden contended that employees should be entitled to compensation in that all teaching time should be counted as excess hours and payment made as quickly as practical in the following week the hours were worked. The excess hours would not be offset against the annual teaching load, although the actual teaching time would be. Payment for excess hours worked in that way were sought to be paid as in (b) above.

The Society claimed that the hourly rate for excess hours payments should be calculated as follows.

(i) Where the excess hours arise from teaching on a Sunday or gazetted statutory holiday:

Annual Salary X 1 X 2
       52           27

(ii) In all other cases:

Annual Salary X 1 X 3
       52           27   2

In effect the Society sought time and one half to be retained for excess hours worked Monday through to Saturday and double time on Sunday. It was acknowledged that the divisor of 27 hours, which is a 3 hour reduction from the 30 hours for Duties Other Than Teaching (DOTT) provided some benefit, but that it was only a 10 per cent allowance i.e. 10 per cent of 30 hours and that time and one half and double time was justified as this was not an excessive standard.

A further issue related to teachers not engaging in any remunerated employment other than in accordance with the provisions relating to teachers and excess hours.

Mr Holden submitted that full time teachers and other full time TAFE College staff were regularly contracted to teach classes at part time rates. He contended that whilst the rates were inadequate they were accepted by teachers because payment was made immediately after the work was carried out. He indicated that this was not the case with excess hours payment.

It was the submission of Mr Holden that the contracting of full time teachers on the foregoing basis was contrary to Tasmanian State Service Regulation 228. Mr Holden submitted that this Regulation contemplated teachers teaching in another school. He said in this case, the teachers concerned when undertaking part time work taught "their normal subject within their own normal school and their usual campus within their normal college"134

In addition to the foregoing Mr Holden stated that the Government was contracting out of the award with regard to part time employment arrangements. (It should be noted that Part Time provisions are extensively discussed later in this decision) To support this contention Mr Holden exampled a 11th year of service teacher in the base salary scale who when performing part time work was paid either level 4 or 5 which are the commencing rates of pay for general studies trade and technician teachers respectively.

Mr Holden indicated that the hourly rate was calculated by dividing the annual salary by 200 teaching days per annum divided by 5 which (inclusive of the allowance for technician teacher) resulted in an hourly rate of $25.97 for a General Studies Teacher and Trade Teacher and $31.14 for a Technician Teacher.

Those rates are fixed irrespective of qualifications and or experience. Mr Holden informed the Commission that those rates were set by the Government without reference to the Commission. Mr Holden referred to the decision of Sheldon J where he said:

"In speaking of this as practice I refer not to something arrived at over the years by mutual agreement but in a system devised by the authority with power to make the relevant decisions. So, in a sense, reliance by the authority on a practice which it created ex parte is tantamount to lifting oneself up by one's own bootstraps."

Exhibit H98 p.36

The thrust of Mr Holden's submissions were that it was wrong for an employer to seek to place employees under different conditions of employment to their award when seeking the performance of extra work. He submitted that the appropriate excess hours rate should apply. He said:

"...but it certainly seems wrong that if you're employed under an award that the employer can ask you to do additional work of the same nature using all the same conditions, et cetera, and by that I don't mean award conditions, I'm talking about classroom and the classes and all that sort of thing, because in effect it undermines the whole award system. What we're saying is, the industrial principle is, that if a person performs their work, whether it's 30 or 40 hours, and then is required as a result of management requirements or directions to carry on and perform the same work for additional hours, overtime or excess hours as it is called in this situation, prevail."

and later

"And I should also say, by the way, that I don't think that the employing authority have too much of a problem about part-time provisions being compared to normal full-time provisions where everything's proportional. Now if they agree to that going in the award, clearly you can't take someone from full-time employment under the award and make them a part-time employee under the award when they're working hours in excess of what they've done for a full-time employee."

Transcript p.2121

Mr Brough added that the provision sought by the Society was to remove the artificial distinction between teaching awards and programs within TAFE colleges and teaching other forms of programs such as TAFE Training Service programs. He said:

"And what we are saying is that all that teaching ought to be treated to be of the same nature for the purpose of crediting that teaching against teachers teaching load."

Transcript p.2123

Mr McCabe submitted that excess hours payments are made in accordance with Regulation 229(1) which stated, inter alia:

"Payment shall be made to a teacher who works hours of duty in excess of normal hours of duty in a TAFE college...".

Mr McCabe submitted that Regulation 276(1) provided for 30 hours a week as the normal hours of duty for TAFE teachers. However he informed the Commission that excess hours have been paid on hours in excess of the weekly nominal teaching load. Accordingly when annual teaching hours were introduced, excess hours payments were only made after those hours were exceeded.

Mr McCabe stated that the cost of excess hours was not insignificant and that the Society's claim would "further entrench this expensive and inefficient method for dealing with what amounts to overtime"135 He referred the Commission to the August 1989 Wage Fixing Principle where the following is found at page 10:

"The measures to be considered should include but not be limited to:

...

...

ensuring that working patterns and arrangements enhance flexibility and the efficiency of the industry."

Transcript p.4099

Mr McCabe's submission was that the Society's claims on this and other conditions matters were not in accord with the Wage Fixing Principles and that it was seeking to entrench existing and outmoded conditions of work in the award.

Mr McCabe submitted that the Society put great store in the 1969 Sheldon J decision which in the 23 years that have elapsed was no longer relevant to today's system of industrial relations and economic times. He said:

"It is ridiculous, in our submission, to try and apply principles developed so long ago to a TAFE system in the 1990's under a regime of structural efficiency and with a need to compete within the market place with private providers ..."

Transcript p.4100

It was argued by Mr McCabe that the Society's aim was to ensure full time teachers receive payment for unscheduled teaching at excess hours rates and not at the casual or part time rate offered by the Department. In that regard he said the Society did not recognise that teaching offered on a casual basis was not overtime as this work was done by teachers on a voluntary basis. Mr McCabe was also critical of the Society's claim as it failed to adopt a fundamental industrial tenet which was the requirement for an employee to work reasonable overtime.

Mr McCabe submitted that Sheldon J recognised that there was no distinction between excess hours and overtime. Accordingly Mr McCabe argued for overtime in accordance with what applies generally in the State Service to be paid when teachers exceed their annual teaching loads. This notwithstanding that the Regulations can be said to provide for payment of excess hours after weekly attendance hours have been completed. Mr McCabe submitted that teaching hours and excess hours provisions should not be included in the award and that I have regard to Section 32(5) of the Industrial Relations Act 1984 is that those matters are adequately provided for in the Regulations.

FINDING

In deciding this matter I noted the submissions of Mr McCabe concerning the provisions in the Regulations stipulating payment of excess hours after normal hours of duty have been completed and because of that no payment should be made until those hours have been worked.

I was also mindful of Mr McCabe's submissions which were in effect that given excess hours payments have been made in the past that these payments should only be made once the annual teaching load has been achieved. In any event I should not include any provision in the award as it was adequately covered by the Regulations.

Having regard to these submissions I have concluded that the payment of excess hours should be made in circumstances where the annual teaching load is exceeded. In that regard I do not consider the 27 hour divisor or the claimed penalty payments at double time for Public Holidays, Sundays and time and one half for the rest of the week to be unrealistic. Clearly preparation cannot be divorced from teaching and the divisor requires this.

I appreciate that this is an increase from what is provided for in the Regulations but consider the Sunday and Public Holiday penalties not be excessive. It should be noted that only the time worked will be credited against the annual teaching load. That is there will not be a teaching load credit as a consequence of any excess hours that may be worked.

I found it somewhat curious, having regard to the evidence presented on behalf of the Government, which was that excess hours could be paid on a six monthly trial basis, that Mr McCabe contended excess hours should only be paid when annual teaching hours have been completed. Having regard to the evidence it is clear that teaching loads are determined with some predictability taking into account teachers' individual teaching loads.

Accordingly I consider that it is reasonable to at least trial quarterly excess hours payments.

I do not support the 48 hours notice period contemplated by the Society. As far as I could tell, having extensively canvassed the entire transcript, that question was not specifically addressed by the Government. However it would be good management practice to give as much notice to teachers as possible of the requirement to teach another class. That time obviously should count towards the annual teaching load.

Turning to the issue of teachers or other categories of employees undertaking work on a contract basis, Mr McCabe indicated that this type of unscheduled teaching was undertaken on a voluntary basis as was the case for work such as curriculum development. I found the submissions of the Government to be not sustainable in that extra work that may be required cannot be contracted out of the award. The Industrial Relations Act 1984 Section 85 specifically stipulates that awards prevail over contracts in case of conflict.

The submissions of Mr Holden were extremely persuasive on this point. I consider that he is correct in asserting that the Department should regard the part time teaching that is done by full time teachers to be paid for in accordance with the award. That is regard should be had for the salary of the teacher concerned and he or she should be paid accordingly. In the event the nominal teaching load has been exceeded excess hours should apply.

I recognise that this may severely limit the employment of full time teachers to carry out the work that has been previously undertaken by them in the manner described above, i.e. on a part time or casual basis. Further that the working of excess hours as provided for earlier i.e. as in paragraph 2.9 of Standing Order 2 for 1992 may severely restrict teachers in performing this type of "extra" or part time work.

However the parties argued so strongly on this and other matters in this case that, given the absence of any common ground, only a determination one way or the other is possible. In that regard it is clear that the award should apply in all respects and that is what I have determined.

That is not to say the Society and the Government should not seek to further discuss this matter.

On the question of teachers not being in attendance when no teaching is scheduled, I do not agree that this should be the case as submitted by the Society. Hours of attendance should be observed.

TEACHER TRAINING

The claims by the Society may be summarised as follows:

(i) All teachers appointed in accordance with the provisions of this part shall be released from duty for the equivalent of 2 days per week, averaged over a full years's duty, for the first two years of such appointment, for the purpose of undertaking approved teacher training at a minimum level of UG2.

(ii) The Department shall meet all costs associated with undertaking teacher training in accordance with the provisions of (i) above.

Mr Brough indicated that the Society based its claims on what currently applied and that it was seeking the reflection of a notional 2 days a week release for the acquisition of the Diploma of Teaching (TAFE). The Commission was informed that " Beginning" Teachers are granted a teaching load reduction and their nominal weekly teaching load is 14 hours.

Mr Brough submitted that block release time was made available, but the award should contain "some notion of what the approximate amount of time should be in respect of release from duty averaged over the full year."136

Mr Holden submitted that costs involved with this training are met by the Department.

Mr McCabe submitted that training should be considered on a case by case basis and should not be included in the award. To do so would be to remove the discretion management should have to decide whether or not an employee should be given paid time to undertake study. He referred to the intent of the Structural Efficiency Principle to make awards less prescriptive and that it was the employer's prerogative to manage his or her business.

Mr McCabe also requested the Commission to take into account Tasmanian State Service Regulation 273 which he said made adequate provision for training. Mr McCabe submitted that in addition to this regulation that it really was a matter for the employer to decide what is required by way of training and qualification for the job to be performed properly. This was not a matter for the employee, said Mr McCabe.

A further point made by Mr McCabe related to Administrative Instruction 19.2 which related to the Higher Education Scheme. It was contended by Mr McCabe that together with what was contained in regulations and administrative instructions, that it was not necessary for teacher training to be included in the award.

Towards the end of this case Mr McCabe made a further submission on this matter indicating that training provisions be approached on a State Service wide basis and therefore I should refer this matter to the President for him to consider whether or not to constitute a Full Bench. Certainly Mr McCabe indicated that it should be dealt with by a Full Bench.

FINDING

I do not intend to provide an award provision for teacher training. I consider that adequate regulation is already in place by virtue of Tasmanian State Service Regulation 273 and that this is a matter that should be left to the discretion of the employer.

STAFF DEVELOPMENT

Mr Holden submitted that the Society had produced a training document which had been put to the Department but that it had not responded. Accordingly the Society sought an attachment to the award setting out training arrangements very similar to those applicable in the Hydro-Electric Commission and which is known as the Hydro-Electric Commission of Tasmania Training Agreement. The Society's adopted proposal from that document, Exhibit H106, was set out in Appendix A to application T.3709 of 1992.

In support of its position the Society referred to the document, Staffing TAFE For The 21st Century (Phase 1), Exhibit H94, which at page 12 stated:

"There is inadequate commitment to staff development. The majority of the current staff will not reach retirement by 2000. High priority should be accorded to investment in staff development otherwise the 1992 difficulties in skill currency will be seriously and disastrously exacerbated by the turn of the century."

and later:

"Staff development strategies and options must be developed at the enterprise level as part of the TAFE workplace consultative processes. This should be undertaken within system-wide policies, planning and guidelines. Planing mechanisms must be designed so that staff development is more far sighted and pro-active than occurs at present.

And on page 13:

"(b) There is lack of direction and recognition for staff development. Current measures of staff performance are inadequate and do not serve as a useful tool for decisions regarding staff development activities and priorities. Much of the staff development is ad hoc and not necessarily in the best interests of employer and employee. Staff who undertake structured staff development do not have the opportunity to have this activity adequately recognised as part of their career development and/or credited towards a recognised qualification.

Reforms should focus on staff development having a much higher status in TAFE. TAFE would do well to apply many of the innovative practices, which it uses for its clients, to its own staff. For example, techniques using individualised instruction, recognition of prior learning, competency based training."

Transcript p.2141/42

Mr Holden submitted that the Society's proposal could apply to all employees subject to the award.

Mr McCabe submitted the same as for teacher training above. That is that this was a management prerogative matter. Mr McCabe was critical of the Society in proposing the staff development program agreed by the Hydro Electric Commission for its employees. He submitted that this was not developed with TAFE in mind and was not appropriate for inclusion in the award. He considered that the matter should be further discussed between the parties. He said:

"It would be our proposal that it may be possible to reach agreement on a proper staff development scheme for TAFE."

Transcript p.3837

As with Teacher Training, Mr McCabe submitted professional development should not be determined in isolation as it had state wide "connotations"137 Accordingly Mr McCabe submitted that the matter should be determined by a Full Bench.

FINDING

I do not intend to put professional development provision in the award at this stage. I prefer the submissions of Mr McCabe for the parties to further discuss this matter with a view to developing appropriate staff development arrangements for TAFE.

RELEASE TO INDUSTRY

Mr Holden submitted that teachers and (associate directors) who have progressed to the top of the base incremental scale should be released to industry for a period of 5 weeks in not less than once in each 5 year period. Where that release has occurred, those teachers involved would not be entitled to the claimed staff development time of one week to be counted against the annual teaching load. The 5 week release period to industry would count as a teaching credit.

Mr Holden advanced that 20 per cent of eligible teachers should be released to industry each year. However an application would be required from each teacher seeking this release following which there would be a process of consultation between the college director and the Society to determine selection of successful applicants.

Additionally the Society sought the provision for teachers to take 12 months leave without pay, or other period as may be agreed with the General Manager, Training, not less than once in each 10 year period. Absences were proposed to be covered by temporary teachers.

Mr McCabe informed the Commission that the attitude of the Government to this claim was the same as for Staff Development and Teacher Training" in that this is a matter for the "prerogative"138 of the employer.

Mr McCabe referred to Tasmanian State Service Regulation 273 which he submitted provided adequately for training of employees. He stated that whilst that particular Regulation concerned assisted study rather than release to industry, release to industry was contemplated as it enabled teachers to seek industry experience and training.

In addition Mr McCabe stated that Section 44 of the Tasmanian State Service Act 1984 allowed for the secondment of employees outside the public sector.

FINDING

I am of the opinion that release to industry on the basis of an organised approach has a great deal of merit. However I am not prepared to determine this matter in favour of the Society as I agree with Mr McCabe that it is essentially an issue for the employer.

Notwithstanding I would encourage the Society and the Government to further discuss this issue with a view to establishing some mutually agreed general guidelines which would facilitate consideration of the granting of release to industry. That may remove an otherwise ad hoc approach in that the guidelines would need to be satisfied by applicants in the first instance prior to any consideration being given to their request to proceed on such leave.

WAGE FIXING PRINCIPLES

At this point, having regard to the determinations I have made concerning conditions of employment, I need to address the continuing theme advanced by Mr McCabe that the conditions matters sought to be included in the award by the Society are contrary to the Wage Fixing Principles.

Mr McCabe contended on numerous occasions that as the Society had not made submissions on issues relating to extension of an existing award to include new conditions or to the Conditions of Employment Wage Fixing Principle that I could not determine these issues in favour of the Society. Mr McCabe particularly focused on the lack of detail provided by the Society on costs. He said:

"If you have no information going to such items as reduced teaching hours, excess hours provisions, then you cannot comply with the wage fixing principle requirement that the cost implications be considered as a pre condition to inclusion in an award."

Transcript p.4097

I have considered this on the basis that costings were provided by the Government in respect of the claims made by the Society. I do not regard it as imperative for the applicant to put this information before the Commission to the exclusion of anyone else. Clearly in certain circumstances it is difficult for an applicant to provide cost details. However that may be in this case extensive financial material including cost of claims were provided by Mr McCabe and Mr Dinely. This has been considered by me in conformity with the Principles in the context of the following requirement:

"... applications for changes in conditions other than those provided elsewhere in the principles will be considered in light of their cost implications."

October 1989 State Wage Case

FIXED TERM EMPLOYMENT

This part of the Society's claim mainly concerned conditions of employment for temporary teachers. In that regard Mr Brough submitted that TAFE employed fractional full time teaches on a temporary basis. He also informed the Commission that temporary teachers are engaged to undertake programs not involving any State funding.

The thrust of the Society's submissions were that compared to permanently employed teachers, temporary teachers are disadvantaged. I was informed by the Society that temporary teachers do not receive Retirement Benefit Fund entitlements or guarantees for continuing employment. Where temporary teachers are employed on a year to year basis re employment is offered around mid December each year.

Mr Brough also expressed concern about temporary teachers being employed for less than a full year but undertaking a full annual teaching load. A further concern was the increase in the number of temporary teachers in the TAFE system.

Against that background the Society sought the following provisions in the award:

(i) where temporary employment is on going employment to be for the full year i.e. 1 January to 31 December;

(ii) recreation leave to accrue proportionately and that within any teaching year, a teacher to receive an entitlement to 12 weeks recreation leave following 40 weeks of duty;

(iii) notice of re employment or otherwise to be given not later than the end of November for those who were employed for a continuous period of 40 weeks;

(iv) After 2 years temporary employment, teachers should be made permanent provided they hold the qualifications required for permanency;

(v) temporaries to undertake a teacher preparation course of a minimum of 30 hours to ensure that a person appointed as a temporary teacher has the necessary skills to enter the class room in the first instance;

(vi) teacher training as claimed by the Society and discussed earlier in this decision to be made available to temporaries who have been employed in excess of one year;

(vii) temporaries appointed for a specific purpose or project to be appointed for the duration of that purpose of project. If it is in excess of 2 years permanent appointment to be made;

(viii) involuntary terminations to attract severance pay as set out hereunder or any redundancy program applicable to employees within the Tasmanian State Service generally, whichever is the greater;

  • 4 weeks pay, plus 2 weeks pay for each year of service, calculated proportionately for each completed week of service, plus

  • a payment equal to 3.5 times the employee's contributions to the State Service Retirement Benefits Fund, or

  • in the case of an employee who is not a contributor to the State Service Retirement Benefits Fund, an additional payment of one week's pay for each year of service, calculated proportionately for each completed week of service.

(ix) temporary employment to be limited to 10 per cent of total full time teaching employment subject to this award.

Mr Brough concluded his submissions on this part by indicating:

"...we do believe that it is highly desirable for some measures to be put in place to overcome those disadvantaged. Some of them have been employed on a temporary basis now for in excess of 8 years, and we believe that there is sufficient flexibility within budget arrangements and so on to provide some permanency after a certain period of time."

Transcript p.2164

In response Mr McCabe informed the Commission that there were some 70 full time teacher positions in TAFE which were filled on a fixed term basis for the college year. He said that employees undertaking this type of employment understood that their appointment was for the particular year only because the funding which enabled the appointment to be made was provided by the Federal Government on a year to year basis.

Mr McCabe submitted given the uncertainty of funding it was not possible to guarantee permanent employment. Accordingly it was not in the public interest, contended Mr McCabe, for the Commission to adopt the Society's claim, even if it was inclined to do so.

It was also submitted by Mr McCabe that the Society's claim dealt with appointments and that this was not an industrial matter. He specifically indicated in effect that the Commission would be acting outside its jurisdiction if it were to make an award in respect of some of the above clauses including those contained in (i), (iii), (iv), (vii) and (ix).

In addition to the foregoing Mr McCabe informed the Commission that claim (ii) relating to accrual of recreation leave could only be considered by a Full Bench.

In further categorising the Society's claim in this part Mr McCabe indicated that matters relating to Part B of the Society claims concerning the awarding to temporaries of the same conditions i.e. the outcome of determinators in respect of Hours of Work and Attendance; Teaching Hours; Excess Hours; Recreation Leave; Salaries; Qualifications; Funding and Classification Criteria; Teacher Training; Staff Development and Release to Industry, were ancillary matters which would only arise in the event the Commission dealt with those matters, which in Mr McCabe's submissions, were not industrial matters. Effectively Mr McCabe submitted I was precluded from determining those issues.

With regard to the Society's claims going to awarding of redundancy entitlements as set out in claim (viii) above, Mr McCabe contended that those issues could only be considered on a case by case basis having regard to the Full Bench decision in T.125 of 1985. That decision declined making specific provisions for redundancy or retrenchment procedures in favour of a case by case approach.

FINDING

The jurisdictional argument advanced by Mr McCabe focused particularly on the prohibition on the Commission from dealing with issues relating to appointments by virtue that this is not deferred in the Industrial Relations Act as an industrial matter.

In that regard the only question that the Commission has to address itself to is whether those matters referred to by Mr McCabe as relating to appointments are indeed matters of that kind, or whether they are legitimate mode terms and conditions of employment issues which the Commission can determine.

Obviously the scope of the award stipulates that it "shall apply to all persons permanently or temporarily employed" and in that context it is clear that the award can contain conditions of employment matters for temporary employees. It is therefore a case of whether temporary employment should be regulated to such an extent that the very nature of this type of employment becomes restricted or limited by virtue of award provisions. In my view it would be wrong to provide for conditions of employment which would effectively create an employment contract which in many respects may be more relevant to permanent employees. Clearly there is a distinction between temporary and permanent employment and this should be maintained.

It has been well established in the Commission in earlier Full Bench proceedings in matter T.426 of 1986 that the Commission would not, in that case, put a limitation on the period of temporary employment as was sought in that matter by the Tasmanian Public Service Association.

Similarly on the material before me in this case I am not convinced that it would be in any way useful to provide an award provision which would have the effect of keeping a temporary employee employed for a longer period than is necessary. There is a place for temporary employment and whilst it would be socially desirable to continue these people in employment the repercussions for those permanently employed by keeping a temporary in place, even if not needed, would create more problems than it would solve.

However that may be, and the latter observation is an aside only, I do not intend to provide for full year employment for temporaries as this would limit an existing and necessary flexibility for the employer.

In dealing with this particular issue in this way I consider that I have made it clear that I am of the opinion that this matter is one that relates to the mode terms and conditions of employment for a temporary employee. With regard to item (iii) of the Society's claim I can see some merit in temporary employees who have had a continuous 40 week period of employment to be given earlier notice of their future employment prospects than is currently the case.

This was not addressed by Mr McCabe on the merit because of the "appointments" argument. I consider however that this issue also goes to the mode terms and conditions of employment of temporaries and accordingly this matter is held over as leave reserved.

With regard to the claim by the Society in (iv) above I do not see any worthwhile purpose where temporary employees are employed for specific purposes to even contemplate an award provision to provide for permanency after two years.

Similarly the establishment of a quota for the employment of temporaries based on a ratio to full time employees is rejected. In any event that really does go to the question of "appointments" and has nothing to do with the mode terms and conditions of employment for a temporary employee subject to the award.

I concur with Mr McCabe that recreation leave matters should be determined by a Full Bench. As indicated earlier in this decision the question of annual recreation leave has been referred to the President.

Item (v) of the Society's claim above concerns in essence, the qualification required for appointment. Clearly this is an industrial matter. However having regard to the detail of the claim I consider it to be a matter for the employer. My observation is though that the claim is not practical as it imposes a general prerequisite which may in many cases not be necessary. In any case it is to be hoped that those responsible for hiring temporaries do so on the basis that those they hire can teach.

I have left the general question of teacher training Society's claim (vi) above, to the discretion of the employer as indicated earlier in this decision. Fundamentally, however I support the provision of training opportunities to temporary employees.

PART TIME AND CASUAL TEACHERS

1.  Part Time Teachers

This part of the Society's claim related to conditions of employment for part time teachers and for the Commission to prevent full time teachers being employed on a separate contract to undertake part time work. The Society contended that in the event the employer wanted part time work to be performed by full time teachers then this work should be compensated for in total accord with the salary and conditions of employment applicable to these full time teachers.

Mr Holden canvassed this matter in some detail including providing the Commission with a great deal of background information. His submissions may be summarised as follows.

Mr Holden stated that the authority to employ part-time teachers is provided by Tasmanian State Service Regulation 228 which is as follows:

"(1) A Teacher may be engaged to teach in another branch of the Department if, in the opinion of the principal of the school in which the teacher is engaged to teach, the additional duties involved in teaching in that other branch will not impair the efficiency of the teacher's teaching in that school."

Mr Holden contended that this regulation was very specific and meant that if a teacher was employed in a school, he or she may be employed in another branch, provided the teachers' efficiency in his or her own school was not impaired. Mr Holden submitted:

"Now what we're basically saying is that when the regulation were drawn up, primary schools, secondary schools, community colleges,.... were all different sections or different branches. And, certainly, we can see that a teacher in TAFE could be moved across to a community college.

The theory of it is if you go on and read subregulation (2) was, basically, if they didn't have a full teaching load but it's also conceded in subregulation (2) that this teaching may take them over the teaching load. If it did, because you were employed elsewhere, this sought that you be paid at part-time rates. Now subregulation (2) reads, and I'll quote:

`Where teaching hours beyond a normal load are incurred by a teacher who has been engaged to teach in another branch under subregulation (1), the teacher shall also be classified as a part-time teacher and shall be remunerated appropriately'.

Now, basically, what we're saying is that what's happening in TAFE is not in accord with the regulations. What we're further therefore saying is that if you are employing a TAFE teacher whose current hourly rate is $27.70, and $25.97, you are breaching the award and in all fairness to the people doing it the Technical Colleges Staff Society has to do something about it."

Transcript p.1561/62

and later:

"...quite seriously, what I'm saying is that full timers are being employed illegally, full timers are being ripped off and the people currently employed as part timers who are brought from outside, in the Society's view,, are being treated far from fairly."

Transcript p.1561/62/63

Having regard to the Society's submissions predicated upon the incorrect application of the Regulations, Mr Holden submitted that the award should contain provisions for part time and casual employment. He indicated that at present the Government determined rates of pay for those employees and this should not be permitted to continue. Mr Holden referred to the decision of Deputy President Robinson in matter T.3218 of 1991 where he stated at page 3:

"This Commission has the responsibility of determining award rights and obligations of employees and employers and it cannot delegate that responsibility to any single interested party to determine industrial matters."

Mr Holden also referred to the decision of Sheldon J, Exhibit H98 and submitted that similar statements were made by His Honour "when he ruled as to how overtime or excess hours ... should be paid."139

The focus of Mr Holden's submissions were that it was unsatisfactory to the Society for full time teachers to be placed on separate contracts to do part time work. He contended that when full time teachers are required to work above their teaching load commitments they should be paid excess hours "if they go over the annual load"140 He indicated that the Society was seeking a specific exclusion in the award preventing full time employees, teachers and other categories, from being used on part time employment. Indeed they should receive excess hours in the event additional hours are worked.

With regard to part time employment practices Mr Holden said that these should equate to those applicable to fractional full time teachers who are employed on proportional award conditions. Other contractual employees (not full time teachers who sign contracts to perform work) but those recruited from outside the TAFE system, should be regarded as casuals "because casual is the proper definition which would, in industrial terms, fit the type of employment that they have".141

Mr Holden said that part time employment conditions should be reflected in the award. In that regard the award should contain excess hour provisions.

Mr Holden submitted that he assumed the Government relied on Tasmanian State Service Regulation 228 to employ full time teachers as part time contract teachers. He also referred to Standing Order 2 for 1992 item 5.3 which contained the following:

5.3 In general, a full-time, or fractional full-time, teacher, who in addition to his/her annual teaching load, teaches in a course administered by a School or Department other than the School or Department to which he/she is appointed, cannot include such teaching in excess hours calculations. However, with the Director's approval, such a teacher may undertake additional teaching as a part-time teacher, subject to the following provisos -

(a) The part-time teaching will be regarded as a separate contract to be paid at the appropriate part-time rate and will not contribute to excess hours.

(b) The part-time teaching and any associated duties (e.g. preparation, travel, marking) must be entirely performed outside the teachers full-time duty periods and annual teaching load.

Having regard to the foregoing Mr Holden submitted that this demonstrated the employer was acting beyond the authority of the Commission in that the Government was both the employer and determinator of wages and conditions. I was referred to a decision of Sheldon J where His Honour said:

"So in a sense, reliance by the authority on a practice which it created ex parte is tantamount to lifting oneself up by ones own bootstraps"

and later

"I think that this approach, which looks at the matter from the viewpoint of the employer arranging the work rather than that of the employee doing it, is fundamentally wrong and ignores what should be the proper approach in determining remuneration for work of this kind whether it is called overtime or excess hours."

Exhibit 98 p.36

Mr Holden considered that one of the problems was that the employees were all lumped together as part time whereas there should be two different types of employment:

(i) Those that teach in excess of 30 per cent (a fall back position of 40 per cent was later advanced by the Society) annual teaching load should be paid a proportion of a teacher's salary and receive proportionate benefits in respect of award provisions. This would be similar to what applies now to fractional full time teachers, and

(ii) casual teachers who teach less than 30 per cent (or 40 per cent) of a full time teachers annual teaching load, or who are employed for a limited period. In any event casuals should not teach more then 10 hours in any week. These teachers should receive a 40 per cent loading to compensate for -

(a) missing out on DOTT time. 10 per cent loading is recognised for teachers on excess hours by reducing the attendance time of 30 hours by 3 hours which provides a lower divisor i.e. 27 hours and not 30 hours for calculating the hourly rate.

(b) to compensate for award benefits foregone e.g. annual leave, sick leave, public holidays.

(c) because the standard annual leave recreation leave component for teaching is higher than for other types of employees.

(d) the loading for trade teachers and technician teachers is 30 and 40 per cent respectively. i.e. they teach 21 and 18 hours respectively out of an attendance time of 30 hours per week.

Mr Holden submitted that a further point of major concern was that part time rates were calculated on the beginning teacher salary whereas excess hours were calculated on the teachers actual salary; which he said represented a difference of 20 to 28 per cent at the top of the base salary incremental scale depending on the category of teacher. Mr Holden said:

"..., full-time teachers move up the incremental scale each year. They work one year, fulfil an annual teaching load, move to the next rung and they receive an increase in pay, and that continues until they currently reach Rung 11. So they start at 4 and go to 11. Technicians start at 5 and go to 11. If they work at part-time rates it doesn't matter how long they work, they stay on the bottom rate forever and a day."

Transcript p.2204

The method of calculating the various hourly rates was also explained by Mr Holden in the following terms:

"Well, the method of calculating the rate of pay - the simplest method - is just divide the annual salary by 1,000. Now what happens is they take 200 days which is 40 weeks multiplied by five, which is the attendance time.

So they divide the annual salary by 200. Now normally you attend six hours a day, well they divide it by five to give you your loading. Now divide by 200 equals 1,000. If you divide 1,000 into the starting salary of a trade teacher, which is $25,970, it represents an hourly rate of $25.97. And if you look at exhibit H.109 you will see that that's what they get.

If you take the fifth year salary which again is the starting salary for a technician teacher and you add the $4,185.00 loading, you get $31,136 which if you divide by 1,000 gives you $31.14 per hour. And if you look at the document in front of you, H.109, you will see that that's exactly what they get paid.

So that's how the rate is calculated."

Transcript p.2205

The Society reiterated that there is no progression in the salary scale for accrued service. Mr Holden submitted that this should be altered to provide for accrual of service for salary progression purposes for part timers and casuals.

The Society offered discussions with the representatives of the Government on this and other issues but nothing of any consequence was able to be reported by the parties to the Commission.

2.  Casual Teachers

The submissions by the Society relating to part time employment also impinged on casuals. In addition to the submissions on part time employment, as already discussed, Mr Holden submitted:

"In looking at that loading in respect of casuals, if one looks at duties incidental to teaching the society believes that a similar allowance to that used to calculate excess hours should be used which is currently, effectively 10 per cent. And, as I've said, that's far behind what a trade or a technician teacher receives for their normal duties. And that's added, of course, before the 50 per cent excess loading is calculated."

Transcript p.2207

Mr Brough sought to explain the basis of the loading as follows:

S X L (1.3)
ATL
S = equivalent annual salary
ATL = annual teaching load of an equivalent full time teacher
L = 1.3 being a loading in lieu of award benefits.

Mr Brough indicated that "S" divided by ATL "actually provided compensation for the DOTT time within that component by inference"142 He contended that it was teaching time which generated the higher work of teachers and:

"...therefore to determine an appropriate hourly rate you mustn't just look at the attendance time as a divisor because if you did that there is no compensation for preparation, assessment, counselling of students and so on which take additional time.

So by dividing by ATL you get an hourly rate which is just for the teaching. In addition to the teaching time a teacher would undertake, if you like, duties which are not specifically remunerated but which are necessarily and incidentally incurred in undertaking the teaching. So, for example, the teacher would be paid for one hour's teaching. In addition to that there would be an expectation that there would be additional time spent in preparation. Now this formula has the effect of compensating a teacher for that extra work."

Transcript p.2209

The theme of the submission of Mr Brough was that casual teachers not only teach but are also involved in other work or "unpaid incidental work"143

With regard to progression in the incremental scale Mr Holden submitted that a register be maintained recording actual hours spent teaching. Those hours should count towards the annual teaching load of full time teachers. Once that load has been achieved progression should take place.

In response Mr McCabe submitted that the standard provisions relating to part time and casual employees as they relate to the majority of public sector employees should apply. The proposed clause was as follows:

"11. PART-TIME AND CASUAL EMPLOYEES

(i) Part time employees shall be paid in the proportion that the hours worked bear to the normal weekly rate prescribed for an equivalent full-time employee.

(ii) Casual employees shall be paid in the proportion that the hours worked bear to the normal weekly rate prescribed for the equivalent full-time employee, plus a 20 per centum loading to compensate for annual leave, sick leave and public holidays.

(iii) The normal weekly rate means 1/52nd of a full-time employee's annual salary exclusive of allowances and overtime.

PROVIDED that a casual employee's terms of engagement shall be by the hour with a minimum payment of three hours for each day worked."

Exhibit M36 p.11

Mr McCabe also presented definitions for casual and part time as follows:

"`CASUAL EMPLOYEE' means a person engaged to work on an irregular basis as and when required but does not include any person employed on a part time, full time or permanent basis.

`PART TIME TEACHER' means a person who is engaged to teach part time for a specific period."

Exhibit M36 p.2/3

He submitted that the intent of those definitions are already contained in the majority of public sector awards and are as determined by the Full Bench in matters T.270 and T.271 of 1985. With regard to the method of payment, as outlined in the proposed clause II(iii) above, Mr McCabe said that this was the same as was endorsed by the Full Bench in the Public Sector Awards matter.144

Mr McCabe contended that the foregoing part time and casual employment arrangements were appropriate and that the Society had not made out a case for TAFE to be different from the rest of the public sector.

It was submitted by Mr McCabe that the hourly payment for a casual having regard to clause II(iii) above would be $28.79. That figure is derived from the current year 11 rate for a Technical Teacher, $33,240 plus the allowance of $4,185 pa. i.e. $37,425 divided by 1/52nd divided by 30 hours X 20%.

The Commission was informed by Mr McCabe that presently all part time and casual rates are calculated on the fifth year base incremental salary plus allowances as applicable. He indicated that the current formula produced a higher hourly figure because of the divisor used, no minimum call in period was provided for. He submitted that what was lost by using a larger divisor i.e. 1/52nd in lieu of 40 weeks or 1/40th would be compensated by the three hour minimum call in provision.

Mr McCabe also advocated that casual employees should be appointed at the appropriate salary point, having regard to qualifications and experience, instead of the rates being calculated on the fifth year of service of the current incremental scale for Technical Teachers. Mr McCabe made the point that casuals would progress in the incremental scale subject to accruing full time equivalent hours for progression.

With regard to the submissions by Mr Holden that the Society did not condone full time permanent teachers being offered part time engagements, Mr McCabe submitted that the Government would employ part time teachers from outside the full time teacher complement and this would overcome the problems perceived by the Society.

Mr McCabe contended however that the Government was not acting illegally as advocated by Mr Holden in employing full time teachers to undertake additional part time work. He said that this option was available to the Government pursuant to Section 38 of the Tasmanian State Service Act 1984. However if full time teachers did not want to do this work, "then that's their choice".145

With regard to excess hours, Mr McCabe emphasised that these would not be paid unless the teacher concerned had completed the annual teaching hours provided for.

Dealing specifically with the Society's claim Mr McCabe submitted that clauses in Part E 1.1 to 1.7 in Appendix C were not necessary and that the detail provided is not required to be set out in the Award.

He did indicate however that item 1.2 relating to method of payment for Part time teachers was necessary, but should be in the form set out in clause 11(i) of Exhibit M36 which he considered put the situation much more clearly.

With regard to Casual Teaching clauses in the Society's claim, Mr McCabe submitted that as paragraphs 2.1 and 2.2 relate to appointments the Commission can not include this in the award for reasons referred to earlier.

He also took exception to the formula for the calculation of the casual teacher rate in clause 2.3 Appendix C of the Society's claim. Mr McCabe argued that it was inappropriate to use as a divisor the annual teaching load. He submitted that there should be consistency across the public sector.

Currently the divisor for the calculation of the hourly rate is the annual attendance hours i.e. "40 weeks multiplied by 30 hours attendance time"146 For some other public sector award areas Mr McCabe referred the Commission that the divisor for the hourly rate was calculated by multiplying 52 weeks x 36 3/4 hours per week. In other words no allowance was made for annual and public holidays.

Mr McCabe said:

"Nothing has been put in these proceedings which would suggest why teachers should be treated differently other than the Justice Sheldon decision which we do not consider is relevant in this day and age for structural efficiency."

and later:

"So the use of a fraction of the employees total duties or job requirements as the devisor for a casual rate is quite the wrong way of looking at the divisor. The annual teaching load is a factor which is pertinent to full-time teachers rather than to casual teachers.

Now superficially it sounds right to take the teaching load component, that is, the annual teaching load, and then add a factor of 10 per cent for duties other than teaching, or DOTT. However, in our view , that is ignoring the fact that a teacher's normal hours of work are 30 hours per week which includes as a component time for preparation, marking, et cetera, or what is known as duties other than teaching."

and later:

"So if the divisor of 30 hours is used then we say that the teaching and DOTT components are both taken into account and catered for in that divisional factor. And we say that to take the teaching load which is a somewhat - artificial concept and use that as the divisor is ignoring the other factors of the work of a teacher which are comprehended in the 30 hours attendance time.

So we say that what is happening in the Staff Society formula is to ignore the DOTT component which is already contained in the 30 hours weekly attendance and in addition to that, they wish to add 10 per cent extra loading for DOTT time."

Transcript p.3935/36

Mr McCabe also referred to the Wage Fixing Principles in relation to conditions of employment and that these should be considered in light of their cost implications unless they are in accordance with test case provisions. Accordingly Mr McCabe contended that as the conditions sought by the Government for part-timers and casuals are in accord with Full Bench decisions in T.270 and T.271 of 1985, and these were test cases, the Commission could readily include them in the award.

Mr McCabe reiterated that the claimed Society subclauses 2.4, 2.5, 2.6, 2.7 and 2.8 of Part E, Appendix C, were superfluous and were unnecessary as the provisions "were covered elsewhere by either normally accepted industrial practice, the State Service Act and regulations or administrative instructions"147

Mr McCabe also submitted that in the test cases in T.270 and T.271 of 1985, the provisions sought in respect of progression and placement in the salary scales was, in his opinion, taken as read that it was a matter for the employer to determine i.e. employer prerogative. He also indicated that the content of those clauses related to appointments which was not an industrial matter.

COST IMPLICATIONS

Mr McCabe tendered Exhibit M33 to demonstrate the cost increases in the event the Commission accepted the Society's claim for the calculation of casual hourly rates the Government contended that the Society's formula would produce increases in the range of 121% to 185% depending on where casuals would be placed in the incremental scale advanced by the Society. In the event that the Society's claim was not successful and having regard to the current salaries, then the Society's formula for the calculation of the hourly rate would result in an increase in the order of $3.00 to $3.5 million dollars on what was paid in 1991.

Mr McCabe contended that the Government's proposal, whilst conforming with the wage fixing principles and seeking a flow on of a test case decision in matters T.270 and T.271 of 1985, was fair and equitable. He indicated that with the proposed 3 hour minimum payment, and on the basis that most casual sessions are "less"148 than that, there would be a trade off which he explained as follows:

"Under our proposal all teachers would receive a minimum 3 hour payment irrespective of the length of session. So.... in that respect there is a trade off in lieu of the slight drop in hourly rates which would result from the use of the industrially acceptable divisor of 1560" (1560: 30 hours attendance x 52 weeks).

(In brackets mine) Transcript p.3959

As a fall back position Mr McCabe advocated the retention of the current method of calculating casual rates albeit that the contention was that the divisor in the present formula is not consistent with industrial practice.

SUMMARY OF SUBMISSIONS

Extensive material was put to the Commission on part time and casual employment. The submission may be crystalised in the following way.

For the Society

1.  It sought to prevent full time teachers being placed on separate contracts and for any part time teaching to count towards annual teaching load with payment of excess hours when that load is exceeded.

2.  Payment to be made having regard to substantive salary as opposed to using a spot rate from the award.

3.  Standing Order 2 for 1992 prevented payment of excess hours and stipulated that part time teaching is to be regarded as a separate contact.

4.  Clarification between what constituted part time and casual employment. A casual teacher to be one who taught less than 30 (40) per cent of a full time annual teaching load, but not to teach more than ten hours in any one week; and a part time teacher to be one who taught in excess of 30 (40) per cent of a full time annual teaching load. The figures in brackets represent the Society's fall back position.

5.  Casuals to receive a 40 per cent loading.

6. Part time rates were calculated on the salary applicable to beginning teachers and this did not alter irrespective of length of service or position in the salary incremental scale. This should be changed.

For the Government

1.  Standard State Service provisions were sought for part time and casual employees as outlined herein.

2.  A 20 per cent loading for casual employment with a 3 hour minimum payment.

3.  TAFE was no different to the rest of the public sector.

4.  Calculation of the hourly rate to be derived by using a divisor of 1/52nd. That higher divisor compared to 1/40th would be offset by the minimum 3 hour payment.

5.  Appointment for casuals to be made at the appropriate salary point having regard to qualifications and experience.

6.  Progression would be subject to accruing full time hours.

7.  Part time teachers would be employed from outside the full time teacher compliment to overcome the perceived problems outlined by the Society.

8.  Excess hours should only be paid when the annual teaching load is exceeded.

9.  Many of the matters as outlined herein should not be included in the award.

10. Some casual provisions sought by the Society related to "appointments".

11. The casual rate divisor based on annual teaching load was not appropriate and that the 30 hours attendance time already included a component for preparation, marking and other incidental work.

12. The Society claim had to be tested against the Wage Fixing Principles.

13. As a full back position the Government sought the retention of the current method of calculating casual rates.

FINDING

The present arrangements for the employment of part timers on a separate contract should cease. In the event full time teachers are required to undertake work then this should be regarded as part of their annual teaching load. Excess hours are to apply when the annual teaching load has been exceeded. Those circumstances it is appropriate for the employee concerned to be remunerated at his or her substantive salary, apart from when More Responsible Duty Allowance has application.

In my opinion nothing was put in these proceedings to persuade me that in all respects part time employment conditions should not be the same, on a proportional basis, to that of a full time employee. Progression should be the same as for full time teachers, i.e. when a part timer has completed one year of service then he or she progresses to the next salary level.

I am not prepared to put the definition for casual and part time teaching as sought by the Society in the award or to provide for the teaching load differentials requested. Part time and casual employees are designated such because of their terms of engagement. In that regard the "standard" definitions for the public sector generally should be included.

With regard to the casual loading I consider the submissions of Mr McCabe to be persuasive in that a 1/52 divisor and a 3 hour minimum payment should apply. However I consider the 20 per cent loading not to adequately reflect the other work i.e. preparation, marking and the like required to be undertaken by teachers. The 20 per cent loading provides for entitlements foregone and accordingly I consider that an additional 10 per cent is justified; making the loading 30 per cent for casual employees.

Turning to other specific issues claimed by the Society and contested by the Government. Mr McCabe contended all the part time provisions sought by the Society for inclusion in the award are not necessary. I do not agree with this and consider that at least those matters which I have determined concerning definitions loadings and divisors and part time employment matters should be included in the award on the basis of what has been determined above.

Additionally I support the inclusion in the award of provisions for part time teachers to advance to AST1 subject to meeting the criteria and for full time teachers to convert to part time employment.

With regard to casual provisions, apart from those decided above, it should be made clear that casuals should be p[laced in the salary scale having regard to the same factors as applicable to full time teachers and that they may be placed at the AST1 level subject to meeting the criteria.

All other matters in the Society claim have been previously addressed and award regulation is not endorsed.

GENERAL PROVISIONS

This part of the Society's claim is as set out in Part F of Appendix C. The claim was to reflect new and existing provisions in the award. The claims are discussed as follows.

Allowances:

The society sought the deletion of subclause 9(a)(v) which provides in respect of Higher Duties allowances that:

"(v) For the purposes of paragraph (a) reference to employees does not include a temporary or casual employees."

Mr Holden submitted that the Society's proposals on casuals made reference to that category of employee not necessary. However Mr Holden contended that temporary employees should receive the benefits of Higher Duties allowance if they are required to carry out work that attracts a higher salary.

Dealing with Higher and More Responsible Duties Allowances Mr McCabe submitted that these should not be included in the restructured TAFE award. At the time of making submissions, the Public Sector Restructuring Case was still before the Commission and mr McCabe advocated that when the Tasmanian Public Sector Conditions of Employment Award contemplated in those proceedings was finalised, it would apply to TAFE employees. He indicated that the proposed award did not contain higher and more responsible duties allowances. Accordingly it was the submission that until that matter was settled the existing higher and more responsible duty allowances should be excluded from the TAFE award.

Mr McCabe advanced the position that the existing General Conditions of Service Award contained the allowances in question and that award should be referred to in the TAFE award. Then when the proposed new award was made in respect of Public Sector Conditions of Employment, that would take over and have application to TAFE employees as well.

FINDING

I consider it appropriate to reflect in the award conditions of service relating to this issue. There is no reason why employees should not have one document to refer to to ascertain what their conditions are. When the award restructuring process is further advanced along the lines discussed by Mr McCabe, then there may well be a case for all conditions to be included in one document only. My judgment is that this is some way off and in the interim, I see no valid reason not to include Higher Duties and More More Responsible Duties provisions in the award in the same terms as set out in the General Conditions.

FIRST AID ALLOWANCE

The Society wished this provision to be included in the award and the Government did not. Mr McCabe advanced the same arguments as for Higher and More Responsible Duties.

In my opinion this provision should be included in the award. My reasons are as above.

Avoidance of Industrial Disputes

The Society proposed the inclusion of references to representatives of other appropriate employee organisations being involved in the disputes settling procedure. Additionally the Society proposed the deletion of existing subclause 10(h) which precludes the application of the avoidance of industrial dispute provisions from applying to non teaching staff who are subject to grievance procedure for the State Service generally.

Mr McCabe submitted that the existing clause was inserted in the award as a result of the 4 per cent second tier negotiations endorsed by the Commission in 1989. Mr McCabe argued that it should now be deleted primarily because of their view of the Government that the Society had not observed dispute settling procedures contained in the present award. He said:

"Now we realise that it was inserted in the award by agreement under the second tier 4 per cent arrangements. However, we say that it is now worthless and we seek its removal from the award.

The culmination of this is demonstrated, we'd say, by the stoppages of work which occurred in colleges in the last fortnight, which were not authorised by the employer, and were in direct contravention of subclause (f) of the current award disputes clause.

So, in accordance with section 41(6) of the Industrial Relations Act, we now advise the commission that we being the employer party do not consent to the inclusion of a disputes settling procedure in the restructured award, and we would think without our consent there should be no - the commission is constrained from putting that clause in."

Transcript p.3967.

FINDING

The submissions made by Mr McCabe are quite staggering. It is the first time in my experience that an employer sought the removal of a procedure to help settle disputes. I consider this to be a very obvious reflection of the disharmony that existed between the parties during this case. Clearly there were many frustrations on all sides. Now is the time to set those differences aside. In that regard there is a place for a grievance settling procedure as this is fundamental to the orderly conduct of industrial relations.

It is my intention to continue this provision in the award. In doing so existing clause 10(h) may be deleted given the restructured TAFE award. I do not consider it necessary to amend or to further vary the existing provisions.

PAYMENT OF SALARY

A payment of wages clause was requested to be included in the award as set out in Appendix C. This matter was approved by the Government.

A separate decision will issue on this matter in due course.

GENERAL CONDITIONS OF SERVICE

The provision sought by the Society is intended to be a catch all clause in order to apply the provisions of the General Conditions of Service Award on the TSSA where conditions are not provided for in the award. This is a sensible course and is endorsed.

NEW APPOINTMENTS

With my endorsement of the "Commencing Salary" clause, Exhibit M36, the provision sought by the Society appears superfluous.

RECREATION LEAVE ALLOWANCE

This matter is caught up with recreation leave matters referred to the President.

PROFESSIONAL APPRAISAL

At this point I am not prepared to include the Society's claim as set out in Appendix C in the award. Whilst I recognise Mr McCabe's submissions that professional appraisals are a human resource management function, I concur with him when he said that appraisals should be developed between the parties. He also indicated that the Government:

"... had no basic problem with the thrust and intent of the clause claimed by the Society."

Transcript p.3968

Accordingly I require the parties to further discuss this matter with a view to including an appropriately worded clause in the award.

MERIT BASED APPOINTMENT AND PROMOTION

The Society wanted to reflect a reference to the TSSA with regard to appointments and promotions being based on the merit.

Mr McCabe submitted the provisions sought by the Society was superfluous as the legislative requirements of the Tasmanian State Service Act deal with the merit principle.

I agree with Mr McCabe.

IMPLEMENTATION COMMITTEE

The Society claimed that there should be an Implementation Committee, comprised of representatives of the parties to this award to resolve matters arising from the implementation of the award.

This was not opposed by Mr McCabe. He indicated that under the guidance of the Commission that the detail of matters determined may be able to be sorted out by those parties which have been actively involved in the proceedings.

I concur and encourage this approach. However an award provision is not necessary to achieve what amounts to a common sense approach to giving effect to what is contained in this decision.

LEAVE OF ABSENCE

The provision sought by the Society refers to matters already adequately covered by the TSSA. In that regard I agree with Mr McCabe that the provision sought is superfluous.

PUBLIC INTEREST

Section 36 of the Industrial Relations Act 1984 requires the Commission to have a statutory regard for public interest in the terms set out in that section.

In considering public interest in conformity with that section of the Act I intend to first summarise the respective submissions made on that important matter.

Society submissions

Mr Holden submitted that vocational education and training was probably the most important public interest issue facing Australia in the 90's. He said:

"The Australian Government has been in to bat for teachers before a number of industrial tribunals, including the Tasmanian Commission. The common sense of the Australian Government's position has been recognised by a number of state government, state industrial tribunals which have had to determine school and TAFE teacher salary claims, have also recognised the justice and common sense basis of the claim and if Tasmanian teachers do not receive what they believe is a fair deal, I submit the system will face difficulties."

Transcript p.827

Mr Holden submitted that unless TAFE teachers salaries were improved the incentive to train as teachers would continue to decline and that entry standards for teachers would head the same way. He submitted that if this were to happen it would bode ill for the future of Tasmania.

Mr Holden said that unless salaries are lifted to a satisfactory level, potential teachers would be discouraged from entering this profession.

It was also submitted by Mr Holden that it would be in the best interests of the public of Tasmanian and Australia for TAFE employees to receive "adequate and proper salaries149 He said this was recognised by numerous industrial tribunals in Australia as endorsed by the commonality of outcomes of cases such as this Special Case. He said:

"In fact, it's been recognised probably by a majority of employing authorities by the various governments of various states and territories because in many instances there has been agreement as to the salary level at the top of the automatic progression scale which the commission well knows, I understand, is approximately $41,000 with very slight variations."

Transcript p.1796

Mr Holden acknowledged that the claimed benchmark salary of $42,948 ($41,000 p.a. as a fall back) at the top of the automatic progression scale had only been achieved in the Northern Territory.

Mr Holden also referred to the 12 per cent funding cut to TAFE in 1990. The then Premier Mr Field, was quoted in the following terms:

"Mr Field described TAFE as "the quiet achiever", having faced a 12 per cent funding cut with less fuss than many other Government establishments yet managing to come through regional restructuring with greater access to resources and a firm education commitment to the community and industry.

Each campus has brought its own distinct service to the regional college, resulting in more resources at different campuses and allowing TAFE to satisfy demand for specialist programmes to meet the varying needs of industry in the area", Mr Field said.

Transcript p.1798

Mr Holden contended that:

"If TAFE in Tasmania is to be a relevant part of the effort to have Australia become the clever country, there is an important need - in fact an absolute need - for Tasmania to put more importance on vocational educational and training then it has been doing in recent times. The connection between vocational education and training and the economic well-being of the country should not need explaining to a government charged with the management of a state or a nation."

Transcript p. 1799

In referring to the changed direction of TAFE, i.e. from the Kangan philosophy to "a more directly related economic philosophy"150 Mr Holden submitted that the first test of public interest "must be the living conditions and standards of the population"151

In that regard Mr Holden informed the Commission of a number of publications emphasising the need for education and training of the workforce and that this was a major factor in the economic growth of a nation. By way of example Mr Holden referred to the publication Comparative Advantage of Nations, Exhibit H78, highlighting the following:

"Determinants of National Advantage

Why does a nation achieve international success in a particular industry? The answer lies in four broad attributes of a national that shape the environment in which local firms compete that promote or impede the creation of competitive advantage.

1. Factor conditions. The nation's position in factors of production, such as skilled labour or infrastructure, necessary to compete in a given industry."

and later:

"There is little doubt from our research that education and training are decisive in national competitive advantage."

and

"Education and training constitute perhaps the single greatest long-term leverage point available to all levels of government in upgrading industry."

Exhibit H78 p.627

The thrust of Mr Holden's submissions were that the above quotes relating to "German Factor Conditions" in Exhibit H78 were critical to the issues of education; training; economic competitiveness and living standards.

Mr Holden submitted that if it was accepted that the central role of vocational education and training and the training of teachers is essential to improve the economy of Australia, or in this case Tasmania, it followed that it is in the public interest to ensure that the best possible teachers are available Mr Holden said "to attract and retain good quality teachers it follows that reasonable and just salaries must be paid"152 He submitted that this was in the public interest and it would be against the public interest not to pay them.

I was informed by Mr Holden that the support for nationally consistent salary rates for teachers is widespread. He said that the Federal Government, various State Governments before industrial tribunals, the ACTU and The Australian Teachers Union and in this State the TTLC had supported the concept of national salary rates for TAFE.

The Tasmanian Trades and Labor Council represented by Mr Bacon supported the submission of the Society , ATU and the ACTU.

With regard to the submission made by the ACTU, Exhibit H62, Mr Bacon said that the issues raised were of even greater importance in Tasmania. The ACTU submitted that national benchmark rates of pay -

  • will assist in overcoming past instability in rates between States,

  • will assist in achieving consistent high quality output from industry, and

  • will facilitate portability of skills and competitiveness between States.

Mr Bacon emphasised that vocational education and training was of critical importance to the future of Tasmania and that there was ample evidence of countries which had given emphasis to vocational training having progressed in economic terms.

The Commission was informed by Mr Bacon that the starting point to the future improvement of Tasmania's economic circumstances must be to provide relevant education and training. He said that it was the view of the TTLC that it was impossible for Tasmania to attract large labour intensive industries given its geographical position and low population base. Mr Bacon said Tasmania must focus on taking advantage of the State's natural resources using as much downstream processing as possible. It was put by him that there was a particular need to aim at high quality niche market products, which by their very nature required a highly skilled and educated workforce.

Mr Bacon submitted that in order to develop such a workforce a strong commitment was required to vocational education and training as this was crucial to producing a more highly educated and trained, more flexible and more adaptable workforce. Mr Bacon submitted this "is needed if Tasmania is going to compete in the increasingly global markets in which it is competing."153

Reference was also made by Mr Bacon to the Finn Report which, inter alia, recognised the need to continue to develop both equality and quantity of skills and knowledge in the workforce. The report stated education and training should grow so that by year 2001, 95 per cent of 19 year olds should have completed year 12 or subsequent post compulsory qualification or be participating in education or training. Mr Bacon submitted that whilst Tasmania had improved in this area there was a long way to go and that Tasmania was lagging behind other states.

Mr Bacon contended having regard to the Finn Report, that Tasmania was also further behind compared to other states with regard to skills development. He said that this had implications for TAFE teachers in respect of curriculum, assessment, participation, funding and organisational arrangements across the education sector but particularly within the TAFE sector.

To achieve the recommendations of the Finn Report Mr Bacon said that Tasmania needed highly skilled creative and adaptive teachers who are appropriately rewarded to make the goals achievable.

As well as improvement to salaries of TAFE teachers, Mr Bacon submitted conditions of teachers had suffered. Whilst most employees had achieved a reduction in working hours from 40 to 38 hours a week, teachers have been an exception. Given the complexity of teachers' work and the increase in this Mr Bacon submitted that the hours they spent on performing their duties had increased substantially.

It was the submission of Mr Bacon that if TAFE in Tasmania is to provide vocational training and education at the quality and quantity sought by industry by the Australian Government and hopefully by the Tasmanian Government, it is essential to increase the salaries of TAFE teachers and for the increasingly national focus of TAFE to be recognised.

As well Mr Bacon submitted that as the economy improved the opportunity for TAFE teachers to move back into business, where they originally came from or as industry trainers, at significantly higher salaries, will increase dramatically. He said that this was a significant factor recognised by the ACTU and its affiliates in supporting teachers as a Special Case.

Mr Bacon also rejected the argument that Tasmania rates should be lower than those existing in other states. He said the TTLC did not accept that the cost of living in Tasmania was universally lower than in other states. He said the only area where this could be consistently demonstrated was in respect of cost of purchasing housing. He said in almost all other aspects of cost of living "it's difficult to argue that Tasmanian costs are lower."154 Bacon submitted that in some cases it was quite easy to argue that it is more expensive to live in Tasmania. The thrust of Mr Bacon's submissions were that the TTLC did not accept that a low wage strategy would be successful for Tasmania. He said:

"As we've said very often the more that wage rates-salary rates are established according to skills used and qualifications attained, the more important it is that Tasmania does not have lower wages than other states because inevitably what that will mean is that also our training, our skills base is lower than other states and I can see no argument at all that can be sustained that Tasmania can possibly survive economically, let alone improve on the bad situation we've had for the last 10 years or so, if we are clearly seen to be a lower skilled, lower qualified workforce."

Transcript p.1535

Having regard to the foregoing Mr Bacon said that teachers hold a crucial position in terms of economic recovery and the well being of the community. He said it seemed to the TTLC the danger of teachers receiving lower salaries than their mainland counterparts would be their loss to other areas of work. This would have a real and direct impact on the quality of training delivered to the Tasmanian workplace and particularly to young people.

Mr Bacon said that it is the firm view of the TTLC that education, training and retraining is the foundation from which the Australian economy can be built. It was submitted by him that Tasmania's economic problems, particularly in respect of unemployment, were not as a result of the Australian or international recession alone. Mr Bacon contended that there are underlying problems which were far deeper and far more long standing than the national or international recessions. Mr Bacon submitted that to rectify these underlying problems Tasmania required the very best educational system with teachers who are committed, capable and enthusiastic and who are valued by the community and are paid commensurate with a recognition of their quality so that they do not face attractions from other employment.

Government Submissions

Mr McCabe submitted that the Society had not put forward any proposals to "offset the enormous costs involved"155 with this claim which he said were estimated to be in the vicinity of $4.5 million. He said:

"Every proposal put by the Staff Society seems to either result in a direct salary cost or in a costly enhancement of conditions."

Transcript p.2343

It was contended by Mr McCabe that this attitude was irresponsible and that the Society's claim bordered on the farcical when potential costs are taken into account. He was critical at what he considered the Society's lack of regard for the cost of its claims. He submitted that the Government could not argue against the need to maintain and enhance training service, but that "paying for the sort of increase proposed by the Society go well beyond the philosophical utopia and the idealism which has been relied upon by the Staff Society."156

Mr McCabe contended that the Society was aware of the Commission's requirements to address the public interest and the impact of the claim upon the economy and employment in Tasmanian and that the Society had not assisted the Commission "one ounce"157 in justifying its claim in respect of costs. Mr McCabe said that it was essential that this was highlighted to the Commission as the Society had not demonstrated the potential cost of its claims. He submitted:

"And the bottom line seemed to be that the alleged work-value increases, coupled with structural efficiencies somehow managed to equal what is sought at the national benchmark level. Now that seems to us to be more in the way of wishful thinking than hard fact or reason. We say that any organisation which was serious about having its claim recognised would at least have put a potential costing of its claims to the Commission and showed the Commission where there were going to be expenses and where savings could be made through offsets or efficiencies. Not one mention was made of any of this and it's not difficult to see why and that's because there are no cost or efficiency offsets contained in the Staff Society's proposals.

So I thought it was essential that we draw this matter out in the open at the beginning of our submissions because it is, in our opinion, the major failing in the Society's case and one which we think should be kept in mind during the remainder of the case."

Transcript p.2346

On the question of costs and the impact on the State's budget, Dr Norton, the then Deputy Secretary, Department of the Treasury informed the Commission that for the budget period 1992 to 1993 the Government's net financing requirement was $88 million dollars which was a reduction over the previous year.

Dr Norton emphasised that one of the issues of considerable concern to the Government was the State's credit rating as this had a direct impact on the cost of borrowed funds. The Commission was told it was important that Tasmania's credit rating did not fall because if it did additional funds would have to be borrowed to service debt. Also if the State credit rating fell it would be sending the wrong signal to investors who would regard such an event as a sign that the State finances are in jeopardy with the likely outcome being increased taxes and charges.

I was informed by Dr Norton that the current financial strategy will successfully hold the existing credit rating. In addition to that Dr Norton indicated that the Government had an expectation of some improvement in economic activity but that signs of significant growth would probably not be seen perhaps until the first quarter of 1993-94. Accordingly Dr Norton said that the Government had framed its approach around recognition of financial constraints and that the State still had a fragile economy. Therefore a multi year strategy has been put in place to try and set a context within which the economy could develop.

In that regard Dr Norton submitted that taxes were already too high and to further increase them would adversely impact on economic activity. Further it was the intention of the Government to achieve a smaller and more efficient public sector, withdrawing from activities and functions able to be better provided by the private sector. This was also a mechanism for reducing Government expenditure. The Government's other strategy was to develop reforms which promote investment and growth.

Dr Norton submitted that the strategy was to achieve a net financing requirement of $40 million dollars by 1994/95 and that this required the tough decisions which had been taken. He said if there is an unexpected cost associated with award restructuring special wage cases the Government would have to look, if the cost was not neutral to reduce expenditure elsewhere in the budget, including consideration of job cuts.

FINDING

As will be noted considerable submissions were made impacting on public interest issues. Taking a broad view, those submissions fall into two broad categories. The first of these relates to the importance of vocational training and education and their impact on the work of teachers and the community as a whole with regard to assisting improvement in economic performance.

The second category is in relation to the cost of the claims advanced by the Society and their potentially adverse impact on State finances.

In reaching a conclusion on the question of public interest it is important to note that the salary levels sought by the Society have not been endorsed apart from the benchmark in the base incremental scale. The remaining classification structure was not awarded either with regard to the number of promotable positions or the salaries claimed.

Against that teaching hours have been increased for technician teachers bringing them into line with trade and general studies teachers. This is consistent with a uniform incremental scale. Also accrual of teaching load credits in circumstances outlined have not been continued resulting in productivity gains.

Having regard to the foregoing important features and that some other conditions matters sought by the Society were not supported by the Commission, the overall cost of this decision is ameliorated. Also the cost should be viewed against the benefits that will flow to the State by recognising not only that the work of TAFE teachers has dramatically altered, but that in remunerating them in accordance with properly determined rates of pay that this will encourage highly qualified people to chose teaching for their career. This can only help to facilitate the well established link between vocational training and education and economic performance.

It is clearly in the public interest for Tasmania to retain and attract the best possible teachers. One way of doing that is to recognise, having regard to appropriate criteria, that the work of Tasmanian TAFE teachers is of no less value than that of teachers elsewhere in Australia who have been granted an amount of money at the top of the incremental scale at or near the benchmark I have determined to apply in this case.

It would be quite wrong to say that there is now parity of rates for all TAFE teachers. That is not the case and a diversity of different rates and classification structures apply throughout Australia for TAFE teachers in promotable positions.

OPERATIVE DATE

Mr McCabe submitted that the work value aspects of the Society's case was only one aspect of the overall restructuring exercise. He said from the Government's view the important part of the exercise is the structural efficiencies flowing from the completion of the case. He stated as work value was not demonstrated by the Society the operative date was irrelevant. He submitted that the structural efficiencies issues will only be finalised following the consideration of matters going to weekly hours of work, annual attendance and other Full Bench matters. He stated that the operative date is therefore dependent on the completion of the overall exercise. Mr McCabe concluded by indicating that the Government saw no impediment for the Commission to hand down a decision in respect of the salary and classification structure as sought in Exhibit M36. He urged the Commission to do this as early as possible as this would assist the employer in organising the completion of new college structures. Mr McCabe said the decision in respect of those matters should be date of decision.

Later Mr McCabe submitted that all conditions matters should be referred to the State Wage Case Full Bench on recommendation from the Commission158 He also referred to the proceedings before that Bench which determined state wage increases would not flow until conditions and agency specific matters were finalised. Mr McCabe recognised, that apart from matters requiring to be considered by a Full Bench, reference to the President on other issues was a matter of discretion for the Commissioner concerned159

With regard to non-teaching staff classifications Mr McCabe referred to the Teachers Full Bench decision160 where that Bench concluded that non-teaching staff matters should be referred back to the President for him to consider their reallocation to the Public Sector Full Bench161 He submitted the same should happen with regard to non-teaching staff in the Technical and Further Education Staff Award.

FINDING

The matters that I have decided are part of an integrated package which provides for pay increases and productivity and efficiency measures which support the salary levels that I have determined. The package is also in conformity with the intent of the Structural Efficiency Principle in that the award was considered in its entirety and not just confined to the examination of classification structures and salary levels.

I do not accept that the outstanding issues should in any way delay the operation of this decision. The outcome of merit determinations on those matters are not central to what I have determined, although I acknowledge that the issues in question are important.

Accordingly as indicated earlier in this decision the operative date for matters determined herein will be from the first full pay period to commence on or after the date of this decision with regard to salary increases amounting to 7.5 per cent. The balance of the salary increases should operate from the first full pay period to commence on or after 1 January 1994.

With regard to conditions of employment matters, with the exception of annual teaching hours, the operative date will also be the first full pay period to commence on or after the date of this decision. The variation to annual teaching hours as determined in this decision will operate from the first full pay period to commence on or after 1 January 1994.

ORDERS

I anticipate that the parties will establish an implementation committee, as discussed earlier in this decision, to facilitate the preparation of draft orders for presentation to the Commission.

The Commission will be able to assist as necessary.

CLOSURE OF FILES

As a result of this decision the following files are now closed:

T.2113 of 1989 - Librarians
T.3611 of 1991 - Classification Criteria for AST1
T.3615 of 1991 - Classes on Public Holidays
T.3690 of 1992 - Classes on Public Holidays
T.3902 of 1992 - Advanced Skills Teacher 1
T.3915 of 1992 - Making of Technical and Further Education Teaching Award
T.3996 of 1992 - Deletion of Clauses
T.4077 of 1992 - Definitions, Classifications and Salaries
T.4093 of 1992 - Stop Work Meetings

 

R K GOZZI
COMMISSIONER

Appearances:
Mr Holden with Mr M Brough, Mr I James, G Burrows for the Tasmanian Technical Colleges Staff Society.
Mr J McCabe with Mr J Dinely, Mr C Willingham, Mr J Barrass, Miss J Taylor, Mr M Fox, Mr B Newton, Mrs W Burgess, Mr M Knowles for the Minister administering the Tasmanian State Service Act 1984.
Mr C Smyth with Mr G Summers, Mr R Hunt for the Tasmanian Public Service Association.
Ms P Moran with Mr D Elliott for the Secondary Colleges Staff Association.
Mr C Lane for the Tasmanian Teachers Federation.
Mr P Byrne intervening for the Australian Teachers Union.
Mr J Bacon for the Tasmanian Trades and Labor Council.

Date and Place of Hearing:
1990
July 10, 26, 27
August 27
September 17, 24
October 15
December 4
HOBART

1991
May 3, 22
August 20
October 14, 15, 22
November 7, 12, 13, 19, 20, 27
December 18
HOBART

1992
January 20, 21, 30
February 3, 4, 17
March 3, 10, 11, 19, 23, 24
April 6, 15, 16, 28, 29
May 12, 13
June 9, 10
July 14, 15, 16, 21, 22
August 3, 11, 12, 18, 19, 20
October 1, 12, 13, 19, 20, 27, 28
November 10, 12
December 1, 3, 4, 7, 8, 9, 16, 21, 22
HOBART

SOCIETY CLAIM

APPENDIX A

TASMANIAN TECHNICAL COLLEGES STAFF SOCIETY

Without Prejudice

Technical and Further Education Staff Award - Summary of Award Restructuring Agenda Items

1.     Matters arising from Exhibit W2 (T.2417 of 1990)

(a)   restructuring of salary scales to include all award classifications in one 15 level scale

(b)   review of all current classifications in relation to definitions and classification standards

(c)   introduction of AST levels 2 and 3

(d)   review of qualifications under the Award

(e) finalisation of development of employee appraisal scheme

(g)   development of a skills formation and professional development program appropriate to the requirements of the Structural Efficiency Principle, including the meeting of costs of, and time release for, skills acquisition

2.    Finalisation of TAFE Librarians' Special Case

3.    Matters put forward in the context of Special Case negotiations

(a) Introduction of benchmark salaries for teaching and related classifications under the Award, as follows

. minimum commencing salary $28 225 p.a.

. minimum top of incremental scale $41 900 p.a.

. maximum number of steps in incremental scale 8

. minimum salary for top AST classification $ 47 800 p.a.

(b) development of statement of fact in relation to changes in work value for various classifications under the Award

(c) rationalisation of Penultimate Rung and AST1 barriers

(d) Technical Assistants/Employees - need to reach agreement on restructuring of salary scale, including new classifications to take account of work value changes. Qualifications and progression requirements also to be reviewed.

(e) incorporation into the Award of all conditions of service, whether currently contained in statute, agreement or elsewhere

(f) development of acceptable upper limits on class sizes

(g) review of promotable positions quota

(h) review of arrangements regarding the employment of full-time temporary staff

(i) part-time teacher rates - review, and include in Award

(j) Award classifications for inclusion, persons and parties bound (long term)

(k) Identification of savings arising from Government/Departmental initiatives since September 1981

Whilst the above list is considered to be comprehensive, it is not necessarily exhaustive, and the Society reserves the right to introduce into negotiations other matters which it may consider relevant.

 

TASMANIAN TECHNICAL COLLEGES STAFF SOCIETY

Without Prejudice

TAFE STAFF AWARD - PROPOSED 15 LEVEL SALARY SCALE

LEVEL

SALARY
RATE

TEACHER

AST

D.HOS

HOS

DP

P

EDUC. ADMIN

A/ED

ERC

1

28225 (28931)

*

         

*

*

 

2

30504 (31267)

*

         

*

*

 

3

32783 (33603)

*

         

*

*

 

4

35061 (35938)

*

         

*

*

 

5

37341 (38275)

*

         

*

*

 

6

39620 (40611)

*

       

*

*

*

 

7

41900 (42948)

*

       

*

*

*

 

8

42833 (43904)

 

*

         

*

 

9

43867 (44964)

 

*

     

*

*

*

 

10

45834 (46980)

 

*

*

   

*

*

*

 

11

47800 (48955)

         

*

*

*

 

12

49967 (51216)

         

*

*

*

 

13

52133 (53436)

     

*

*

*

 

*

 

14

55881 (57278)

         

*

*

   

15

59629 (61120)

         

*

*

   

Note: the figures in brackets represent the August 1991 State Wage Case Increase162 and they are as reflected in the Society's Exhibit H22.

 

TASMANIAN TECHNICAL COLLEGES STAFF SOCIETY

Without Prejudice

TAFE Staff Award

Proposed Translation to 15 Point Scale from 1.7.91

Level

Salary

1

25340

2

27112

3

28884

4

30656

5

32429

6

34249

7

36512

8

38288

9

40388

10

41438

11

42487

12

44623

13

45333

14

48201

15

51851

Notes

1.    To apply to all classifications under the Award except

(a)  Technical Assistants/Employees

(b)  Librarian Class 1

2.    Translation is on a point-to-point basis to equivalent or next highest salary point.

 

TASMANIAN TECHNICAL COLLEGES STAFF SOCIETY

Without Prejudice

TAFE Technical Assistants/Technical Employees

TAFE/TTCSS Working Party Proposal

TECHNICAL ASSISTANT (SKILLED)

     1st year of service 25340
     2nd year of service 25815
     3rd year of service 26979
     4th year of service 27561

SENIOR TECHNICAL ASSISTANT (ADVANCE SKILLED)

     1st year of service 28143
     2nd year of service 28725
     3rd year of service 29307
     4th year of service 29893

TECHNICAL OFFICER (SKILLED)

     1st year of service 30593
     2nd year of service 31293
     3rd year of service 31993
     4th year of service 32693

SENIOR TECHNICAL OFFICER (ADVANCE SKILLED)

     1st year of service 33622
     2nd year of service 35000*

PRINCIPAL TECHNICAL OFFICER (MANAGER)

  38288

* This salary level was not supported by all member of the Working Party

 

TASMANIAN TECHNICAL COLLEGES STAFF SOCIETY

Without Prejudice
TAFE Award Restructuring
"Draft Definitions"

25 February 1991

"Teacher" means an employee, appointed as such, to undertake teaching and related duties in TAFE colleges, industry or industry training centres, as appropriate.

"Head Teacher" (Deputy Head of School) means an employee, appointed as such whose range of duties in addition to those specified for "Teacher" include assisting the head of a teaching school/department within a TAFE college in the management of the school/department, especially in the oversight of educational programs.

"Head of School" means an employee appointed as such to manage a teaching school/department within a TAFE college in addition to undertaking some duties specified for "Teacher".

"Deputy Principal" means an employee appointed as such to assist the Principal in the management of a TAFE college.

"Principal" means an employee appointed as such to manage a TAFE college.

"Education Resource Officer" (TAFE Librarian) means an employee, appointed as such, to perform a variety of library and information work within the education and training context, and who is competent and confident with information and education technologies, procedures and practices.

"Adult Education Officer" means an educator, who in addition to the requirements for an Adult Education Officer, performs supervisory, administrative and policy formulation tasks allocated by a Principal Adult Education Officer.

"Principal Adult Education Officer" means an educator, who has overall responsibility for the operation of Adult Education programs in a region or major college, or of a major program.

"Educator" means a person who possesses a teaching qualification.

"Technical Assistant" means an employee appointed as such who is responsible for the maintenance and presentation of a workshop, laboratory or classroom, provides support for teaching staff in one teaching department, and who may provide some incidental, administrative support.

"Senior Technical Assistant" means an employee appointed as such who is responsible for the maintenance and presentation of workshops, laboratories or classrooms, who may provide some administrative support and provides support for teaching staff in more than one department or in a large or complex teaching department.

"Technical Officer" means an employee appointed as such who provides technical support of a complex nature.

"Senior Technical Officer" means an employee appointed as such who performs the duties of a Technical Officer whose duties involve a high level of complexity, and who operates at a high level of autonomy and complexity.

 

WITHOUT PREJUDICE

Discussion Purposes Only

TASMANIAN TECHNICAL COLLEGES STAFF SOCIETY

Proposed Definitions - TAFE Staff Award

11 March 1991

"Technical Education Officer" means an employee, appointed as such, to provide a specialist service in support of the training/education function of the Department of Employment, Industrial Relations and Training.

"Senior Technical Education Officer" means an employee, appointed as such, to co-ordinate a discrete element of an education/training support function within the Department of Employment, Industrial Relations and Training.

"Principal Technical Education Officer" means an employee, appointed as such, to co-ordinate and manage an education/training support function within the Department of Education.

3.0 TECHNICAL STREAM

This proposal has been endorsed by the public sector unions affected.

3.1  SALARIES

     LEVEL I 1st year of service 20609
  2nd 21369
  3rd 22129
  4th 23019
  5th 23780
     LEVEL II 1st year of service 25280
  2nd 26335
  3rd 27390
  4th 28495
    LEVEL III 1st year of service 30040
  2nd 31127
  3rd 32213
  4th 33300
    LEVEL IV 1st year of service 34845
  2nd 36081
  3rd 37317
  4th 38553
    LEVEL V 1st year of service 40304
  2nd 41849
  3rd 43394
  4th 44939
    LEVEL VI 1st year of service 46896
  2nd 48809
  3rd 50721
  4th 52634

4.0  PROFESSIONAL STREAM

The HEF, TPSA and APEA put forward the same stream rates and salary structures for professionals. However the classification guidelines proposed by the TPSA and HEF, differ to those of the APEA. Further the unions agree that a flexible approach is required to setting salary rates for different professional groups above the level 2 pending the outcome of special cases.

4.1  SALARY STRUCTURE

Level 1 28 290
  30 357
  32 424
  34 491
  36 558
  38 623
Level 2 40 906
  44 435
Level 3 45 402
  48 156
  52 100
Level 4 55 000
Level 5 63 986
  67 541

4.2.0 APEA PROPOSAL

The classification guidelines proposed by the APEA are to be considered as part of a package which includes the proposed salary rates.

4.2.1 CLASSIFICATION GUIDELINES

LEVEL 1

Under the professional supervision of higher level engineers as to method of approach and requirements, the Engineer Level 1 performs normal engineering work and exercises individual judgement and initiative in the application of engineering principles, techniques and methods.

Duties

The Engineer Level 1 undertakes initial tasks of limited scope and complexity, such as minor phases of broader assignments, in office, plant, field or laboratory work. The engineer gains experience using a variety of standard engineering methods and techniques. In assisting more senior engineers by carrying out tasks requiring accuracy and adherence to prescribed methods of engineering analysis, design or computation, the engineer draws upon advanced techniques and methods learned during and after the undergraduate

 

APPENDIX B

DEPARTMENT OF EMPLOYMENT, INDUSTRIAL RELATIONS AND TRAINING, TASMANIA

Corporate Services Division

16th May 1991

Mr Fred Westwood
President
Tasmanian Industrial Commission
"Lyndhurst"
448 Elizabeth Street
HOBART TAS 7000

Technical and Further Education Staff Award

I refer to a direction given by Commissioner Gozzi on 7th May 1991, for all parties under the abovementioned award to provide details of agenda items.

The attached document contains those items that have been identified by the employer.

(Jim Barrass)
GENERAL MANAGER
CORPORATE SERVICES
Encl.

 

DEPARTMENT OF EMPLOYMENT, INDUSTRIAL RELATIONS AND TRAINING

Award Restructuring - Technical and Further Education Staff Award

The following represents this Agency's response to the direction given by the Industrial Commission on 7th May 1991:

. Teachers will be required to spread their attendance time over a 48 week year.

. Maximum attendance time will be incorporated into the Award.

. Teaching time to be 2/3 of the attendance time for a teacher.

. Teaching to be undertaken between 7.45 am and 10.00 pm without any penalty provisions.

. Criteria for advancement to be an Award matter.

. The requirement for employees to undertake 30 hours staff development in their own time to be incorporated in the Award.

. Employees to be required to work a maximum of five days in any week from Sunday to Saturday.

. There will be a reduction in the number of levels of management as described in the Award.

. There shall be positions of AST1, AST2 and possibly AST3 subject to discussion.

. Promotion to AST2 (AST3) will be for a limited period.

. A performance appraisal system will be developed and incorporated in the Award.

. All allowances to be eliminated from the Award.

. Consideration be given to removal from the Award of Technical Education Officers classifications.

. Appropriate contractual arrangements will be developed for teaching staff.

. The Award will be amended when it precludes employees from becoming multi-skilled.

. Non-teaching classifications contained in the restructured Award will mirror the appropriate segments of the proposed generic State Service Awards.

APPENDIX C IS TO BE INSERTED IN HERE, IF NEED BE.
(TAFE STAFF SOCIETY) MATTERS T2417, T3709 and others dated 22/12/92

 

APPENDIX D

1.      TITLE

This Award shall be known as the "Technical and Further Education Teaching Staff Award".

2.      SCOPE

Subject to the exceptions and conditions contained herein, this Awrd shall apply to all persons employed under the provisions of the Tasmanian State Service Act 1984 and who occupy or are appointed to positions as specified in this Award.

3.      ARRANGEMENT

SUBJECT MATTER CLAUSE NO PAGE NO
Title

1

1

Scope

2

1

Arrangement

3

1

Date of Operation

4

1

Supersession and Savings

5

1

Parties and Persons Bound

6

2

Definitions

7

2

Salaries

8

3

General Conditions of Service

9

4

Hours of Work and Attendance

10

4

Part time and Casual Employees

11

5

Commencing Salary

12

5

Qualifications

13

5

Salary Increments

14

5

Annual Attendance

15

6

Leave Reserved

16

6

4.      DATE OF OPERATION

5.      SUPERSESSION AND SAVINGS

This award incorporates and supersedes No 3 of 1990 (Consolidated) and No 1 of 1991.

PROVIDED ALWAYS that the provisions of the Tasmanian State Service Act 1984 and the Regulations made thereunder, shall continue to apply to the employees or classes of employee covered by this award as and where such Act and Regulations are applicable, save insofar as the salary to be received by the conditions of service of such employees or classes of employee are inconsistent with the provisions of this award.

6.      PARTIES AND PERSONS BOUND

This award shall apply to, and be binding upon:

(a) all employees (whether members of a Registered organisation or not) for whom classifications appear in this award;

(b) the following organisation of employees in respect of whom award interest has been determined:

(i) the Tasmanian TAFE Staff Society and the officers of that organisation and their members for whom classifications appear in this award;

(c) the controlling authority having an interest in this award is the Minister responsible for the administration of the Tasmanian State Service Act 1984, in relation to all employees (as defined).

7.      DEFINITIONS

IN THIS AWARD UNLESS THE CONTRARY INTENTION APPEARS

'ADVANCED SKILLS TEACHER' means an employee appointed as such, to teach at a high level of competence, and to demonstrate to or counsel, other teachers in respect of preparation, delivery, evaluation and other techniques related to teaching duties.

'BEGINNING TEACHER' means a teacher undertaking approved teacher training during the first two years of appointment or such longer period as may be approved by the employing authority.

'CASUAL EMPLOYEE' means a person engaged to work on an irregular basis as and when required but does not include any person employed on a part time, full time or permanent basis.

'COLLEGE' means a Technical and Further Education College or Centre.

'CONTROLLING AUTHORITY' means the Minister administering the Tasmanian State Service Act 1984.

'EMPLOYEE' means a person employed under the provisions of the Tasmanian State Service Act 1984.

'HEAD OF DEPARTMENT' means an employee appointed as such to teach and to manage a department within a teaching unit in a TAFE College

'PART TIME TEACHER' means a person who is engaged to teach part time for a specific period.

'HEAD OF AGENCY' means the Head of Agency of the Tasmanian Department of Employment, Industrial Relations and Training.

'TEACHER' means an employee appointed to undertake, teaching functions and associated functions at TAFE Colleges; industry training centres or other places approved by the Head of Agency.

8.      SALARIES

An employee appointed or promoted to a position within a class or grade prescribed by this award shall, subject to satisfying the prescribed requirements, be paid at the salary rate determined for the relevant classifications:

DIVISION A - TECHNICAL AND FURTHER EDUCATION COLLEGES

(1)   TECHNICAL TEACHER

SALARY PER ANNUM
$

1st salary step

25,974

2nd salary step

26,951

3rd salary step

27,918

4th salary step

29,047

5th salary step

30,189

6th salary step

31,276

7th salary step

32,253

8th salary step

33,240

Provided that;

(a) The minimum commencing salary of an employee classified in accordance with the above scale shall be the salary prescribed for the first salary step.

(b) Subject to an employee receiving satisfactory annual performance appraisal reports, progression from one salary step to a higher salary step shall be by annual increment.

(c) A beginning teacher shall not progress more than two steps beyond the commencing salary unless he/she has successfully completed a teacher training course acceptable to the controlling authority and has complied with paragraph (b) of this part.

(d) General Studies Teachers, Technician Level Teachers, Head Teacher of approved Technician type certificate courses and Advanced Skills Teachers who are in receipt of the allowance shown below continue to receive those allowances at the commencement of this Award. PROVIDED FURTHER that such allowances shall be reduced commensurate with any salary increase until such time as the allowance component becomes nil.

 

ALLOWANCE
$

General Studies Teachers

1,866

Technician Level Teacher

4,185

Head Teacher - Technician Courses  
Class I

1,398

Class II

976

Class III

559

Advanced Skills Teachers  
I(c)

4,185

I(b)

1,866

(2) ADVANCED SKILLS TEACHER

34,463

     
(3) HEAD OF DEPARTMENT

42,991

9.      GENERAL CONDITIONS OF SERVICE

Unless otherwise prescribed in this award, conditions of service shall be as prescribed in the General Conditions of Service Award, provided that where conditions are not prescribed therein, the Tasmanian State Service Act 1984 and Regulations thereof shall apply.

10.    HOURS OF WORK AND ATTENDANCE

(i) The ordinary weekly working hours for Teachers, Advanced Skills teachers and Heads of Departments shall be 35 hours per week excluding meal breaks.

(ii) Ordinary hours of work shall be between 8.00am and 10.00 pm Monday to Saturday.

(iii) Teachers, Advanced Skills Teachers and Heads of Departments shall not be required to attend a TAFE College or other approved places of work for more than 8 hours in any one day.

(iv) No employee shall be required to commence duty less than 10 hours after the conclusion of the previous period of duty.

11.    PART-TIME AND CASUAL EMPLOYEES

(i) Part-time employees shall be paid in the proportion that the hours worked bear to the normal weekly rate prescribed for an equivalent full-time employee.

(ii) Casual employees shall be paid in the proportion that the hours worked bear to the normal weekly rate prescribed for the equivalent full-time employee, plus a 20 per centum loading to compensate for annual leave, sick leave and public holidays.

(iii) The normal weekly rate means 1/52nd of a full-time employee's annual salary exclusive of allowances and overtime.

PROVIDED that a casual employee's terms of engagement shall be by the hour with a minimum payment of three hours for each day worked.

12.    COMMENCING SALARY

Except where otherwise specifically determined in this award, the commencing salary of an employee, whether on first appointment, or on promotion to a position within a class or grade of a classification in spect of which salary scales are prescribed by this award, shall be the minimum salary for that position on the appropriate scale except in any case where, in the opinion of the controlling authority, the qualifications and practical experience of such person or employee justify a higher salary.

13.    QUALIFICATIONS

No person shall be appointed to any position specified in this part unless he or she holds minimum qualifications as prescribed by the controlling authority.

14.    SALARY INCREMENTS

(a) Except where otherwise specifically determined by this award, or where inconsistent with any Act, an employee while holding a position within a class or grade in respect of which a salary scale is prescribed by this award, and who for not less than twelve months has been in receipt of a salary less than the maximum salary prescribed for such position, shall be entitled to receive the annual increment prescribed for such position until the maximum salary is reached.

PROVIDED always that an employee who was an employee on the date of this award shall be entitled to receive such increment on the anniversary of the date upon which the last salary increment in respect of the present position was received.

(b) An employee whilst continuing to hold the same office or position shall, unless the controlling authority otherwise determines, be deemed, for the purpose of this clause, to have been in receipt of a salary during any period of leave without pay in the twelve months immediately following the date upon which the previous salary increment was awarded.

(c) Notwithstanding anything contained in this award, no employee shall be entitled to receive any increase in salary by virtue of this award unless, in the opinion of the controlling authority, the employee's conduct diligence and efficiency during the twelve months immediately prior to the date from which such increase would be payable shall have been satisfactory and has received a satisfactory performance appraisal.

PROVIDED that an employee engaged to work on a part time basis shall receive such increment on completion of the number of hours that a full time employee would have worked during the period of one complete year.

 

1 T.2417 of 1990 dated 1 October 1990
2 Ibid
3 Transcript p.252
4 T.3996 of 1992
5 Transcript p.321
6 Transcript p.342
7 Transcript p.350
8 Transcript p.353
9 T.2887 of 1991 dated 30 November 1992
10 T.3069 and T.3166 of 1991
11 Transcript p.455
12  Transcript p.392
13  Ibid
14  Transcript p.403
15  Transcript p.455
16  Transcript p 828
17  Ibid
18  Transcript p.836
19  Special Case Wage Fixing Principle p.21 August 1989 National Wage Case
20  Transcript p.2927
21  T.2399 of 1990
22  Exhibit M9
23  Exhibit M10
24  Exhibit H27
25  Exhibit M11 - C No 1618, 1626 and 1637 of 1979
26  Transcript p.2970
27  Exhibit M11 - Print F2900
28  Ibid
29  Exhibit M12
30  Transcript p.2985
31  Transcript P.2988
32  Transcript p.3006
33  T.2887 of 1991 Full Bench Decision dated 30 November 1992
34  Transcript p.3030
35  P136 of 1980
36  P136 of 1980
37  Ibid
38  P136 of 1980 at pages 24/25 - Exhibit M1
39  Transcript p.3073
40  Transcript p.2916
41  Ibid
42  T.2399 of 1990 (nominated public sector awards) et. al
43  Transcript p.572
44  Transcript p.571
45  Transcript p.855
46  Transcript p.864
47  Transcript p.929
48  Transcript p.2376
49  Transcript p.2377
50  Ibid
51  Transcript p.1138
52  Transcript p.1140
53  Transcript p.1117
54  Transcript p.1120
55  Transcript p.988
56  Transcript p.988
57  Transcript p.1014
58  Transcript p.951
59  Transcript p.953
60  Transcript p.957
61  Transcript p.960
62  Transcript p.656
63  Transcript p.657
64  Transcript p.1151
65  Transcript p.1174
66  Transcript p.1176
67  Ibid
68  Transcript p.2400
69  Transcript p.1168
70  Transcript p.998
71  Exhibit H55 p.1
72  Transcript p.1153
73  Transcript p.1162
74  Transcript p.1583
75  Transcript p.1583
76  Ibid
77  Transcript p. 1586
78  Transcript p.1603
79  Transcript p.1614
80  Transcript p.1614
81  Ibid
82  Transcript p.1617
83  Transcript p.1618
84  The Edgar Report - Exhibit H66 p.4
85  Exhibit H124 p.105
86  Transcript p. 1600
87  Transcript p1630
88  Transcript p.3913
89  Ibid
90  Transcript p.3905
91  Transcript p.1690
92  Transcript p.1690
93  Transcript p.3905
94  Transcript p.1637
95  Transcript p.1583
96  Reason for Decision T2417 of 1990 dated 1 October 1990
97  Transcript p3730
98  Transcript p3736
99  Transcript p.3777
100  Transcript p.1761
101  Transcript p.3210
102  Transcript p.3830
103  Transcript p.4594
104  Ibid
105  Transcript p.4392
106  Transcript p.3779
107  Transcript p.3780
108  Transcript p.3798
109  Transcript p.3800
110  Ibid
111  Transcript p.4328
112  Ibid
113  Exhibit H63 p.3
114  Transcript p.3809
115  Transcript p.4133
116  1766 of 1991
117  Transcript p.4278
118  Exhibit M60
119  Transcript p.1549
120  Transcript p.3974
121  Transcript p.3980
122  Transcript p.3981
123  Transcript p.2012
124  Transcript p.2048
125  Transcript p.2050
126  C No.31529 of 1988 and Prints J7863 and K1753
127  Transcript p.4009
128  Transcript p.2044
129  Transcript 2066
130  Transcript p.4036
131  Ibid
132  Transcript p.4051
133  Transcript p.4065
134  Transcript p.2111
135  Transcript p.4099
136  Transcript p.2138
137  Transcript p.4682
138  Transcript p.3895
139  Transcript p.2177
140  Transcript p.2199
141  Transcript p.2179
142  Transcript p.2209
143  Transcript p.2212
144  T.2399 of 1990 et al
145  Transcript. p.3933
146  Transcript p.3935
147  Transcript p.3945
148  Transcript p.3959
149  Transcript p.1796
150  Transcript p.1800
151  Ibid
152  Transcript p.1808
153  Transcript p.1530
154  Transcript p.1534
155  Transcript p.2343
156  Ibid
157  Transcript p.2343
158  T.2399 of 1990 et al
159  Transcript p.4220
160  T.2457 of 1990 et al
161  T.2399 of 1990 et al
162  T.3069 and T.3166 of 1991