Children's Services (Victoria) Post Secondary (TAFE) Interim Award 1999 [Transitional]

[2014] FWCFB 5891

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 6A, Item 6 - Modernisation of State reference public sector transitional awards

Children's Services (Victoria) Post Secondary (TAFE) Interim Award 1999 [Transitional]
(AM2014/9)

Educational services
VICE PRESIDENT WATSON DEPUTY PRESIDENT SMITH COMMISSIONER LEE	MELBOURNE, 11 SEPTEMBER 2014

State reference public sector transitional award modernisation - Children's Services (Victoria) Post Secondary (TAFE) Interim Award 1999 [Transitional] - Whether Award a State reference public sector award - National system employer - Trading corporation - Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 - Sch. 6A Items 2 and 6, Sch. 3 Item 2A, Sch. 5 Item 3 - Fair Work Act 2009 - ss.14,30D.

[1] This decision arises out of proceedings commenced on the Commission’s own motion under Item 6 of Schedule 6A to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) with respect to the Children's Services (Victoria) Post Secondary (TAFE) Interim Award 1999 (the Award).

[2] The relevant statutory provisions and legal test are set out in the decision handed down by the Full Bench in relation to the Greyhound Racing Victoria Employees Award 2004 which we do not repeat here. 1

[3] It is necessary to apply these authorities to the 15 employer respondents to the Award, listed below:

• Bendigo Regional Institute of TAFE

• Box Hill Institute of TAFE

• Central Gippsland Institute of TAFE

• Chisholm Institute of TAFE

• East Gippsland Institute of TAFE

• Gordon Institute of TAFE

• Goulburn Ovens Institute of TAFE

• Holmesglen Institute of TAFE

• Kangan Batman Institute of TAFE

• Northern Melbourne Institute of TAFE

• South West Institute of TAFE

• Sunraysia Institute of TAFE

• Swinburne University of Technology (TAFE Division)

• William Angliss Institute of TAFE

• Wodonga Institute of TAFE

[4] The trading activities of the employer respondents are set out in the witness statement of Stephen Witts, filed in these proceedings. He provides the following information from the most recent Annual Reports:

Bendigo Regional Institute of TAFE	2013 Annual Report Government contributions operating $28.20m Government contributions capital $0.63m Sale of goods and services $10.52m Interest $0.13m Other income $0.67m Total income from transactions $40.15m
Box Hill Institute of TAFE	2013 Annual Report Government contributions operating $43.44m Government contributions capital $3.95m Sale of goods and services $66.27m Interest $1.55m Fair value of assets received free of charge or for nominal amount $0.13m Other income $3.75m Total income from transactions $119.09m
Central Gippsland Institute of TAFE	2013 Annual Report Government contributions operating $15.63m Government contributions capital $2.70m Sale of goods and services $12.82m Interest $0.27m Other income $0.12m Total income from transactions $36.60m
Chisholm Institute of TAFE	2013 Annual Report Government contributions operating $70.32m Government contributions capital $18.80m Sale of goods and services $44.10m Interest received $0.72m Other income $1.47m Total income from transactions $135.41m
East Gippsland Institute of TAFE	2012 Annual Report Government contributions operating $14.00m Government contributions capital $3.54m Sale of goods and services $7.70m Interest $0.27m Other income $0.52m Total income from transactions $26.03m
Gordon Institute of TAFE	2013 Annual Report Government contributions operating $59.09m Government contributions capital $1.02m Sale of goods and services $12.18m Interest $1.46m Other income $0.81m Total income from transactions $74.56m
Goulburn Ovens Institute of TAFE	2013 Annual Report Government contributions operating $97.55m Government contributions capital $1.14m Sales of goods and services $16.13m Interest $1.07m Rental revenue $0.35m Other income $0.78m Total income from transactions $116.68m
Holmesglen Institute of TAFE	2013 Annual Report Government contributions operating $88.06m Government contributions capital $1.05m Sale of goods and services $61.10m Interest income $1.61m Other income $10.31m Total income from transactions $162.12m
Kangan Batman Institute of TAFE	2013 Annual Report Government contributions operating $70.19m Government contributions capital $1.18m Sale of goods and services $50.61 Interest $2.45m Other income $2.05m Total income from transactions $126.48m
Northern Melbourne Institute of TAFE	2012 Annual Report Government contributions operating $70.23m Government contributions capital $15.01m Sale of goods and services $60.18m Interest $2.19m Other income $5.50m Total income from transactions $153.10m
South West Institute of TAFE	2013 Annual Report Government contributions operating $24.60m Government contributions capital $0.88m Sale of goods and services $8.33m Interest $0.26m Other income $0.59m Total income from transactions $34.65m
Sunraysia Institute of TAFE	2013 Annual Report Government contributions operating $33.58m Government contributions capital $0.60m Sales of goods and services $9.62m Interest $0.10m Other income $0.05m Total income from transactions $43.95m
Swinburne University of Technology (TAFE Division)	2013 Annual Report Australian Government financial assistance $159.22m State Government financial assistance $35.47m HECS-HELP student payments $9.09m Fees and charges $159.00m Investment revenue $8.41m Royalties, trademarks and licences $2.32m Consultancy and contracts $17.78m Other revenue $4.41m Total revenue from continuing operations $513.38m
William Angliss Institute of TAFE	2013 Annual Report Government contributions operating $18.13m Government contributions capital $0.59m Sale of goods and services $31.81m Interest $0.16m Other income $1.30m Total income from transactions $52.00m
Wodonga Institute of TAFE	2013 Annual Report Government contributions operating $20.94m Government contributions capital $1.88m Sale of goods and services $19.87 Interest $0.36m Other income $1.14m Total income from transactions $44.20m

[5] It is clear on the basis of this evidence that the employer respondents undertake substantial trading activities and are trading corporations within the test established by the relevant authorities. It follows that the Award cannot be modernised under Item 6 of Schedule 6A as the respondent employers are not a State reference public sector employers. Accordingly we will take no further action to modernise the Award under Item 6. Pursuant to Item 3 of Schedule 5 of the Transitional Act we intend to make an order terminating the Award. Any party wishing to make submissions on this proposed course of action beyond the submissions already made in the proceedings should do so in writing within 7 days of the date of this decision.

VICE PRESIDENT

Final written submissions:

State of Victoria on 13 May 2014.

1 [2014] FWCFB 5633.

Printed by authority of the Commonwealth Government Printer

The case involved a dispute regarding the applicability of the Children's Services (Victoria) Post Secondary (TAFE) Interim Award 1999 [Transitional] as a State reference public sector award. The matter was heard in the Fair Work Commission, Australia's national workplace relations tribunal. The Commission was required to determine whether the award was a State reference public sector award, and if so, whether it applied to a national system employer who was also a trading corporation.

The legal issues centred on the interpretation and application of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 and the Fair Work Act 2009. Specifically, the Commission needed to consider the relevant schedules and sections of these Acts to determine whether the Award qualified as a State reference public sector award and if it could apply to a trading corporation within the national system. This involved examining the definitions and criteria set out in the Acts and the nature of the employer's activities.

The Fair Work Commission held that the Children's Services (Victoria) Post Secondary (TAFE) Interim Award 1999 [Transitional] was indeed a State reference public sector award. However, it found that the Award did not apply to a national system employer that was also a trading corporation. The Commission based its decision on the specific provisions of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 and the Fair Work Act 2009, which provided that certain awards were not to apply to trading corporations within the national system. The Commission concluded that the Award did not meet the criteria for application to such employers, and therefore, it did not apply in this case.

The Fair Work Commission made an order that the Children's Services (Victoria) Post Secondary (TAFE) Interim Award 1999 [Transitional] was a State reference public sector award, but it did not apply to the national system employer who was also a trading corporation. This decision clarified the scope of the Award and its applicability to different types of employers within the national workplace relations system.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established