Mr Ricardo Villegas v Education Centre of Australia Pty Ltd
[2011] FWA 2814
•8 JUNE 2011
[2011] FWA 2814 |
|
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Mr Ricardo Villegas
v
Education Centre of Australia Pty Ltd
(C2010/5532)
SENIOR DEPUTY PRESIDENT DRAKE | SYDNEY, 8 JUNE 2011 |
Alleged dispute regarding the application of the Educational Services (Post-Secondary Education) Award 2010 (the modern award) and the NES.
[1] This decision arises from an application lodged by a Mr Ricardo Villegas on behalf of various teachers who had nominated him as their representative for the purposes of the application. The dispute notification was lodged pursuant to the dispute resolution procedure in clause 9 of the Education Services (Post-Secondary Education) Award 2010 (the modern award).
[2] No objection was raised regarding the jurisdiction of Fair Work Australia (FWA) to hear and determine this dispute.
[3] Mr David Tulloh, Academic Director of the Education Centre of Australia Pty Ltd,of which the English Language School in Sydney (ELSIS) is a business division, appeared at various conferences in relation to this dispute and at the hearing on 21 April 2011.
[4] In the earlier conferences Mr Villegas had submitted that the modern award failed the Better-Off Overall Test in relation to various teachers on whose behalf he appeared. Mr Villegas eventually accepted that this test does not apply in relation to the application of the modern award. There is no need for me to deal further with his submissions in this regard.
[5] The remaining question involved consideration of the definition of a work “hour” and a work “day” at ELSIS for the purposes of applying clause 21.3 of the modern award. This is in the context of a change to the rostering arrangements implemented by ELSIS. The modern award does not contain a definition of “hour” or “day”.
[6] Clause 14.5 reads:
“14.5 Casual rates—teachers, tutor/instructors and general staff
(a) A teacher and a tutor/instructor will be paid a daily rate except where the engagement is for less than five hours when payment will be at the hourly rate. Where an hourly rate is paid, it will be payable for each hour of attendance other than for timetabled tea breaks (in respect of which no more than 15 minutes will be deducted) and timetabled lunch breaks.
(b) Other than as specified above, casual rates for staff will be calculated as follows:
Category | Calculation |
General staff | Weekly applicable rate for full-time employees divided by 38 plus 25% |
Teachers | Daily rate: annual salary divided by 261 plus 25% Hourly rate: daily casual rate divided by 5 |
Tutor/instructors | Daily rate: annual salary divided by 261 plus 25% Hourly rate: daily casual rate divided by 5 |
[7] Clause 21.3(c)(i) reads:
“21.3 Ordinary hours of work—teachers and tutor/instructors
...
(c) For the purpose of determining the number of hours worked by a teacher or tutor/instructor the following will apply:
(i) each contact hour of teaching delivery by a teacher will count as 1.5 hours of work, including administration, assessment and consultation;”
[8] Mr Villegas submitted that these clauses read together lend themselves to an interpretation that a rostered “day” should consist of no more than 5 hours and that these 5 hours should incorporate both contact and administration, assessment and consultation time.
[9] ELSIS submitted that the current rostering arrangement of 5 hours contact time and an additional 2.5 hours administration, assessment and consultation time per day is a proper and allowable application of the modern award.
[10] Clauses 14.5 and 21.3(c)(i) are not intended to serve to define “day” or “hour” in the manner submitted by Mr Villegas. Sub-clauses 21.3(a) and (c)(i) make it clear that, for the purposes of the NES and the modern award, ordinary hours of work are 38 per week and, taking into account the application of sub-clause 21.3(b), the 38 hours comprise contact and administration, assessment and consultation time.
[11] Mr Villegas has submitted that the take-home pay of employees had been reduced by the implementation of the modern award. Although Mr Villegas did not make an application for a take-home pay order, I will deal with this submission briefly. At my request, ELSIS submitted a spreadsheet detailing the pay differential for employees between the three pay cycles prior to the implementation of the modern award and the three pay cycles afterwards. This spreadsheet demonstrated no loss of take-home pay for employees as a result of the implementation of the modern award. Mr Villegas did not present any evidence to dispute the veracity of this document. Employees did not experience a reduction in take-home pay as a result of the implementation of the modern award.
[12] A second spreadsheet provided by ELSIS detailed the pay differential for employees between three pay cycles prior to, and three pay cycles after, the complained of change to rostering. It is clear that some, if not the majority, of employees experienced a significant reduction in pay as a result of the introduction of this change. However, I have concluded that this pay reduction is due to a roster change made within the discretion of ELSIS, which is an available application of the modern award.
[13] For these reasons, I dismiss the application.
SENIOR DEPUTY PRESIDENT
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