Re: Making of a modern award - TAFE Queensland
[2014] QIRC 219
•22 December 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Re: Making of a modern award - TAFE Queensland [2014] QIRC 219 |
PARTIES: | TAFE Queensland v Queensland Teachers' Union of Employees AND Together Queensland, Industrial Union of Employees |
CASE NO: | MA/2014/71 |
PROCEEDING: | Making of modern award |
DELIVERED ON: | 22 December 2014 |
HEARING DATE: | 8 December 2014 |
MEMBERS: | Deputy President O'Connor |
ORDERS: | 1. There be one modern award for the teaching and administrative/general staff of TAFE Queensland. 2. That matters MA/2014/71, MA/2014/75 and MA/2014/103 be referred to the award modernisation team. |
| CATCHWORDS: | MAKING OF A MODERN AWARD - Section 140C(1) of the Industrial Relations Act 1999 - request from the Attorney-General and Minister for Justice - TAFE Queensland employees - teaching and administrative/general staff - whether there should be one or more modern awards - what process should be followed to create modern award for TAFE Queensland teaching and administrative/general staff |
| CASES: | Industrial Relations Act 1999 Re: Referral pursuant to s 140C(1) of the Industrial Relations Act 1999 for a modern award -Health [2014] QIRC 088 |
| APPEARANCES: | Mr C. Murdoch, Counsel, instructed by Minter Ellison for TAFE Queensland |
Decision
On 3 June 2014, TAFE Queensland applied to the Commission pursuant to s 140GA of the Industrial Relations Act 1999 ("the Act") for the making of a modern award, to be known as the Queensland Vocational Education and Training Award - State 2014.
A conference between the parties was convened by Deputy President Bloomfield on 11 October 2014.
An amended application was filed by TAFE Queensland on 7 November 2014. The application no longer sought to cover trades, cleaning, security or maintenance staff and on that basis the third to sixth respondents were removed as respondents in the amended application.
The proposed modern award would apply to TAFE Queensland, and employees of TAFE Queensland who are engaged in its business operations. As we explain later, TAFE Queensland administrative/general staff are no longer public servants and do not come under the coverage of the Queensland Public Service Officers and Other Employees Award - State 2014.
The respondent unions, the Queensland Teachers' Union of Employees ("QTU") and Together Queensland, Industrial Union of Employees ("Together"), oppose TAFE Queensland's application on the basis that it calls for a single award to apply to all TAFE Queensland's teaching and administrative/general staff, whereas they contend that teachers and administrative/general staff should be covered by separate awards.
The respondent unions also argue that TAFE Queensland's application is inconsistent with and contrary to the award modernisation process established by the Commission arising out of the Award Modernisation Request from the Attorney-General ("the Request"), as varied, under s 140C(1) of the Act. It is the respondent unions' case that the modernisation of the two current awards should be dealt with separately prior to considering TAFE Queensland's application.
How the Commission performs its functions under Chapter 5, Part 8 of the Act, for the reform and modernisation of pre-modernisation awards, is set out in s 140CE, which provides:
"140CE Making of modern awards and repeal of pre-modernisation awards
(1)To give effect to the outcome of an award modernisation process, the commission must-
(a) make 1 or more modern awards; and
(b)under section 125, repeal the pre-modernisation awards to which the process relates.
(2)The commission must ensure each relevant class of employees-
(a) is covered by modern award; or
(b)would be covered by a modern award but for the effect of section 140E(2).
(3)Subject to chapter 2A, part 3 and chapter 5A, a modern award made for the purposes of subsection (1) must be consistent with the award modernisation request to which the modern award relates.
(4)In this section-
relevant class of employees means a class of employees who were bound by a pre-modernisation award that is repealed to give effect to the outcome of the award modernisation."
Section 140BB of the Act sets out the functions of the Commission in respect of the modernisation of awards made pursuant to s 125 of the Act that were in force immediately before 1 December 2013. One factor to which the Commission must have regard is the desirability of reducing the number of awards operating under the Act (see s 140BB(2)(i)).
Section 140C allows the relevant Minister to make a written request that an award modernisation process be carried out. The Request sets out the award modernisation process as follows:
"Award modernisation process
4. In creating modern awards, and as indicated at paragraph 3(i) above, the Commission must have regard to the desirability of reducing the number of awards operating under the Act.
5. When modernising awards, the Commission is to create fewer modern awards which may be organised across industry and/or occupational lines as it considers appropriate, subject to the priority industries/occupations listed at paragraph 19 of this request.
6. Subject to this request, the Commission will identify the type of work, industry and/or occupations covered by a modern award and the application of each award.
7. The Commission is to have regard to the desirability of avoiding the overlap of awards and minimising the number of awards that may apply to a particular employee or employer.
8. In developing the content for modern awards, the Commission will have regard to the safety net community standards operating in respect of similar work throughout Australia, including properly fixed minimum rates and allowances."
On 18 November 2014 the Vice President issued a Further Directions Order referring the following two issues for determination by this Full Bench:
1. Whether there should be one or more modern awards for teachers and/or general staff of TAFE Queensland; and
2. Whether any modern award for TAFE Queensland teachers and/or general staff must be dealt with through the award modernisation process.
We address each in turn below.
Issue 1: Whether there should be one or more modern awards for teachers and/or general staff of TAFE Queensland
According to information supplied to the Commission by TAFE Queensland (and quoted by the QTU in its submission), of the 5,827 Award-covered employees of TAFE Queensland:
(a) 3,294 are "teaching" employees, covered by the TAFE Teachers Award - State 2012 and the Senior College Teachers' Award - State 2012;
(b) 2,124 are "white collar" employees; and
(c) 409 are "blue collar" employees.
TAFE Queensland submits that one modern award for the teaching and administrative/general staff involved in vocational education and training ("the VET sector workforce") of TAFE Queensland would provide the most appropriate coverage.
[14] The QTU submission focuses on teaching staff only. The QTU submits that there should be one award for those staff. Such an award would replace the two awards that apply currently to them. That outcome would be consistent with the Request to reduce the number of awards operating under the Act, which modern awards "may be organised across industry and/or occupational lines". In the QTU's submission, the desirability of reducing the number of awards within TAFE Queensland needs to be measured against the simplicity and clarity of having a separate award focussing solely on teachers' conditions.
Together submits that separate award coverage of former public servants and of teaching staff is appropriate, given the distinct conditions of employment and entitlements that each receive. Accordingly, it submits, there should be:
(a) an award for teachers and educational staff of TAFE Queensland; and
(b) another award for general/support staff.
Having considered those submissions, and the arguments and evidence in support of each, we have decided that there should be one award to cover the VET sector workforce of TAFE Queensland. Our reasons for so deciding are as follows.
First, TAFE comprises a single industry, being the provision of vocational education and training. As TAFE Queensland submits, a single modern award is the model that most reflects modern work practices in the broader sector[1] (which it describes as a "clearly defined" sector), and would be consistent with the modern award objectives. We note also that the Request expressly refers to TAFE among specified industries or occupations.
[1] We note that the table in Exhibit 2 which summarises TAFE teacher industrial awards and enterprise agreements coverage or application across Australia shows that:
(a)the national modern award covers both teaching and non-teaching staff in New South Wales, Victoria and the Northern Territory; and
(b)there are separate awards for teaching or lecturing staff in South Australia, Queensland, Western Australia, Northern Territory and the Australian Capital Territory.
QTU contends that the "predominant pattern" of award regulation for TAFE teachers is to have "teacher" or "education staff" only awards, but acknowledges that the Federal award applies to most employers and employees (paras 40-42).
Second, a single award is consistent with the recent amendments to the legislation which has significantly reshaped or restructured TAFE Queensland. In summary, TAFE Queensland is no longer a public service agency, but a separate statutory body created by the TAFE Queensland Act 2013 ("the TQ Act") with statutory functions, powers and objectives. Its functions include:
(a)to provide vocational education and training services (and other forms of education to support the provision of those services) and other research and education-related activities;
(b)to contribute to and actively engage with industry on matters relating to its functions;
(c)to exploit commercially its resources;
(d) to advise, make recommendations to and report to the Minister. [2]
[2] TAFE Queensland Act 2013 s 8(1).
The key objective of TAFE Queensland is "to be efficient and effective in performing its functions".[3] It is also an objective of TAFE Queensland "to be commercially successful in performing its functions".[4] The commercial success, efficiency and effectiveness of TAFE Queensland is to be measured against its financial and non-financial targets stated in its operational plan.[5] TAFE Queensland is to perform its functions:
(a) in a way that is efficient, effective and responsive to the needs of industry, students and the general community; and
(b) on a not-for-profit basis.[6]
[3] TAFE Queensland Act 2013 s 9(1).
[4] TAFE Queensland Act 2013 s 9(2).
[5] TAFE Queensland Act 2013 s 9(3).
[6] TAFE Queensland Act 2013 s 8(2)
TAFE Queensland may employ staff it considers appropriate to perform its functions.[7]
[7] TAFE Queensland Act 2013 s 29(1).
The legislation had the effect of dissolving statutory TAFE institutes (the Southbank Institute of Technology and Gold Coast Institute of TAFE) with effect from 1 July 2013 and transferring any employees who were directly engaged by those institutes to the employment of the State of Queensland through the Department of Education, Training and Employment ("DETE"). On 1 July 2014, those employees of DETE[8] became employees of TAFE Queensland by transfer regulation.[9] As a result of those processes, employees of TAFE Queensland are employed under the TQ Act and not the Public Service Act 2008, and expressly are not classified as public servants.[10] However, administrative employees of TAFE Queensland are covered by the Queensland Public Service Officers and Other Employees Award - State 2012 (pursuant to s 124 of the Act). It is appropriate that there be one award to integrate the basic conditions for employees of TAFE Queensland as it is presently structured.
[8] Other than employees of CQIT who became employees of Central Queensland University.
[9] TAFE Queensland Amendment Regulation (No 1) 2014 (Qld) reg 27. As this employer is a corporation, industrial regulation of employment matters would have been brought under the national industrial relations system. However, the State of Queensland declared, and had endorsed by the Commonwealth of Australia, that TAFE Queensland was not a national system employer: See Affidavit of Pat Forword affirmed on 2 December 2014, Exhibit 2.
[10] TAFE Queensland Act 2013 ss 29, 55 and TAFE Queensland Regulations 2013 (as amended by the TAFE Queensland Amendment Regulation (No 1) 2014 reg 27.
Third, as a consequence of the changes summarised above, TAFE Queensland administrative employees who are no longer public servants do not come under the coverage of the Queensland Public Service Officers and Other Employees Award - State 2014 and no other modern award currently applies to them. There needs to be an award for those employees and it is appropriate that they be covered by the same award as the teaching staff.
Fourth, a single award for TAFE employees in Queensland would be consistent with there being one Federal award, the Educational Services (Post-Secondary Education) Award 2010, which covers employers and their employees (other than trades, cleaning or maintenance staff) employed in the following classifications: academic teachers, teachers and tutors/instructors, and general staff. In relying on the existence of the Federal award as one of the reasons for deciding that there should be one award in Queensland, we are not saying that the Queensland award should necessarily be modelled on or reflect the contents of the Federal award. Our decisions in relation to the two matters referred to this Full Bench are not about the content of the award but about whether there should be one award (or more awards) and the process for settling or deciding what it (or they) should contain.
In reaching the conclusion that there should be one award we have not been persuaded by the following submissions.
First, the QTU and Together submit, in effect, that one award could lead to inefficiency and other practical consequences. Each submission refers to the legislated objective that the modern award system be "simple and easy to understand" (s 140D(2)(g)(i)). The QTU submits that, given that the educational staff are readily identifiable, it is arguably easier and more efficient for a TAFE Human Resources manager to have ready access to a document all of which deals unambiguously with educational staff rather than to have to sort through issues about which clauses apply and which do not in a combined award.
Together submits that, to avoid a reduction in the various entitlements accruing to teaching and administrative staff, a single award framework would require extensive schedules to maintain the conditions and be contrary to the legislated objective of the award in s 140D(2)(g)(i). That submission conflates two separate concepts - the preservation of employees' conditions and the desire for clear drafting of an award.
The present proceedings do not focus on what a modern award should contain. The content of the award will be for the parties to negotiate and ultimately (whether or not the parties can agree) for the Commission to determine, after the process set out later in these reasons has been followed. There is no reason why a single award could not deal appropriately with the different circumstances of specific categories of TAFE Queensland employees while also providing appropriate conditions that are common to all employees.
TAFE Queensland submits that a single award is most congruent with reducing employment costs and regulatory burden because it reduces the need to manage multiple instruments and ensures the most streamlined administrative and payroll functions. This is consistent with one of the factors to which the Commission must have regard: reducing the number of awards operating under the Act (s 140BB(2)(i)).
Second, the QTU submits that there are distinctive features of the teaching profession in TAFE which justify the retention of an occupation-based rather than industry-based award for TAFE teachers. Not only do teachers generally have a strong occupational identity as a consequence of the nature of their qualifications and employment, but TAFE teachers need to have both vocational expertise in an industry or occupational area and educational/pedagogical expertise. In other words, TAFE teachers are dual professionals.
It was, as Together submits, open to the Commission to distinguish between occupational groupings employed within specific industries. In support of its submission that there should be a separate award for teaching staff, Together referred to the decision of a Full Bench in Re:Referral pursuant to s 140C(1) of the Industrial Relations Act 1999for amodern award - Health[11] which led to a separate award for health practitioners and dental officers.[12] In that decision, the Full Bench wrote that it was appropriate that "skilled professionals who generally hold some form of tertiary qualification, or equivalent" have their own award.[13] The Full Bench also wrote:
[11] Re: Referral pursuant to s 140C(1) of the Industrial Relations Act 1999 for a modern award - Health [2014] QIRC 088.
[12] Health Practitioner and Dental Officer (Queensland Health) Award - State 2014.
[13] Re: Referral pursuant to s 140C(1) of the Industrial Relations Act 1999 for a modern award - Health [2014] QIRC 088, [24].
"Such an award will be easier to understand than would be the case if specific clauses to deal with their requirements in a more general award, covering significantly different categories of employment, have to be created.[14]
[14] Ibid.
[31] The circumstances of that case can be distinguished from the circumstances of the matters currently before the Full Bench. In summary, the range of employees to be covered in the health sector was much larger and more diverse than those to be covered by the award in relation to the present amended legislation. As noted earlier, the award proposed for TAFE Queensland will not cover trades, cleaning, security or maintenance staff. Applying the reasoning in the health modern award decision, we are satisfied that it is not necessary to provide separate awards for teachers and educational staff and for general/support staff.
Issue 2: Whether any modern award for TAFE Queensland teachers and/or general staff must be dealt with through the award modernisation process
In order to determine this question it is necessary to have regard to the matters that are before us. Matters MA/2014/71 and 75 are the numbers allocated by the Queensland Industrial Relations Commission Registry for the modernisation of the Senior College Teachers' Award – State 2012 and the TAFE Teachers' Award – State 2012, respectively. Matter MA/2014/103 is the number allocated to the application by TAFE Queensland for the making of a modern award. The two pre-modernisation awards cover teaching staff, but do not cover general/administrative staff. The award sought by TAFE Queensland would cover both occupational groups.
As we indicated earlier, we have decided that there is to be one modern award that will cover teaching and general/administrative staff.
Chapter 5 of the Act deals with "Awards (pre-modernisation)".
The first section in Chapter 5, s 122B, provides that the Chapter applies to an award other than a modern award.
Part 8 of Chapter 5 of the Act deals with the modernisation of awards. Section 140BA of the Act states the object of modernising awards. That object includes to provide for the modernisation of awards so they, together with the Queensland Employment Standards, provide for a fair minimum safety net of enforceable conditions of employment for employees. The Commission's award modernisation functions are set out in s 140BB which, by sub-section (1), provides that the functions of the Commission include carrying out a process (award modernisation process) to reform and modernise pre-modernisation awards.
Chapter 5A of the Act is headed "Modern awards". Section 140D describes the modern awards objectives. Section 140D(1) provides that in exercising its Chapter 5A Powers, the Commission must ensure modern awards, together with the Queensland Employment Standards, provide a minimum safety net of employment conditions that is fair and relevant.
Section 140GA, the section under which TAFE Queensland's application is made, is found in Division 2 of Part 3 of Chapter 5A. Division 2 is headed "Other exercise of powers to make, vary or revoke modern awards". By s 140G(1)(b) the Commission may, other than for the purposes of a periodic review, make a modern award.
It is apparent that Chapter 5 and Chapter 5A are directed to the same end, ensuring that award regulation in Queensland is by a series of modern awards that have regard to the object set out in s 140BA and the factors set out in s 140BB or the modern award objectives referred to in s 140D of the Act respectively.
As we understand the submissions of the unions, they would have the modernisation of the Senior College Teachers' Award – State 2012 and the TAFE Teachers' Award – State 2012 dealt with in accordance with the award modernisation process (which having regard to the Request, must be completed by 30 April 2015), prior to the application of TAFE Queensland.
Were we to adopt that course, the resources of the Commission and the parties would be utilized first for the modernisation of the above-mentioned awards and then for TAFE Queensland's application to make a modern award which, if acceded to in any respect, would involve the variation or the revocation of the modern award made as a result of the award modernisation process.
In our view such a procedure would be cumbersome, repetitive, unnecessarily lengthy and potentially significantly costly, and hence undesirable.
The appropriate manner in which to deal with the three matters before us is to have them all dealt with in the award modernisation process. Section 140CC requires the Commission to carry out the award modernisation process under Chapter 5 in accordance with the Request. It may decide the procedure for carrying out the award modernisation process. The procedure chosen by the Commission does not limit the powers of the Commission under any other provision of the Act. Although s 140CC is within the Chapter dealing with the modernisation of pre-modernisation awards, it is appropriate that the same process, and resources of the Commission, be applied to the TAFE Queensland application. That result can be effected by relying on s 274, under which the Commission is empowered to do all things necessary or convenient to be done for, or in connection with, the performance of its functions.
The content of the modern award will, of course, be made having regard to the changes made to TAFE Queensland after its creation as a separate statutory body in 2013, the fact that administrative/general staff are no longer public servants, as well as the requirements of the award modernisation process and the Request in relation to the modernisation of the Senior College Teachers' Award – State 2012 and the TAFE Teachers' Award – State 2012.
Conclusion
There should be one modern award to cover the VET sector workforce of TAFE Queensland.
We will refer the three matters to the award modernisation team.
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