RMIT Training Pty Ltd

[2020] FWCA 2032

[2020] FWCA 2032

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

RMIT Training Pty Ltd
(AG2020/695)

RMIT TRAINING FOUNDATION STUDIES ENTERPRISE AGREEMENT 2019

Educational services
DEPUTY PRESIDENT COLMAN	MELBOURNE, 20 APRIL 2020

Application for approval of the RMIT Training Foundation Studies Enterprise Agreement 2019

[1] RMIT Training Pty Ltd has made an application pursuant to s 185 of the Fair Work Act 2009 (the Act) for approval of an enterprise agreement known as the RMIT Training Foundation Studies Enterprise Agreement 2019 (the Agreement). The agreement is a single enterprise agreement.

[2] The National Tertiary Education Industry Union (NTEU) and the Australian Education Union (AEU) were bargaining representatives for the Agreement. The NTEU filed an F18 statutory declaration made by its industrial officer, Rhidian Thomas, who stated that the union supported the company’s application for approval of the Agreement by the Commission. The AEU filed an F18 statutory declaration made by its official, Elaine Gillespie, who stated that the AEU did not support the approval of the Agreement by the Commission on the basis of certain objections set out in the F18 document. The company provided a written response to these objections. The AEU advised the Commission that it did not wish to make further submissions and was content for the Commission to determine the application on the papers. The company and the NTEU did not object to this course.

[3] The AEU’s first objection was that the F17 statutory declaration made by Ms Maxine Sahhar in support of the company’s application for approval of the Agreement was not properly witnessed. The declaration was sworn on 13 March 2020 before Ms Serafina Giannone, who stated her qualification to witness a statutory declaration as follows: ‘Bachelor of Arts degree, diploma of education, master applied linguistics’. The AEU submitted that Ms Giannone did not appear to be a person qualified to witness statutory declarations, and that therefore the application for approval of the Agreement was not accompanied by a valid statutory declaration, and there was no valid application before the Commission.

[4] The company explained in its submission that Ms Giannone is in fact a qualified teacher employed on a permanent full-time basis at RMIT Training, which is a tertiary education institution. The AEU did not dispute this and I accept the company’s explanation. I am satisfied that Ms Giannone is a person before whom a statutory declaration may be made. 1 The company has made a valid application supported by a statutory declaration as required by the Commission’s rules.

[5] The AEU’s second objection was that the Agreement provides for a form of employment that is not a ‘true form of casual employment’. It submitted that clauses 8.7 and 8.8 allow for a casual employee to teach for up to 720 hours per year, but that these hours do not include preparation, correction, administrative and other duties that a teacher is required to perform. The AEU submitted that, by comparison, a maximum full-time teaching load is generally 800 hours of teaching a year (see clause 14.4(a)(ii) of the Agreement). The union said that the Educational Services (Post-Secondary) Award 2010 (Award) only allows for the employment of casual employees within the meaning of the common law, whereas under the Agreement it appears to be possible for casuals to work close to full time hours over a year. It submitted that this would result in affected employees being worse off under the Agreement than under the Award; and that such deemed, non-genuine casuals would be deprived of leave and other entitlements under the National Employment Standards (NES) that are associated with permanent employment.

[6] Clause 8.7 of the Agreement states that ‘an employee may only be employed on a casual basis where the work to be performed is of an irregular nature or for a short period of time’. Clause 8.8 defines the phrase ‘a short period of time’ to mean a situation where a casual employee replaces an employee for an approved period of leave (up to a maximum of 30 days); or where the work to be performed does not exceed 8 hours of teaching duties per week; or, by mutual agreement, a maximum of 21 hours of teaching duties in any week, up to a maximum of 720 hours of teaching duties per year. The 21-hour maximum may be exceeded by mutual agreement, but not beyond 42 teaching hours in a two-week roster period.

[7] The AEU contends that under the Agreement, casuals can undertake almost the same number of teaching hours as a full time employee, and that if this occurred, they could be treated by the employer as casuals, when in substance they would be permanent employees and regarded as such at common law and under the Award. However, whether a casual employee who worked the maximum 720 teaching hours should properly be regarded as a permanent employee would depend on all circumstances, including the extent of any other associated work. It cannot be concluded that such a person would necessarily be a permanent employee. Further, I do not consider that the regulation of casual employment under the Agreement purports to alter the common law. Clause 8.7 affirms that an employee may only be employed on a casual basis where the work to be performed is ‘of an irregular nature or for a short period of time’. The expression ‘short period of time’ is then defined and includes the 720 teaching hours maximum. But if an employee is not a casual employee in the first place, because he or she has become a permanent employee under the common law, clauses 8.7 and 8.8 will simply no longer apply to that person.

[8] Even if clauses 8.7 and 8.8 of the Agreement did purport to treat certain permanent employees as casuals, and deprive them of relevant leave and other entitlements, the ‘NES precedence’ provision in clause 3.5 of the Agreement would be engaged. This provision states that, ‘where there is an ‘inconsistency’ between the Agreement and the NES, and the NES provides greater benefit, the NES provision will apply to the extent of the inconsistency.’ Therefore, if there were ever to be a conflict between clause 8.9 of the Agreement, which states that ‘casual employees’ are not entitled to leave, and the NES, which provides permanent employees with leave entitlements, the latter will prevail under the terms of the NES precedence provision in clause 3.5. (Of course, s 56 also states that a provision in an enterprise agreement has no effect to the extent that it excludes the NES).

[9] As required by s 186(2)(c), I am satisfied that the Agreement’s terms, including in particular the clauses relating to casual employment, do not contravene s 55 (which deals with the interaction between the NES and enterprise agreements). Having regard to all of the provisions of the Agreement, including those relating to casual employment, and in light of my conclusion below in relation to the AEU’s third objection, I am satisfied that each award covered employee and prospective award covered employee for the agreement would be better off overall if the Agreement applied to them than if the relevant modern award were to apply.

[10] The third objection raised by the AEU was that the classifications in the Agreement did not translate ‘directly or neatly’ into the classifications in the Award. It submitted that, whereas the Award’s classifications are based principally on qualifications that are relevant to the area of teaching, those in the Agreement are based on teaching qualifications and teaching experience. The AEU contended that the company’s explanation of the classification translations was unclear.

[11] The company contended that each classification of employee under the Agreement would be better off compared to any of the potential Award classifications that might reasonably be raised as comparators. It said that employees who would be classified under the Award as teachers and tutors/instructors, and as academic teachers level A, would plainly be better off under the Agreement, because the highest annual wage for these employees under the Award ($66,218.05 for teachers and tutors/instructors and $66,216 for academic teacher level A) is less than the lowest wage for ‘educators’ under the Agreement ($71,283). It noted that for employees classified as academic teachers levels B and C of the Award, the Award wages are $78,874 and $90,861 respectively, whereas under the Agreement, the lowest rate for ‘senior educator’ is $103,483.

[12] Having regard to all of the classification descriptors and requirements in the Agreement and the Award, including the nature and apparent seniority of the work in the various classifications, I consider the company’s classification matching to be sound.

[13] I acknowledge the AEU’s point that the qualifications referred to in the Agreement’s classifications are cast differently from those in the Award, however I do not consider that this presents a concern in relation to the BOOT or any other approval requirements. Under the Award classifications, teachers are to have qualifications ‘in a field relevant to teaching’ (see B.3, schedule B) and tutors/instructors must have ‘appropriate subject knowledge and skills as determined by the employer’. Academic teachers under the Award will ‘normally have completed 4 years of tertiary study’ or have ‘equivalent qualifications’ and may be required to hold a relevant higher degree. Schedule 3 of the Agreement states that all ‘educators’ are to have a ‘four year teaching qualification’, rather than qualifications relevant to teaching. However, Schedule 3 goes on to state that the four year ‘teaching qualification’ for educators ‘may include’ a four year Bachelor of Education, or a three year bachelor’s degree with post graduate diploma in education. Other possible ‘teaching qualifications’ are not foreclosed, and a qualification with obvious relevance to teaching might constitute a ‘teaching qualification.’

[14] In any event, clause 3 of the Agreement states that it covers ‘foundation study employees’ which is defined in clause 5 as educators and senior educators. If in fact the qualifications for these employees are narrower than those for positions that might otherwise be equivalent under the Award, then the coverage of the Agreement would be correspondingly narrower. There would be nothing wrong with this. It is not suggested by the AEU, nor do I consider it to be the case, that the group of employees covered by the Agreement was not fairly chosen. Further, there is no indication that any of the employees who voted on the Agreement has insufficient qualifications for the purposes of the classification structure in the Agreement and that they are not in fact covered by it.

[15] The AEU has not presented any alternative classification matching demonstrating that some employees would be classified at a higher level under the Award than they would be under the Agreement, such that they are not better off under the Agreement; or any other wage modelling to suggest that the company’s BOOT analysis is incorrect. In my view, all employees covered by the Agreement will receive higher wages under the Agreement than under the Award.

[16] Based on the information before me, including the statutory declarations that have been filed in connection with this application, I am satisfied that the company requested the employees employed at the time who would be covered by the Agreement to approve it by voting for it, and that a majority of those employees who cast a valid vote approved the Agreement.

[17] On the basis of the material contained in the application and accompanying statutory declaration, I am satisfied that each of the requirements of ss 186, 187 and 188 as are relevant to this application for approval have been met.

[18] The NTEU and the AEU, being bargaining representatives for the Agreement, have each given notice under s 183 of the Act that they want the Agreement to cover it. In accordance with s 201(2) and based on the statutory declarations provided by these organisations, I note that the Agreement covers these organisations.

[19] The Agreement was approved on 20 April 2020 and, in accordance with s 54, will operate from 27 April 2020. The nominal expiry date of the Agreement is 30 April 2022.

DEPUTY PRESIDENT

 1   See r 7 and item 40 of Part 2 of Schedule 2 of the Statutory Declarations Regulations 2018.

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