| [2014] FWCFB 5902 |
| 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
(AM2014/33)
Educational services | |
VICE PRESIDENT WATSON | MELBOURNE, 11 SEPTEMBER 2014 |
State reference public sector transitional award modernisation - TAFE Teachers' Conditions of Employment (Victoria) Award 2002 [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 TAFE Teachers' Conditions of Employment (Victoria) Award 2002 (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 18 employer respondents to the Award, listed below:
• Bendigo Regional Institute of Technical and Further Education
• Box Hill Institute of Technical and Further Education
• Central Gippsland Institute of Technical and Further Education
• Chisholm Institute of Technical and Further Education
• East Gippsland Institute of Technical and Further Education
• Gordon Institute of Technical and Further Education
• Goulburn Ovens Institute of Technical and Further Education
• Holmesglen Institute of Technical and Further Education
• Kangan-Batman Institute of Technical and Further Education
• Northern Melbourne Institute of Technical and Further Education
• Royal Melbourne Institute of Technology
• South West Institute of Technical and Further Education
• Sunraysia Institute of Technical and Further Education
• Swinburne University of Technology (TAFE Division)
• The University of Ballarat
• Victoria University of Technology
• William Angliss Institute of Technical and Further Education
• Wodonga Institute of Technical and Further Education
[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 Technical and Further Education | 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 Technical and Further Education | 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 Technical and Further Education | 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 Technical and Further Education | 2013 Annual Report Government contributions operating $67.60m Government contributions capital $18.80m User fees and charges $46.30m Goods and services tax recovered $3.85m Interest received $0.72m Other receipts $2.01m Total receipts $139.25m |
East Gippsland Institute of Technical and Further Education | 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 Technical and Further Education | 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 Technical and Further Education | 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 Technical and Further Education | 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 Technical and Further Education | 2013 Annual Report Government contributions operating $70.19m Government contributions capital $1.18m Sale of goods and services $50.61m Interest $2.45m Other income $2.05m Total income from transactions $126.48m |
Northern Melbourne Institute of Technical and Further Education | 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 |
Royal Melbourne Institute of Technology | 2013 Annual Report Australian Government financial assistance $295.19m HELP Australian Government payments $189.66m State Government financial assistance $34.39m HECS-HELP student payments $22.24m Fees and charges $386.51m Investment revenue $6.74m Consultancy and contracts $33.82m Other revenue $43.88m Total revenue from continuing operations $1012.43m |
South West Institute of Technical and Further Education | 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 Technical and Further Education | 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 |
The University of Ballarat | 2012 Annual Report Australian government grants $97.76m HELP – Australian government payments $27.04m Victorian State government grants $31.67m HECS-HELP student payments $2.34m Course fees and charges $70.59m Other fees and charges $14.60m Consultancy and contract research $5.42m Investment revenue $15.03m Other revenue $1.35m Total from continuing operations $265.80m |
Victoria University of Technology | 2012 Annual Report Australian government grants $184.08m HELP Australian government payment $85.14m State and local government assistance $76.13m HECS-HELP student payments $9.04m Fees and charges $87.72m Investment income $3.22m Royalties and licences -$0.11m Consultancy and contracts $8.68m Other revenue $20.10m Deferred government super contribution $54.75m Total from continuing operations $528.75m |
William Angliss Institute of Technical and Further Education | 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 Technical and Further Education | 2013 Annual Report Government contributions operating $20.94m Government contributions capital $1.88m User fees and charges received $20.35m Goods and services tax recovered $0.02m Interest received $0.36m Other receipts $1.06m Total receipts $44.61m |
[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 employer respondents are not 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.
Printed by authority of the Commonwealth Government Printer
<Price code C, AT816514 PR554746 >
- AGLC
- TAFE Teachers' Conditions of Employment (Victoria) Award 2002 [Transitional] [2014] FWCFB 5902
- Case
- [2014] FWCFB 5902
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether the Award qualified as a State reference public sector award under the Fair Work Act and if the employer, being a national system employer and a trading corporation, was subject to the transitional provisions outlined in the Fair Work (Transitional Provisions and Consequential Amendments) Act. This required an examination of the nature and scope of the Award, its applicability to the employer, and the implications of the transitional provisions on existing awards.
The Fair Work Commission determined that the Award was indeed a State reference public sector award. It found that the employer, being a national system employer and a trading corporation, was subject to the transitional provisions outlined in the Fair Work (Transitional Provisions and Consequential Amendments) Act. The Commission concluded that the Award's classification and the employer's status necessitated the application of these transitional provisions. The decision was based on a detailed interpretation of the relevant sections of the Fair Work Act and the transitional amendments, ensuring that the Award's provisions were appropriately applied to the employer's circumstances.
As a result of the decision, the TAFE Teachers' Conditions of Employment (Victoria) Award 2002 [Transitional] was upheld as a State reference public sector award, and the employer was bound by the transitional provisions as specified in the Fair Work (Transitional Provisions and Consequential Amendments) Act. This ruling provided clarity on the applicability of the Award and the transitional provisions to the employer, ensuring compliance with the legislative framework governing employment conditions in the public sector.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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