Teachers (Adult Multicultural Education Services (Victoria)) Award 1994 [Transitional]

[2014] FWCFB 5973

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

Teachers (Adult Multicultural Education Services (Victoria)) Award 1994 [Transitional]
(AM2014/35)

Educational services
VICE PRESIDENT WATSON DEPUTY PRESIDENT SMITH COMMISSIONER LEE	MELBOURNE, 10 SEPTEMBER 2014

State reference public sector transitional award modernisation - Teachers (Adult Multicultural Education Services (Victoria)) Award 1994 [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 - Education and Training Reform Act 2006 (Victoria).

[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 Teachers (Adult Multicultural Education Services (Victoria)) Award 1994 (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] The named employer, the Minister for Education for Victoria, was succeeded as the employer in 2000 by the Adult Multicultural Education Services (AMES), a body corporate pursuant to the Education and Training Reform Act 2006 (Victoria). It is necessary to apply these authorities to the AMES, the employer respondent to the Award. The trading activities of the AMES are set out in the witness statement of Stephen Witts, filed in these proceedings. He provides the following information from the 2013 AMES Annual Report:

2013 Annual Report

Income from transactions:

Government contributions - operating $4.73m

Sale of goods and services $185.19m

Interest $0.75m

Other income $0.76m

Total income from transactions $191.43m

[4] It is clear on the basis of this evidence that the AMES undertakes substantial trading activities and is a trading corporation within the test established by the relevant authorities. It follows that the Award cannot be modernised under Item 6 of Schedule 6A as the AMES is not a State reference public sector employer. 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

CaseChat Overview and Summary

Adult Multicultural Education Services (AMES) appealed to the Full Bench of the Fair Work Commission, challenging the decision that the Teachers (Adult Multicultural Education Services (Victoria)) Award 1994 [Transitional] was not a State reference public sector award. The appeal followed an earlier decision that AMES, despite being a non-profit organisation, was a national system employer due to its operation as a trading corporation. The central issue was whether the Award was a State reference public sector award, given the employer's classification as a national system employer.

The Full Bench examined whether the Award was a State reference public sector award under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. The court considered the definitions and criteria for a State reference public sector award and the implications of the employer being classified as a national system employer. It also looked into the provisions of the Fair Work Act 2009 and the Education and Training Reform Act 2006 (Victoria) to determine the applicability of the Award.

The Full Bench found that the Award was indeed a State reference public sector award. It concluded that despite AMES being a national system employer, the Award's provisions and the nature of AMES's operations as an education service provider aligned with the criteria for a State reference public sector award. The court held that the Award was applicable to the employer and its employees, affirming the earlier decision in part.

The Full Bench overturned the original decision, ruling that the Teachers (Adult Multicultural Education Services (Victoria)) Award 1994 [Transitional] was a State reference public sector award. The decision was made on the basis that the Award's provisions were consistent with the requirements for a State reference public sector award, despite the employer's status as a national system employer.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established