Teachers (Adult Multicultural Education Services (Victoria)) Redundancy Award 1999 [Transitional]

[2014] FWCFB 5975

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)) Redundancy Award 1999 [Transitional]
(AM2014/36)

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)) Redundancy Award 1999 [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)) Redundancy Award 1999 (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) engaged teachers under a series of contracts for services. AMES submitted a state reference public sector transitional award modernisation application to the Fair Work Commission. The applicants, the teachers, argued that the proposed award should not apply to them because AMES is a national system employer and a trading corporation, and thus, the Fair Work Act 2009 should govern their employment conditions. The Commission was required to determine whether the award was a state reference public sector award and if the Fair Work Act 2009 applied to the employment of the teachers.

The Commission considered whether AMES qualified as a national system employer and a trading corporation, and if so, whether the Fair Work Act 2009 should apply to the employment of the teachers. The Commission noted that AMES did not operate as a trading corporation in the sense that it provided education services in competition with other providers. Instead, it was a government-funded entity providing education services in accordance with the Education and Training Reform Act 2006 (Victoria). The Commission concluded that AMES was not a trading corporation and that the Fair Work Act 2009 did not apply to the employment of the teachers. Therefore, the award was a state reference public sector award, and the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 applied.

The Commission found that the award was a state reference public sector award, and the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 applied. Consequently, the proposed award would apply to the employment of the teachers engaged by AMES. The Commission made the Teachers (Adult Multicultural Education Services (Victoria)) Redundancy Award 1999 [Transitional], which sets out the redundancy conditions for teachers employed by AMES.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established