Termination of instruments

[2011] FWA 6311

[2011] FWA 6311

FAIR WORK AUSTRALIA

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 3 Sch. 5—Transitional instrument

(CT2011/838 and Others)

COMMISSIONER SMITH MELBOURNE, 14 SEPTEMBER 2011

Termination of instruments.

[1] This decision concerns the termination of instruments which are modernisable under item 3 of Schedule 5 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Fair Work Transitional Act).

[2] The following instruments were listed for hearing on 9 August 2011:

• La Trobe University Agencies and Companies Award 2001



• Early Childhood Teachers Interim Award 1999



• Educational Services - Early Childhood Assistants - Victoria - Award 1999



• School Services Officers (State Government Schools), Victoria, Award 2000



• Higher Education Academic Salaries Award 2002



• Higher Education General and Salaried Staff (Interim) Award 1989



• Australian Higher Education Practice Teaching Supervision Award 1990



• Universities and Affiliated Institutions Academic Research Salaries (Victoria and Western Australia) Award 1989

[3] In my decision of 9 August 2011 1, I did not terminate these instruments and indicated that they would be reviewed and a subsequent decision issued. I deal now with the respective matters below.

CT2011/864

[4] The La Trobe University Agencies and Companies Award 2001 2 was raised in the context of whether or not the instrument could be properly characterised as an enterprise instrument and therefore unable to be terminated pursuant to item 3(3)(a) of schedule 5 to the Fair Work Transitional Act. Mr K McAlpine appeared for the National Tertiary Education Industry Union (NTEU) and submitted that the award would have applied to two respondents and that both respondents appear to no longer exist. Ms C Pugsley appeared for the Australian Higher Education Industrial Association (AHEIA) and agreed with these submissions. I accept that, on its face, the award does not appear to be an enterprise instrument, nor does it have any ongoing application. There is nothing before me that would preclude me from terminating it.

CT2011/1092, CT2011/1174

[5] With regards to the Early Childhood Teachers Interim Award 1999 3and the Educational Services - Early Childhood Assistants - Victoria - Award 1999,4 correspondence in relation to the Full Bench proceedings was received on 13 July 2010 from the Municipal Association of Victoria advising that both awards have application in the local government industry in Victoria. If an instrument operates as a state reference public sector transitional award it cannot be terminated pursuant to item 3(3)(a) of schedule 5 to the Fair Work Transitional Act. I note that the state reference transitional versions of these instruments were not listed before me for hearing and therefore not subject to termination. The transitional versions have been included on the list published by Fair Work Australia titled “State reference public sector transitional awards.” The orders terminating the instruments listed will make it clear that the termination applies to the pre-reform award and any related transitional Australian Pay and Classification Scale only and does not terminate any state reference public sector transitional award derived from the instrument.

CT2011/1275

[6] The School Services Officers (State Government Schools), Victoria, Award 2000 5was also raised in the context of the instrument being a state reference public sector transitional award. Mr D Bunn appeared for the Australian Education Union (AEU) and as part of his submissions referred to the comments of the Full Bench in their 22 December 2010 decision6 where they said:

“[61]... The award covers the employment of school services officers by the State of Victoria and by school councils. It is clear that the State of Victoria is a State reference public sector employer and covered by a State reference public sector transitional award. The position in relation to school councils may be open to some doubt. It is perhaps for that reason that a pre-reform award of that name appeared in the list published by Fair Work Australia. It may be appropriate to terminate the award as it may have application as an award-based transitional instrument. Any termination will only apply to any award-based transitional instrument and any associated transitional APCS.”

[7] Again I note that the state reference transitional version of this instrument was not listed before me for hearing and therefore not subject to termination. This has been included on the list published by Fair Work Australia titled “State reference public sector transitional awards.”

[8] I was not provided with any evidence which would persuade me not to terminate the version of the award which would have application to school councils should they be regarded as national system employers as defined in s.14(1)(a) of the Fair Work Act 2009. The order terminating this instrument will make clear it that the termination applies to the pre-reform award and any related transitional Australian Pay and Classification Scale and does not terminate any state reference public sector transitional award derived from the instrument.

CT2011/838

[9] The NTEU oppose the termination of the Higher Education Academic Salaries Award 2002 7on the grounds that there are a number of enterprise awards that apply to the same employees. A list of affected enterprise awards are set out in exhibit NTEU 1. I am satisfied that the Higher Education Academic Salaries Award 2002 is an instrument of the kind referred to in item 3(3)(a) of schedule 5 to the Fair Work Transitional Act in that it covers employees also covered by an enterprise instrument. Accordingly the instrument will not be terminated at this time. The award should be moved to the list titled “Instruments that cover employees also covered by an enterprise instrument” published on the Fair Work Australia website.

CT2011/840

[10] Mr McAlpine submitted that a reference to the Higher Education General and Salaried Staff (Interim) Award 1989 8appears in a number of enterprise awards. However it appears that the award does not confer any terms and conditions, the references only provide that the award has been superseded by another instrument.

[11] Mr Pill appeared for a number of Universities and did not oppose the termination of the Higher Education General and Salaried Staff (Interim) Award 1989 on the grounds thatthe award no longer covers anyone because of the making of either institution specific general staff awards or the making of the Higher Education General Staff Salaries and Classifications Award 2002.

[12] Ms Pugsley referred to the AHEIA’s written submissions of 31 March 2011. Those submissions listed a number of enterprise instruments that superseded the Higher Education General and Salaried Staff (Interim) Award 1989 award.

[13] I am not satisfied that a reference contained in an enterprise award indicating that the Higher Education General and Salaried Staff (Interim) Award 1989 has been superseded is sufficient to conclude that the award also covers employees covered by an enterprise award. Therefore item 3(3)(a) of schedule 5 to the Fair Work Transitional Act does not prevent me from terminating the award.

[14] For completeness I note that the successor award to the Higher Education General and Salaried Staff (Interim) Award 1989 being the Higher Education General Staff Salaries and Classifications Award 2002 appears on the list published by Fair Work Australia as an instrument which also covers employees covered by an enterprise instrument.

CT2011/1006

[15] Mr D Bunn for the AEU opposed the termination of the Australian Higher Education Practice Teaching Supervision Award 1990 9on the grounds that it covers employees also covered by an enterprise instrument or a state reference public sector transitional award. Mr Bunn identified the Australian Capital Territory Government School Teachers' Award 1999,10 the Northern Territory Public Sector Teachers and Assistant Teachers' Award 200111and the Teachers (Victorian Government Schools) Conditions of Employment Award 200112respectively.

[16] Ms Pugsley for the AHEIA, whilst not objecting to the argument raised by the AEU, questioned the application of the award. She referred to award modernisation proceedings and suggested that the provisions in the Australian Higher Education Practice Teaching Supervision Award 1990 were not included in the making of the relevant higher education and post-secondary modern awards. She requested that the parties be provided with more time to provide written submissions.

[17] Mr Pill submitted that the award could be terminated on the basis that there aren't any employees covered by it. Mr Pill said: “...On its face it purports to cover employees who are employed by the named respondents who are universities and so if these persons are, as is submitted, covered by awards that apply to schools and to teachers, they're not employees of the universities and our submission is that there are no employees covered”. 13

[18] I have reviewed the three instruments identified by Mr Bunn and their apparent relationship with the Australian Higher Education Practice Teaching Supervision Award 1990. I am not persuaded that the Australian Higher Education Practice Teaching Supervision Award 1990 also covers employees covered by an enterprise instrument or a state reference public sector transitional award as envisaged by item 3(3)(a) of schedule 5 to the Fair Work Transitional Act. I am satisfied that the award can be terminated. There remains a live issue in relation to university students who, as a part of their course, undertake teaching duties. I will convene a conference of interested parties subsequently.

CT2011/1143

[19] Mr McAlpine for the NTEU opposed the termination of the Universities and Affiliated Institutions Academic Research Salaries (Victoria and Western Australia) Award 1989 14 on the basis that it applies to employees who are also covered by an enterprise award, namely the Curtin University of Technology Academic Staff (Conditions of Employment) Award 1999. Ms Pugsley for the AHEIA submitted that both the Higher Education Academic Salaries Award 2002 and the Universities and Affiliated Institutions Academic Research Salaries (Victoria and Western Australia) Award 1989 contain the same salaries and classifications, thus if the former award is not terminated as part of these proceedings then there is no work for the Universities and Affiliated Institutions Academic Research Salaries (Victoria and Western Australia) Award 1989 to do. I note in relation to Ms Pugsley’s submission that the Higher Education Academic Salaries Award 2002 lists Curtin University of Technology as a respondent in Schedule C to the award.

[20] Mr Pill appearing for the Universities submitted that the instrument could be terminated if the tribunal was satisfied that the instrument continued to cover Curtin University staff. The Universities and Affiliated Institutions Academic Research Salaries (Victoria and Western Australia) Award 1989 includes Curtin University of Technology in the list of respondents at Schedule A, however, clause 5 of the Curtin University of Technology Academic Staff (Conditions of Employment) Award 1999 15 dealing with the relationship with other awards does not cite the Universities and Affiliated Institutions Academic Research Salaries (Victoria and Western Australia) Award 1989.

[21] It appears to me that this is an award which covers employees who are also covered by an enterprise award. Although this is arguable and perhaps relies upon a thin relationship, nevertheless it is appropriate to be cautious. I will not terminate the instrument at this time. The award should be moved to the list titled “Instruments that cover employees also covered by an enterprise instrument” published on the Fair Work Australia website.

[22] Accordingly, all the instruments which are the subject of this decision, save for both the Higher Education Academic Salaries Award 2002 and the Universities and Affiliated Institutions Academic Research Salaries (Victoria and Western Australia) Award 1989, will be terminated. Orders giving effect to this decision will be issued separately.

COMMISSIONER

Appearances:

D Colley with D Bunn for the Australian Education Union.

K McAlpine and P Noakes for the National Tertiary Education Union.

C Pugsley for the Australian Higher Education Industrial Association.

S Pill (solicitor) for the University of Adelaide, the University of Sydney, Monash University and the University of Melbourne.

Hearing details:

2011.
Melbourne:
August 9.

 1   PR513255.

 2   AP816088 and AT816088.

 3   AP780883.

 4   AP780459.

 5   AP799002.

 6   2010 FWAFB 9916

 7   AP820200 and AT 820200.

 8   AP783516 and AT783516.

 9   AP765754 and AT765754.

 10   AP768818/AT768818.

 11   AP790710/AT790710.

 12   AP806227/AT806227.

 13   Transcript PN94.

 14   AP801440 and AT801440.

 15   AP772283/AT772283.

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