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            AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
                          Workplace Relations Act 1996
        s.170MX arbitration following the termination of bargaining periods
                          Australian Education Union
                                        and
 Her Majesty the Queen in Right of the State of South Australia in relation to
       the Department for Education, Training and Employment (DETE)
                              (C No. 50259 of 1999)
               CPSU, the Community and Public Sector Union
                                        and
 Her Majesty the Queen in Right of the State of South Australia in relation to
       the Department for Education, Training and Employment (DETE)
                              (C No. 50396 of 1999)
Public education employees                                   Educational services
VICE PRESIDENT McINTYRE                            SYDNEY, 12 OCTOBER 2000
DEPUTY PRESIDENT HAMPTON
COMMISSIONER DEEGAN
Section 170MX - terms of final award - schools - preschools - TAFE - salaries -
workload - other issues.
                                    DECISION
                                    Contents
                                                                    Paragraph

INTRODUCTION                                                          [1]

SECTION 170MX                                                        [12]

THE MATTERS SPECIFIED IN s.170MX(5)                                  [13]

OUR APPROACH TO THE ARBITRATION                                      [20]

SOUTH AUSTRALIAN GOVERNMENT EDUCATION                                [24]

CURRENT REGULATION                                                   [32]

STAFFING ALLOCATION DOCUMENT                                         [36]

FLEXIBLE INITIATIVES RESOURCES (FIR)                                 [45]

INTERSTATE COMPARISONS                                               [48]

THE ISSUES                                                           [54]

THE IMPLIED CONSTITUTIONAL LIMITATION                                [58]

MATTERS AT ISSUE DURING THE BARGAINING PERIODS                       [77]



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AMBIT OF UNIONS' CLAIMS                               [91]

INDUSTRIAL MATTERS                                    [92]

DURATION OF THE s.170MX AWARD                         [96]

QUANTUM AND OPERATIVE DATE OF SALARY                  [98]
INCREASES

SCHOOLS - PERSONNEL ADVISORY COMMITTEES               [171]
(PACs)

SCHOOLS - WORKLOAD - TEACHERS                         [193]

SCHOOLS - WORKLOAD - SCHOOL SERVICES OFFICERS         [293]
(SSOs)

SCHOOLS - WORKLOAD - ABORIGINAL EDUCATION             [352]
WORKERS (AEWs)

SCHOOLS - TEMPORARY RELIEVING TEACHERS (TRTs)         [369]

SCHOOLS - BAND 2 PROMOTIONAL POSITIONS                [392]
(LEADERSHIP CLASSIFICATIONS)

SCHOOLS - ADVANCED SKILLS TEACHERS 2 (AST2s)          [408]

SCHOOLS - OFFICERS ON SECONDMENT                      [419]

SCHOOLS - SCHOOL SERVICES OFFICERS - CONTRACT         [432]
OF EMPLOYMENT

PRESCHOOLS - WORKLOAD - PRESCHOOL TEACHERS            [470]

PRESCHOOLS - WORKLOAD - EARLY CHILDHOOD               [513]
WORKERS (ECWs)

PRESCHOOLS - EARLY CHILDHOOD WORKERS - CASUAL         [524]
EMPLOYMENT

PRESCHOOLS - CASUAL RELIEVERS                         [534]

TAFE – HOURLY PAID INSTRUCTORS (HPIs)                 [545]

TAFE – INSTITUTE DIRECTORS                            [597]

TAFE – WORKLOAD AND ANNUALISED HOURS FOR TAFE         [609]
OFFICERS


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TAFE – ESSENTIAL QUALIFICATION REQUIREMENTS           [665]

TAFE – LECTURER PROGRESSION                           [680]

TAFE – LECTURERS - SPAN OF HOURS                      [694]

TAFE – LECTURERS' NON-ATTENDANCE DAYS                 [708]

TAFE – LECTURERS' LOSS OF NON-ATTENDANCE DAYS         [717]

TAFE – LECTURER'S ASSISTANTS                          [728]

TAFE – ADVANCED SKILLS LECTURERS                      [737]
(ASLs)

TAFE – HIGHER DUTIES                                  [752]

GENERAL - COUNTRY INCENTIVES                          [759]

GENERAL - PROFESSIONAL DEVELOPMENT                    [809]

GENERAL - GRIEVANCE PROCEDURES                        [847]

GENERAL - BOARD OF REFERENCE                          [875]

GENERAL - OCCUPATIONAL HEALTH AND SAFETY (OHS)        [885]

GENERAL – INTEGRATED SITES                            [899]

GENERAL - CROSS SECTOR FLEXIBILITY                    [910]

GENERAL - PAID MATERNITY, PATERNITY AND               [919]
ADOPTION LEAVE

GENERAL - RELATIONSHIP OF s.170MX AWARD WITH          [937]
AWARDS AND AGREEMENTS

GENERAL - DURATION OF THE s.170MX AWARD AND           [973]
RETROSPECTIVE OPERATION

ISSUES AGREED                                         [991]

THE SECTION 170MX AWARD                               [993]




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INTRODUCTION
[1] These proceedings pursuant to s.170MX of the Workplace Relations Act 1996
involve claims for awards by each of the Australian Education Union (the AEU),
the CPSU, the Community and Public Sector Union (the CPSU) (jointly, the
unions or the AEU/CPSU) and Her Majesty the Queen in Right of the State of
South Australia in relation to the Department for Education, Training and
Employment (DETE).
[2] The AEU's interests extend to all issues before us. The CPSU's interests are
limited to issues affecting the classifications of school services officer (SSO),
aboriginal education worker (AEW) and early childhood worker (ECW). The
CPSU, with respect to the issues in which it has an interest, makes similar claims
to the AEU.
[3] The matters arise following the termination, under s.170MW, of bargaining
periods initiated by each of the unions. On 4 May 1999, Hampton DP terminated
the bargaining period initiated by the AEU and, on 18 August 1999, terminated the
bargaining period initiated by the CPSU. Both bargaining periods were terminated
because Hampton DP was satisfied that the circumstances set out in s.170MW(7)
existed and was of the view that it was appropriate to exercise the discretion in
s.170MW(1).
[4] On 22 December 1999, we gave a decision (Print S1986) that, in proceedings
under s.170MX, the Australian Industrial Relations Commission (the Commission
or AIRC) had power to make an interim award and that, as a matter of merit, we
would make such an award providing for a salary increase of 4% operative from
22 December 1999. The award we made pursuant to this decision is dated 11
February 2000 (Print S2982) and is called the South Australian Education Staff
(DETE) s.170MX Interim Award 1999.
[5] Prior to this 4% increase, the employees had received, under agreements
reached in 1996, general increases of 11% from 1 December 1996, 1.5% from 1
July 1997, 2% from 1 July 1998 and 1% from 1 December 1998.
[6] This present decision is about the terms of a final award to be made under
s.170MX. The award to be made will apply to the schools, preschools and TAFE
sectors of government education in South Australia.
[7] Mr M. Bromberg of counsel with Mr P. Hannon, solicitor, appeared for the
AEU, Mr M. Perica appeared for the CPSU and Mr R. White QC with Mr M. Evans
of counsel appeared for DETE.
[8] The issues agreed by the parties which are before us are listed in the section
of this decision called "The Issues". There are about 40 of them. Some of them
are major (for instance, salaries and workload issues). Many are, to varying
degrees, not major. The approach of the parties has been to make claims on
virtually every condition of employment of employees in each of the schools,
preschools and TAFE sectors. In our view, many of the claims were capable of
sensible resolution by agreement and it is regrettable that this did not occur.
[9] Partly because of the large number of issues, the amount of material put
before us is vast. Evidence was given by some 58 witnesses; some 36 called by
the AEU, 4 by the CPSU and 18 by DETE. The witness statements and other
exhibits occupy some 33 folders, most of them large. There are 2,700 pages of
transcript. The parties' written submissions and supporting material occupy some
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17 folders, again most of them large. The hearing extended over some 32 days
(including the days occupied by the interim award application) the last of which
was 29 June 2000. A final written submission on an outstanding issue was
received by us on 22 August 2000.
[10] There is, however, a degree of urgency about giving a decision. The AEU's
bargaining period was terminated in May 1999 and the CPSU's in August 1999.
Although an interim increase was awarded by us in December 1999, the last
negotiated increase was one of 1% in December 1998. Retrospectivity for salary
increases is sought by the unions. Detailed provisions limiting workload are
sought by the unions which, if awarded, would require substantial preparatory
work to be done. We have, accordingly, done all we could to expedite the
preparation of this decision.
[11] This decision is not to be regarded as setting any precedent as to the future
industrial regulation of teachers and the other classifications dealt with in South
Australia or elsewhere. Neither is this decision intended to establish any principle
or principles with respect to s.170MX.
SECTION 170MX
[12] Section 170MX says:
   "(1) This section applies if a bargaining period is terminated on the ground set
   out in subsection 170MW(3) or (7).
          (2) As soon as practicable, the Commission must begin to exercise the
          conciliation powers mentioned in section 170MY:
                 (a) to facilitate the making of an agreement under Division 2 or 3; or
                 (b) otherwise to settle any matter or issue that could be covered by
                 such an agreement.
             This subsection applies even if the Commission has already attempted
             conciliation during the bargaining period.
             (3) If, after exercising conciliation powers as required by subsection
             (2), the Commission is satisfied that:
                 (a) the negotiating parties have not settled the matters that were at
                 issue during the bargaining period (whether or not by making an
                 agreement); and
                 (b) it is not likely that further conciliation will result in the matters
                 being settled within a reasonable time;
          the Commission must, if it considers it appropriate, exercise the
          arbitration powers mentioned in section 170MY to make an award that
          deals with the matters.
          (4) Despite any other provision of this Act, those arbitration powers may
          only be exercised by a Full Bench.
          (5) In exercising those arbitration powers, the Full Bench must have
          regard to the following:
                         (a) the matters that were at issue during the bargaining
                         period;
                         (b) the merits of the case;
                         (c) the interests of the negotiating parties and the public
                         interest;

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                    (d) how productivity might be improved in the business or part of
                    the business concerned;
                    (e) the extent to which the conduct of the negotiating parties
                    during the bargaining period was reasonable;
                    (f) any relevant principles formulated by a Full Bench for the
                    purposes of this subsection.
             (6) Subsection (5) does not, by implication, limit the matters to which
             the Full Bench may have regard."
THE MATTERS SPECIFIED IN s.170MX(5)
[13] As required by s.170MX(5), we have, in dealing with the various issues
before us, had regard to the matters specified in it.
[14] The first matter is "(a) the matters that were at issue during the bargaining
period". This raises some issues as to whether some of the claims, as now
formulated in the draft awards sought, were ever the subject of negotiation and, if
so, to what degree.
[15] The second matter is "(b) the merits of the case". This matter is central to our
consideration of the competing claims (subject, of course, to the consideration of
jurisdictional issues).
[16] The third matter is "(c) the interests of the negotiating parties and the public
interest". In this context, the AEU made reference, for instance, to the national
nature of the teaching industry, the status of teachers and evidence as to whether
there will be a shortage of teachers. DETE referred to the public interest in terms
of avoiding restrictions upon its capacity to provide a wide range of curriculum
offerings and the cost burden to the South Australian community of the various
AEU/CPSU proposals.
[17] The fourth matter is "(d) how productivity might be improved in the business
or part of the business concerned". In the occupations covered by this decision,
particularly teaching ones, it is not easy to determine how productivity can be
measured (see Tasmanian Teachers Case (1998) Print Q0785 p.24). The AEU
submitted that the evidence indicated that productivity would be improved by
granting its claims, for instance, in relation to workload. DETE argued that many of
the clauses it sought would improve productivity. We have considered these
submissions and have, in deciding this case, had regard to measures that would
improve flexibility in employment arrangements and would facilitate administrative
efficiency. In our view, in the case before us, these matters are relevant to the
concept of "productivity" as that word is used in s.170MX(5)(d).
[18] The fifth matter is "(e) the extent to which the conduct of the negotiating
parties during the bargaining period was reasonable". The AEU submitted that
DETE's negotiating stance demonstrated a lack of good faith and was
unreasonable and this should be taken into account in determining the operative
date for salary increases. DETE took issue with this submission. Our general
view, is that it has not been established that the conduct of any of the negotiating
parties was unreasonable. All parties had firm views on certain issues which were
not able to be resolved by agreement.
[19] The sixth matter is "(f) any relevant principles formulated by a Full Bench for
the purposes of this subsection". No one suggested there were any such
principles. In our view there are none.
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OUR APPROACH TO THE ARBITRATION
[20] The parties made submissions as to the approach that we should take to the
arbitration before us. The submissions were largely made with reference to Full
Bench decisions in other arbitrations under s.170MX and its predecessor.
[21] Each s.170MX arbitration decision turns on its own circumstances. In our
view, little assistance is provided by other decisions. The case before us has, of
course, its own circumstances which are derived from the evidence and the
submissions. In the Tasmanian Teachers Case the Full Bench, at p.13, adopted
the approach taken by Riordan SDP in a case under s.170PP of the Industrial
Relations Act 1988 (the predecessor to s.170MX) in which his Honour said:
           "I must add that I have not seen my function as being required to `make a
           bargain for the parties' as was proposed by the HSUA. What I have done
           is to decide to make an award which is consistent with the requirements
           of the Act, in particular the statutory direction to the Commission to act
           with equity, good conscience and the substantial merits of the case."
[22] We propose to adopt the same approach in the present case.
[23] We add that, in general, we approach each claim on the basis that it is for the
claimant to establish that, as a matter of "equity, good conscience and the
substantial merits of the case", its claim should be granted. In this case, each of
the AEU, the CPSU and DETE is a claimant.
SOUTH AUSTRALIAN GOVERNMENT EDUCATION
General
[24] As earlier mentioned this decision is concerned with three sectors of
government education in South Australia; namely, schools, preschools and TAFE.
[25] The classifications covered are:
(1) in respect of schools - teachers in junior primary, primary and secondary
schools, advanced skills teachers, key teachers, coordinators, assistant principals,
deputy principals, seniors and special seniors, principals, hourly paid instructors;
temporary relieving teachers (TRTs), aboriginal education workers (AEWs) and
school services officers (SSOs);
(2) in respect of preschools - teachers, casual relievers, directors and early
childhood workers (ECWs); and
(3) in respect of TAFE - lecturers' assistants, lecturers, advanced skills lecturers,
principal lecturers, educational managers, institute directors, hourly paid
instructors and invigilators.
[26] In South Australia there are about 628 government schools. In 1999 the
number of students enrolled in these schools was about 176,300. There has been
a decline in enrolments since 1990 of about 4.6% and since 1992 of about 6%. In
addition to the schools referred to above, there are some 311 preschools and 8
TAFE institutes, all of which institutes have more than one campus. The total
number of employees involved in the present claim was, in 1998; approximately
15,680 in schools, 800 in preschools and 1,740 in TAFEs (computed as full-time
equivalents).
Partnerships 21
[27] Recently, a system of local school management has been introduced in
South Australia. This system is called Partnerships 21 and was introduced
following a report from a working party chaired by Professor Ian Cox. The working
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party's report called "Community Partnerships and Education" is colloquially called
the "Cox Report".
[28] Partnerships 21 preserves the single government education system in South
Australia while devolving some power to schools and school communities. Within
the Partnerships 21 program, schools are able to make local decisions about the
allocation of resources within a policy, legislative and industrial framework.
[29] The underlying policy of Partnerships 21 is that schools be allowed to
become more closely associated with the communities they serve, more adaptive
to the needs of those communities and more flexible in adapting to the various
contingencies which arise in particular schools.
[30] A global budget is the means by which a Partnerships 21 school will be
provided with a level of resources which will enable it to have, if it chooses, the
same level and profile of staffing which it would have pursuant to the Staffing
Allocation Document (see paragraphs [36] to [44]) if it were a non-Partnerships 21
school and to meet the total anticipated reasonable costs of those goods, services
and utilities which it would have received or used if it were a non-Partnerships 21
school.
[31] Participation by a school in Partnerships 21 is voluntary. Each school makes
its own decision.
CURRENT REGULATION
Awards and agreements
[32] The employees the subject of this arbitration are subject to industrial
regulation by the following industrial instruments of the Industrial Relations
Commission of South Australia (IRCSA):
     schools:
           (a) Teachers (DETE) Award;
           (b) Aboriginal Education Workers Award;
           (c) School Services Officers (Government Schools) Award; and
           (d) 1996 DECS Enterprise Agreement (including variations)
     preschools:
           (a) Pre-school (Kindergarten) Teaching Staff Award;
           (b) Early Childhood Worker Award; and
           (c) 1996 DECS Enterprise Agreement (including variations)
     TAFE:
           (a) DETAFE (Educational Staff) Interim Award; and
           (b) 1996 Department for Employment, Training and Further Education
           Enterprise Agreement (1996 DETAFE Enterprise Agreement).
[33] The 1996 DECS Enterprise Agreement was approved in the IRCSA on 24
December 1996 to remain in force for the maximum period permitted by legislation
from 1 December 1996 (i.e. 24 months). Each of the AEU and CPSU are parties
to the agreement. The agreement was the subject of four variations. In addition,
various weekly paid employees and persons employed pursuant to the Public
Sector Management Act 1995 (SA) were the subject of that agreement. The
agreement did not cover TAFE employees who were the subject of the separate
1996 DETAFE Enterprise Agreement in respect of the same period (but unlike the
1996 DECS Enterprise Agreement, the 1996 DETAFE Enterprise Agreement was
not at any time certified by the AIRC.
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[34] Some of the employees the subject of this arbitration are also covered by the
1998 DECS Certified Agreement certified by the AIRC on 14 October 1998 (Print
Q7692). The application for certification arose out of an agreement between the
parties (excluding the CPSU) reached in December 1996 that would enable an
application by the AEU to the AIRC for certification of the 1996 DECS Enterprise
Agreement. The 1998 DECS Certified Agreement is in the same form as the 1996
DECS Enterprise Agreement but incorporated the four variations which had been
made to that agreement. All employees the subject of this arbitration are also
covered by the South Australian Education Staff (DETE) s.170MX Interim Award
1999 made by us, referred to in paragraph [4], which provided for a 4% increase
in salaries on and from 22 December 1999 and, in respect of conditions,
preservation of the "status quo for the duration of this case" (Print S1986,
paragraph [35]).
South Australian Legislation
[35] Employees in classifications the subject of this arbitration are employed by
the Crown in Right of the State of South Australia pursuant to the following State
legislation which also provides for regulation and administration of each of
schools, preschools and TAFE:
     Children's Services Act 1985 and Regulations;
     Education Act 1972 and Regulations; and
     Technical and Further Education Act 1975 and Regulations.
STAFFING ALLOCATION DOCUMENT
[36] In South Australia, schools are, at present, staffed pursuant to the Staffing
Allocation Document, the opening words of which (in the 1999 version) are:
          "The purpose of this document is to describe the process for determining
          the allocation of human resources to schools for 1999. All schools will be
          provided with a one page staffing allocation summary sheet by their
          Placement Officer and Personnel Consultant which provides details of the
          allocations for each category of their staffing allocation. Principals should
          carefully check the figures to ensure that they reflect their schools actual
          entitlement.
          Schools are provided with a total staffing allocation. Principals, after
          discussion with the PAC Admin Officer, will determine the configuration of
          classes and the allocation of duties to teachers and support staff within
          the school."
[37] The Staffing Allocation Document allocates human resources to schools by
means of a two tiered staffing process. Tier One provides teachers on the basis of
the notional class units needed together with the support structures which will
enable every school to operate effectively. Tier Two provides additional staffing
support for students with special needs and for special projects.
[38] The Staffing Allocation Document also allocates to schools leadership
positions (such as principals, deputy and assistant principals and coordinators/key
teachers) and, in certain cases, resources that may be applied to student
counselling functions.
[39] With respect to class sizes, DETE told us that:
(1) in relation to junior primary and primary schools, the formula provides an
allocation of teachers so that:
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          . no R - 2 class need be, on average, greater that 26;
          . no 3 - 7 class need be, on average, greater than 30;
(2) in relation to secondary schools, the formula provides an allocation of teachers
so that:
          . no 8 - 10 general class need be, on average, greater than 29;
          . no 11 - 12 general class need be, on average, greater than 26;
          . no 8 - 12 practical class need be, on average, greater than 18;
(3) in relation to area schools, the formula provides an allocation of teachers so
that:
          . no R - 2 class need be, on average, greater than 26;
          . no 3 - 7 class need be, on average, greater than 30;
          . no 8 - 10 general class need be, on average, greater than 29;
          . no 11 - 12 general class need be, on average, greater than 26;
          . no 8 - 12 practical class need be, on average, greater than 18.
[40] The Staffing Allocation Document provides an allocation of staff augmented
by a supplement so as to provide the school with teachers for normal classroom
teaching duties and additional time for non-instructional duties:
(1) in the case of primary schools, the basic teacher instruction time is divided by
0.905 to provide the school with teachers for normal classroom teaching duties
and additional teaching time for specific non-instructional duties;
(2) in relation to secondary schools, to determine the total basic teacher
allocation, the basic teacher instruction time is divided by 0.85 for years 8 - 11 and
0.83 for year 12. This provides the school with teachers for normal classroom
teaching duties and additional time for specific non-instructional duties;
(3) in the case of area schools, those same divisors are used for years R - 7, 8 -
11 and year 12 respectively.
[41] Preschools are staffed pursuant to a staffing allocation document called the
Preschools Staffing Formula.
[42] Clause 8.1 of the 1996 DECS Enterprise Agreement and the 1998 Certified
Agreement provides:
    "The parties agree to maintain for the life of this Agreement, and work within
    the 1996 formulae, as described in the document 1997 STAFFING
    ALLOCATION Updated July 1996, for the allocation of teachers, including non-
    instruction time.
          However, the leadership and administration entitlement described in this
          document will be subject to review as prescribed in Clause 9.2.14 of this
          Agreement.
          The parties agree to maintain for the life of this Agreement, and work
          within the 1996 formulae, for the allocation of ancillary time in schools,
          and for the allocation of pre-school staff."
[43] Aboriginal education workers are not covered by the Staffing Allocation
Document. AEWs are provided to schools pursuant to a formula applied by DETE
which regulates the number of AEWs by reference to the number of Aboriginal
students.
[44] The Staffing Allocation Document has its genesis in agreements dealing with
the allocation of staff resources to schools; namely the Curriculum Guarantee
Agreement of 1989 and the Memorandum of Understanding of 1993. These
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agreements each contained staffing allocation formulas and also dealt with policy
matters.
FLEXIBLE INITIATIVES RESOURCES (FIR)
[45] The 1996 DECS Enterprise Agreement and the 1998 DECS Certified
Agreement provide for the allocation of flexible initiatives resourcing. Clause
9.2.12 of each includes:
    "Flexible Initiatives Resourcing
          $18.0m will be allocated as part of the February staffing exercise for 1997
          and the 1998 school years for Flexible Initiatives Resourcing based on
          the `average' student enrolment in schools to be described in an
          addendum to the 1997 STAFFING ALLOCATION Updated July 1996, to
          be used flexibly to support the needs of individual schools and their
          cohort of students.
          In allocating this additional resource, schools are required to have regard
          to priorities as listed in DECS Priorities 1997 and 1998. Schools will be
          given maximum flexibility to meet individual school needs. This Flexible
          Initiatives Resourcing can be used for whole school development
          improvement programs, for release time for teachers, flexible class size
          configurations or ancillary support etc. Consistent with the DECS method
          of allocating staff to schools, this resource should be considered as part
          of the school's total staffing and not a specific allocation to individual
          teachers.
          As part of this initiative the parties are committed to implementation of
          increased flexibility in relation to the process of conversions available to
          schools.
          Schools will be given flexibility to meet individual school needs. The
          Personnel Advisory Committee will advise the Principal on the allocation
          of this Flexible Initiatives Resourcing within individual schools. The
          current accountability audit mechanisms will be expanded to include this
          aspect of resourcing."
[46] FIR is an additional resource allocation made to schools in South Australia in
1997 and which has continued to be provided in each subsequent year.
[47] In addition to FIR, some schools receive allocations from the total of a $10m
allocation for special education in the 1996 DECS Enterprise Agreement and in
the 1998 DECS Certified Agreement. DETE has continued these grants. Schools
also receive grants from a variety of specific funding allocations.
INTERSTATE COMPARISONS
[48] In this case, the AEU placed substantial reliance on salaries and conditions of
employment (particularly, workload provisions) applicable to teachers in States
other than South Australia and in the Territories pursuant to awards or
agreements operating in those places. This reliance, although always part of the
AEU's submissions, was given particular emphasis in its oral submissions in late
June 2000.
[49] There are, of course, 8 government education systems in Australia. Each has
its own industrial regulation by award, agreement or both. In some of the States,
the regulation is under industrial instruments made by this Commission, in others
by industrial instruments made by State tribunals and in other cases by a
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combination of the two. This situation is, in part, the result of the AEU seeking and
obtaining federal regulation in some States but not in others.
[50] One result of the present industrial regulation of teachers is that agreements
are reached or awards are made at different times and salary (and other)
adjustments vary from one State or Territory to another. The classification
structures in the various States and Territories, while broadly similar, are not
identical. Also, conditions of employment (including workload prescriptions, where
they exist) differ between the various States and Territories.
[51] In the Tasmanian Teachers Case, the Commission said, with respect to
information before it about teachers' salaries in States and Territories other than
Tasmania (p.16):
          "The information in these exhibits does not lead us to the view that we
          should fix the salaries of Tasmanian teachers at the same level as those
          in any other State or in either Territory. It does, however, assist us
          considerably in determining the salaries claim as it provides a broad
          picture of teachers salaries across Australia during the 1990s."
[52] Likewise, the information before us provides a similar broad picture, not only
as to salaries, but also as to conditions of employment, particularly, those relating
to workload. We have found this information of general assistance and have taken
it into account in reaching our decision.
[53] The AEU referred to "standards" established by awards or agreements with
respect to teachers' salaries in Australia. We do not agree that there are such
"standards". As we have said salaries and conditions vary from place to place and
move at different times in different places. From these salaries and conditions a
general picture emerges and, as we have said, we have found this general picture
of assistance.
THE ISSUES
[54] Each of the AEU, CPSU and DETE put before us a draft award. The issues
that arise from these draft awards are jurisdictional issues and merit issues.
Jurisdictional issues
[55] The jurisdictional issues, in brief, are whether any and, if so, which provisions
of the awards sought:
(1) are precluded by the implied constitutional limitation;
(2) are not matters at issue during the bargaining periods and, therefore, cannot
be the subject of the present arbitration;
(3) are not within the ambit of the unions' claims; and
(4) are not industrial matters.
Merit issues
[56] A list of merit issues was agreed by the parties. They, in brief, relate to:
(1) Duration of the s.170MX award;
(2) Quantum and operative date of salary increases;
(3) With respect to schools:
           Personnel Advisory Committees (PACs);
           workload for:
                (i) teachers;
                (ii) school services officers (SSOs);
                (iii) aboriginal education workers (AEWs);
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             
             temporary relieving teachers (TRTs);
             
             band 2 promotional positions (leadership classifications);
             
             advanced skills teachers 2 (AST2s);
             
             officers on secondment;
             
             SSOs - contract of employment;
(4) With respect to preschools:
          workload for:
                 (i) preschool teachers;
                 (ii) early childhood workers (ECWs);
          ECWs - casual employment;
          casual relievers;
(5) With respect to TAFE:
          hourly paid instructors (HPIs);
          institute directors;
          workload and annualised hours for TAFE officers;
          essential qualification requirements;
          lecturers' progression;
          lecturers' span of hours;
          lecturers' non-attendance days;
          lecturers' loss of non-attendance days;
          lecturer's assistants;
          advanced skills lecturers (ASLs);
          higher duties;
(6) General:
          country incentives;
          professional development;
          consultation;
          grievance procedures;
          board of reference;
          occupational health and safety (OHS);
          integrated sites;
         (h) cross-sector flexibility;
         (i) paid maternity, paternity and adoption leave;
         (j) family carer's leave;
         (k) relationship of s.170MX award with awards and agreements;
         (l) retrospective operation.
[57] In dealing with the issues, we have, in most cases, set out the clauses
claimed, an outline of the parties' submissions and our conclusions. The outline of
the parties' submissions is usually a much shortened version of the written
submissions before us. We have, however, tried to provide sufficient background
for the conclusions we express after these outlines. With respect to most issues,
we have, to varying degrees, found merit in each of the competing cases and our
conclusions have been reached after considering and weighing the respective
cases.




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THE IMPLIED CONSITITUTIONAL LIMITATION
[58] DETE submitted that it was beyond jurisdiction to grant a number of the
award clauses sought by the AEU because they infringed the implied limitation on
the legislative power of the Commonwealth in respect of the States.
[59] The implied limitation has been expounded and considered in a number of
cases, including Re Australian Education Union; Ex parte the State of Victoria
(1994-5) 184 CLR 188 (Re AEU), Victoria v The Commonwealth (1995-6) 187
CLR 416, Australian Education Union v Minister for Education for Victoria (1995)
61 IR 174 and Teachers (Victorian Government Schools) Conditions of
Employment Award, 1995 (1998) Print Q0116.
[60] In Re AEU the majority said (at p.232-3):
          "At this point it is convenient to consider South Australia's argument
          based on impairment of a State's `integrity' or `autonomy'. Although these
          concepts as applied to a State are by no means precise, they direct
          attention to aspects of a State's functions which are critical to its capacity
          to function as a government. It seems to us that critical to that capacity of
          a State is the government's right to determine the number and identity of
          the persons whom it wishes to employ, the term of appointment of such
          persons and, as well, the number and identity of the persons whom it
          wishes to dismiss with or without notice from its employment on
          redundancy grounds. An impairment of a State's rights in these respects
          would, in our view, constitute an infringement of the implied limitation. On
          this view, the prescription by a federal award of minimum wages and
          working conditions would not infringe the implied limitation, at least if it
          takes appropriate account of any special functions or responsibilities
          which attach to the employees in question. There may be a question, in
          some areas of employment, whether an award regulating promotion and
          transfer would amount to an infringement. That is a question which need
          not be considered. As with other provisions in a comprehensive award,
          the answer would turn on matters of degree, including the character and
          responsibilities of the employee."
And, at p.233:
          "However, the rejection of the arguments put forward by the prosecutor
          and the intervening States - arguments which would have given the
          implied limitation a wide-ranging operation - means that the Commission
          has power to make awards binding the States and their agencies in
          relation to minimum wages and working conditions which take account of
          the special functions and responsibilities, if any, of a broad range of
          public servants and employees."
[61] DETE submitted that a number of clauses of the AEU's proposed award
would infringe the implied limitation. The AEU disputed that any award provision
sought by it was beyond our jurisdiction to award because of the implied limitation.
The AEU made the general submission that it was apparent from Re AEU that the
High Court saw no difficulty in federal awards regulating the wages and working
conditions of State employees provided the capacity of the State was not infringed
to exercise its right to determine the following matters:
    the number and identity of the persons whom the State wishes to employ;
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      the term of appointment of each person; and
      the number and identity of the persons it wishes to dismiss from its
       employment on redundancy grounds.
[62] Provisions regulating the terms and conditions of employees between
engagement and any termination on the grounds of redundancy can, the AEU
argued, be the subject of federal award prescription.
[63] Because of the conclusions to which we have come as to the merits of a
number of clauses submitted by DETE to be excluded by the implied constitutional
limitation, we need to deal with the limitation only in respect of AEU proposed
clauses 16.2, 16.5 and 16.6 (relating to school teacher contact time), 24.2, 24.4
and 24.5 (relating to preschool teacher contact time), 20 (relating to advanced
skills teachers 2) and 15A.1.1(b) (relationship of the s.170MX award to the
teacher placement process referred to in clause 8.2 of the 1998 DECS Certified
Agreement).
AEU proposed clauses 16.2, 16.5 and 16.6
(set out in paragraph [194])
[64] DETE submitted that:
(1) these clauses would, if inserted into the s.170MX award, limit the number of
hours of contact (teaching) time which may be required of a teacher each week;
(2) by the enactment of the Education Act, 1972, the South Australian Parliament
has vested the responsibility for the provision of public education in the State to
the Minister of Education who is required to "establish and maintain such
Government schools as may be necessary" and may appoint "officers to be
officers of the teaching service";
(3) in South Australia it is compulsory for school aged children to attend primary
and secondary school: section 75 of the Education Act, 1972;
(4) a law of the Commonwealth cannot direct a State to employ a minimum
number of teachers;
(5) while the prescriptions proposed by the AEU do not directly prescribe the
number of teachers who must be employed, they do indirectly impair the right of
the State to determine the number of teachers which it wishes to employ;
(6) a law limiting the weekly contact time has the effect that the State employ a
minimum number of teachers in order to provide the appropriate amount of
instruction time; and
(7) when taken as a whole the clauses offend the implied constitutional limitation.
Although the effect is an indirect effect, there is, nonetheless, an impairment of the
State's rights in breach of the implied limitation.
[65] The AEU submitted that:
(1) the contact time or lesson load of a teacher is an important determinant of a
teacher's workload;
(2) if DETE's submission is correct, all clauses in awards dealing with employees
of the State which limit the extent of work which may be required from any
employee in a given period are invalid. An obvious example of such prescription is
an hours of work clause limiting a working week to say 38 hours;
(3) every award provision which limits the extent of work required by employees of
a State may indirectly impact upon the number of employees required by that
State;
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(4) DETE's submission asserts that, all other things being equal, the grant of the
prescription sought would result in more employees being employed. This is not
necessarily so. However, even if it were so, every grant of an award prescription
which imposes a financial burden upon the State has the same capacity as the
AEU's proposal to indirectly affect the number of employees employed;
(5) the High Court's indication in Re AEU that the prescription by a federal award
of minimum wages and working conditions would not infringe the implied
limitation, must surely extend to fundamental terms and conditions such as salary
and the extent of work which can be required of an employee for the remuneration
paid;
(6) DETE's argument is not focused on the laws in question, that is the award
prescriptions sought, but instead is focused upon the consequence on DETE's
operations of the grant of the prescriptions;
(7) there is no obligation under the Constitution or elsewhere which requires any
State to provide any government schooling at all. Whether a State does is a
matter of choice not obligation. In fact, and contrary to the suggestion in DETE's
submissions, the Parliament of South Australia has not by the Education Act 1972
chosen to impose upon the South Australian government any such obligation; and
(8) if the Commission makes prescriptions which limit the extent of work which is
currently provided by teachers, that may or may not have an impact upon the
number of teachers employed by the State of South Australia. It may be that more
teachers will need to be employed. It may be that no new teachers are engaged
because the instructional time provided to students is reduced or because the
range of curriculum offerings are reduced or schools are closed or amalgamated.
[66] Clauses 16.2, 16.5 and 16.6 prescribe contact times and make detailed
provisions in relation to them. They are intended to limit by reference to contact
time the amount of work that a teacher may be required to perform. In our view,
the submissions of the AEU, with respect to clauses 16.2, 16.5 and 16.6 are
correct. Accordingly, these proposed clauses do not, in our opinion, infringe the
implied limitation.
AEU proposed clauses 24.2, 24.4 and 24.5
(set out in paragraph [471])
[67] DETE, adopted with respect to these clauses its submissions with respect to
the corresponding provisions in clause 16.
[68] The AEU, in turn, adopted its submissions with respect to the corresponding
provisions in clause 16.
[69] The conclusion to which we have come is that clauses 24.2, 24.4 and 24.5
are not relevantly distinguishable from clauses 16.2, 16.5 and 16.6 which we have
held do not infringe the implied limitation. Accordingly, it is our view that clauses
24.2, 24.4 and 24.5 do not infringe the limitation.
AEU proposed clause 20
(set out in paragraph [409])
[70] DETE submitted that AEU proposed clause 20 would infringe the implied
constitutional limitation. The basis for this submission was that the clause may
operate to constrain DETE in determining whom, if anyone, it wishes to employ as
an AST2 and the qualifications of persons whom it may wish to appoint as AST2s.

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[71] We reject DETE's submission. The classifications of AST1, AST2 and AST3
are in the Teachers (DETE) Award and the award specifies who is entitled to be
paid at the level of AST1, but makes no provision with regard to AST2 or AST3.
The AEU seeks to prescribe who is entitled to be paid at the level of AST2. The
procedures and criteria are required by the AEU clause to be agreed between the
Chief Executive of DETE and the AEU. In these circumstances, DETE's
submission that the AEU's clause 20 infringes the implied limitation appears to us
to be without foundation.
AEU proposed clause 15A.1.1(b)
(set out in paragraph [940])
[72] Clause 15A.1.1(b) of the AEU's draft award provides that the s.170MX award
is to take up and incorporate clause 8.2 of the 1998 DECS Certified Agreement,
so far as that clause refers to the teacher placement process. Clause 8.2 of the
1998 agreement provides that the parties are committed to the continuation of
"[t]he placement of teachers in schools or positions according to the agreed
guidelines referred to in Schedule 2 attached to this agreement". Schedule 2 is
called "Country Incentives and Teacher Placement Process" and prescribes,
among other things, that "Teachers shall be placed in schools or positions
according to the document entitled TEACHER PLACEMENT PROCESS
POLICIES AND PROCEDURES and SCHOOL CHOICE PLACEMENT
GUIDELINES". The documents are now contained in a single document (the "TPP
Document").
[73] DETE submitted that the TPP Document would infringe the implied
constitutional limitation, firstly, by impairing the right of South Australia to
determine for itself the composition of its workforce; in particular to determine for
itself the identity of applicants to fill school choice vacancies.
[74] Secondly, because the TPP Document imposes obligations or bestows
functions on specified groups or classifications (for example, "The Placement
Unit" and the "Assistant Director, Staffing") it would impair the right of the State to
determine for itself the composition of its administrative staff and would require the
State to employ a person in each of the specified classifications.
[75] The AEU submitted that whether or not the transfer of teachers by way of
promotion or otherwise infringed the implied constitutional limitation was dealt with
by a Full Bench in Teachers (Victorian Government Schools) Conditions of
Employment Award, 1995 and the Full Bench held that it did not. This conclusion
emphasises that the implied constitutional immunity operates on provisions
directed to the decision to employ, rather than on provisions directed to the terms
and conditions of employment of persons already in the employment of the State.
[76] In our view, AEU proposed clause 15A.1.1(b) does not infringe the implied
limitation. In Teachers (Victorian Government Schools) Conditions of Employment
Award, 1995, relied on by the AEU, the Full Bench said (p.13):
    "In applying the implied limitation, we consider it appropriate to adopt an
    industrially pragmatic view of what lies within, and what lies outside, the
    concept of State's right to determine for itself the number and identity of the
    persons whom it wishes to employ. In our view the erection of an award duty to
    observe a particular process when promoting or transferring persons already

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    employed in a professional service is not an impairment of a State's right to
    determine the number and identity of those whom it wishes to employ."
We think that this passage is applicable to the TPP Document. As to DETE's
argument grounded on the circumstance that the TPP Document specifies groups
and classifications, we take the view that, where such a group or classification is
specified, the obligation or function is ultimately placed or conferred on DETE
itself. So understood, the Document does not require the State to employ persons
in the positions specified in it.
MATTERS AT ISSUE DURING THE BARGAINING PERIODS
[77] DETE submitted that a number of matters the subject of the AEU's s.170MX
award claim were not "matters that were at issue during the bargaining period"
and, accordingly, we lacked power to provide for them in the award we made. The
AEU in turn submitted that a number of the provisions sought by DETE were not
such matters.
[78] In support of its submission, DETE put:
     the Commission does not arbitrate at large in a s.170MX arbitration; Curragh
        Queensland Mining Limited (1998) Print Q4464 and Australian Workers Union
        v P & O (1999) Print R2643;
(2) in a s.170MX arbitration the Commission may exercise its arbitration powers
only to make an award that deals with "the matters that were at issue during the
bargaining period";
(3) the concept of "matters at issue" during the bargaining period is a critical
concept for the purpose of Part VIB of the Act because it marks out the scope of
the matters over which the Commission may arbitrate in a s.170MX arbitration
(s.170MX(3)) and it defines a limitation of the matters upon which the Commission
may arbitrate under Part VI during the bargaining period (s.170N);
(4) the matters at issue during the bargaining period should be identified with
reasonable specificity. The Act evinces an intention that this is the case. Firstly,
s.170MJ(c) provides that the notice of initiating a bargaining period pursuant to
s.170MA should be accompanied by particulars of "the matters that the initiating
party proposes should be dealt with by the agreement". Secondly, the role of the
concept of "matters at issue" in defining the limit of the Commission's jurisdiction
in various respects suggests reasonable specificity is required;
(5) the question of whether a matter was an issue during the bargaining period will
be determined primarily by reference to the documents which the parties
exchanged during the period. The notice of initiation of bargaining period will be a
primary document. It is, however, not the only relevant document. In the present
case, the forms of certified agreement exchanged between the parties may also
be a source of identifying the matters at issue. Questions of degree are likely to be
involved. Some matters will have been identified more clearly than others; and
(6) DETE accepts that, once the Commission is satisfied that a matter was at
issue during the bargaining period, it may insert an award provision which is
"relevant" or "reasonably incidental" or "appropriate" (Wooldumpers Case (1989)
166 CLR 311 per Mason CJ at 317-319).
[79] The AEU submitted that:
(1) it accepted that the principal focus of the Commission in a s.170MX arbitration
is to resolve the matters at issue during the bargaining period;
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(2) it is clear that the Commission may exercise its arbitral power to deal with the
matters at issue during the bargaining period. The term "the matters" is not
defined. However it is not synonymous with "the prescriptions". DETE seeks to
read the relevant legislative provisions as though "the prescriptions" replaced the
term "the matters" wherever appearing. DETE's approach is flawed both as a
matter of language and in terms of the underlying policy and intent of the
provisions in question. If adopted, DETE's approach would cast common sense
aside and lead to the most absurd and bizarre results;
(3) the obvious meaning intended for the phrase "the matters that were at issue
during the bargaining period" is the subject matters, topics or issues that were
raised in the negotiations about which a party or parties desired to negotiate and
reach agreement (see Re Coal Mining Industry (1997) 73 IR 1);
(4) the legislative provisions in question intend that the scope of negotiations
between the parties is initially defined by the notice of initiation of a bargaining
period and thereafter by any additional issues which are raised in the course of
negotiations. The provisions do not intend to confine the Commission's arbitral
task to dealing only with detailed industrial prescriptions exchanged between the
parties during the negotiations. Such an interpretation would lead to manifestly
absurd results;
(5) on the approach taken by DETE, unless the negotiating parties have
formulated and forwarded with the notice of initiation of bargaining period the
specific prescriptions they seek should the negotiations fail and ultimately proceed
to arbitration, they would be at risk of having their negotiations terminated but
without the capacity for an arbitration of the issues they wish to negotiate about;
and
(6) if DETE's submissions are accepted, it would follow that most of the
prescriptions sought in the DETE draft award are not to be arbitrated.
[80] Because of the conclusions to which we have come as to the merits of a
number of clauses submitted by DETE not to be matters at issue during the
bargaining period, we need to deal with the matter only in respect of AEU
proposed clauses 16.2, 16.5 and 16.6 (relating to school teacher contact time)
24.2, 24.4 and 24.5 (relating to preschool teacher contact time) and clause
15A.1.1(b) (relationship of the s.170MX award to the teacher placement process
referred to in clause 8.2 of the 1998 DECS Certified Agreement).
AEU proposed clauses 16.2, 16.5 and 16.6
(set out in paragraph [194])
[81] DETE submitted that:
(1) the essence of these claims is the fixing of a maximum contact time per week
bargaining period make such a claim. In general, it can be seen, that with
relatively few exceptions, the AEU did not seek fixed prescriptions with respect to
contact time or class size at all in the bargaining period. Although it did raise a
matter of "workload", this was in the context of seeking an allocation of
"resources" to a school;
(2) in relation to the claims for contact time and class size prescriptions, regard is
had to the notice of initiation of bargaining period. Under the Workload/New
Initiatives section in relation to schools, the AEU listed 13 matters. None of the
matters sought a specification of contact time in schools. The general character of
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the 13 matters sought was that of resourcing. The AEU was not seeking
provisions with respect to the entitlements of individual teachers, SSOs or AEWs.
This is in contrast to the Workload/New Initiatives sections relating to each of the
preschools and TAFE sectors;
(3) where the AEU sought a prescription with respect to class size, or contact
time, it specified that. In the case of the school sector, it did not seek agreement
on such prescriptions. It sought something else, namely, an allocation of
resources; and
(4) that position is confirmed by a consideration of the proposed form of certified
agreement put forward by the AEU on 7 December 1998. Whilst in that
agreement, the AEU sought "an urgent review" with a view to determination of
"upper limits to class sizes" and "a prescribed weekly teaching load of 22 hours
maximum" in relation to TAFE employees, it did not seek any class size or contact
time prescription for individual teachers in the school or preschool sectors. Thus
the claim made by the AEU in clauses 16.2, 16.5 and 16.6 was not a matter at
issue during the bargaining period.
[82] In response, the AEU relied on its earlier submissions and further submitted
that:
(1) section 2 of the AEU's notice of initiation of bargaining shows that the AEU
raised for negotiation the subject matter of workload in an extensive way. There is
evidence that the issue of workload was discussed frequently during the
negotiations and that different approaches have been taken to dealing with
workload claims as between negotiations and arbitration; and
(2) each of the clauses identified by DETE is relevant to the claim made that the
workload of education workers should be reduced. They are all at least
reasonably incidental to those workload concerns and have a natural tendency to
dispose of those concerns.
[83] In our opinion, DETE's submission that AEU proposed clauses 16.2, 16.5 and
16.6 are with respect to matters that were not at issue during the bargaining
period should be rejected. The argument between DETE and the AEU goes
essentially to the degree of specificity required to categorise a matter as at issue,
or not at issue, during a bargaining period. We accept that the specific claim
advanced by the AEU in the arbitration was not so formulated during the
negotiations. However, the material before us establishes that workload was a
matter at issue during the bargaining period. The AEU's proposed clauses 16.2,
16.5 and 16.6 are aspects of workload and, as such, were matters at issue during
the bargaining period.
AEU proposed clauses 24.2, 24.4 and 24.5
(set out in paragraph [471])
[84] DETE made the same submission with respect to clauses 24.2, 24.4 and
24.5 (which relate to preschool teacher contact time) as it made in relation to the
proposed teacher contact time clauses and the AEU relied on its earlier
submissions.
[85] In our opinion, the conclusions we have reached in relation to clauses 16.2,
16.5 and 16.6 are applicable also to clauses 24.2, 24.4 and 24.5.
AEU proposed clause 15A.1.1(b)
(set out in paragraph [938])
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[86] DETE submitted that in the negotiations each of DETE and the AEU
proposed that their agreements would replace the 1996 agreement but that
neither party proposed that the terms of the 1996 agreement be "taken up and
incorporated" in their certified agreement.
[87] The AEU submitted this clause deals with the maintenance of existing
conditions and how the award is to be read and interpreted in relation to those
conditions. To suggest that this matter was not raised in the negotiations is to
misunderstand the nature of industrial negotiations. These negotiations as do all
negotiations focused upon variations sought to existing conditions but on the
premise that the status quo would otherwise continue. Even if not expressly
raised, that premise was to be implied from the content of the matters that were
expressly raised.
[88] In our view, AEU proposed clause 15A.1.1(b) was a matter at issue during
the bargaining period. The negotiations took as their starting point the 1996
agreements. That their was no specific claim that terms of these agreements be
"taken up and incorporated" in a new agreement ignores the reality of a
negotiation where changes are sought in some, but not all, of the existing
prescriptions.
DETE proposed clauses
[89] We add that the AEU submitted that certain clauses proposed by DETE were
not matters at issue during the bargaining period and, accordingly, were beyond
our power to grant. One relates to TAFE lecturers' assistants and another to TAFE
span of hours. Having regard to the conclusions we have come to as to the merits
of these claims, we do not need to consider these jurisdictional arguments.
[90] We do, however, need to consider the AEU's argument that DETE's claim
that the s.170MX award should exclude clause 8.1 of the 1996 DECS Enterprise
Agreement and of the 1998 DECS Certified Agreement was not a matter at issue
during the bargaining period. (Clause 8.1 is set out in paragraph [42].) The AEU's
argument is, we think, similar to DETE's submission that the AEU's proposed
clauses 16.2, 16.5 and 16.6 were not matters at issue during the bargaining
period. The arguments both turn on the degree of specificity with which a claim
has to be made before it can be said to be a matter at issue during the bargaining
period. In paragraph [83] we rejected DETE's argument. For similar reasons, we
reject the AEU's argument. In doing so, we find that workload and the relationship
between whatever instrument was finally made and the existing agreements were
both matters at issue during the bargaining period.
AMBIT OF UNIONS' CLAIMS
[91] DETE submitted that, although the original log of claims of the AEU contains
a clause relating to professional development, it is not wide enough to provide
ambit for the clause 12.12 sought by the AEU. As will be seen, we reject the
AEU's proposed clause 12. Accordingly, there is no need to deal with DETE's
ambit argument.
INDUSTRIAL MATTERS
[92] DETE submitted that the content of the s.170MX award we make must be an
industrial matter; that is, it must relate to the relationship of employer and
employee. In support of this submission it referred to the judgment of the High
Court in Manufacturing Grocers (1986) 160 CLR 341; Federated Clerks Union and
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Victorian Employers Federation (1984) 154 CLR 472 and R v Portus; Ex parte
Australia and New Zealand Bank (1972) 127 CLR 353. DETE specified a number
of clauses sought by the AEU which, DETE submitted, were not industrial matters.
[93] The AEU took no issue with DETE's general proposition that we could award
only provisions that were industrial matters. It, however, disputed that the clauses
specified by DETE were not industrial matters.
[94] Because of the conclusions to which we have come as to the merits of a
number of clauses submitted by DETE not to be industrial matters, we need to
deal with the industrial matter point only in respect of clauses 16.6 (relating to
school teacher contact time) and 24.5 (relating to preschool teacher contact time).
[95] Clauses 16.6 and 24.5 (set out in paragraphs [194] and [471] respectively)
can be dealt with together. In our opinion, the claims in these clauses are
industrial matters. They concern the relationship of employer and employee in
seeking to limit the amount of work that the employer can require of the employee.
DURATION OF THE s.170MX AWARD
The agreed issue
[96] The issue is the duration of the award:
(1) as proposed by DETE to commence from the first pay period on or after the
date made and with a nominal expiry date of 31 March 2002 (DETE clauses 3.1
and 3.2);
(2) as proposed by the AEU/CPSU to commence 1 January 1999 with a nominal
expiry date of 1 September 2000 (AEU/CPSU clauses 4.1 and 4.2).
[97] Although this is the first issue in the agreed list of issues, it is convenient to
deal with it at the end with the last agreed issue, that is, the issue of retrospective
operation.
QUANTUM AND OPERATIVE DATE OF SALARY INCREASES
The agreed issues
[98] The issues are the quantum and operative dates of salary increases:
(1) should the increases and operative dates be as proposed by DETE (clause
26);
(2) should the increases and operative dates be as proposed by AEU/CPSU
(clause 8.2)?
AEU/CPSU claim
[99] Proposed clause 8:
                                     "8 - SALARIES
         8.1 The increases provided for in this award are calculated on the base
         rates which existed at 1 December 1998 for the employees'
         classifications specified in the Department for Education and Children's
         Services Enterprise Agreement 1996 and the Department for
         Employment Training and Further Education Enterprise Agreement 1996.
         8.2 The following percentage increases are calculated on the base rate:
Date of Operation                   % increase                     % on base rate

1 January 1999                             9.15%                 9.15%
1 July 1999                                2.5%                  11.65%
31 December 1999                           2.5%                  14.15%

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         8.3 The employer shall pay to the employees in the classifications listed
         the salaries set out in Schedules 1(a) - 1(f)."
(We do not set out the schedules referred to in clause 8.3.)
[100] (The AEU also seeks additional increases for hourly paid instructors (HPIs)
(TAFE), institute directors (TAFE) and seconded officers (schools). We deal with
these claims in the sections of this decision headed "TAFE - Hourly Paid
Instructors", "TAFE - Institute Directors" and "Schools - Officers on Secondment".
The present section of the decision deals only with the general percentage
increase claims.)
DETE claim
[101] Proposed clause 26:
         "26. SALARY AND WAGES: GENERAL
         26.1 The salaries payable to employees pursuant to this Award are
         determined by reference to the value of productivity and workplace
         efficiency improvements since 1 December 1998 and during the period of
         this Award averaged across each of the pre-school, school and TAFE
         sectors, shared as between employees on the one part and the employer
         on the other part.
         26.2 Any increase will be such amount as is determined by the Australian
         Industrial Relations Commission (AIRC) but not be more than 13% over
         the life of this Award (inclusive of the 4% interim award increase granted
         on 22 December 1999) payable as follows:
                26.2.1 such amount as is determined by the AIRC but in any event
                not exceeding a 2% increase on and from the first pay period after
                the making of this Award;
                26.2.2 such amount as is determined by the AIRC but in any event
                not exceeding a 4% increase on and from the first pay period after
                22 December 2000; and
                26.2.3 such amount as is determined by the AIRC but in any event
                not exceeding a 3% increase on and from the first pay period
                occurring after 21 December 2001.
             26.3 Each of the percentage increases referred to in this clause shall
             be calculated by reference to the salary schedules applicable to
             employees as at 1 December 1998.
             26.4 The rates of pay provided for in this Award are inclusive of all
             previously awarded safety net adjustments and all future increases
             during the term of this Award, arising out of National Wage Case
             decisions, including safety net adjustments, living wage adjustments or
             general increases, howsoever described.
             26.5 The salary and wage increases recognise all past productivity
             and efficiency improvements and those introduced or implemented,
             including local management policies or programs, during the period of
             this Award.
             26.6 These salary and wage increases are contingent upon
             implementation of workplace improvements referred to in this Award
             and adherence to commitments made in this Award."

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Agreed matters
[102] The parties agree that:
(1) there be uniform increases for all sectors (that is, schools, preschools and
TAFE); and
(2) percentage increases be calculated by reference to the salaries which applied
at 1 December 1998 (the base salary).
AEU submissions
[103] The Commission's task is to set fair payment for the work. It should award
the increases claimed; that is, a total increase of 14.15% on the 1 December 1998
base salary from the times specified in the AEU's application.
[104] A review and analysis of s.170MX cases demonstrates that the dominant
considerations are:
(1) the market or going rate as evidenced by other agreements struck in
comparable workplaces, industry sectors or industries;
(2) the customary basis for wage fixation in the area of work concerned, including
any historical relationships with rates for other employees; and
(3) changes in work, skills and responsibilities and productivity and efficiency
increases.
[105] The decisions also demonstrate a tendency to provide for a short duration
and a retrospective operative date.
[106] The evidence demonstrates that, at least until 1984, the salaries of South
Australian teachers were fixed primarily by reference to interstate comparisons
based on the top of the incremental scale of each State or Territory. (This is the
most appropriate point at which to make comparisons.)
[107] The traditional acceptance by the industrial parties in South Australia that
the rate of increase for all teaching staff should be based upon interstate
comparisons of pay for teachers at the top of the incremental scale is borne out by
statements made to industrial tribunals.
[108] The measurement of increased productivity is difficult if not impossible and
has not been a basis by which salaries have been either fixed or agreed.
[109] There has traditionally been a nexus between the teacher rate at the top of
the base scale and other key salaries in both preschools and TAFE.
[110] Decisions of the AIRC and a number of State Industrial Tribunals
recognised and implemented the concept of salary benchmarking as appropriate
to school teachers regardless of the State or Territory in which their work was
performed.
[111] The work of teachers in one part of Australia is in no substantial way
different from that in any other part.
[112] Changes in the work of teachers due to system and professional
requirements have occurred in all States and Territories, including South
Australia. Whether by way of enterprise agreement, award variation or above-
award payments, other government and non-government school employers in
Australia are recognising the increased value of the work of the teachers they
employ in the salaries they are paying or are prepared to pay in agreements,
awards made by consent or in above-award payments.
[113] South Australian teachers began the last decade at or about the top relative
to interstate salaries. Relative to interstate salaries, South Australian salaries
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stagnated between about the end of 1992 until December 1996. With the
agreements reached in 1996, South Australian rates fell into the middle of the
pack but for only a fleeting moment. Thereafter all movements have been
confined to those provided by the 1996 Agreement.
[114] The rates paid in the non-government sector are relevant in determining the
market rate for school teachers.
[115] The evidence demonstrates that the increases in salary sought by education
workers are more than justified by their efforts. Highly significant and fundamental
changes have been made in the education industry which have increased skill,
responsibilities and workload.
[116] Neither the Full Bench in the Victorian Teachers Workload Case, nor the
Commission in any of the s.170MX decisions to which reference has been made,
has adopted any strict test or taken a technical approach to assessing the nature
and extent of changed skills, responsibilities and work.
[117] It is in the nature of change and, in particular, in the nature of change in the
education industry, that new initiatives tend to impact incrementally on the work of
education workers. The fact that an initiative occurred some time ago, even where
it has been taken account of by either an industrial tribunal or the parties in earlier
decisions or agreements, does not mean that incremental change experienced in
the years leading up to the current evaluation is not to be counted.
[118] Despite DETE's submissions to the contrary, the AEU is not estopped or
otherwise prevented by clauses 7.3/7.4 of the 1996 DECS Enterprise Agreement
and the 1998 DECS Certified Agreement or clauses 12.3/12.4 of the 1996
DETAFE Enterprise Agreement from relying on productivity and efficiency
improvements during the life of these agreements.
[119] The Commission is not inhibited in any way from taking account of the
salary increases paid since December 1996 and also taking into account the full
extent of productivity and efficiency improvements achieved since that time.
[120] The productivity and efficiency of teachers has significantly increased over
the last 10 years. This increase has been incremental and has been particularly
significant in the last 3 to 4 years.
[121] Changes of significance over the last 3 to 4 years for teachers include
changes associated with:
(1) curriculum statements and profiles;
(2) the South Australian Certificate of Education (SACE);
(3) middle schooling;
(4) introduction of Languages other than English (LOTE);
(5) the basic skills test;
(6) vocational education and training (VET);
(7) curriculum matters;
(8) students with disabilities;
(9) assessment and reporting practices;
(10) behaviour management;
(11) devolution of administration;
(12) involvement in committees and panels, including Personnel Advisory
Committees;
(13) accountability and quality assurance;
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(14) occupational health, safety and welfare;
(15) the shorter school year introduced in 1999;
(16) student welfare and the impact of societal changes;
(17) technological change;
(18) Partnerships 21;
(19) new curriculum framework; and
(20) budgetary restrictions.
[122] Evidence indicates an emerging teacher shortage crisis.
[123] There have been substantial increases in the productivity of schools
services officers (SSOs) over the last 10 years. Clause 9.2 of the 1996 DECS
Enterprise Agreement committed the parties to working together to achieve
changes; for instance, in relation to:
(1) performance standards in relation to occupational health and safety;
(2) workplace reform;
(3) the implementation of EDSAS (a computer system) and accrual accounting;
and
(4) assisting with the implementation of flexible initiatives resources funds.
[124] Change and increased productivity of SSOs has occurred in the following
areas:
(1) assisting students with disabilities and providing special support;
(2) responding to increased parental and community expectations;
(3) accommodating the increased work and stress arising out of escalating
behaviour management incidents and vexatious parents; and
(4) accommodating the pressures of increased technological change in both the
administration area and in classroom support work.
[125] The scope and extent of the role of the Aboriginal education worker (AEW),
the level of skills required and the expectations of both DETE and the community
have expanded significantly over the last 10 years.
[126] Over the last 5 years the role and skills of the AEW have been developed in
the context of DETE's plans for enhancing the delivery of Aboriginal education.
The latest plan is DETE's 1999-2003 "Plan for Aboriginal Education". The critical
role the AEW has played in promoting effective Aboriginal community participation
in educational decision making will become even more significant due to the
dictates of the plan.
[127] The average preschool comprises only 3 employees. The fact that
preschools operate in this way is conducive to an accommodation of change and
an increase in productivity and efficiency despite what the AEU says are now
unreasonable and excessive workload demands placed upon employees.
[128] The changes to the preschool staffing allocation procedures have been
accompanied by numerous system driven initiatives which have demanded
increased skills and output from all preschool employees.
[129] The totality of evidence details the dramatic changes that have taken place
within TAFE institutes in South Australia in recent years. The changes continue to
have a substantial and ever-increasing impact on the working conditions of TAFE
lecturers and other educational staff. TAFE institutes have demonstrated
indisputably significant levels of increased productivity in the past 4 years.

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[130] Changes in the work of TAFE staff and the increased productivity
attributable to their efforts include changes with respect to:
(1) systemic change and the workload of educational staff;
(2) the creation of a national vocational education training (VET) system that is
based on national competencies and standards;
(3) the development of a national training market within the national VET system;
(4) the increasing emphasis on the training needs and requirements of the
individual enterprise client;
(5) the constant reduction in the funds provided to TAFE institutes by the South
Australian and the Commonwealth Governments as a percentage of institutes'
total budgets;
(6) quality assurance in TAFE institutes;
(7) the increasing articulation of courses and programs offered by secondary
schools and TAFE institutes;
(8) flexible delivery and the introduction of training packages;
(9) increasing devolution of responsibility and accountability from central office to
the local institute and program level;
(10) increased teaching loads; and
(11) institute amalgamation.
[131] As to operative date:
(1) the Commission can be well satisfied on the evidence that by reason of
changed work arrangements and increased skills and responsibilities the
employees concerned are deserving of a significant wage increase. The timing
and extent of that increase can and should be determined by reference to the
market or going rate;
(2) from 1 December 1996 (the commencement date for the last set of
agreements) to 3 April 2000, the difference in income between the South
Australian top of the base scale teacher salary and the per teacher national
average was $6,941. Since the termination of the bargaining period and through
to 1 March 2000, the shortfall was $3,164. (All calculations take into account the
4% interim increase);
(3) most s.170MX decisions have provided for an operative date for salary
increases which has taken into account and redressed accrued salary
disadvantage;
(4) the matters at issue between the parties in the negotiations were not simply
confined to addressing current and future salaries. A matter squarely in issue in
the negotiations was the unresolved rate of increase for the last instalment due
under the 1996 DECS Enterprise Agreement;
(5) the parties struck a starting rate for the 1996 Agreement consistent with the
national average rate. If the parties had intended to provide for increases
thereafter which kept pace with the national average rate one can see with
hindsight that they failed to achieve that. The final instalment did however give the
parties the opportunity to address any shortfall;
(6) the Commission has the benefit of hindsight and also extensive and accurate
information by which it can now assess what would have been a reasonable rate
of increase for the 1 December 1998 instalment;

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(7) the very great danger for South Australian education workers is that, in fixing a
rate and also the term of the award, no proper account is taken of where the
market is moving to; and
(8) South Australian education workers have lagged far behind the vast majority of
their interstate colleagues since about 1993.
CPSU submissions
[132] The CPSU adopted the AEU's submissions.
[133] Equity and the merits justify any payments made at earlier operative dates
to be of a much larger quantum (i.e. in the order of at least 8%). This is justified
because:
(1) other than the interim award payment these workers have not received an
increase since 1 December 1998. The increase on that date was 1%; and
(2) there have been inordinate delays in the finalisation of the bargaining period
due to the processing of this lengthy arbitration and the exhaustive negotiations
that occurred.
[134] The vast increase in productivity brought about by SSOs justifies the claims
in respect of those workers. More particularly:
(1) the implementation of the EDSAS administration package;
(2) the implementation of the EDSAS finance package;
(3) Partnerships 21 will make budgeting more complex and will increase the
amount and complexity of financial reporting at schools; and
(4) the implementation and accommodation by SSOs of changes to financial
reporting due to the commencement of the Goods and Services Tax.
DETE submissions
[135] DETE proposes a salary increase not exceeding 13% (inclusive of the 4%
interim increase of 22 December 1999) to be paid from the times specified in
DETE's proposed clause 26.
[136] The principal salary positions of DETE and the AEU during the bargaining
period are contained in the respective forms of certified agreement proposed by
each during the bargaining period. DETE put forward two forms of proposed
certified agreement and the AEU one. The salary proposals of each of DETE and
the AEU as contained in those proposed certified agreements are summarised in
the following table:
                          Comparison of Salary Proposals
                  DETE and AEU in Proposed Certified Agreements
       DETE 23/10/98                AEU 7/12/98                 DETE 11/2/99
                       $                           $                            $
                              2/12/98    3%      47185
    4/99      4% 47643                                    19/4/99 4%         47643
                               1/7/99    2%      48102
    12/99     2% 48560 1/12/99           2%      49018 24/12/9 2%            48560
                                                              9
                               1/7/00    2%      49934
    12/00     4% 50392 1/12/00           1%      50392 22/12/0 4%            50392
                                                              0

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    12/01         3%        51766                                21/12/0 3%    51766
                                                                    1
   Total:        13%                       Total:   10%           Total: 13%

[137] Each of the proposals provided a total salary increase of 10% by December
2000. Each of DETE and the AEU proposed that the salary for the step 12 teacher
in December 2000 should be $50,392. DETE's proposal also provided for a further
3% increase in December 2001 bringing the salary for the step 12 teacher to
$51,766.
[138] The AEU put forward four different bases by way of purported justification
for its salary claim. They were:
(1) increased productivity;
(2) work value considerations;
(3) interstate comparisons; and
(4) notions of attraction to, and retention of employees in, teaching.
[139] None of these matters provides a sound basis for salary increases, at least
of the order proposed by the AEU.
[140] The DETE proposal means an increase per annum of approximately 4%.
Increases of that size are reasonable in current industrial circumstances.
[141] DETE's proposal maintains substantial consistency with that proposed by it
during the bargaining period. The AEU's proposal is quite unrealistic.
[142] There is an absence of productivity improvements which the AEU can rely
on in these proceedings because:
     the salary increases in the 1996 DECS Enterprise Agreement, the 1998
       DECS Certified Agreement and the 1996 DETAFE Agreement are, pursuant
       to clauses 7.3/7.4 and clauses 12.3/12.4 respectively, specified to recognise
       all past productivity and efficiency improvements and those for the life of
       these agreements; that is, until 1 December 1998;
     alternatively, the evidence does not demonstrate improvements in
       productivity of any significance, most matters relied on having occurred by
       or having been in existence in December 1996 or earlier.
[143] With respect to clauses 7.3/7.4 of the 1996 DECS Enterprise Agreement
and the 1998 DECS Certified Agreement and 12.3/12.4 of the 1996 DETAFE
Agreement, the AEU has sought to avoid the consequences of its commitment in
ways which are unmeritorious.
[144] It is also plain that the AEU seeks to justify its present claim in a substantial
way by reference to these same productivity and efficiency improvements. It is a
plain case of "double dipping", i.e. relying on the same changes for more than one
increase.
[145] It is also plain that the 1996 agreement took account of work value
considerations. The AEU relied in its arbitration in the South Australian Industrial
Commission on changes in skill and responsibilities.
[146] In the present arbitration the AEU seeks to rely upon changes in skill and
responsibility extending into the period well beyond December 1996. Again it is
seeking to "double dip".


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[147] If comparisons are to be made with the salaries of teachers employed
elsewhere, the most obvious point of comparison is with teachers in the non-
Government sector in South Australia. The making of that comparison confirms
the reasonable nature of DETE's proposal.
[148] The increases proposed by DETE for education workers who will be
covered by the s.170MX award are broadly consistent with those which will apply
to other public sector employees in South Australia.
[149] Contrary to the submission of the AEU that employees covered by the 1996
DECS Enterprise Agreement and the 1996 DETAFE Enterprise Agreement have
received total salary increases of 17% during the 8 years since September 1991,
the salaries applicable to the following categories of employees have increased
pursuant to the provisions of the 1996 DECS Enterprise Agreement - AEWs,
principals and deputy principals, preschool directors and ECWs.
[150] Considerations of work value do not assist the AEU/CPSU. This arbitration
is not and has not been conducted as a work value exercise.
[151] Under the Commission's present Statement of Principles, a change in work
value is one of the circumstances upon which wages/salaries may be increased
without the application being regarded as a claim for wages and/or conditions
above or below the award safety net. Nevertheless, the strict circumstances in
which a change in work value justifies a change in salary or conditions remain.
The Commission ought not to apply any different approach in a s.170MX
arbitration.
[152] The AEU reliance on interstate rates is inappropriate, both as a matter of
principle and as a matter of evidence. Moreover, if one makes a proper
comparison with the interstate rates, it only serves to emphasise the
reasonableness of the DETE salary proposal.
[153] Although the AEU seeks to support the salaries claim in various ways, the
concept underlying the claim is one of comparative wage justice. There are two
propositions which the AEU would have to make out:
     that the work of teachers in South Australia is relevantly comparable with
       that of teachers in other States and Territories; and
     not only that there is a difference between the various rates being paid
       elsewhere and those in South Australia, but that that difference constitutes
       an injustice.
[154] Although it is critical to the AEU case to establish that the work of education
workers in South Australia is comparable with that of education workers in the
other States and Territories, the Commission has been presented with scant
evidence going to that proposition.
[155] The Commission (and for that matter the various State Industrial Tribunals)
have traditionally placed less significance on rates fixed by agreement. That
approach is even more appropriate under the current statutory regime which
encourages enterprise bargaining.
[156] There is no history of a nexus between any one South Australian teacher
rate and that of a teacher elsewhere.
[157] To the extent that the AEU resorts to the paid rates principle, it is a way of
justifying reliance upon interstate rates by equating market rates with rates paid to
teachers interstate.
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[158] Other features which make the sort of interstate comparisons which are the
foundation of the AEU case inappropriate are:
(1) that, with the exception of the two arbitrated outcomes, the interstate rates
have been set by negotiation in an enterprise bargaining context; and
(2) none of the interstate and territory rates was set in a context which included an
equivalent of clauses 7.3/7.4 and clauses 12.3/12.4 (see above).
[159] In each of New South Wales, Victoria, the Australian Capital Territory and
Queensland, the rate formerly applicable to the advanced skills teachers (ASTs)
has been absorbed into the salary of the top incremental level of the non-
promotional scale. The consequence of that conversion or absorption is:
(1) in those jurisdictions where it has occurred, the salaries set have a different
history from those applying in South Australia and have been set by reference to
different considerations from those applying in South Australia;
(2) as the top incremental scale rate has been set at the rate previously applying
to the AST1 classification, the rate in those States reflects, at least to a degree, a
rate appropriate for those with the seniority and expertise of the AST. That is not
to be the position in South Australia; and
(3) the rate at the top of the incremental scale in those States and Territories
where the AST rate has been converted or absorbed has been set in a context
which allows for no further salary advancement apart from that applying to
promotional positions. This is not the case in South Australia.
[160] South Australia has consistently had average weekly earnings which are
generally low in comparison with other States and in comparison with the
Australian average. The low wage/low cost character of South Australia is a
relevant factor in this arbitration. Enterprise bargaining takes place in the social
and economic circumstances of the enterprise and of the community in which the
parties operate. An arbitration pursuant to s.170MX takes place within those same
social and economic circumstances.
[161] The AEU asserted that the salaries it sought were necessary to enhance the
attractiveness of teachers so as to:
     ameliorate current teacher shortages and the greater shortages now
        expected;
     increase the quality of entrants into teaching; and
     improve the status of teachers.
[162] Firstly, it is inappropriate that the Commission, in determining a salary,
should determine what South Australia should pay for the purpose of attracting
staff or for the purpose of retaining existing staff. That is a matter for the employer.
[163] Secondly, the AEU claim is that all teachers should be paid more so as to
facilitate recruitment/retention. However, the evidence at best for the AEU is to the
effect that it is only at the secondary level that some shortfall in the number of
teachers is expected and then only from 2001.
[164] Thirdly, the AEU case proceeds on at least two premises which it has not
sought to establish:
(1) that a university entrant or graduate has regard to the award salary scales in
deciding whether to take up teaching as a career; and
(2) that teaching, compared with the alternative occupations reasonably available
to a university entrant or graduate, is less attractive because of its salary levels.
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[165] The evidence does not provide a sound basis for concluding that there will
be a teacher shortage in South Australia let alone that the Commission should
award higher salaries in order to attract new recruits into teaching or to retain
those presently employed.
[166] DETE accepts that there are nexus relationships between the salaries paid
to school teachers, preschool teachers and TAFE lecturers. It does not accept that
there is any nexus arrangement between the salary of a teacher and that of an
SSO, ECW or AEW (or other classifications).
Conclusions
[167] That we should, as requested by all parties, award the same general
percentage increases to all classifications in all sectors (school, preschool and
TAFE).
[168] As our outline of the submissions shows, there is a large number of matters
the parties have referred to in support of their positions as to salary increases.
Each of them goes to the merits of the case, a matter to which we are required by
s.170MX(5)(b) to have regard and to which we have had regard. We, however,
think that the following matters are of particular significance:
(1) that, although the operative dates proposed by the AEU/CPSU, on the one
hand, and DETE, on the other, varied considerably, the total increases sought or
proposed were not very different (a total of 14.15% being sought by the unions
and a total of 13% being the maximum proposed by DETE);
(2) the evidence about the quantum of, types of and changes to work performed
by the employees;
(3) the terms of the agreements reached in 1996; in particular, the commitments in
them given and the quantum and timing of the agreed salary increases (11% from
1 December 1996, 1.5% from 1 July 1997, 2% from 1 July 1998 and 1% from 1
December 1998);
(4) the 4% interim increase awarded by us operative from 22 December 1999;
(5) the present and past salary levels of government teachers in South Australia
and in the other States/Territories;
(6) salary levels of non-government teachers in South Australia;
(7) salary levels generally in the South Australian public sector; and
(8) the other terms of the award we propose to make, including its duration, and
our approach to the workload claims.
[169] With respect to DETE's clauses 26.4 - 26.6:
(1) we do not think that clauses 26.4 or 26.6 are necessary; and
(2) we think that clause 26.5 should be included but modified so that it reads:
          "The salary and wage increases recognise all past productivity and
          efficiency improvements, including local management policies or
          programmes, introduced or implemented before 1 July 2000."
[170] In the light of our consideration of the evidence and submissions, we have
come to the conclusion that, in addition to our 4% increase operative from 22
December 1999, salaries should be further increased:
(1) by 4% (calculated on the 1 December 1998 salaries) from the beginning of the
first pay period to commence on or after 1 July 2000;
(2) by 2% (calculated on the 1 December 1998 salaries) from the beginning of the
first pay period to commence on or after 1 October 2000; and
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(3) by 4% (calculated on the 1 December 1998 salaries) from the beginning of the
first pay period to commence on or after 1 October 2001.
SCHOOLS - PERSONNEL ADVISORY COMMITTEES (PACs)
The agreed issue
[171] Should there be provisions with respect to a PAC:
           (1) as proposed by DETE in its clause 9;
           (2) as proposed by the AEU/CPSU in their clauses 9.4 and 17.1?
AEU/CPSU claim
[172] Clause 9 - Consultation and Dispute Avoidance and Settlement Procedures
is set out in full in paragraph [848]. We set out below an extract:
    "9.4 Any dispute, grievance, question, or difficulty (including matters the subject
    of this Award) ("a dispute") or any matter likely to create a dispute must be
    dealt with in the following manner:
           9.4.1 The AEU will advise employees at each worksite of the name(s) of
           the representative(s) responsible for consultation matters arising on the
           job.
           9.4.2 Any employee with a dispute is able to:
                                . seek a personal resolution by raising the matter with
                                the person responsible for the dispute;
                     . raise it directly with the line manager; or
                                . raise it with the AEU representative who will raise the
                                matter with the most immediate line manager; or
                                . in the case of a school, raise it with a member of the
                                Personnel Advisory Committee, ("PAC") in which case
                                the PAC will meet and advise the immediate line
                                manager on the matter."
              9.4.3 The line manager will endeavour to resolve the dispute, and in
              the case of schools, may refer the dispute to the PAC if it has not
              already been raised with the PAC.
              9.4.4 The matter will be addressed within two working days of it being
              raised either by agreement on a final resolution or agreement as to the
              method and timeframe for proceeding to resolution of the dispute or if
              the matter is not capable of resolution, it may be referred to Director,
              Human Resources or delegate.
(The CPSU's draft award includes a reference to the CPSU representative.)
[173] Proposed clause 17.1 (part of clause 17 - Grievance procedures -
Workload) is set out in paragraph [195].
[174] Proposed clause 7 - Definitions includes:
    "`Personal (sic) Advisory Committee' means a committee established at a
    school from time to time in accordance with the role function and membership
    criteria agreed from time to time between the AEU and the Chief Executive."
DETE claim
[175] Proposed clause 9:
           "9. PERSONNEL ADVISORY COMMITTEE: SCHOOLS
           9.1 Each school will establish a Personnel Advisory Committee (PAC)
           comprised of the following membership:
                 9.1.1 the Principal (or nominee);
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                9.1.2 a nominee elected by AEU members at the school;
                9.1.3 an equal opportunity representative elected by all staff at the
                school, and
                9.1.4 member of the non-teaching staff, elected by non-teaching
                staff at the school, who will participate only when the PAC is to deal
                with matters pertaining to non-teaching staff.
             9.2 The PAC will advise the Principal in relation to human resource
             matters, including the development of the human resource profile.
             9.3 The employer will, as far as reasonably practicable, consult with
             the Personnel Advisory Committee at a school in relation to the
             deployment of staff within that school.
             9.4 The PAC may advise the Principal on a matter referred to it
             pursuant to clause 25.6 of this Award."
[176] Proposed clause 5 - Definitions includes:
    "Personnel Advisory Committee means the Personnel Advisory Committee
    established within a school from time to time under this Award."
AEU submissions
[177] Evidence from both DETE and the AEU indicates that the PAC and its
predecessor established at the time of the 1989 Curriculum Guarantee Agreement
have had a significant and valuable role in relation to the consultative process at
the school level.
[178] The AEU does not envisage a different role for the PAC in the future. This is
not necessarily the case with respect to the DETE proposal.
[179] The ability of the PAC to carry out the extensive role and function which it
now has arises from the agreement between the AEU and the Chief Executive of
DETE. Both parties appear to be satisfied with its role. If that is so, then the
Commission should not interfere with the current definition of the PAC in clause 7
of the proposed AEU award. The role, function and membership criteria of the
PAC should continue to be a matter of agreement.
[180] If the DETE clause is granted, the PAC will be limited to the role and
function referred to in clause 9.2 of the DETE award.
[181] A further manner in which the DETE proposal appears to contemplate a
possible limitation on the role of the PAC is with respect to the dispute resolution
procedure.
[182] There is no basis upon which DETE has shown that the role, function and
membership criteria of the PAC should not continue to be a matter of agreement
and in terms of the present PAC Handbook.
CPSU submissions
[183] The DETE model in relation to the PAC is hedged about with qualifications.
The matters that can be raised are "human resource matters". The wording of the
CPSU/AEU proposal (i.e. "Any dispute, grievance, question or difficulty") should
be preferred.
[184] The obligation on the employer to consult the PAC in relation to staff
deployment matters is qualified by the words "as far as is reasonably practicable"
may mean the obligation to consult is hollow.
DETE submissions

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[185] The PAC has an important role within a school. There seems to be general
agreement that the PAC has in the past worked well and agreement that it should
continue to operate in the future.
[186] Whilst it was suggested by the AEU that DETE proposes a downgraded role
for the PAC, this is not the case. DETE proposes that the PAC have the same
composition as is presently provided for in the PAC Handbook. DETE proposes
an advisory role for the PAC. This is no change.
[187] Whilst DETE has not proposed a definition of "human resource matters",
DETE notes that it is the same expression which each of DETE and the AEU
chose to adopt in the PAC Handbook. It is not suggested that the concept of
"human resource matters" has provided difficulties in the past.
[188] The AEU has suggested that DETE's proposal that the employer "as far as
reasonably practicable" consult with the PAC in relation to the deployment of staff
within the school will in some way downgrade the role of the PAC. That is not
correct. The primary role of the PAC is to "advise the Principal". Clause 9.3 is
designed to ensure that consultation will take place with the PAC.
[189] DETE proposes no lesser role for the PAC. DETE regards the PAC as being
a significant group within the school. Because of its existence, composition, role
and function, there is within each school a means by which consultation will occur
and advice be given in relation to the various matters which affect workload. It is
those persons at the school who will have the most knowledge about the
individual circumstances of a group of students, the school needs, the work
associated with teaching a particular group and the particular curriculum needs or
focus of the school and who, therefore, are better placed to make decisions about,
and to advise on, the allocation of work. It is preferable that the Commission
permit those decisions to continue to be made at the school as they have in the
past.
Conclusions
[190] It is regrettable that the parties were not able to agree about this issue. They
are all of the view that PACs are important and play a valuable role. The
disagreement goes to matters of detail, not substance. The issue, however,
remains.
[191] We agree that PACs are important and play a valuable role. Having
considered the competing submissions, we are of the view that, subject to some
modification, the DETE proposed clause is the more appropriate as it better
recognises the broader on-going role of PACs which is of particular importance in
Partnerships 21 schools. DETE's clause 9.3 should, however, be altered so that it
reads:
          "The employer will in all cases, except where it is not practicable because
          of the nature or urgency of the matter, consult with the Personnel
          Advisory Committee at a school in relation to the deployment of staff
          within that school and the utilisation of the staffing complement provided
          to the school by DETE."
[192] The changes we have made to DETE's clause 9.3 acknowledge that urgent
decisions may, at times, be necessary. We have also emphasised the particular
role of the PAC in relation to the staffing complement and the use of that
complement.
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SCHOOLS - WORKLOAD - TEACHERS
The agreed issue
[193] Should there be provisions with respect to the work of teachers as sought by
the AEU in its clause 16 (and 15B), and, in particular, should there be provisions:
(1) prohibiting any requirement that a teacher undertake an excessive or
unreasonable workload (AEU clause 16.1);
(2) fixing the maximum contact time of a teacher (AEU clauses 16.2, 16.5 and
16.6);
(3) fixing the average maximum number of students a teacher can be required to
teach in a class without another teacher or teachers (AEU clauses 16.3 and 16.4);
(4) establishing a grievance procedure for workload issues (AEU clauses 16.7 and
17)?
AEU claim
[194] Proposed clause 16:
                               "16 - WORKLOAD - TEACHERS
          16.1 No teacher shall be required to undertake an excessive or
          unreasonable workload in any week during the school year.
          16.2 Subject to sub-clause 16.5, no teacher in any of the following
          categories shall be required to undertake a maximum contact time per
          week exceeding the time specified:
                16.2.1 Classroom teacher (including special education teacher)
                            16.2.1(a) 21 hours 45 minutes for a primary school
                            teacher
                            16.2.1(b) 20 hours for a secondary school teacher
                   16.2.2 Teacher Librarians
                            16.2.2(a) Teacher-librarians in primary schools:
Teacher Librarian Time Allocation                Contact Time

0.1 - 1.0                                              0 hrs
1.5                                                    7 hrs
2.0                                                    8 hrs 42 mins
                                  16.2.2(b) Four hours for a teacher librarian in a
                                  secondary school.
                          16.2.3 Student Counsellors
                                  16.2.3(a) A student counsellor appointed to a primary
                                  school is not required to undertake any contact time.
                                  16.2.3(b) Four hours for a student counsellor appointed
                                  to a secondary school.
                          16.2.4 Principals
                                  16.2.4(a) No principal in a secondary school or a
                                  primary school where the school enrolment exceeds
                                  175 students shall be required to undertake any contact
                                  time.
                                  16.2.4(b) The maximum contact time for Principals of
                                  primary schools where the enrolment is below 175
                                  students shall be as set out in the following table:

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Student Numbers                            Contact Time

1 – 99                   10 hours
100 – 114                8 hours 30 minutes
115 – 129                7 hours
130 – 144                5 hours 30 minutes
145 – 159                4 hours
160 – 174                2 hours 30 minutes
            16.2.5 Deputy Principals
                      16.2.5(a) In Primary, Junior Primary, Aboriginal and
                      Special Schools the maximum contact time shall be as
                      set out in the following table:
Student Numbers            Contact Time

190 – 204                           16 hours
205 – 219                           14 hours
220 – 234                           12 hours
235 – 249                           10 hours
250 and over                        8 hours
                                16.2.5(b) The maximum contact time for a Secondary
                                Deputy shall not exceed 10 hours.
                       16.2.6 Assistant Principals
                                16.2.6(a) 13 hours 29 minutes for an Assistant Principal
                                in Primary, Junior Primary, Aboriginal and Special
                                Schools.
                                16.2.6(b) 12 hours 24 minutes for a Secondary
                                Assistant Principal.
                       16.2.7 Coordinators
                                16.2.7(a) 17 hours 50 minutes for a Primary
                                Coordinator.
                                16.2.7(b) 16 hours 24 minutes for a Secondary
                                Coordinator.
                 16.3 On average and across each of the year levels or level specified
                 below, unless an additional class teacher or teachers are provided to
                 teach the class, no teacher shall be required to teach a class with
                 student numbers greater than:
R-2                    26
3-7                    30
8                      29 per general class or 18 per practical class
9                      29 per general class or 18 per practical class
10                     29 per general class or 18 per practical class
11                     26 per general class or 18 per practical class
12                     26 per general class or 18 per practical class
                    Where a composite year level class or classes includes students
                    from the year levels Reception to Year 2, on average and across
                    those composite classes unless an additional teacher is provided


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                     no teacher shall be required to teach a class with student numbers
                     greater than 26.
                     In relation to special schools, unless an additional class teacher or
                     teachers are provided to teach the class, no teacher shall be
                     required to teach a class with student numbers greater than 8
                     students who are identified disabled students, students with severe
                     multiple disabilities or students who are sensory impaired so long
                     as not more than 4 of those students are students who are sensory
                     impaired.
                 16.4 For the purpose of calculating the average referred to in clause
                 16.3 the average number of students in a year level or year levels
                 shall be based on the estimated enrolment of students in the year
                 levels set out below.
                     16.4.1 Reception to Year 7:
                                         Where the estimated October enrolment in a
                                         school is less than or equal to 70 students the
                                         average will be based upon the schools estimated
                                         October enrolment figures.
                                         Where the estimated October enrolment in a
                                         school is greater than 70 students the average will
                                         be based upon the schools estimated April
                                         enrolment figures.
                         16.4.2 Years 8 to 12
                                         Where the estimated February enrolment in a
                                         school is 300 students or less the average will be
                                         based upon the schools estimated February
                                         enrolment figures.
                                         Where the estimated February enrolment in a
                                         school is greater than 300 students the average
                                         will be based on the arithmetic mean of the
                                         schools estimated April and July enrolment
                                         figures.
                         16.4.3 In calculating the average class size for each of the year
                         levels 8 12 inclusive referred to on sub-clause 16.3, it shall be
                         assumed that 50% of all classes in that year level are practical
                         classes.
                 16.5 Subject to sub-clause 16.6, and notwithstanding the requirements
                 of sub-clause 16.2 above, in order to enhance school based flexibility
                 in the allocation of workload, a Principal of a school, in consultation
                 with the PAC, may increase the ordinary maximum contact time
                 prescribed in sub-clause 16.2 in relation to the groups specified below
                 up to a maximum as follows:
                     16.5.1 Classroom teacher (including special education teacher)
                                  16.5.1(a) 22 hours 40 minutes for a primary school
                                  teacher
                                  16.5.1(b) 21 hours 20 minutes for a secondary school
                                  teacher
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                        16.5.2 Principals, Deputy Principals, Assistant Principals and
                        Co-ordinators
                        By increasing the maximum contact time specified in sub-clause
                        16.2 by no more than 10%.
                 16.6 Where a Principal is considering increasing contact time in
                 accordance with subclause 16.5, the Principal, in consultation with the
                 PAC, shall give consideration to all factors impacting upon the
                 workload of individual employees or groups of employees including but
                 not limited to the following:
                    16.6.1 maximum contact time;
                    16.6.2 the number of students allocated to a particular class or
                    classes or (if applicable) to a particular employee;
                    16.6.3 the number of students in a particular class or classes with
                    physical or intellectual disabilities;
                    16.6.4 the number of students in a particular class or classes where
                    there are specific learning difficulties and/or language barriers and
                    the level of itinerant students;
                    16.6.5 areas of learning being taught and the circumstances in
                    which they are being taught;
                    16.6.6 the time allowed for work performed outside the classroom;
                    16.6.7 the performance of additional duties, including the teaching
                    of classes additional to those rostered and duties performed
                    outside the school;
                    16.6.8 the availability of administrative and other support such as
                    student counselling and curriculum consultancy services;
                    16.6.9 the time required to consult with and report to parents and/or
                    the wider educational community.
                                        There shall be no increase in contact time in
                                        accordance with subclause 16.5 unless the full
                                        extent of the resources created by that increase
                                        are utilised to reduce, diminish or alleviate other
                                        existing factors impacting upon the workload of an
                                        employee or employees at the school. Utilisation
                                        may include but is not limited to the following:
                 . Reducing the number of students in a particular class or classes
                    . Allowing more time for performance of additional duties and/or
                    work outside the classroom
                 . Provision of additional administrative and other support
                 Provided that:
                    16.6.10 The additional resources created by any increase in
                    contact time are only utilised to improve upon (rather than establish
                    or maintain) the minimum prescriptions in relation to workload
                    elsewhere contained in this Award including those in sub clauses
                    18.2 and 19.2.
                    16.6.11 The additional resources created by any increase in
                    contact time are not deployed to address workload implications of
                    any new externally imposed initiatives which significantly impact
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               upon workload and where additional necessary resources to
               address the new initiatives have not been allocated to the school.
           16.7 Where any grievance arises over the workload of a particular
           teacher or group of teachers, the grievance procedures in clause 17
           shall be followed."
[195] Proposed clause 17:
                          "17 - GRIEVANCE PROCEDURES - WORKLOAD
           Where the grievance is at a single work location the following shall
           apply:
           17.1.1 The parties at that level shall attempt to resolve the grievance
           in the first instance. This may involve raising the matter with:
               17.1.1(a) the person responsible for the grievance;
               17.1.1(b) the line manager or the AEU representative who will raise
               the matter with the most immediate line manager; or
               17.1.1(c) (if applicable) a member of the PAC in which case the
               PAC will meet and advise the immediate line manager on the
               matter.17.1
           17.1.2 Where this fails the aggrieved party shall lodge a statement
           including details of the grievance, with:
               17.1.2(a) the Principal or Director; and
               17.1.2(b) in the case of an aggrieved employee, with the union or
               employee representative.
           17.1.3 Where the grievance is not resolved within two working days,
           the Principal or Director shall inform the Director of Human Resources
           or delegate of the grievance and supply as soon as practicable a copy
           of the statement required under subclause 17.1.2 above, and
           thereupon one person nominated by the Department and one person
           nominated by the union, shall be constituted to form a conciliation
           committee to establish the extent and nature of the disputation and to
           attempt to resolve the grievance. The nominees may seek assistance
           from the Department or the PAC or the union during the conciliation
           process.
           17.2 Where the grievance is not at a single work location the following
           will apply:
           17.2.1 the aggrieved party shall lodge a statement, including the
           details of the grievance, with the union and/or Chief Executive or
           nominee as is appropriate.
           17.2.2 If the grievance is not resolved within two working days, one
           person nominated by the employer and one person nominated by the
           union, shall form a conciliation committee to establish the extent and
           nature of disputation and to attempt to resolve the grievance.
           17.3 It is the duty of each nominee to a conciliation committee to act
           as far as practicable not as representatives of the union or the
           employer but as individuals exercising in an independent and objective
           manner the functions of attempting to achieve a fair resolution to the
           grievance having regard to all relevant factors including the need for

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             reasonable exigencies of the teaching service or children's services to
             be met as the case may be.
             17.4 When considering a grievance related to excessive or
             unreasonable workload, the conciliation committee shall take into
             account the full range of factors relating to the workload of that
             aggrieved employee or group of employees, including, but not limited
             to, the factors specified in sub-clauses 16.6.1 to 16.6.9 inclusive.
             17.5 A grievance shall be resolved where the parties to the grievance
             reach agreement. When a grievance is resolved the parties will
             confirm their agreement in writing including an implementation
             timetable and method of implementation.
             17.6 The implementation of an agreed resolution to a grievance will
             take place without delay and be completed as soon as practicable.
             The employer and the union shall each as far as practicable avoid
             action which may exacerbate the dispute or predetermine the outcome
             of any attempt to resolve the grievance.
             17.7 The employer or the union may refer an unresolved grievance to
             the Board of Reference pursuant to clause 15 of this Award for
             determination."
[196] Proposed clause 15B:
                   "15B - APPLICATION OF CONTACT TIME PROVISIONS
         The maximum contact time provisions in this Award apply to full time
         employees and also to employees working less than the hours ordinarily
         worked by a full time employee but are to be adjusted on a pro-rata
         basis."
[197] "Contact time" is defined in proposed clause 7 - Definitions as:
         "time engaged in teaching which is regular and timetabled with a
         consistent group of students or children for whom a teacher has an
         ongoing responsibility and includes:
         (a) Class teaching of any subject;
         (b) Pastoral Care/Home Group activities in which at least some of the
         activities are designed to enhance personal development;
         (c) Electives;
         (d) Tutoring, which is regular and timetabled, eg. distance mode/open
         access;
         (e) Providing Special Education support;
         (f) Actively assisting students engaged in resource-based learning;
         (g) Teaching and/or supervising of children in a preschools educational
         program"
DETE commitment to the Commission
[198] In the course of the hearing, DETE gave a commitment as follows (Exhibit
DETE 71):




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                                      "RE: GOVERNMENT'S COMMITMENT
                                        `NO WORSE OFF' GUARANTEE
                                      STAFFING ALLOCATION DOCUMENT
                                             Monday 17th April 2000
             Commitment
             1. The Crown in Right of the State of South Australia gives the following
             commitment to the Australian Industrial Relations Commission.
                   1.1 In the event that the s.170MX Award is made, as DETE
                   proposes, without any provision for the continuance of the Staffing
                   Allocation Document [DETE Book at 3432], all schools which do not
                   become part of Partnerships 21 scheme for local school
                   management will continue to be resourced in accordance with the
                   formulae contained in that Document (as it appears at 3432).
                   1.2 A school which becomes part of Partnerships 21 will be
                   provided with a level of resources that will enable it to have, if it
                   chooses, the same level and profile of staffing which it would have
                   pursuant to the Staffing Allocation Document if it were a non
                   Partnerships 21 School and to meet the total anticipated
                   reasonable costs of those goods, services and utilities which it
                   would have received or used if it were a non-Partnerships 21
                   School.
                   1.3 DETE will prepare each year a Resource Profile Budget for
                   each Partnerships 21 School containing the information of the kind
                   contained in the sample Resource Profile Budget for Glenunga
                   High School [DETE Book at 4704].
                   1.4 DETE will provide to each Partnerships 21 School each year a
                   copy of a Resource Profile Budget prepared for that school. This
                   will enable the school to compare its allocation of resources under
                   the Global Budget with resources it would have received as a non-
                   Partnerships 21 School. Where the school considers itself to be
                   `worse off' with the Global Budget allocation of resources, DETE
                   and the school will jointly examine the allocation of resources. If
                   required, DETE will provide an additional allocation of resources so
                   that the school will be `no worse off' when taken as a whole.
                   1.5 DETE has established a contingency fund (known as the `Risk
                   Fund') for the purpose of meeting expenditure of an extraordinary
                   or abnormal kind incurred by a Partnerships 21 School.
                2. DETE invites the Commission, in the event it adopts the DETE
                proposed s.170MX Award, to record this commitment in its reasons so
                that there may be a formal and publicly accessible record of the
                commitment.
                Duration
                3. This commitment applies, in respect of a Partnerships 21 School,
                for the period of the Partnerships 21 School's 3 year service
                agreement, or for the nominal life of the s.170MX Award made in
                these proceedings, whichever is the longer period. In respect of a non-
                Partnerships 21 School, this commitment will cease upon the
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               certification of any agreement made under the Workplace Relations
               Act 1996 which postdates the date on which the s.170MX Award is
               made, or 3 years from today's date, whichever occurs earlier.
               Position of Commitment in the event that a s.170MX Award is made in
               terms sought by AEU
               4. In the event the Commission makes an award in the terms
               proposed by the AEU then the commitment of the Government in
               respect of non-Partnerships 21 schools would no longer be necessary
               and thus would not apply. In respect of Partnerships 21 schools, the
               commitment will also no longer be necessary in the context of these
               proceedings. The Government regards it as no more than a re-
               articulation of the `no worse off' guarantee it has given on several
               occasions, which guarantee will continue in any event."
[199] The "no worse off" guarantee referred to in paragraph 4 of the commitment
is a statement made by the South Australian Government on several occasions.
On 28 July 1999 the Minister of Education said:
           "It is an absolute commitment of the Government that schools serving
           disadvantaged communities would be better off under the new funding
           arrangements, and the Government has guaranteed that no other
           schools would be worse off."
On 20 October 1999 the Minister said:
           "I guarantee that no school will be any worse off than it was under the old
           system, so all schools will be at least at the same level or better off; and
           that [Global] Budget will remain in place for three years depending on the
           number of students in the school."
And see also paragraph 1.2 of the commitment.
AEU submissions
[200] The principles that should be applied are those applied in the Victorian
Teachers Workload Case (1995) Print L8274; in particular, that, if the Commission
is satisfied on the evidence that "there is clearly a capacity for some teachers to
be exploited unfairly by way of the imposition of unreasonable workloads" it should
act to "provide a proper basis to ensure" that the employees concerned "are
treated fairly and not improperly exploited by an overload of work being required
of them".
[201] Workload was the most central of the matters at issue between the parties
in the bargaining period. The issue of workload is both a fundamental condition of
employment and fundamental to an adequate disposition of the industrial dispute
which exists between the parties.
[202] Section 170MX cases demonstrate the importance that the Commission has
placed upon fairness, equity and the merits of the case as the guiding
considerations.
[203] The Commission has emphasised that, whilst it is expressly required to
consider how productivity might be improved in the business or part of the
business concerned (s.170MX(5)(d)), it would only endorse or permit initiatives to
generate productivity improvement where that can be done "consistently with the
maintenance of fair standards of treatment for employees" (Curragh Queensland
Mining Limited).
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[204] Beyond the general guidance, there is particular and specific assistance
available to the Commission from a number of decisions which have considered
workload protections in the very industry in question; for instance, the Victorian
Teachers Workload Case. What the Full Bench sought to do in that case in
relation to Victorian schools and what the Commission is asked by the AEU to do
in this case is to provide to preschools, schools and TAFE institutes "a proper
basis for the determination of a reasonable workload".
[205] The primary determinants of teacher workload are contact time (or, face to
face teaching time), student load (or, class size) and administrative load.
[206] In South Australia awards do not prescribe the hours of work of school
teachers. Neither are attendance times prescribed.
[207] An hours provision is not effective to address the workload of teachers and
lecturers. The only way to effectively regulate the number of hours teachers may
be required to work is to regulate the source of the demands made upon teachers
which generate that work, being the contact time or lesson load required of a
teacher/lecturer and the number of students a teacher/lecturer is required to teach
in carrying out his/her lesson load.
[208] Teachers are professionals who are expected to do the job to a professional
standard, no matter how long it takes.
[209] The Staffing Allocation Document provides, and its predecessors provided,
industrial entitlements to teachers.
[210] The workload protections that the AEU seeks are based upon a long history
of industrial entitlements provided to employees of schools by way of both the
existing and pre-existing industrial agreements made between the AEU and
DETE. The pre-existing agreements were the Curriculum Guarantee Agreement
and the Memorandum of Understanding. The Curriculum Guarantee Agreement
was intended to provide entitlements to teachers including with respect to non-
instruction time and the number of students to be taught in a class. The
Memorandum of Understanding also has a staffing allocation formula. The
entitlement of teachers to non-instruction time was made absolutely clear by the
agreement.
[211] The evidence establishes that teachers have increasingly been required to
do more against a background of continued budgetary restrictions and inadequate
resources. As a consequence, teachers are generally working extended hours
under significant pressure.
[212] This trend will continue with, for instance, the implementation of
Partnerships 21 and a revised curriculum framework (SACSA framework) in the
context of ongoing budgetary restrictions and an emerging teacher shortage crisis.
[213] The impact of increased work and responsibilities on teaching staff is
shown, for instance, by extended hours of work, occupational stress and declining
teacher morale.
[214] With respect to Partnerships 21:
(1) without appropriate industrial protection, its implementation has the capacity to
diminish existing employment conditions and create disadvantage;
(2) it was never a part of Partnerships 21 policy that the staffing allocation
documents not be applicable;

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(3) DETE's removal of the Staffing Allocation Document was part of its industrial
agenda for the purpose of the present proceedings, is not justified by the evidence
and was not proposed by DETE until well after these proceedings started;
(4) there is no evidence of major difficulties being experienced by Partnerships 21
schools by reason of the present workload prescriptions;
(5) not only is DETE's claim in this regard not made out by the demonstration of
any positive need for existing protections to be removed, there are powerful
considerations in support of, not only the retention, but the improvement of
existing workload protections;
(6) workload is a fundamental element of the employment relationship in this
industry. The regulation of contact time and student load are the equivalents of an
hours of work provision in general industry. It would be extraordinary if an
industrial condition as fundamental as one regulating workload were removed by
the Commission;
(7) there is no evidence that in Victoria (where there are locally managed schools
similar to Partnerships 21 schools and an award workload prescription) any
difficulties have occurred as a result of such co-existence;
(8) the Victorian experience would indicate that the implementation of a local
school management model like Partnerships 21 is a cause for increased workload
protections rather than the removal of any existing protections;
(9) Partnerships 21 will result in there being more successful and less successful
schools. It is the less successful ones that the Commission should be concerned
with;
(10) requiring consultation with the PAC will not guarantee that teachers will not
be unfairly treated;
(11) under Partnerships 21 there will, more than ever, be a separation between
those who make demands on teachers and those who have the responsibility of
ensuring that the work demands made of teachers are fair and reasonable;
(12) DETE will generally not interfere with a Partnerships 21 school's decision
about resource allocation; and
(13) the Partnerships 21 program means that there is now a greater need than
ever before for industrial instruments to regulate teacher workload.
[215] The AEU's claim seeks to protect employees from unfair workloads but at
the same time not to impede the reasonable requirements of a school to efficiently
allocate its resources.
[216] The AEU's proposal seeks to address the potential for teaching staff to be
treated unfairly in terms of their workload by improving upon the existing workload
protections.
[217] Clause 16.1 is intended as a general obligation which would underpin the
operation of the grievance procedure.
[218] Clauses 16.3 and 16.4 adopt a form appropriate to be included in an award
and seek to replicate the industrial entitlements that the existing prescription is
addressing. There is no practical difference in the allocation of staff which would
be made to a school as between the Staffing Allocation Document (so far as it
relates to providing staff to meet the targeted class sizes there specified) and the
AEU's proposal so far as it requires the observance of clause 16.3.

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[219] Clauses 16.2, 16.5 and 16.6 seek to improve upon the existing entitlements
of teachers and are directed at increasing the non-contact time available to
teachers, but are drawn in a way which would permit some proportion of the non-
contact time entitlement of all or some teachers at the school to be pooled and
utilized to relieve the workload of other employees. The clauses establish an
ordinary maximum contact time which is prescribed in clause 16.2 and what can
be called an absolute maximum contact time which is specified in clause 16.5.
[220] Whilst the AEU maintains that the dominant factors which determine teacher
workload are the lesson load and the student load, the AEU recognises that there
are other factors which can and do impact upon the workload of any teacher. It
may be the existence of a disabled student in the class, it may be the learning
abilities of the students being taught or it may relate to the teacher being required
to take a composite grade rather than a single year level grade.
[221] Clauses 16.5 and 16.6 are intended to give to the principal and the PAC a
broad discretion so that the ultimate distribution of work demands amongst the
employees of the school is equitable and sufficiently flexible to meet the
requirements of the school.
[222] The concept involves an improvement upon the form of regulation
determined as appropriate in the Victorian Teachers Workload Case, in which the
minimum non-contact time that was guaranteed to teachers was prescribed as a
standard across the entirety of the teaching workforce without the capacity for
adjustments to be made at the school level. This is achieved without providing
teachers an entitlement to non-contact time beyond the standard or level of
entitlement which applies in the New South Wales education system and that
which was seen to be appropriate for Victorian teachers (although an adjustment
was later made for primary teachers).
[223] The proposal involves a guaranteed non-contact time to any individual
teacher of an additional 1% in primary schools and no guaranteed improvement to
any individual teacher in secondary schools. The proposal does however
guarantee to the employees of a primary school collectively an increased
entitlement per teacher of 4.4%. For secondary schools the increased non-contact
time is 5%.
[224] Clauses 16.2, 16.5 and 16.6 also apply to teacher librarians, student
counsellors, principals, deputy principals, assistant principals and co-ordinators.
The maximum contact time which can be required of these classifications under
clause 16.2 is based upon the existing entitlement together with an improvement
of a similar magnitude to the improvement provided to classroom teachers. There
is a larger improvement provided to assistant principals and senior leadership
positions. This, however, is intended to take into account the fact that many, if not
most, principals already have 100% non-contact time. It is expected that the
improved position for leadership classifications below the principal will enable the
principal to more readily delegate and alleviate the current work burdens.
[225] Clause 16.7 provides that, where any grievance arises over the workload of
a particular teacher or group of teachers, the grievance procedure in clause 17
shall be followed.
[226] Clauses 16.1, 17 and 15 follow the approach taken by the analogous
Victorian provisions but with some modification.
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[227] The grievance procedure is a process which conceptually is not
fundamentally different from that which DETE proposes. The AEU's model is
however to be preferred.
[228] The form of regulation sought by the AEU takes a composite approach. It
seeks that each of the student load and lesson load be addressed and,
additionally, a residual general obligation that no teacher be required to undertake
an excessive or unreasonable workload is sought together with an accompanying
grievance procedure.
[229] Systemic overload upon employees generally, as exists in South Australia,
needs to be addressed by the dual form of regulation adopted in the AEU's draft
award.
[230] Free of an obligation to address the student loads of teachers, and given the
current and continued budgetary stringency which DETE has been required to
observe, the imposition of improved contact time entitlements alone will not lead
to additional staffing being provided to schools.
[231] Interstate comparisons are relevant as a guiding consideration for the
Commission. It is not suggested that they should constitute a determinative
consideration, but that the Commission should have regard to them and, in
particular, the Commission should have regard to workload standards which have
been considered and determined in arbitration.
[232] The regulation of workload around Australia is focussed upon the setting of
maximum contact time and targeted maximum class sizes. Awards and industrial
agreements in South Australia, Western Australia, Queensland, New South
Wales, the Australian Capital Territory and Tasmania set maximum contact time
for teachers. A student load (maximum targeted class sizes) is the subject of
industrial agreements in South Australia, Queensland and Western Australia and
is set in Tasmania in relation to preschools only. Otherwise student loads are the
subject of policy. In the Northern Territory both contact time and student load are
regulated by the staffing policy.
[233] In relation to both secondary and primary school maximum contact time,
South Australia is far and away the highest of all States and Territories. In the
secondary area it is some 2 hours 40 minutes higher than the 20 hours maximum
which on a crude basis looks to be about the average. On a weighted basis, 20
hours would clearly be the average. In relation to primary schools, South Australia
at 24 hours and 8 minutes is the only State above 22 hours and 50 minutes and
well short of 22 hours 10 minutes which, on a crude basis, probably represents
the average. On a weighted basis, the average is more likely to be around 22
hours which is where Tasmania currently is with Victoria and New South Wales
lower and Queensland slightly higher.
[234] The PAC, contrary to DETE's submission, is unable to guard against
systemic unfairness.
[235] At present all that the PAC can do is work with the principal and try to fairly
distribute the staffing resources made available to the school and the work
demands required of the school, within the parameters determined by DETE. A
PAC only has the capacity to function well within the parameters provided to it.
The PAC has never and could never effectively deal with workload problems
created by insufficient staffing resources being made available to the school.
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[236] As to DETE's commitment to the Commission (set out in paragraph [198]):
(1) in paragraph 4 it is made clear that the commitment being offered is "no more
that a re-articulation of the `no worse off' guarantee, it (the Government) has given
on several occasions . . .";
(2) neither the Minister's guarantee nor the commitment offered to the
Commission is a guarantee to employees. There is no guarantee of whatever sort
offered to the employees of DETE that their workloads will not increase let alone
be improved. If the so-called guarantee is a guarantee of any sort, it is a
guarantee to schools;
(3) it is no adequate guarantee even to schools. What the guarantee does not do
is guarantee that no additional demands will be placed upon those facilities and
be required to be met from the same funding;
(4) the so-called guarantee is so couched with qualifications and limitations that it
amounts to almost nothing;
(5) what this so called guarantee intends is that education workers should fight for
their entitlement to a reasonable workload at the school level;
(6) the commitment offered gives to employees no enforceable rights. If it were
breached and the AEU sought some redress, not by way of enforcement but by
way of the Commission making an award, there would either be no power or there
must be substantial doubt as to whether the Commission would have power to so
do; and
(7) if the Commission comes to the view that workload protections are necessary
it should provide those protections.
[237] DETE's criticism that the AEU's proposal is inflexible is misconceived.
[238] In the context of the requirement to have regard to "the interests of the
negotiating parties and the public interest" (s.170MX(5)(c)), the Commission
should have regard to the Report of the Senate Enquiry into the Status of
Teachers (particularly its views about workload), the declining status of teachers
and an impending teacher shortage.
[239] As to "how productivity might be improved" (s.170MX(5)(d)), the evidence
indicates that granting the AEU's workload claim would improve productivity; for
example, by lessening the work burden, improving morale and increasing the
quality of education provided.
DETE submissions
[240] The AEU's claim is opposed. No provision should be made in the s.170MX
award with respect to teacher workload.
[241] The principles that should be applied are those in the XPT Case (1984) 295
CAR 188 in which a Full Bench said (at p.191):
           "It seems to us that the proper test to be applied and which has been
           applied for many years by the Commission is for the Commission to
           examine all the facts and not to interfere with the right of an employer to
           manage his own business unless he is seeking from the employees
           something which is unjust or unreasonable. The test of injustice or
           unreasonableness would embrace matters of safety and health because
           a requirement by an employer for an employee to perform work which
           was unsafe or might damage the health of the employee would be both
           unjust and unreasonable. The ACTU submitted to us that we should
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           apply the test as to whether the demand of the employer was just and
           equitable having regard to all the circumstances. It is our view that under
           any given set of facts the test suggested by the ACTU would not lead to a
           different decision from the test which the Commission has applied over
           time. Accordingly in reaching our decision we have approached the
           matter from the point of view of making a judgment whether the request
           of the SRA that the XPT be manned by one man is unjust or
           unreasonable."
[242] The Staffing Allocation Document:
(1) provides an allocation of resources, not of individual industrial entitlements;
(2) does not contain limitations on class size; rather an allocation of a resource so
that class sizes need not be more than the stipulated figure;
(3) does not contain limitations on contact time; rather an allocation of resources
so that a school may allocate non-contact as well as contact time to a teacher;
(4) contains an allocation to schools determined principally by reference to
enrolment numbers and not by individual industrial entitlements of teachers;
(5) provides resources to schools for administration, leadership, library functioning
and school counselling; and
(6) includes the tier two salaries which are allocations according to social justice
criteria; some on the basis of a formula, e.g. school card and open access, and
others on the basis of need, determined according to relevant criteria.
[243] Accordingly, there has not been in South Australia a regulation of contact
time or class size by industrial instrument.
[244] The commitment given to the Commission (set out in paragraph [198])
provides adequate protection for teachers.
[245] An analysis of timetables/lesson loads documents tendered shows that, in
general, class sizes are less than those provided for in the Staffing Allocation
Document and that contact time tends to be less than contemplated by the
Staffing Allocation Document.
[246] In relation to non-Partnerships 21 schools:
(1) there has not in the past been industrial regulation of contact time or of class
size and there should not in the future be any such regulation;
     the absence of any such regulation does not mean that the work required of
       the teacher is at the discretion of an individual school or principal because:
           (a) of DETE's commitment to the AIRC to continue to resource non-
           Partnerships 21 schools in accordance with the Staffing Allocation
           Document;
           (b) the PAC will have a significant role in the disaggregation of the
           staffing resource so that work is allocated in an equitable manner; and
           (c) an individual dissatisfied with his/her workload will be able to have
           recourse to the grievance procedure proposed by DETE.
[247] In relation to Partnerships 21 schools:
(1) they will be provided with the resources which enable them to have the same
staffing and resources which non-Partnerships 21 schools will have. This is part of
the commitment given by the South Australian Government to the Commission. A
Partnerships 21 school need not be worse off than its non-Partnerships 21
counterpart;
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(2) the PAC will operate in a Partnerships 21 school in the same way as in a non-
Partnerships 21 school; and
(3) the grievance procedure will also be available to provide redress in the case of
any individual dissatisfaction.
[248] Workload provisions interstate do not justify the AEU's claim. Neither do the
decisions interstate relied on by the AEU. Contact time in Western Australia, the
Australian Capital Territory, Tasmania, Queensland and the Northern Territory is
fixed by consent award, industrial agreement or administrative practice. In any
event, the amount of contact time in South Australia is not shown to be
unreasonable by interstate comparisons.
[249] The evidence does not demonstrate the need for the prescriptions sought by
the AEU because the evidence does not show that DETE is imposing
unreasonable or unjust requirements on teachers in relation to contact time or the
number of students in classes.
[250] The AEU's provision seeks to regulate two only of the many variables that
affect workload.
[251] It would not be appropriate, unless absolutely necessary, to insert in a
s.170MX award prescriptions about workload that would infringe the flexibility
needed to implement Partnerships 21.
[252] A significant amount of the evidence about workload is really a complaint
about the fact that changes are occurring and a complaint about the process of
change.
[253] The AEU's workload claim is made as a means of seeking additional staff
resourcing for schools.
[254] If the case were really about regulating workload because DETE had been
imposing unjust and unreasonable demands, one would have expected that the
prescription sought would give enforceable entitlements to individual teachers.
[255] It is appropriate to consider a teacher's work over the whole year. Over a
year there can be 40 weeks of teaching and one pupil-free week available for
professional development leaving 11 weeks during which teachers are not
required to work at all.
[256] Although the concept of "workload" is critical to the AEU's case, its proposed
award contains no definition of "workload".
[257] The claim in clause 16.1 of the AEU's proposed award ("no teacher shall be
required to undertake an excessive workload in any week during the school year")
is opposed because:
(1) it is unnecessary;
(2) it purports to prohibit certain conduct but does not define with any specificity
the conduct to be prohibited;
(3) it is of uncertain operation. It offers no guidance as to what might be regarded
as "excessive or unreasonable"; and
(4) it does not appear presently in any other award of this Commission and has
appeared only in the Teachers (Victorian Government Schools) Conditions of
Employment Award, 1995.
[258] Clauses 16.2, 16.5 and 16.6 of the AEU's proposed award should be
considered together as constituting something in the nature of a scheme

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concerning prescriptions about contact time. The elements appear to be a nominal
maximum weekly contact time and a maximum contact time.
[259] The nominal maxima, because of the scope to increase them, cannot be
intended to be a specification of the maximum contact time which it would be
reasonable and just of DETE to require of an individual teacher.
[260] The AEU does not seek the nominal maxima for the purpose of protecting
the individual teacher but as a means of requiring the employment by South
Australia of more teachers in schools.
[261] The Commission can regard the maxima proposed in clause 16.5 as being
the real claim. However the AEU has not demonstrated that the maxima proposed
are the upper limit of what can reasonably be expected by way of contact time.
The evidence does not disclose any basis upon which the Commission could
conclude that 20 hours is the upper limit of what can reasonably be required of a
secondary classroom teacher or that 21 hours and 45 minutes is the upper limit of
what can reasonably be required of a primary classroom teacher.
[262] The Commission has not been provided with any comparative evidence of
the work of teachers interstate which would enable it to conclude that the contact
time prescriptions in any one State are appropriate to be applied in South
Australia.
[263] The claims with respect to teacher-librarians, student counsellors, principals,
deputy-principals, assistant principals and co-ordinators are not made out.
[264] DETE disputes that requiring a teacher to have greater contact time will
create a resource which can be used elsewhere.
[265] The terminology of much of the clause sought by the AEU is unclear,
imprecise and ambiguous. The claims with respect to contact time are arbitrary
and the AEU's definition of "contact time" raises problems.
[266] The AEU's clause 16.3 seeks not a prescription as to the absolute maximum
number of students a teacher may be required to teach. Instead the Commission
is asked to fix the maximum of an average number of students. The premise
which underlies clause 16.3 is that the larger the class size, the larger the
workload.
[267] DETE is opposed to the insertion of clause 16.3 and clause 16.4 for a
number of reasons, including that:
(1) the making of an industrial prescription fixing maximum class sizes in any form
was not a matter at issue during the bargaining period;
(2) the proposed clause 16.3 is not about creating industrial rights or protection for
individual teachers. It is about resource allocation;
(3) there is a fundamental confusion in the proposed prescription. The subject of
the clause purports to be the size of a class which an individual teacher may be
required to teach. The clause seeks to deal with that subject by reference not to
the size of the class which the teacher will teach but by reference to the size of
other classes at the same year level or in the same group of year levels;
(4) implicit in the AEU's proposal therefore is acceptance of the proposition that
the teaching by a teacher of a class of more than its proposed maxima does not of
itself involve an unreasonable or unjust workload. If that be so, the AEU does not
establish that it is necessary for the Commission, in accordance with the principle
in the XPT Case, to insert the maxima it seeks;
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(5) the AEU has produced scarcely any evidence of the appropriateness of the
maxima it proposes. The Commission ought not to make such a prescription
unless it is satisfied that it is necessary to protect the employees from
unreasonable and unjust demands.
[268] The AEU's reliance on the Staffing Allocation Document is inappropriate. It
is a document about resource allocation. All it does is to specify the basis upon
which the teaching resource is allocated to a school. It does not purport to be a
statement of the maximum class size which a teacher can reasonably be required
to teach.
[269] In relation to general classes, there is evidence that higher numbers than
those proposed by the AEU are taught in some classes without there being any
suggestion that these numbers are unreasonably onerous.
[270] The AEU seeks to limit practical classes to an average maximum of 18. In
practice, practical classes often exceed that figure.
[271] The evidence simply does not support the view that 18 is the limit of a
reasonable number of students in a practical class.
[272] The prescriptions with respect to special schools are inappropriate.
[273] Many of the aspects of workload which the AEU now relies upon were also
relied upon in 1996. Although the AEU asserts that there has been incremental
change in some of these aspects, that is not demonstrated. A striking feature of
the AEU evidence is that much of the work appears to have remained unchanged
in the 3 years since the making of the 1996 DECS Enterprise Agreement.
[274] Whilst there are a number of statutory and regulatory provisions and policies
issued by DETE governing the way in which schools operate, schools have a
substantial amount of discretion as to their operation, management and allocation
of work. Schools can, and do, make decisions which affect the workload of
teachers. Also, teachers make decisions about their work which can have a
similar impact.
[275] Ways in which workload can be reduced include by monitoring it, altering
policies, limiting the number of subjects offered, use of appropriate assessment,
reporting and marking methods and limiting the number and length of meetings.
Further, flexible initiatives resourcing can be used to increase non-contact times
and tier two salaries can be used to reduce workload.
[276] With respect to grievance procedures, DETE's submissions are as outlined
under the heading "General - Grievance Procedures".
Conclusions
[277] We have, in paragraph [66], rejected DETE's submission that part of the
AEU's teacher workload claim infringes the implied constitutional limitation. We
have, in paragraph [83], rejected DETE's submission that part of the AEU's
teacher workload claim is about a matter that was not at issue during the
bargaining period. We have, in paragraph [95], rejected DETE's submission that
part of the AEU's teacher workload claim is not about an industrial matter.
[278] General conclusions we have reached from the evidence include that:
(1) teachers in South Australia are hard working and committed;
(2) the workload of teachers in South Australia is broadly the same now as it was
at the time of the making of the 1996 DECS Enterprise Agreement;

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(3) teachers are not generally required to work a greater number of contact hours
than the maximum prescriptions sought by the AEU;
(4) teachers are not generally required to teach classes of a greater size than the
maximum prescriptions sought by the AEU;
(5) there is some scope for teachers and schools to better manage workload;
(6) arrangements of one sort or another are necessary to ensure, as far as
possible, that teachers are not required to undertake an unreasonable workload;
(7) the present method of resourcing teachers in South Australia (that is, through
the Staffing Allocation Document (incorporated into the 1996 DECS Enterprise
Agreement and the 1998 Certified Agreement) and with the availability of FIR
(also incorporated into these two agreements) in general operates to ensure that
teachers are not required to undertake an unreasonable workload;
(8) the commitment made to the Commission by DETE is unsatisfactory (see
below); and
(9) the workload provisions sought by the AEU are not justified or appropriate (see
below).
[279] The provisions sought by the AEU are modelled on the assumptions in, and
outcomes of, the Staffing Allocation Document with some increase in non-
instruction time.
[280] We do not think that this approach to the claim for an award prescription is
appropriate because the Staffing Allocation Document is resources based and,
accordingly, the assumptions made in it have not been defined or established by
way of employee entitlements. This resource based approach has allowed
significant and appropriate flexibility as to how the resources are to be applied in
each school. It has also permitted the circumstances that may impact on individual
workload (including, class size, the number and nature of the subjects taught, the
experience of the teacher, the composition of the classes, the degree of work
required outside the classroom, the extent of support services and staffing
available and the face to face teaching load) to be taken into account and
resolved at the school level. The resources approach has also established
benchmarks relating to class size and contact time.
[281] The AEU approach attempts to provide some flexibility to take account of
these factors. However, we are not satisfied that it is appropriate or feasible to
prescribe in the s.170MX award the class size and contact time provisions sought.
[282] A further difficulty is that the prescription by award of these matters in the
combined manner sought by the AEU would require detailed definition of each of
the various factors, beyond those presently proposed, and the explanation of
concepts such as "externally imposed initiatives". In the dynamic and differing
environments in which the proposed prescription would operate, the provisions
sought by the AEU would, we think, create significant practical and legal
difficulties as to their meaning and application.
[283] The AEU approach, whilst innovative and detailed, remains one that
attempts to define, and to increase, the level of staff resources in schools. We do
not think that the clauses sought are appropriate for inclusion in the award.
[284] As we said earlier, we are of the view that the commitment given by DETE is
unsatisfactory. The reasons for this view include that the commitment makes no

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reference to flexible initiatives resources (FIR) and is inadequate with respect to
Partnerships 21 schools.
[285] If, however, DETE were prepared to give a commitment in the terms we set
out below, we would not think it appropriate to include in our s.170MX award any
provisions regulating the workload of employees covered by the commitment.
                         COMMITMENT TO THE AIRC IN RELATION TO
                          STAFFING OF SCHOOLS AND PRESCHOOLS
          The Crown in Right of the State of South Australia (DETE) gives the
          following commitment to the Australian Industrial Relations Commission.
          1. Subject to the following provisions:
          (a) all schools will continue to be resourced by DETE in accordance with
          the formulas contained in the Staffing Allocation Document 1999 [DETE
          Book 3432]; and
          (b) all preschools will continue to be resourced by DETE in accordance
          with the formulas contained in the Preschool Staffing Formula [DETE
          Book 4049] and the outcomes of the review of the amount of
          administration time available to preschool directors conducted pursuant
          to the 1996 DECS Enterprise Agreement.
          2. In addition to these resources, DETE will continue to provide Flexible
          Initiatives Resourcing to schools and preschools in a manner consistent
          with clause 9.2.12 of the Department for Education and Children's
          Services Certified Agreement [Print Q7692] except that the amount of
          $18,000,000 be increased to $22,860,000 at the commencement of the
          2001 school year and to $23,580,000 at the commencement of the 2002
          school year.
                  (Note: $22,860,000 is $18,000,000 increased by the same
                  proportion as salaries have been or will be increased between 1
                  December 1996 and 31 December 2000 and $23,580,000 is
                  $18,000,000 increased by the same proportion as salaries have
                  been or will be increased between 1 December 1996 and 31
                  December 2001.)
              3. In relation to a school that becomes part of Partnerships 21, the
              staffing resources may be provided in a configuration different from
              that provided by the Staffing Allocation Document 1999 where so
              agreed at the school through a process and within the parameters
              established by the Commission in its section 170MX award.
              4. A school which becomes part of Partnerships 21 will be provided
              with a level of resources that will enable it to have, if it chooses, the
              same level and profile of staffing which it would have had pursuant to
              the Staffing Allocation Document 1999 together with the provision of
              FIR if it were a non-Partnerships 21 school and to meet the total
              anticipated reasonable costs of those goods, services and utilities
              which it would have received or used if it were a non-Partnerships 21
              school.
              5. DETE will prepare each year a Resource Profile Budget for each
              Partnerships 21 school containing the information of the kind

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                 contained in the sample Resource Profile Budget for Glenunga High
                 School [DETE Book 4704].
                 6. DETE will provide to each Partnerships 21 school each year a copy
                 of a Resource Profile Budget prepared for that school. This will enable
                 the school to compare its allocation of resources under the Global
                 Budget with the resources it would have received as a non-
                 Partnerships 21 School. Where the school considers itself to be
                 "worse off" with the Global Budget allocation of resources, DETE and
                 the school will jointly examine the allocation of resources. If required,
                 DETE will provide an additional allocation of resources so that the
                 school will be "no worse off" when taken as a whole.
                 7. DETE has established a contingency fund (known as the "Risk
                 Fund") for the purpose of meeting expenditure of an extraordinary or
                 abnormal kind incurred by a Partnerships 21 school.
                 8. The increased Flexible Initiatives Resourcing will not be offset by a
                 reduction in other funding for schools and preschools.
                 9. This commitment will operate until such time as the section 170MX
                 award of the Commission is revoked or terminated in accordance with
                 the Workplace Relations Act 1996 or until such time as a new
                 agreement is certified under the Act, whichever is the sooner.
[286] The factors that have influenced us in drafting this proposed commitment
include:
          (1) the desirability of maintaining the flexibility inherent in the current
          approach;
          (2) continuing the benchmarks established by the Staffing Allocation
          Document;
          (3) that the system contemplated by the proposed commitment continues
          the system that has operated, in our view generally satisfactorily, for a
          number of years; and
           that it provides for increased FIR (beyond the level currently applying
              as a result of the Minister's announcement in early 1999) which can be
              applied to deal with workload issues at the school level.
[287] As we have said, if DETE were prepared to give this commitment, we would
include no workload provisions in our s.170MX award for employees covered by
the commitment. This is because, if such commitment were given, we would be
satisfied that it would operate to ensure that teachers are not required to
undertake an unreasonable workload. If, however, it is not given, we would not be
so satisfied and we will include in the s.170MX award the following:
   "(1) No teacher shall be required to undertake an unreasonable workload.
          (2) In determining what is an unreasonable workload, regard is to be had
          to the assumptions underlying the Staffing Allocation Document 1999.
          (3) Maximum face to face teaching hours shall be:
                 (a) for a primary school teacher - an average over the school year
                 of 22 hours 30 minutes per week;
                 (b) for a secondary school teacher - an average over the school
                 year of 21 hours per week.

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             (4) Face to face teaching hours means time engaged in face to face
             teaching which is regular and timetabled with a consistent group of
             students or children for whom a teacher has an ongoing
             responsibility."
[288] As to our clause (1), we are of the view that, in the absence of the
commitment proposed, it is appropriate to provide employees with an enforceable
award prescription if they are required to undertake an unreasonable workload.
We have added clause (2) to provide guidance in determining whether the
workload is unreasonable. The times specified in clauses 3(a) and (b) take into
account our consideration of all the material before us, including the present
position under the Staffing Allocation Document, the terms of the AEU's proposed
clause and contact time provisions in other States/Territories. We have provided
in clause (4) a definition of "face to face teaching hours".
[289] We have, however, not been persuaded by the AEU that we should
prescribe class sizes in the award.
[290] We add that we have had particular regard to Partnerships 21 schools and
the position of teachers employed in them. In general, we are of the view that
such teachers require the protections inherent in the DETE commitment we have
proposed or in the prescriptions we will award if DETE is not prepared to give that
commitment.
[291] In considering the workload claim, we have, as with all the other claims, had
regard to the matters specified in s.170MX(5).
[292] As to the AEU's proposed clause 17 (grievance procedures), see our
conclusions under the heading "General - Grievance Procedures".
SCHOOLS - WORKLOAD - SCHOOL SERVICES OFFICERS (SSOs)
The agreed issue
[293] Should there be provisions with respect to the work, time and payment of
SSOs as sought by the AEU/CPSU in their clause 18 (and 15B), and, in particular,
should there be provisions:
(1) prohibiting any requirement that a SSO undertake an excessive or
unreasonable workload (AEU/CPSU clause 18.1);
(2) permitting minimum sufficient paid work time (AEU/CPSU clause 18.2);
(3) as to payment of SSOs in relation to overtime (AEU/CPSU clauses 18.3 and
18.4);
(4) establishing a grievance procedure for workload issues (AEU/CPSU clauses
18.5 and 17)?
AEU/CPSU claim
[294] Proposed clause 18:
                "18 - WORKLOAD - SCHOOL SERVICES OFFICERS
          18.1 No School Services Officer will be required to undertake an
          excessive or unreasonable workload in any week.
          18.2 In order to carry out the work of School Services Officers in each of
          the kinds of schools listed below, the School Services Officer or Officers
          employed in such schools must be allowed minimum sufficient paid work
          time per week as calculated by the following:
Primary and Junior Primary School                  (24 hours + 5xT + 3.5xA)
Rural Schools                                      (24 hours + 5xT + 3.5xA)
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Area and Special Rural Schools                    (41 hours + 5xT + 3.5xA)
High Schools                                      (78 hours + 5xT + 3.5xA)
Aboriginal Schools (with Secondary                (41 hours + 5xT + 3.5xA x 3)
Component)
Aboriginal Schools                                (24 hours + 5xT + 3.5xA x 3)
                Where T = number of teachers at peak enrolment, A = area of
                school grounds (hectares taken from records of title deed of the
                school excluding agricultural areas and leased areas). A maximum
                of ten hectares applies to Area, Special Rural and High Schools. A
                maximum of five hectares applies to Primary, Junior Primary and
                Rural Schools. Where Primary and Junior Primary share grounds,
                the total area will be halved and allocated equally between the two
                schools.
             18.3 Any full time School Services Officer who is not reasonably able
             to carry out the workload required of him/her within the rostered hours
             for which the School Services Officer is employed, shall be paid
             overtime in accordance with sub clause 6.3.1 of clause 6.3 of the
             School Services Officers (Government Schools) Award.
             18.4 Any part time School Services Officer who is not reasonably able
             to carry out the workload required of him/her within the rostered hours
             per week for which the School Services Officer is employed shall be
             paid for those hours unless they elect to access sub clause 6.3.3 of
             clause 6.3 of the School Services officers (Government Schools)
             Award.
             18.5 Where a grievance arises over the workload of a particular
             School Services Officer or group of School Services Officers the
             grievance will be dealt with in accordance with the procedures and
             conditions outlined in clause 17 with such modifications as are
             necessary to address the workload issues specific to School Services
             Officers.
[295] Proposed AEU clauses 15B and 17 are set out respectively in paragraphs
[196] and [195].
AEU submissions
[296] The workload of SSOs and the complexity of SSO work has been increasing
over time, and particularly over the last decade. The impact of increases in the
skills, responsibilities, duties and expectations placed upon SSOs has continued
to increase in an incremental manner during this time. SSOs have felt the impact
of fundamental reforms which have primarily affected school teaching staff
throughout this period. This impact has taken place in an era of dramatic
technological change which has particularly affected those SSOs engaged in
administrative duties. SSOs have increasingly been required to do more work
against a background of continued budgetary restrictions and inadequate
resources. As a consequence, SSOs are generally working unpaid time beyond
their rostered hours under significant pressure in an industry which is experiencing
a relatively high incidence of workplace stress due to organisational change and
workload effort.

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[297] The main factor affecting workload is the changing nature of the work which
SSOs have been doing over the last 10 years and before. The changes are
incremental.
[298] If flexible initiatives resourcing (FIR) funds have been largely diverted to
work generated by special projects, there is some evidence to demonstrate that
FIR funds have done nothing to alleviate the workload of permanent SSOs, but
rather may have aggravated it.
[299] There is a 5 year history of immense difficulty involved with the introduction
and implementation of the EDSAS administration system. Huge increases in time
have been required on a daily basis for the input of data, whilst at the same time
staff losses in that area have been as great as 50%, and despite the fact that
administrative requirements and demands remain the same. The training given in
the operation of the system was not sufficiently helpful in attempting to deal with
the major change involved.
[300] The introduction of the EDSAS finance module as from 1999 has caused
immense difficulty and stress.
[301] SSOs are not only working much harder within their ordinary hours per week
in accordance with the award, or their rostered hours, but are working longer
hours such that many of the hours worked are unpaid.
[302] The award overtime provisions are inadequate and do not adequately
address the circumstances in which workload pressures leading to the working of
overtime, whether on a formal or informal basis, will arise.
[303] DETE has been unwilling to address the issue and it is prepared to hive off
responsibility for the matter and to leave it to the local school site to deal with.
[304] The reality is that the allocation of extra SSO hours, and the limited
availability of other school resources, does not allow schools to adequately
address the overtime problem, even with school management which has the best
of intentions.
[305] The sense of responsibility and commitment that SSOs have towards their
work compels them to work extra hours. They know that if they claim overtime, the
school will have to pay. They know the school cannot do so, so they do not make
any claim. They are aware of time bank facilities, but if these facilities are used to
take a flexi-day, there is no relief in work pressure.
[306] No appropriate or adequate action is being taken by DETE to address the
issues of SSO workload which require immediate attention, in particular, the
matter of unpaid overtime.
[307] The trend of the last decade towards increased workload and work
complexity will continue.
[308] There is a pressing need for relief from accumulating workload pressures
experienced by SSOs. The goodwill of the majority of theses employees is being
exploited by DETE.
[309] The demands currently being made of SSOs, and likely in the future to be
made, clearly demonstrate a capacity for some SSOs to be exploited unfairly by
the imposition of unreasonable workloads.
[310] All that the AEU seeks is a return to a provision of a level of staffing which
was in place until 1995, and for the granting of workable and relevant

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prescriptions with respect to overtime which are to replace some of the existing
provisions and work in conjunction with others.
[311] The claims made by the AEU are modest, and unless relief in some form is
granted, there will be nothing in place to prevent DETE from continuing to treat
SSOs unfairly and/or from improperly exploiting them.
CPSU submissions
[312] The evidence paints a picture of SSOs stretched to breaking point by the
demands placed on them.
[313] There are many reasons why the workload of SSOs has reached peak
levels. They include:
(1) reduction in ancillary staff allocation;
(2) implementation and ongoing function of the EDSAS administration package;
(3) the implementation and functioning of the EDSAS finance module;
(4) devolution to schools by Partnerships 21; and
(5) the provision of first aid.
[314] It is significant that DETE has agreed to conduct a review of issues in
relation to workload of SSOs. The establishment of the review can be taken by the
Commission as an acknowledgment by DETE that the issue of the workload of
SSOs may be a problem. Should an award now be made without any workload
prescriptions, and should a review find workload to be excessive, there would be
no industrial regulation to deal with it.
[315] In order to address the problem of excessive hours it is appropriate that
there not only be a prohibition against a requirement to work excessive hours but
a positive method of addressing the problem of too few SSOs with too much work.
[316] The evidence proves that large amounts of unpaid overtime and enormous
banking up of time bank is occurring amongst SSOs. The evidence establishes
that this is due to the amount of work presently being expected of SSOs and to
the bureaucratic barriers placed in front of overtime claims by DETE.
[317] Unpaid overtime is a serious problem for SSOs. The evidence of DETE in
answer is simply to state the twin mantra "it is not a policy of the Department" and
"management of hours and the taking of time bank are matters to be determined
by Principals".
[318] Neither of those responses provides a solution. SSOs are Crown
employees. If they work overtime at the request of their line manager, they are
entitled to be paid or given time off in lieu by DETE.
[319] A specific grievance procedure with the establishment of a conciliation
committee including persons familiar with staffing issues will facilitate more rapid
resolution of workload disputes.
DETE submissions
[320] As a result of the questions of overtime and workload being raised towards
the end of 1999, DETE has set up a review of SSO workload. The fact of the
review does not support the insertion of clause 18.1. On the contrary, it suggests
DETE is addressing the issue of SSO workload and the availability of overtime in
an appropriate way.
[321] The evidence does not support a finding of a significant general increase in
work that individual SSOs are required to do. There has, however, been a "spike"
at the end of 1999 brought about by a combination of factors associated with the
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end of the school financial year on 31 October, the introduction of Partnerships
21, and the new EDSAS finance module.
[322] It is true that there have been some changes in work, but that is not
necessarily the same thing as additional work. There is some evidence of
additional work associated in particular with the EDSAS finance module. However,
in that respect it should be noted that the implementation of EDSAS and accrual
accounting were specifically bargained for in 1996.
[323] The evidence of the witnesses called by each of the AEU and by the CPSU
in relation to SSOs confirmed the absence of significant change over the last 3
years.
[324] DETE has a policy that an SSO should not be required to carry out unpaid
work. DETE also complies with current award provisions for its employees.
[325] It is not clear what, if anything, would be the additional protection afforded to
an SSO by, for example, the proposed clause 18.1.
[326] Schools have been able to obtain more SSO hours by:
(1) converting some of their FIR funding into SSO hours;
(2) negotiating additional SSO hours;
(3) providing additional hours to part-time SSOs for specific purposes; and
(4) having SSOs work overtime, which overtime is approved and then paid for.
[327] Whilst there is some evidence to suggest that individual SSOs may have
difficulty in utilising all of their time bank entitlement, there is no suggestion that
the SSOs are not aware of their entitlements and rights.
[328] Some of the AEU witnesses have expressed reluctance to claim paid
overtime because of a belief that, if granted, it could only be paid from the school
budget. That belief is incorrect.
[329] DETE opposes the insertion of clause 18.1. It does so:
(1) because it is unnecessary; and
(2) for the same reasons addressed in relation to clause 16.1.
[330] SSO hours of work are already regulated by the School Services Officers
(Government Schools) Award. Clause 6.1 of the award provides that the ordinary
hours of work for an employee are not to exceed 37.5 hours per week or,
alternatively, are not to exceed an average of 37.5 hours per week according to
roster. Clause 6.3 provides for overtime.
[331] Thus there are already in existence award provisions of the conventional
type which limit the hours of work which can be required of an SSO (thus
providing for protection of employees from unreasonable work demands). There
are also award provisions for the payment of overtime and/or the utilisation of a
time off in lieu facility through a time bank.
[332] DETE opposes the insertion of clause 18.2 because:
     it offends the implied constitutional limitation;
     it is unnecessary;
     it is a clause to do with resourcing;
     read literally, it would require DETE to provide to an SSO a number of hours
       of work each week which would exceed the ordinary hours of 37.5 fixed by
       the underlying State award; and


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      it would require the number of hours to be provided to an SSO to be fixed by
       reference to a criterion which has nothing at all, or very little, to do with the
       work of an SSO, namely, the size of the school grounds.
[333] As to clause 18.3 a full-time SSO is employed to work 37.5 hour per week.
That SSO is engaged to provide services for that number of hours. The SSO is
not an employee who is engaged to carry out a specified task, as are some
persons.
[334] Apart from any obligation to work reasonable overtime (in which event the
SSO would be entitled to payment) the SSO is not obliged, and cannot be
required, to work more than 37.5 hours. If the tasks requested of the SSO cannot
be completed within that time then there is no obligation to continue working.
There is no right to continue working.
[335] The AEU/CPSU proposal seeks to turn this basis for employment upside
down. Instead of being employed for a certain number of hours, the SSO would be
paid as though he/she had been engaged to complete a task. It would be the time
taken to complete the task which would be the determinant of the remuneration.
[336] The provision is open-ended, open to abuse and lacks certainty.
[337] Read literally, clause 18.4 is nonsense. It does not identify the hours in
respect of which payment is sought. If it is seeking to introduce a concept of
compulsory payment in relation to the part-time employee similar to that proposed
for the full-time employee, then it suffers from the same fundamental
misconception as that referred to above.
[338] The clause is unnecessary. The evidence does not show that clause 6.3 of
the State award is not working satisfactorily.
[339] The Commission ought not to interfere with the relatively straightforward
concepts upon which the SSO Award is based. A part-time SSO is employed for,
and entitled to be paid for, the hours specified. If the work allocated cannot be
done within these hours, it does not have to be performed. The part-time
employee should not have an entitlement to continue working and then demand
payment.
[340] One of the matters which the Full Bench must have regard to in a s.170MX
arbitration is the question of how productivity might be improved in the business or
part of the business concerned. An entitlement for SSOs to work overtime in the
circumstances advanced by the AEU/CPSU, and the provision of an election to
the individual SSO as to whether he or she is to be paid or to bank time for
additional hours worked, would have the tendency of decreasing productivity.
Conclusions
[341] The evidence satisfies us that there are problems in relation to the workload
of SSOs which should, as far as possible, be resolved.
[342] In considering these problems it must be borne in mind that the School
Services Officers (Government Schools) Award, unlike the award applying to
school teachers, prescribes ordinary hours of work and provides for overtime. In
this situation, we are of the view that the provisions sought by the AEU/CPSU are
inappropriate. In general, work that cannot be performed in ordinary hours should
either not be performed or should be performed in overtime. It is for the employer
to determine which. We appreciate that some employees will be dissatisfied with

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this position and may choose to perform work in their own time. They, however,
cannot be required to do this.
[343] Proposed clause 18.1 is, we think, not an appropriate provision where the
employees work under an award which prescribes ordinary hours and provides for
overtime.
[344] Proposed clause 18.2 requires DETE to allow SSOs "minimum sufficient
paid work time per week" by reference to a formula which includes among its
elements the number of teachers employed at and the area, in hectares, of the
school grounds. While this formula may have its genesis in the staffing allocation
formulas, it is, in our view, inappropriate as an award requirement to be imposed
on DETE. In any event, we are not satisfied that this formula, having regard to all
the possible variables, will provide "minimum sufficient paid work time per week"
for SSOs.
[345] Proposed clauses 18.3 and 18.4 are also, in our view, inappropriate for
employees, including SSOs, who have the benefit of minimum working hours in an
award which also provides for overtime. Also, we think that they are unclear and
would be open to abuse.
[346] The problems to which we have earlier made reference are shown by the
evidence to be substantial. They are not limited to the "spike" which DETE
claimed had arisen at the end of 1999.
[347] We are mindful that, at the time of this arbitration, the parties were
conducting a review of SSO workload problems. The outcomes of this review
should ideally be taken into account in crafting a solution to the problems.
[348] As will be seen, we decide that our s.170MX award will operate together
with the existing awards of the IRCSA, as varied from time to time, except to the
extent of any inconsistency.
[349] In all of the circumstances, we have decided to make no prescription in the
s.170MX award with respect to workload for SSOs. This is not an indication that
we consider that the workload issue is not genuine. If the AEU/CPSU wish to
pursue the matter, the appropriate course, we think is to make an application to
the IRCSA with respect to the operation of the existing overtime arrangements.
[350] We note that, if DETE is prepared to give the commitment set out in
paragraph [285], the FIR referred to in it will be capable of being directed so as to
have a positive impact on SSO workload.
[351] As to clause 18.5 (grievance procedures), see our conclusion under the
heading "General - Grievance Procedures".
SCHOOLS - WORKLOAD - ABORIGINAL EDUCATION WORKERS (AEWs)
The agreed issue
[352] Should there be provisions with respect to the work of AEWs as sought by
the AEU/CPSU in clauses 19 (and 15B), and, in particular, should there be
provisions:
(1) prohibiting any requirement that an AEW undertake an excessive or
unreasonable workload (AEU/CPSU clause 19.1);
(2) permitting minimum sufficient paid work time (AEU/CPSU clause 19.2);
(3) establishing a grievance procedure for workload issues (AEU/CPSU clauses
19.3 and 17)?

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AEU claim
[353] Proposed clause 19:
              "19 - WORKLOAD - ABORIGINAL EDUCATION WORKERS
         19.1 No Aboriginal Education Worker shall be required to undertake an
         excessive or unreasonable workload in any week.
         19.2 In order to carry out the work of Aboriginal Education Workers in
         Pre-Schools, Child Parent Centres or Schools, an Aboriginal Education
         Worker or Aboriginal Education Workers must be allowed minimum
         sufficient paid work time per week calculated as follows:
         19.2.1 at least one hour per each Aboriginal student;
                19.2.2 two hours for each Aboriginal student who speaks English
                as a second language.
             19.3 Where any grievance arises over the workload of a particular
             Aboriginal Education Worker or group of Aboriginal Education
             Workers, the grievance procedures in clause 17 shall be followed with
             such modifications as are necessary to address the workload issues
             specific to Aboriginal Education Workers and with the following
             variations:
                19.3.1 pursuant to Clause 17.1.3 the Principal shall inform the State
                Manager (AEWs) of the grievance;
                19.3.2 the persons on the conciliation committee constituted in
                accordance with clause 17.1.3 shall be nominated by the union and
                the Aboriginal Education Unit (DECS)."
[354] Proposed AEU clauses 15B and 17 are set out respectively in paragraphs
[196] and [195].
AEU submissions
[355] The allocation of AEWs to schools has not kept pace with the evolution of
the role of AEWs and the demands now placed upon AEWs. Consequently,
manifestly insufficient paid work time is provided to AEWs who perform much of
their work beyond their rostered hours and for whom overtime is not available.
[356] The evidence demonstrates that the paid time provided to AEWs at the
moment is manifestly inadequate for carrying out their duties, obligations and what
is expected of them. That evidence is uncontradicted.
[357] The unfairness and unreasonableness of the workloads of AEWs is
generated by the insufficient AEW time per student which the formula provides.
The consequence is that AEWs are performing large amounts of unpaid overtime.
[358] In the circumstances, and particularly given the current context of
significantly increased demands upon AEWs as a result of the 1999-2003 Plan for
Aboriginal Education, there is an urgent need for the Commission to provide for
fair workload protections.
DETE submissions
[359] DETE is opposed to the insertion of the proposed clause 19.
[360] In relation to the proposed clause 19.1, DETE refers to its submissions
concerning clause 16.1 of the AEU proposed s.170MX award in which the AEU
seeks an equivalent prescription relating to teachers.


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[361] The job requirements, duties and hours of work of AEWs have only recently
been reviewed by agreement between the parties. The evidence does not
disclose a significant change in the work of AEWs since that review.
[362] The proposed clause is vague and of uncertain effect.
[363] The evidence does not establish a need on the part of the employees, nor
unreasonableness on the part of DETE, in respect of the employment of AEWs
which could justify intervention by the Commission in the manner sought by the
AEU.
[364] The insertion of the clause would require the Commission to make an
exercise of judgment as to policy.
Conclusions
[365] The claims made in relation to AEW workload are broadly similar to those
made in relation to SSO workload. Clause 19.1 is similar to clause 18.1. Clause
19.2 is similar in concept to clause 18.2 although the formula is different. No
claims similar to those in clauses 18.3 or 18.4 are made for AEWs. Clause 19.3 is
similar to clause 18.5.
[366] The Aboriginal Education Workers Award, like the award applicable to
SSOs, prescribes ordinary hours of work and provides for overtime.
[367] In these circumstances, and for similar reasons to those we gave with
respect to the comparable SSO workload claims, we refuse the claim in clauses
19.1 and 19.2.
[368] With respect to clause 19.3 (grievance procedures), see our conclusion
under the heading "General - Grievance Procedures".
SCHOOLS - TEMPORARY RELIEVING TEACHERS (TRTs)
The agreed issues
[369] The issues are:
    DETE's proposal that a TRT should be paid a flat rate (DETE clause 10.1);
    the AEU's proposal that each TRT should be engaged for a minimum period
      of 3 hours and paid at the time and in the manner sought in its clause 23;
(3) should there be a provision that TRTs not be entitled to payments for
absences due to school vacation periods or public holidays or for absences due to
personal sickness as proposed by DETE (DETE clause 10.3)?
[370] In its written submissions, the AEU said it was not pressing its claim
(proposed clause 23). Accordingly, we deal only with DETE's claim.
DETE claim
[371] Proposed clause 10, Temporary Relieving Teacher and Casual Reliever -
Schools and Pre-Schools:
          "10.1 Subject to this clause a Temporary Relieving Teacher will be paid
          per half day the rate prescribed in Schedule 1. Wages and Salary Rates,
          to this Award.
          10.2 Subject to this clause a Casual Reliever will be paid per half day the
          rate prescribed in Schedule 1. Wages and Salary Rates, to this Award.
          10.3 A Temporary Relieving Teacher and a Casual Reliever are not
          entitled to payments for absences due to school vacation periods or
          public holidays or for absences due to personal sickness.
          10.4 Temporary Relieving Teachers and Casual Relievers employed by
          the employer as such at any time during the 20 school weeks
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          immediately prior the commencement of this Award and who received a
          rate of pay greater than the rate which will apply under this Award, will
          have their rate "pegged" and will receive this "pegged" rate, during any
          engagement as a Temporary Relieving Teacher or a Casual Reliever to
          the end of the 2001 school year. Persons receiving a "pegged" rate will
          not be entitled to any increases as provided for under this Award, until
          such time as the Award rate exceeds the "pegged" rate, at which time the
          Award rate will apply.
          10.5 Notwithstanding the preceding clause, the Award rate will apply to
          all persons in receipt of a "pegged" rate engaged as a Temporary
          Relieving Teacher or a Casual Reliever from the commencement of the
          2002 school year."
DETE submissions
[372] DETE's proposal in clause 10 is that TRTs be paid a flat rate expressed as a
half daily rate. DETE makes a similar proposal in respect of the TRTs counterpart
in preschools. The half daily rate is proposed in order to maintain consistency with
the present prescription in the Teachers (DETE) Award.
[373] The evidence justifies the Commission concluding that TRTs have lesser
work and lesser responsibilities than their permanent counterparts.
[374] A differential in the rate of pay is appropriate. This should be achieved by
the insertion into the award of a flat rate of payment for TRTs.
[375] Administrative convenience does not weigh heavily in the scales. However,
it ought not to be overlooked.
[376] Interstate and Territory awards and agreements reveal that:
(1) two States and the Territories apply either a single flat rate or two flat daily
rates (Victoria, Queensland, the Northern Territory and the Australian Capital
Territory); and
(2) 3 States apply an incremental daily scale applicable to permanent teachers
(New South Wales, Western Australia and Tasmania).
[377] Clauses 10.4 and 10.5 proposed by DETE provide, in effect, some
transitional provisions. DETE recognises that, in the event that a flat rate of
payment for TRTs is introduced, there will be some persons who would receive a
lesser payment for TRT work than they would if the current arrangements
continue. On the other hand, there will also be teachers who will receive more
than if the current arrangements continue.
AEU submissions
[378] The rationale for the DETE claim is twofold; there are work value differences
between TRTs and other teachers and a flat rate of pay would be more
administratively convenient. The flat rate payment is justified by DETE on the
basis that a majority of employees would receive a higher rate.
[379] The DETE claim is based squarely on work value considerations but DETE
led very little witness evidence in relation to work value differences between TRTs
and permanent teachers.
[380] In a case in 1984 the Teachers Salaries Board (TSB) and IRCSA had a
significant body of evidence before them relating to TRT work and heard direct
evidence from a range of TRTs. The evidence in the present proceedings
discloses no change in the relative work value of TRTs and other teachers since
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that time. What DETE is effectively asking the Commission to do, on the basis of
far less evidence, is to reach a different decision from that reached by the joint
tribunals.
[381] The DETE flat rate proposal would result in permanent teachers with up to 4
years continuous teaching experience being paid at a lower rate than a TRT with
a few days experience. On one hand, DETE complains that there is a work value
injustice in paying a TRT as much as an equally qualified and experienced
permanent teacher. On the other hand, it proposed an alternative whereby an
inexperienced TRT would be paid more than a better-qualified, more experienced
permanent teacher.
[382] The flat rate approach pays no regard to the relative work value of an
experienced TRT and a TRT with less or no teaching experience.
[383] In work value terms the current prescription acknowledges in principle
equivalence in work value between casual and permanent teachers after
balancing the roles performed against the circumstances under which the work is
carried out.
[384] There is scant evidence on the difference in work value between TRTs and
other teachers. What evidence there is merely confirms some of the observations
of the IRCSA and TSB in 1984.
[385] There was simply no evidence led by DETE to explain how administration of
school budgets would be made simpler by a flat rate. The current administrative
arrangements could hardly be simpler.
[386] A majority of employees (those above step 7) who were available for TRT
work last year would not be beneficiaries of the flat rate proposal.
[387] It is not just the cut in income that is of concern. There is also the workload
impact on other staff and the impact on students to consider if reduced rates
exacerbate TRT shortages.
[388] DETE has sought to justify a flat rate of pay on the grounds of work value,
administrative simplicity and benefit to employees. What evidence there is
sustains none of these grounds. The prescription DETE seeks would create
anomalies where none exist, reduce employee salaries and put at risk the supply
of TRTs.
[389] Although DETE has sought to deny that the motivation or intention of the
proposal is to reduce the rates payable to employees in order to bring about cost
savings, that is transparently the effect of the proposal. The reluctance to disclose
such an intention is understandable in light of the attitude of the Commission
towards negative cost cutting measures that do not have an overall advantage to
both employers and employees. The claim should be rejected.
Conclusions
[390] In general, we agree with the AEU's submissions with respect to DETE's
claim in its clause 10.1 that a TRT be paid per half day the rate specified in
schedule 1. The current basis of remuneration for TRTs was fixed pursuant to the
arbitration proceedings in 1984, referred to earlier. In general, we accept the
AEU's submissions as to DETE's claim. There is no evidence to support a
conclusion there has been a reduction in the value of the work performed by TRTs
since 1984. The DETE proposal would result in a reduction in the rate of pay

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received by the majority of TRTs. This outcome is not justified on the evidence.
DETE's claimed clause 10.1 is rejected.
[391] Clause 5.6 of the Teachers (DETE) Award includes - "A Temporary
Relieving Teacher is not entitled to payments for absences due to school vacation
periods or public holidays or for absences due to personal sickness". DETE
proposes to include a provision in the s.170MX award which will continue this
arrangement. The AEU did not directly address this matter in its submissions. Nor
did it propose any alteration to the status quo. We are satisfied that the status quo
should be preserved in this respect. Proposed DETE clause 10.3 will be included
in the s.170MX award.
SCHOOLS - BAND 2 PROMOTIONAL POSITIONS (LEADERSHIP
CLASSIFICATIONS)
The agreed issue
[392] Should there be a provision with respect to Band 2 promotional positions as
sought by DETE in its clauses 27.2 and 27.3 and Schedule 1, Part 1?
DETE claim
[393] Proposed clauses 27.2 and 27.3 (part of clause 27 - Schedule 1 Wages and
Salary Rates):
    "27.2 Subject to this clause, an employee is entitled to be paid the salary
    specified in Schedule 1 applicable to the classification of the position held by
    that employee.
          27.3 Transition With effect from the first full pay period commencing after
          the making of the Award, those employees employed in a position the
          classification of which appears in Column 1 of the table below will be
          entitled, while employed in that position, to be paid the salary applicable
          to the classification appearing in Column 2 of the table below opposite
          that classification.
                    Column 1                                    Column 2
Key Teacher – Primary          $47 889           Coordinator 1          $47 889
Key Teacher – Secondary $47 889                  Coordinator 1          $47 889
Key Teacher – Area             $47 889           Coordinator 1          $47 889
School
Coordinator – Primary          $49 311           Coordinator 2          $49 937
Coordinator/Senior –           $52 194           Coordinator 3          $52 194
Secondary
Asst. Principal – Primary $50 792                Asst. Principal 1      $52 787
Asst. Principal/ Special       $55 904           Asst. Principal 2      $55 904"
Senior – Secondary
[394] Schedule 1, Part 1 contains the following with respect to Band 2
Promotional positions:
PROMOTIONAL POSITIONS
COORDINATOR 1                                        47889
COORDINATOR 2                                        49937
COORDINATOR 3                                        52194
ASSISTANT PRINCIPAL 1                                52787
ASSISTANT PRINCIPAL 2                                55904"
DETE submissions
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[395] DETE's proposal would remove the distinction between primary and junior
primary schools on the one hand and secondary schools on the other in respect of
both the coordinator and assistant principal positions. Also, it would set salaries
for 3 levels of classification for the position of coordinator and two levels of
classification for the position of assistant principal and allow the actual
classification of the position to be undertaken at the school level.
[396] There are only two situations in which a newly appointed person would
receive a salary of less than that applying presently to the classifications. They
are:
(1) a coordinator secondary may be appointed as coordinator 1 or 2; and
(2) an assistant principal secondary may be appointed as assistant principal 1.
[397] The proposed structure will allow flexibility to reflect the varying degrees of
responsibility.
[398] The basis of the AEU opposition to the DETE proposal is the view that there
is no difference in the role, functions or responsibilities of a coordinator or
assistant principal in a school which would warrant a salary differential.
[399] The obvious position is that the responsibilities within a school of either a
coordinator or an assistant principal may be allocated in such a way that one
carries greater responsibility than the other and therefore that the value of the
work of one may be greater than the other.
[400] A further reason for DETE advancing the revised band 2 leadership
classification structure is that it will maintain some consistency in approach with
that of the leadership positions in band 3 (principal and deputy principal).
[401] The DETE proposal is not intended to disadvantage any coordinator or
assistant principal.
[402] The fixing of salaries for the proposed new classification structure is in the
public interest having regard to:
     Partnerships 21 schools being able to, amongst other things, decide the
        duties which they require of coordinator and assistant principal;
(2) a review of the total leadership structure being agreed in the 1996 DECS
Enterprise Agreement. The review of the principal and deputy principal positions
has been completed. The review of the band 2 positions was not completed. It is
desirable that the exercise be concluded; and
(3) it redressing the situation which presently applies where some persons are
being paid the same, eg. as a coordinator, albeit with different responsibilities.
AEU submissions
[403] The DETE claim proposes notionally higher salaries for two primary
classifications which will have practically no effect. Two lower classifications are
proposed in the secondary sector where there are large numbers of employees
who would potentially be affected by those lower classifications at the end of their
existing limited tenure appointments.
[404] The proposed classification structure is intended to operate in concert with
the removal of the industrial regulation of workload. Schools would be under
pressure to introduce lower classifications as a trade-off to buy leadership time.
The classification guidelines proposed are not intended to be industrially
enforceable and could be changed by the employer at any time. The guidelines
have never been the subject of negotiation and were not seen by the AEU until
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the case was underway. No explanation of the development of the guidelines has
been proffered nor is there any evidence that the classification guidelines are
appropriate or can be practically applied in particular schools.
[405] No principals were called to attest to any restrictions imposed by the current
classification structure. No witnesses were called to provide evidence that would
assist the Commission in understanding the range of roles and duties undertaken
by band 2 positions. There is simply no basis on which the Commission could find
that the current classification structure is deficient, let alone that it should be
replaced by the prescription sought in the DETE application.
Conclusions
[406] In our view, a case has been made out for some change to the
classifications in band 2. We accept that there will be a variety of coordinator roles
and responsibilities and that some increased flexibility to recognise this is
appropriate. We are, however, concerned about the potential for existing
coordinator positions to be inappropriately reclassified at the conclusion of existing
tenured appointments. This could occur in the absence of enforceable
classification criteria to guide the decisions that would, in general, be made at the
school level. The adoption of positions at a lower level should only be considered
where the responsibilities of the roles have in reality been reduced and where the
positions fall within reasonable criteria for such classifications. The criteria
proposed by DETE appear to us to be appropriate. However, we note that they
have not been subject to discussions between the parties and that the
circumstances within schools are subject to change.
[407] We have decided that the DETE proposal, including the transitional
arrangements in clause 27.3, should be included in our award. However, the
proposed classification guidelines (Attachment DM3 to Exhibit DETE 47) are to be
included as an enforceable element of the award. These guidelines are to operate
pending any agreement reached following a joint review by DETE and the AEU.
SCHOOLS - ADVANCED SKILLS TEACHERS 2 (AST2s)
The agreed issue
[408] Should there be a provision with respect to AST2 in the terms sought by the
AEU in its clause 20?
AEU claim
[409] Proposed clause 20:
   "20.1 A teacher who has been assessed in accordance with the State Award as
   satisfying the criteria to be paid at the level of Advanced Skills Teacher Level 1
   may apply to be assessed to be paid at the level of Advanced Skills Teacher
   Level 2. Such a teacher shall be referred to in this clause as an "eligible
   teacher".
          20.2 An eligible teacher will be assessed in accordance with the
          procedure(s) and the criteria as agreed from time to time between the
          Chief Executive and the AEU and published from time to time by the
          Department.
          20.3 An eligible teacher who is assessed as satisfying the criteria will be
          entitled to be paid at the level of Advanced Skills Teacher 2 commencing
          on and from the first duty day in the year following the year in which the
          eligible teacher is assessed."
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AEU submissions
[410] The development of AST positions arose in the context of the restructuring
of awards in the late 1980s and early 1990s. The intention of the AEU was to
develop a classification of AST to recognise teachers who sought to remain in the
classroom rather than to take up senior positions which took them out of the
classroom.
[411] The AEU application simply seeks to provide an award provision for the
AST2 level in similar terms to that which exists in relation to AST1 which would
then allow the parties to proceed to negotiate agreed criteria for an AST2
classification. There appears to be no objection of any substance by DETE.
[412] The AEU application seeks to do no more than further a process which the
parties intended to put in place in 1992. There is no reason why the parties should
not progress discussions with a view to agreeing appropriate criteria.
DETE submissions
[413] DETE opposes the making of any provision in respect of an AST2
classification because:
(1) there is no evidence that the clause is necessary or appropriate;
(2) there have been no substantive discussions relating to the classification of
AST2 since the early 1990s;
(3) there is no evidence of duties, requirements or obligations which should apply
to an AST2;
(4) the Education Act 1972 (s.15A) empowers the Director General of Education
to fix the duties, titles, positions and classifications of officers. It is preferable that
issues of classification be left to the Director General;
(5) the operation of the provision may operate to constrain DETE in determining
whom it wishes to employ as an AST2, if anyone, and the qualifications of persons
whom it may wish to appoint to such a classification and, accordingly, is beyond
power; and
(6) operation of the provision is conditional upon agreement being reached as to
the criteria and procedures and is not appropriate for inclusion in an award.
[414] There are presently no procedures criteria for assessment of teachers at
AST2 and there are no teachers employed in that classification.
[415] There is nothing more than a passing or cursory reference to AST2s
amongst the mass of material before the Commission.
[416] Until such time as the duties and criteria for such a classification are agreed,
there is no basis on which the Commission can assess the value of such
classification and thus the salary which ought to be payable.
Conclusions
[417] We have, in paragraph [71], rejected DETE's submission that the AEU's
clause 20 infringes the implied constitutional limitation.
[418] The claim has been made out by the AEU. The proposed provision seeks
only to provide access to the AST2 level through the application of agreed criteria
to be developed between the AEU and DETE. It is reasonable that the AST2
classification be available subject to the development of appropriate criteria
defining the additional expertise and experience required for an AST2. We do not
have concerns about inserting the clause sought even though its operation is

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conditional on agreement being reached between the parties. We have
accordingly decided to grant the AEU claim in the terms sought.
SCHOOLS - OFFICERS ON SECONDMENT
The agreed issues
[419] Should there be a provision with respect to the rate of allowance applicable
to seconded officers of the teaching service:
(1) as proposed by DETE (DETE clause 11.1);
(2) as proposed by the AEU in addition to the loss of conditions allowances
provided for in the State Award for teachers (AEU clause 21.1)?
AEU claim
[420] Proposed clause 21:
                    "21 - ADVISORY AND SECONDED TEACHERS
         21.1 In addition to the loss of conditions allowances provided for in the
         State Award teachers who are seconded to carry out non teaching duties
         will have the secondment level of their duties clearly specified and will be
         paid as follows:
                21.1.1 Level 1 - A responsibility allowance at a rate to provide
                remuneration at the salary prescribed for a Principal Class 1.
                21.1.2 Level 2 - A responsibility allowance at a rate to provide
                remuneration at the salary prescribed for a Principal Class 2.
                21.1.3 Level 3 - A responsibility allowance at a rate to provide
                remuneration at the salary prescribed for a Principal Class 3.
             21.2 Nothing in the clause shall prohibit an officer who is seconded
             continuing to be paid at his/her substantive salary where that
             substantive salary is in excess of the responsibility allowance payable
             pursuant to this clause."
DETE claim
[421] Proposed clause 11:
   "11. OFFICERS ON SECONDMENT: SCHOOLS
         11.1 Despite clause 6.9 of the Teachers (DETE) Award, officers of the
         teaching service who are seconded ("seconded officers") to carry out
         duties under the direction of professional officers engaged in
         administration or supervision of education will be paid an allowance in
         accordance with the allowance applicable to the level specified as
         applying to the position:
                11.1.1 Level 1 - An allowance of 4.75 per cent per annum of the
                teacher incremental Step 10 in Schedule 1.Wages and Salary
                Rates of this Award in addition to substantive salary provided that
                the substantive salary plus allowance does not exceed the salary
                prescribed for a PCO1.
                11.1.2 Level 2 - An allowance at a rate so as to provide
                remuneration at the salary of PCO2.
                11.1.3 Level 3 - An allowance at a rate to provide remuneration at
                the salary of PC03."
AEU submissions
[422] The differences between the DETE and AEU proposals may be summarised
as follows:
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(1) Level 1. The DETE proposal results in variable payments up to a maximum of
the PCO1 salary level. The DETE proposal seeks to remove the provision for
payment of a loss of conditions allowance at level 1. The AEU seeks a single flat
allowance rate at the PCO1 level and retains the provision for payment of a loss of
conditions allowance should the circumstances warrant it;
(2) Level 2. The DETE and AEU proposals both contemplate payment of an
allowance at the PCO2 salary level. The DETE proposal seeks to remove the
current provision for payment of a loss of conditions allowance whilst the AEU
proposal maintains the provision for such a payment; and
(3) Level 3. The DETE and AEU proposals both contemplate payment of an
allowance at the PCO3 salary level. The DETE proposal seeks to remove the
current provision for payment of a loss of conditions allowance whilst the AEU
proposal would maintain the provision for such a payment.
[423] The PCO1, PCO2 and PCO3 levels sought have regard for the longstanding
nexus arrangements that have existed between particular advisory and seconded
levels and levels in the teaching promotional structure. They are the appropriate
classifications on which to base responsibility allowances in the advisory and
seconded teachers structure.
[424] The AEU proposal which maintains the existing loss of conditions allowance
is fair.
DETE submissions
[425] The practical effect of DETE's proposal:
(1) is to relate payment of seconded officers to the salaries payable pursuant to
the new PCO scale instead of a superseded rate;
(2) is to provide for the monetary equivalent of the loss of conditions allowance in
an overall salary rate, rather than as an additional percentage to a salary rate; and
(3) (leaving aside DETE's proposed general increase) will be that the level 1
seconded officer has the same entitlement as presently applies, level 2 seconded
officers (the level with the largest number of seconded teachers) will have a
substantial increase in salary entitlement and level 3 seconded officers will have a
modest decrease in salary entitlement.
[426] There is no reason to increase the level of allowance or specific
remuneration payable to an advisory or seconded teacher above whatever
general increase is awarded by the Commission.
[427] There is no justification for granting to seconded officers the level of
increases which would result from the adoption of the AEU's proposed clause.
[428] The review of the principals and deputy principals structure resulting in an
agreed PCO structure does not provide any justification for ascribing PCO salaries
to seconded teachers.
[429] The Commission should accept DETE's proposed seconded teacher clause
11, the practical effect of which, in relation to seconded teachers at level 2 (which
comprises the largest number of seconded teachers), will provide an increase of
1.8% over and above the general increase which DETE proposes in its s.170MX
award.
Conclusions
[430] Some modification is required to the secondment conditions as a result of
the introduction of the new leadership classifications. We favour a simple and
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efficient arrangement provided it takes into account the legitimate interests and
circumstances of the employees involved. The proposed arrangements sought by
DETE meet these criteria. The new salary benchmarks appear to be reasonable,
do not involve any significant reduction in net entitlements and do not involve the
potential for "double dipping" that may arise from the AEU proposal.
[431] We have decided to grant the DETE proposed clause 11.1 and to reject the
AEU proposal.
SCHOOLS - SCHOOL SERVICES OFFICERS - CONTRACT OF EMPLOYMENT
The agreed issues
[432] Should there be a provision:
(1) with respect to the contract of employment and nature of engagement as
proposed by DETE in its clauses 13.2, 13.3, 13.4 and 13.5;
(2) with respect to alteration of times at which work is to be performed by an SSO
as proposed by DETE in its clause 13.8;
(3) enabling DETE to transfer SSOs from one school to another as proposed by
DETE in its clause 13.7;
(4) with respect to the payment of SSOs as proposed by DETE (DETE clause
13.10)?
Note: The parties are agreed that a 5th level in the SSO classification structure
should be established, and have agreed the classification criteria for that level and
that the criteria should be inserted into the State Award. Subject to that occurring,
these matters will not require determination by this Commission (DETE Schedule
1, Part 3; AEU/CPSU clause 22).
DETE claim
[433] Proposed clause:
    "13. SCHOOL SERVICES OFFICERS (SSOs): SCHOOLS
    13.1 Delete
    13.2 Contract of employment
                 13.2.1 An SSO may be engaged as a full-time, part-time or casual
                 employee.
                 13.2.2 The contract of hiring of a full-time or part-time employee
                 will, in the absence of a written agreement to the contrary, be
                 deemed to be a hiring by the fortnight and salary will accrue from
                 day to day.
                 13.2.3 A full-time or part-time employee may be employed for a
                 specified or unspecified period.
       13.3 Full-time Employment
                 13.3.1 A full-time SSO is one engaged to work 37.5 hours per
                 week.
                 13.3.2 A full-time SSO who does not receive a term time loading
                 will be entitled to leave entitlements.
       13.4 Part-time Employment
                 13.4.1 A part-time SSO is one engaged and paid as such to work
                 less than 37.5 hours per week.
                 13.4.2 A part-time employee who does not receive a term time
                 loading will have a pro rata entitlement to leave and leave loading
                 on the same basis as a full-time employee.
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                 13.4.3 In offering part time employment, the employer is not bound
                 by clause 4.6 of the School Services Officers (Government
                 Schools) Award.
        13.5 Casual Employment
                 13.5.1 A casual SSO is one engaged and paid as such provided
                 that:
                                    13.5.1.1 the employee is employed for not more
                                    than 15 hours per week; or
                                    13.5.1.2 the engagement is for a period not
                                    exceeding two school terms; or
                                    13.5.1.3 the ordinary hours to be worked are to
                                    vary from week to week irrespective of the span of
                                    hours or the period of engagement.
                    13.5.2 A casual SSO is entitled to a monetary loading and is not
                    entitled to any paid leave entitlements of any sort (except special
                    leave at the discretion of the employer; and any long service
                    leave entitlement) nor payment for public holidays not worked.
              13.5 Delete
              13.6 SSO Transfer
                 13.7.1 An SSO may apply to transfer or be required to transfer from
                 a school or any other place at which the employee is employed.
                 13.7.2 An SSO may be required to transfer for genuine operational
                 reasons, including, for example:
                              . where there is a decline in school enrolment;
                                    . where a school has established a School
                                    Services Officer deployment plan and the skills of
                                    current employees does not match the plan;
                                    . where two or more schools have amalgamated
                                    or a school has closed.
                    13.7.3 Notwithstanding the preceding sub-clause, a permanent
                    School Services Officer will not be appointed to a position
                    located at the same school for more than ten years. School
                    Services Officers are to be identified for relocation from a school
                    after a permanent appointment of ten years. The vacancy
                    created may be applied for by the School Services Officer who
                    held that position.
                    13.7.4 This clause is in substitution of clause 4.4 of the School
                    Services Officers (Government Schools) Award.
        13.8 The times at which work is to be performed by an SSO may be altered
        either by agreement or by the employer giving not less than one week's
        notice to the employee (provided that no notice is required in relation to a
        casual SSO employed for hours that are to vary from week to week).
        13.9 Deleted
                 13.9.1 Deleted
        13.10 Payment of SSOs
                 13.10.1 A full-time SSO is entitled to be paid fortnightly in arrears
                 the salary specified in the Wages and Salary Rates Schedule.
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                  13.10.2 A part-time SSO is entitled to be paid fortnightly in arrears
                  an hourly rate for the hours for which he or she is engaged.
                  13.10.3 A casual SSO is entitled to be paid fortnightly in arrears an
                  hourly rate for each hour worked and a twenty per cent loading and
                  will not be entitled to any recreation leave, sick leave nor payment
                  for public holidays.
                  13.10.4 School Term Employment: Where a full-time or part-time
                  SSO is employed for a period(s) specified as being for the whole or
                  part of one or more school terms (but excluding school vacation
                  periods), the employee will be entitled to a monetary loading of
                  sixteen per cent, and will not be entitled to any paid recreation
                  leave entitlements nor payment for public holidays not worked
                  (unless the employee makes use of an accrued time bank in
                  accordance with the State Award).
                                       13.10.4.1 deleted
                                       13.10.4.2 deleted
                                       13.10.4.3 deleted
                      13.10.5 For the purposes of this clause:
                                       13.10.5.1 an SSO is employed for a school term
                                       or for school terms where the period or periods of
                                       employment are specified to occur entirely within
                                       term time, but with the agreement of the employer
                                       and employee, may include five additional working
                                       days; and
                                       13.10.5.2 term time includes the week
                                       immediately following the end of the fourth school
                                       term as determined pursuant to the Education Act
                                       1972.
                      13.10.6 Delete
                                       13.10.6.1
                                       13.10.6.2"
DETE submissions
[434] DETE proposes that clauses 13.2-13.5 be inserted into the award because:
(1) it will simplify the award provisions in relation to the basis of employment of
SSOs;
(2) it will remove some restrictions which presently limit the circumstances in
which an SSO can be employed as a permanent, part-time or casual employee;
(3) it will provide for fixed term employment for both full-time and part-time
employees;
(4) it will make the employment arrangements for SSOs clearer so that they can
more easily be understood in schools; and
(5) it will increase flexibility in relation to ancillary staff.
[435] The DETE proposal reduces the number of categories of employment to 3,
namely, full-time, part-time or casual. The category of temporary SSO is removed.
[436] The DETE proposal would not disadvantage any employee. The proposed
clauses 13.2-13.5 and clause 13.10 bring together the entitlements of the 3 forms
of employment into one place.
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[437] The existing clause 4.6 of the underlying State award restricts DETE's ability
to fill vacancies of less than 15 hours per week in any particular school. DETE is
required, first of all, to offer the vacancy to other part-time employees at the same
school and, then, to offer the vacancy to other part-time employees in nearby
schools. The insertion of the DETE proposed clause 13.4.3 is to make it plain that
clause 4.6 in the underlying State award will not apply.
[438] Currently, DETE may require an SSO to transfer to another work site only
where there has been a decline in student enrolments or a school closure or
amalgamation. DETE's proposal enables SSOs to be transferred from one school
to another for operational reasons.
[439] DETE seeks a clause which will be less restrictive because:
(1) the current provisions do not enable DETE to match the needs of individual
schools with the skills of individual SSOs in all circumstances;
(2) the removal of the restriction will improve productivity in the future; and
(3) there is insufficient justification to retain the current restriction.
[440] There is little justification for retaining a system which restricts the ability of
the employer to transfer staff from one site to another (within the terms of agreed
policies) where one site no longer has the need for a person with the particular
skills and training or requires someone with skills and abilities which an existing
employee lacks.
[441] In addition to the ability to transfer for operational reasons, DETE wishes to
have the ability to transfer an employee to another school after 10 years. By
clause 37.7.3 DETE proposes to introduce a 10 year provision similar to that
which currently exists for teachers.
[442] DETE's clause 13.8:
(1) increases flexibility in relation to the employment of SSOs;
(2) has the potential to improve productivity into the future; and
(3) is in the interests of the negotiating parties and the public.
[443] DETE has brought together the various clauses in relation to payment of
SSOs under clause 13.10.
AEU submissions
[444] DETE's proposed changes, both individually and collectively, will exacerbate
the current insecurity of the SSO workforce and tend to facilitate a higher rate of
casualisation of the workforce than already exists.
[445] Current provisions relating to the nature and terms of contracts of
employment able to be negotiated by DETE with SSOs are not unduly restrictive
or inflexible.
[446] Clause 4.2.1 of the SSO award as it presently stands provides a modicum of
security to SSO employees with respect to the basis of their engagement.
[447] This proposal will introduce a subtle but significant change into the award
regulation of casual employment.
[448] "Casual employment", as defined in clause 13.5.1.3 of the DETE award, will
allow the employer to negotiate casual employment for an indefinite period or
periods.
[449] No specific evidence has been put forward by DETE which suggests that
the current employment arrangements have caused any problem to schools in the
efficient and effective use of funding available for short term projects.
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[450] No witness said that the current award prescriptions relating to the contract
of employment caused any impediment to the way in which SSOs could be
employed for the benefit of schools, or to the way in which FIR funds could be
used.
[451] The proposal in clause 13.4.3 of the DETE award in relation to part-time
employment has no merit. DETE seeks to be relieved from the obligations
imposed by clause 4.6 of the SSO award which requires the employer, in the
event that there are vacancies of less than 15 hours, to offer employment first to
other SSOs in the school, or, failing that, to SSOs in nearby schools. This clause
is designed to provide greater work opportunities to part-time SSOs seeking
further work. Its removal would be yet another factor tending to make it easier for
DETE to expand casual employment at the expense of permanent part-time
employment.
[452] The existing arrangements which permit transfer of SSOs only in limited
circumstances operate satisfactorily and allow for a match of employee skills and
positions where there are declared vacancies in accordance with current agreed
transfer procedures. The evidence is that the great majority of SSOs are willing to
change work practices, to be flexible and to undergo retraining to meet the needs
of DETE.
[453] No evidence of an appropriately specific nature has been given to the
Commission to support the change.
[454] A further potential difficulty with the DETE proposal is the broad nature of
clause 13.7.2. The scope of circumstances which may be said to constitute
operational reasons justifying a required transfer will not necessarily be limited to
the examples given in the clause.
[455] As part of the SSO transfer provisions, DETE seeks to introduce the
concept of school choice for SSO employment. The reasons put forward by DETE
to justify this provision are inadequate.
[456] The inequities which could arise from the change in the rostering system are
apparent. By intent or oversight, a school principal may require a change of hours
which makes it impossible for an SSO to continue working due to a clash with
other family or work commitments.
CPSU submissions
[457] DETE's proposal in clauses 13.2-13.5 removes temporary employment as a
category of employment within DETE. Temporary employment provides greater
permanency than casual employment.
[458] The DETE proposal removes the requirement imposed on DETE by clause
4.6 of the SSO award to offer part-time workers any additional work which
becomes available at a school and that is less than 15 hours a week. The removal
of this benefit to part-time employees will lead to an increase in the engagement
of casual staff in schools.
[459] DETE has provided no evidence which establishes that clause 13.8 is
necessary.
[460] The clause proposed by DETE would allow a principal to unilaterally impose
or reduce hours without any regard to the circumstances of the individual.
[461] DETE in clause 13.7 seeks to deregulate the process of transfers for SSOs
in its proposed award. There is little merit in this proposal. There is little evidence
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that the current transfer process is unable to resolve difficulties in placements in
the vast majority of cases.
[462] DETE's proposal contains no definition of what constitutes an operational
reason for a transfer and the clause is liable to create a situation where SSOs are
transferred rather than retrained in the event of a skills mismatch.
[463] DETE clause 13.7.3 removes existing security of employment enjoyed by
permanent SSOs. At present they are employed indefinitely at the same school
unless they elect to transfer or are displaced because of declining enrolments.
[464] Unlike teachers, SSOs are invariably recruited and live locally and are
drawn from the local school area.
[465] The proposal is an absolute prohibition against the appointment beyond 10
years. It will have harsh effects for SSOs employed in remote areas who are
unsuccessful in reapplying for their jobs.
[466] The DETE proposed clause 13.10 is no more than the current entitlements.
The CPSU opposes the clause only insofar as no reference is made in it to the
retention of temporary employment.
Conclusions
[467] In general terms a case has been made out by DETE for some increased
flexibility in and simplification of the contract of employment and related
arrangements for SSOs. The employment categories proposed by DETE are, we
think, both appropriate and consistent with the varying employment requirements
of schools. We are, however, mindful of the nature of SSO employment and the
need to protect the legitimate interests of SSOs.
[468] We have decided to adopt the thrust of the DETE proposals relating to the
rationalisation of employment categories, increased roster flexibility and certain
aspects of the related employment arrangements. We will, however, require
certain protections to be included so as not to promote further casualisation of
SSO employment and to take account of the interests of SSOs.
[469] We accordingly decide as follows:
(1) proposed clauses 13.2, 13.3, 13.4.1 and 13.4.2 will be included in the s.170MX
award;
(2) clause 13.4.3 is rejected as, in our view, the existing "15 hour rule" (clause 4.6
of the SSO Award) should, for the reasons advanced by the unions, be retained;
(3) proposed clause 13.5 will be included in the award;
(4) proposed clauses 13.7.1 and 13.7.2 will be included in the award;
(5) proposed clause 13.7.3 is rejected. DETE's 10 year tenure proposal is
unnecessary and inappropriate for SSO employment;
(6) proposed clause 13.7.4 is to be modified so as to give enforceable award
status to the relevant constraints set out in the present administrative document
(Year 2000 School Based Ancillary Staffing Policies and Procedures Exhibit DETE
93 4002-4020), as discussed in the evidence of Mr Burns (T.2219-2220). The
relevant provisions of that document for these purposes are paragraph 2.2.3 (Staff
participation in the required placement process), paragraph 2.2.4 (Placement of
employees affected by required placement) and paragraph 2.2.6 (Appeals against
required transfers). This requirement is not designed to affect the other provisions
of the policy and procedures document that are capable of being applied in the
context of the award. It may well be appropriate for the remainder of the document
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to be revised to make it consistent with the award provisions arising from this
decision;
(7) proposed clause 13.8 will be included in the award subject to including that
DETE is required to consult with the SSO, to have regard to the SSO's personal
circumstances and, where the changes are not agreed, to give 4 weeks' notice;
(8) clause 13.10 will be included in the s.170MX award; and
(9) we accept and adopt the agreed approach of the parties with respect to the
SSO Level 5 classification.
PRESCHOOLS - WORKLOAD - PRESCHOOL TEACHERS
The agreed issues
[470] Should there be a provision with respect to the work of preschool teachers
and directors as sought by the AEU in its clause 24 (and 15B) and, in particular,
should there be provisions:
(1) prohibiting any requirement that a preschool teacher undertake an excessive
or unreasonable workload (AEU clause 24.1);
(2) fixing the maximum contact time of a preschool teacher and Director (AEU
clause 24.2, 24.4 and 24.5);
(3) fixing the maximum ratio of staff to children in relation to a preschool teacher
conducting an education program (AEU clause 24.3);
(4) establishing a grievance procedure for workload issues (AEU clauses 24.6 and
17)?
AEU claim
[471] Proposed clause 24:
                        "24 - WORKLOAD - PRESCHOOL TEACHER
          24.1 No pre-school teacher shall be required to undertake an
          unreasonable or excessive workload in any week during the school year.
          24.2 No pre-school teacher shall be required to undertake maximum
          contact time exceeding 22 hours per week and no pre-school Director
          shall be required to undertake maximum contact time exceeding 11 hours
          per week.
          24.3 No pre-school teacher shall be required to conduct an educational
          program if the ratio of staff to children is less than 1:10.
          24.4 Subject to sub-clause 24.5, and notwithstanding the requirements of
          sub-clause 24.2 above, and in order to enhance pre-school based
          flexibility in the allocation of workload, a Director of a pre-school, in
          consultation with the employees, may increase the ordinary maximum
          contact time prescribed in sub-clause 24.2 to a maximum of 23 hours 30
          minutes per week for a pre-school teacher or 11 hours 45 minutes for a
          pre-school Director.
          24.5 Where a Director is considering increasing contact time in
          accordance with subclause 24.4, the Director, in consultation with the
          employees, shall give consideration to all factors impacting upon the
          workload of individual employees or groups of employees including but
          not limited to the following:
          24.5.1 total contact time;
                 24.5.2 the number of children allocated to a particular session or
                 sessions or (if applicable) to a particular employee;
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               24.5.3 the number of children in a particular session or sessions
               with physical or intellectual disabilities;
               24.5.4 the number of children in a particular session or sessions
               where there are specific learning disabilities and/or language
               barriers and the level of itinerant children;
               24.5.5 areas of learning being taught and the circumstances in
               which they are being taught;
               24.5.6 the time allowed for work performed outside the delivery of
               the educational program;
               24.5.7 the performance of additional duties, including the teaching
               of sessions additional to those rostered and duties performed
               outside the pre-school;
               24.5.8 the availability of administrative and other support such as
               child counselling and curriculum consultancy services;
               24.5.9 the time required to consult with and report to parents and/or
               the wider educational community.
               There shall be no increase in contact time in accordance with
               subclause 24.4 unless the full extent of the resources created by
               that increase are utilised to reduce, diminish or alleviate other
               existing factors impacting upon the workload of an employee or
               employees at the pre-school. Utilisation may include but is not
               limited to the following:
               . Reducing the number of children in a particular session or
               sessions.
               . Allowing more time for performance of additional duties and/or
               work outside the delivery of the educational program.
            . Provision of additional administrative and other support.
            Provided that:
               24.5.10 The additional resources created by any increase in
               contact time are only utilised to improve upon (rather than establish
               or maintain) the minimum prescriptions in relation to workload
               contained in this Award including those in subclauses 24.2 and
               25.2
               24.5.11 The additional resources created by any increase in
               contact time are not deployed to address workload implications of
               any new externally imposed initiatives which significantly impact
               upon workload and where additional necessary resources to
               address the new initiatives have not been allocated to the pre-
               school.
            24.6 Where any grievance arises over the workload of a particular pre-
            school teacher or group of pre-school teachers, the grievance
            procedures in clause 17 shall be followed with such modifications as
            are necessary to address workload issues relating to pre-school
            teachers."
[472] AEU proposed clauses 15B and 17 are set out respectively in paragraphs
[196] and [195].
AEU submissions
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[473] Although the history of the evolvement of a Staffing Allocation Document for
preschools is not the same as that in relation to schools, the fact that an
agreement by DETE to maintain the formula was incorporated into the 1996
DECS Enterprise Agreement and the 1998 DECS Certified Agreement gives an
industrial character to the staffing allocation provisions which now impose
industrial obligations on DETE in the same way as the Staffing Allocation
Document applicable to schools.
[474] The AEU proposal is to be understood in the context of the definition of
"contact time" in the proposed AEU award (see paragraph [197]). There is an
issue as to whether extension programs of the type commonly conducted by a
preschool on a Friday morning, and variously at other times, are "educational
programs".
[475] The "official" contact time of full-time preschool staff is 22 hours per week,
comprising 8 kindergarten sessions of 2.75 hours per week, conducted each
morning and afternoon from Monday to Thursday inclusive.
[476] The intention of the proposed clause with respect to contact time is to make
available to a director a substantial amount of extra time for the discharge of
administrative duties by providing release of 50% or more time from the time
commitment required for "hands on teaching" in relation to the delivery of
kindergarten sessions or extension programs.
[477] The intention of the AEU proposal is to slightly reduce the amount of contact
time to be undertaken by a teacher or an ECW in order to ease the workload
pressures to which they are subject.
[478] The AEU proposal allows considerable flexibility to the director to allocate
additional contact time to a teacher or an ECW.
[479] The AEU award seeks to alter the existing staff/child ratio in the same
manner in relation to preschool teachers (clause 24.3) and ECWs (clause 25.3).
The clauses are intended to prevent a preschool teacher from being required to
conduct an educational program, or an ECW from being required to assist in the
delivery of an educational program, if the ratio of "staff" to children is less than
1:10.
[480] The intention of the AEU award proposal is not to place any restriction on
the manner in which an educational program is conducted if the staff to child ratio
is met.
[481] The AEU relies upon the principles applicable to workload claims. The
fundamental test is whether the Commission is satisfied that the demands made
and being made on preschool employees demonstrate a capacity for some of
these employees to be exploited unfairly by way of imposition of unreasonable
workloads.
[482] There is a very strong case for intervention by the Commission to protect
preschool directors from unfair exploitation. As a teacher, the primary
determinants of the workload of a director are:
(1) time spent in rostered sessional programs, extension programs (where the
director is involved), child contact and parental consultation (contact time);
(2) the workload generated by the number of children a director at any one time or
in one period is required to teach and the composition of the groups of children
taught (student load); and
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(3) the organisational duties required of a director (the administrative load). This
administrative load in the case of a director flows only from the director's work as
a teacher.
[483] In addition, a director is charged with responsibility for the administration of
a kindergarten as a whole and for performance management and development of
staff.
[484] In relation to the role of the director as a teacher, the evidence is that the
teaching load of a director is in the vicinity of 90% of that of a full-time teacher.
[485] The evidence in relation to the increased administrative workload of
directors shows a myriad of extra administrative responsibilities which have
increased incrementally over the last decade.
[486] There have been two increases in the number of children dealt with per staff
member over approximately the last 10 years.
[487] The AEU claim seeks provisions which treat directors fairly and prevent
improper exploitation. This can only be appropriately achieved by the provision of
significant additional time release, given the primary need for administrative work
to be done by the person responsible for the preschool site. The director would
still retain a substantial, but manageable, teaching load at the same time if the
AEU claim was granted.
[488] The workload of teachers and ECWs has substantially increased over the
last 10 years and, more particularly, over the last 3 years as a result of matters
including:
(1) the reconceptualisation of curriculum and other initiatives;
(2) the impact of societal change;
(3) the filtering down to both the teacher and the ECW of some administrative
work due to the administrative overload on directors;
(4) increases in the number of children per staff member; and
(5) weekly workload.
[489] The claims made on behalf of teachers and ECWs do not significantly
reduce the amount of contact time required of those staff.
[490] The claim in relation to the staff/child ratio would, if granted, return the
staffing of preschools to a ratio similar to that which applied until 1988 when all
preschool centres were staffed on the basis of enrolments on an average 1:10
ratio.
[491] There has been no evidence put forward by DETE containing any criticism
as to the effect or operation of the AEU proposals.
[492] The evidence clearly demonstrates a capacity for some preschool
employees to be exploited unfairly by the imposition of unreasonable workloads.
DETE submissions
[493] In respect of the proposed clause 24.1, DETE repeats the submissions it
made in respect of its counterpart; namely, proposed clause 16.1. DETE submits
that the insertion of such a clause in relation to preschool directors or teachers is
unnecessary.
[494] DETE opposes the insertion of proposed clauses 24.2, 24.4 and 24.5
because:


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(1) with the exception of the teaching load of a preschool director, the matters
claimed and the terms of the prescriptions were not matters at issue during the
bargaining period;
(2) the proposal is not within the power of the Commission to grant, because of
the implied constitutional limitation;
(3) insofar as the clause would prescribe the way in which the State must use a
resource created by the increase in the nominal maximum time, it is not an
industrial matter;
(4) there is no merit in the application and need for the prescription has not been
established;
(5) workload requirements were taken into account in the 1996 DECS Enterprise
Agreement and in the subsequent review concerning the classification structure of
preschool directors; and
(6) it is not in the public interest for there to be any alteration in the basis on which
preschools are staffed.
[495] The 1996 DECS Enterprise Agreement committed the parties to
"examination of the amount of administration time available to pre-school
Directors" and a "thorough review" of the leadership structure in preschools.
These reviews were undertaken and led to an increase in time available to both
part-time and full-time directors to undertake the administrative and leadership
tasks within preschools, and it became a matter for directors to work out local
arrangements as to how to best implement and use that increase in time.
[496] At present, the ordinary hours of work for pre-school teachers and directors
are only 36 hours and 15 minutes per week (clause 6.1 of the Pre-school
(Kindergarten) Teaching Staff Award which includes paid meal breaks (clause
6.2)). Within those 36 hours and 15 minutes, full-time preschools are required to
provide 8 sessions of preschool education over 4 days of the week with each
session usually being 2 hours and 45 minutes. The fifth day, usually the Friday, is
generally used for other preschool activities, planning and program time.
[497] Preschools are staffed with teachers pursuant to a staffing formula of 1:10
for category 1 and 1:11 for category 2 and 3 preschools. Thus the complexity of a
preschool is taken into account in the staffing ratios. Those ratios were in place at
the time of negotiating and making the 1996 DECS Enterprise Agreement and
have been unchanged since then.
[498] It is not established, as a matter of merit, that a limitation on the contact time
of teachers or preschool directors is required.
[499] In relation to preschool directors, the AEU claim is in effect that a preschool
director should have a teaching load of 0.4 in every case. That is to say, the claim
is that a pre-school director should be required to teach on only 2 days out of 5
each week.
[500] In relation to the matters on which the AEU relies in asserting increased
workload, they were all, or almost all, encompassed within the making of the 1996
Enterprise Agreement and the 1998 Certified Agreement.
[501] Such work changes as have occurred over the last 5 years do not justify or
support the making of the prescriptions sought by the AEU.


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[502] The vagueness and uncertainties which the AEU's provisions contain are
self evident, e.g. there is no definition of "educational program" and, in the context
of the proposed clause 24.3, it is not clear either as to its meaning or intent.
[503] The maxima sought in clause 24.2 should be regarded as nominal only. In
this respect, DETE repeats, in respect of the preschool sector, the submission it
made with respect to proposed clauses 16.2, 16.5 and 16.6 in relation to schools.
[504] The scheme sought to be established by clause 24.5 is substantially the
same as the scheme sought in clause 16.5 and clause 16.6 in relation to schools.
DETE repeats its submissions in relation to those provisions in the context of
preschools.
[505] The AEU seeks a prescription that a preschool teacher should not be
required to conduct "an educational program" if the ratio of staff to children is less
than 1:10. Preschools are presently staffed based on a formula of 1:10 for
category 1 preschools and 1:11 for category 2 and 3 preschools.
[506] Preschools in South Australia have been staffed on the basis of attendances
rather than enrolments since 1988 pursuant to an agreement between the South
Australian Institute of Teachers (SAIT) and DETE.
[507] Because attendance at preschool sessions is voluntary (unlike schooling
from ages 6-15), it would not be in the public interest to, and there is no merit in,
reverting to the previous basis for staffing preschools (i.e. enrolments).
Conclusions
[508] We have, in paragraph [69], rejected DETE's submission that part of the
AEU's preschool teacher workload claim infringes the implied limitation. We have,
in paragraph [85], rejected DETE's submission that part of the AEU's preschool
teacher workload claim is about a matter that was not at issue during the
bargaining period. We have, in paragraph [95], rejected DETE's submission that
part of the AEU's preschool teacher workload claim is not about an industrial
matter.
[509] In general, the conclusions we have reached about teacher workload are
applicable to preschool teacher workload.
[510] Accordingly, if DETE is prepared to give the commitment specified in
paragraph [285] (which refers, in paragraph 1, to the Preschool Staffing Formula),
we would not think it appropriate to include in our award any provisions regulating
the workload of preschool teachers.
[511] If, however, DETE is not prepared to give this commitment, we think it
appropriate to include in our s.170MX award the following clauses:
          "(1) No preschool teacher including a director shall be required to
          undertake an unreasonable workload.
          (2) In determining what is an unreasonable workload regard is to be had
          to the assumptions underlying the Preschool Staffing Formula and the
          outcomes of the review of the amount of administration time available to
          preschool directors conducted pursuant to the 1996 DECS Enterprise
          Agreement."
[512] In determining these clauses we have been influenced by matters,
including:
(1) that the Pre-schools (Kindergarten) Teaching Staff Award prescribes ordinary
hours of work (36 hours 15 minutes per week for full day employees) (clause 6.1)
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and that a daily meal break of not less than 20 minutes is counted as time worked
(clause 6.2); and
(2) that a review relating to preschool directors occurred pursuant to agreement
reached in 1996 and the outcomes of that review.
PRESCHOOLS - WORKLOAD - EARLY CHILDHOOD WORKERS (ECWs)
The agreed issues
[513] Should there be a provision with respect to the work of ECWs as sought by
the AEU/CPSU in their clause 25 (and 15B) and, in particular, should there be
provisions:
(1) prohibiting any requirement that an ECW undertake an excessive or
unreasonable workload (AEU clause 25.1);
(2) fixing the maximum contact time of an ECW (AEU clause 25.2, 25.4 and 25.5);
(3) fixing the maximum ratio of staff to children in relation to an ECW assisting in
the delivery of an education program (AEU clause 25.3);
(4) establishing a grievance procedure for workload issues (AEU clauses 25.6 and
17)?
AEU claim
[514] Proposed clause 25:
                 "25 - WORKLOAD - EARLY CHILDHOOD WORKERS
          25.1 No Early Childhood Worker shall be required to undertake an
          unreasonable or excessive workload in any week during the school year.
          25.2 No Early Childhood Worker shall be required to undertake maximum
          contact time exceeding 22 hours per week.
          25.3 No Early Childhood Worker shall be required to assist in the delivery
          of an education program if the ratio of staff to children is less than 1:10.
          25.4 Subject to subclause 25.5, and notwithstanding the requirements of
          subclause 25.2, and in order to enhance pre-school based flexibility in the
          allocation of workload, a Director of pre-school, in consultation with the
          employees, may increase the ordinary maximum contact time prescribed
          in sub-clause 25.2 to a maximum of 23 hours 30 minutes.
          25.5 Where a Director is considering increasing contact time in
          accordance with subclause 25.4, the Director, in consultation with the
          employees, shall give consideration to the same factors, conditions and
          provisos referred to in subclause 24.5 to the extent that they apply to
          Early Childhood Workers.
          25.6 Where any grievance arises over the workload of a particular Early
          Childhood Worker or group of Early Childhood Workers, the grievance
          procedures in clause 17 shall be followed with such modifications as are
          necessary to address workload issues relating to Early Childhood
          Workers."
[515] AEU proposed clauses 15B and 17 are set out respectively in paragraphs
[196] and [195].
AEU submissions
[516] The AEU's submissions are included in its submissions with respect to
preschool teacher workload; see paragraphs [473] to [492].
DETE submissions
[517] DETE opposes the insertion of clause 25 into the s.170MX award because:
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(1) it would infringe the implied constitutional limitation;
(2) it was not a claim made during the bargaining period;
(3) a prescription limiting the contact time of an ECW is inappropriate. ECWs are
engaged to work a number of hours in each week. The ECWs are protected from
excessive or unreasonable demands by the hours of work prescriptions contained
in the Early Childhood Worker Award. In addition, ECWs are entitled to non-
contact time each week. That non-contact time is 10% of the total contact time.
Most full-time ECWs take that non-contact time on a Friday when the children are
not in attendance at the preschool;
(4) the maximum of 22 hours sought in clause 25.2 of the AEU proposed s.170MX
award is nominal only;
(5) in relation to the proposed clauses 25.4 and 25.5, of the submission DETE
made in respect of the proposed clauses 16.5 and 16.6; and
(6) in addition to the difficulties of vagueness and uncertainty referred to in relation
to the equivalent clauses elsewhere, the ambiguity created by the use of different
expressions in the proposed clauses 25.2 and 25.3. The former uses the concept
of "contact time". The latter uses the concept of "an education program". It is
unclear what different time is thereby referred to.
[518] The AEU again seeks to turn the clock back to a staffing ratio of 1:10 which
was in place in the years preceding the making of the 1996 DECS Enterprise
Agreement and which continues to apply in relation to category 1 preschools.
[519] DETE does not require ECWs to do more work than they are paid for and it
is part of the duties of all the directors of preschools to ensure the proper
management of an ECW's workload.
[520] The AEU/CPSU proposal with respect to ECWs suffers from the same
misconception as that in relation to SSOs.
[521] It is inappropriate in preschools for there to be fixed prescriptions as to the
number of students for which an ECW, or for that matter a preschool teacher,
should be responsible at any one time.
[522] DETE's submission in relation to the proposed grievance procedure
contained in clause 25.6 is the same as that made in response to other grievance
procedure claims.
Conclusions
[523] ECWs in preschools are generally comparable to SSOs in schools. In the
light of our decision with respect to the workload claims for SSOs, and for similar
reasons, we reject the workload claims for ECWs.
PRESCHOOLS - EARLY CHILDHOOD WORKERS - CASUAL EMPLOYMENT
The agreed issue
[524] Should there be a provision with respect to casual employment of ECWs as
proposed by DETE in its clause 14.1?
DETE claim
[525] Proposed clause 14.1:
    "14.1 Casual Employment
                 14.1.1 A casual ECW is one engaged and paid as such provided
                 that:
                                     14.1.1.1 the employee is employed for not more
                                     than 15 hours per week; or
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                                    14.1.1.2 the engagement is for a period not
                                    exceeding two school terms; or
                                    14.1.1.3 the ordinary hours to be worked are to
                                    vary from week to week irrespective of the span of
                                    hours or the period of engagement.
                    14.1.1 A casual ECW is entitled to a monetary loading and is not
                    entitled to any paid leave entitlements of any sort (except special
                    leave at the discretion of the employer; and any long service
                    leave entitlement) nor payment for public holidays not worked.
                    14.1.2 A casual ECW is entitled to be paid fortnightly in arrears
                    an hourly rate for each hour worked and a twenty per cent
                    loading."
DETE submissions
[526] In respect of its proposed clause 14.1:
(1) proposed clauses 14.1.1 and 14.1.2 do not alter the substance of existing
conditions applicable to casual ECWs;
(2) DETE is constrained by the current definition of casual ECWs in that they can
only presently be employed for less than one school term or less than 15 hours
per week;
(3) it would provide preschools with greater flexibility;
(4) it would enable consistency with casual SSOs (if the clause sought by DETE in
relation to SSOs is granted);
(5) the concerns expressed by the AEU in respect of the operation of the clause
are unfounded or speculative; and
(6) it would assist in improving efficiency and productivity.
[527] DETE's proposed clause 14.1.2 does not alter any of the current
entitlements of a casual ECW.
[528] The purpose of including both the proposed clauses 14.1.2 and 14.1.3 is to
make clear that it is the intention of the award to deal with the manner of
engagement and payment of a casual ECW and, in those respects, to displace the
operation of the ECW Award to that extent.
[529] DETE's proposed definition does have the effect of limiting the operation of
the definition of temporary employee in the ECW Award. However, the greater
flexibility with which DETE would be provided by such a clause, and the
consistency with the proposed SSO provision, provides it with an efficiency and
productivity benefit (albeit one which may be undefined) by reason of which (in
part) DETE is proposing increased salaries (pursuant to its proposed clauses 26
and 27).
AEU submissions
[530] No evidence has been put forward by DETE to support this claim and there
is no basis for granting it. The submissions made in opposition to a similar
proposal in relation to SSOs are adopted with respect to ECWs.
[531] The proposed change will exacerbate the current insecurity of the ECW
workforce and tend to facilitate a higher rate of casualisation of it than already
exists.
Conclusions

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[532] Clause 1.5 of the Early Childhood Worker Award defines a casual employee
as "a person employed for less than one school term or less than 15 hours per
week". There is also a definition of temporary employee and different entitlements
apply depending on whether or not the ECW is within a school environment. The
basis of the new provisions sought by DETE is to adopt a clearer and more
conventional definition of casual employee and to provide consistency with the
proposed provisions for SSOs in the school sector.
[533] In light of our adoption of the equivalent DETE proposals for SSOs, and the
similarity of the roles and circumstances of SSOs and ECWs, we have also
decided to grant the provisions sought by DETE.
PRESCHOOLS - CASUAL RELIEVERS
The agreed issues
[534] Should there be a provision that:
(1) a casual reliever be paid a flat rate as proposed by DETE in its clause 10.2;
(2) casual relievers not be entitled to payments for absences due to school
vacation periods or public holidays or for absences due to personal sickness
(DETE clause 10.3)?
DETE claim
[535] Proposed clause 10 (set out in paragraph [371]).
DETE submissions
[536] DETE's proposal in clause 10 is that a casual reliever be paid a flat rate
expressed as a half daily rate.
[537] The casual reliever in preschools is the counterpart of the TRT in schools.
DETE seeks the same provisions in respect of casual relievers as it seeks in
respect of TRTs. Much of DETE's submission with respect to TRTs is also
applicable to casual relievers.
[538] As in the case of the TRT, DETE's proposal involves, in principle, the fixing
of a flat rate of payment for casual relievers as opposed to the present rate which
varies according to the position of the casual reliever in the incremental scale.
[539] The reasons for the AEU resistance to the DETE proposal appear to be the
same as those put forward in connection with TRTs.
[540] It is to be noted, however, that the DETE proposal will provide for increases
in rates for some casual relievers as well as decreases for others.
[541] As to clause 10.3, DETE is not proposing to alter the status quo.
[542] Clauses 10.4 and 10.5 contain the same transitional provisions in relation to
casual relievers as DETE seeks for TRTs.
AEU submissions
[543] The AEU's submissions in relation to temporary relieving teachers in
schools (see paragraphs [378] to [389]) were, in general, applicable to casual
relievers in preschools.
Conclusions
[544] Adoption of the DETE proposal would result in a reduction in the rate
payable to some casual relievers. We are not satisfied that there is sufficient
justification, on the evidence, for any alteration to the status quo. Consistently with
our decision with respect to TRTs (paragraph [390]), we reject proposed clause
10.2.
TAFE - HOURLY PAID INSTRUCTORS (HPIs)
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The agreed issues
[545] Should the Commission make award provisions with respect to HPIs as
sought by DETE in its clause 19, or as sought by the AEU in its clause 30, and, in
particular, should there be provisions:
(1) as to classification criteria in the terms proposed by DETE in its clause 19.1;
(2) establishing an incremental payment scale in the terms proposed by the AEU
in its clauses 30.1, 30.2 and 30.3;
(3) as to duties other than teaching (as was proposed by the AEU in its former
clause 30.5);
(4) establishing an hourly rate in relation to setting or marking examinations, or
major assignments, in the terms proposed by the AEU in its clause 30.5;
(5) fixing a minimum payment in the terms proposed by the AEU in its clause 30.6;
(6) as to travelling time in the terms proposed by the AEU in its clause 30.7?
Note: The parties are agreed that there should be a provision in respect of a
visiting specialist in the terms proposed by DETE in its clause 19.1.1.
AEU claim
[546] Proposed clause 30:
               "30 - CLASSIFICATION AND PAY RATES CRITERIA FOR
                              HOURLY PAID INSTRUCTORS
          30.1 Subject to subparagraphs 30.1.1 and 30.1.2, an Hourly Paid
          Instructor will be paid at an hourly rate of pay within the range of rates
          appearing in Schedule 1(f) of this Award.
                 30.1.1 An Hourly Paid Instructor will be employed at a level within
                 the range which fairly and adequately reflects the qualifications,
                 range and experience and any special expertise possessed by the
                 Hourly Paid Instructor.
                 30.1.2 An Hourly Paid Instructor shall not be employed below the
                 Level which would apply if credit were given for:
                                     (a) one Level for 500 hours of prior instruction
                                     time worked; and/or
                                     (b) an additional Level where the Hourly Paid
                                     Instructor has completed the requirements for the
                                     degree of Bachelor of Adult Education awarded by
                                     the University of South Australia or an equivalent
                                     qualification recognised by the Classification
                                     Committee.
                     30.1.3 An HPI who is initially employed at Level 1 and who
                     subsequently completes the requirements for a teaching degree
                     recognised by the Classification Committee will be given credit
                     for one additional level from the date the degree is conferred.
             30.2 Incremental Progression
             An Hourly Paid Instructor appointed to a level for which an hourly rate
             is prescribed is entitled to progress to the next higher level upon the
             completion of each 500 hours of instruction time provided that:
                 . there can be only one progression to a higher level within a period
                 of 12 months;

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                 . hours of instruction time worked after progression to a higher level
                 in any one calendar year are credited to the Hourly Paid Instructor
                 for the purpose of qualifying for progression to the next higher level.
              30.3 Instruction Experience
                 For the purposes of clauses 30.1.2 and 30.2 all hours of instruction
                 time worked by an Hourly Paid Instructor in any other TAFE
                 Institute in South Australia, whether worked before or after the
                 commencement of this Award, will be counted for the purposes of
                 fixing the instruction rate applicable to the Hourly Paid Instructor.
              30.4 Specialist Rate
                 The specialist rate is the rate for the payment of a visiting specialist
                 or instructor of outstanding experience or ability who conducts
                 short-term classes or single lectures. The rate will apply where
                 approved by the Chief Executive or his/her delegate.
              30.5 Hourly Rate - Marking, Preparation or Assessment
                 Hourly Paid Instructors who are required to set and/or mark
                 examinations or who are required to set and evaluate major
                 assignments will be paid at the rate applying to the level at which
                 they are employed for each hour engaged in setting or marking
                 examinations and major assessed assignments. A major
                 assignment is one which is equal to 30% or more of the final
                 student assessment.
              30.6 Minimum Payment
                 An Hourly Paid Instructor will be paid for a minimum of 3 hours for
                 each attendance whether or not the time for which the person is
                 hired is less than 3 hours. This provision does not apply in relation
                 to payments made in accordance with subclause 30.5.
        30.7 Travelling Time
                 Hourly Paid Instructors who are required to travel away from their
                 usual place of work in order to supervise/assess students in the
                 field or undertake instructions shall be paid at the hourly rate for the
                 applicable Level for time so spent provided that:
                 (a) the amount of time spent travelling on the `round trip' is one
                 hour or greater;
                 (b) the time includes only that proportion spent travelling from one
                 place of work to another; and
                 (c) the time spent is appropriately recorded.
              30.8 Translation Arrangements
                 Where, immediately before the making of this Award, an Hourly
                 Paid Instructor is employed to teach subjects classified within the
                 Classes of Instruction 5-2 categories as described in Clause 4.5 of
                 the DETAFE Conditions of Employment Manual, the Hourly Paid
                 Instructor will translate in accordance with the provisions of clauses
                 30.1.1, 30.1.2 and 30.2
                 30.8.1 On translation no Hourly Paid Instructor shall suffer any
                 reduction in their hourly rate for the term of any existing contract or
                 contracts in place at the time the award was made."
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[547] Schedule 1(f), referred to in proposed clause 30, specifies the salaries
claimed for TAFE employees.
DETE claim
[548] Proposed clause 19:
   "19. HOURLY PAID INSTRUCTORS - CLASSIFICATION: TAFE
         19.1 To avoid doubt, this clause operates in substitution of clause 4.5 of
         the `Conditions of Employment Manual' referred to in clause 6 of the
         DETAFE (Educational Staff) Interim Award.
               19.1.1 Class 1 This category may be used upon prior approval of
               the Institute Director or other delegate when "an instructor of
               outstanding experience and/or ability" is engaged to conduct short
               term classes or single lectures - a visiting specialist.
               19.1.2 Class 2 Subjects classified in this category are deemed to
               be of such scope and complexity that the teaching effort is high due
               to:
                            . The specialist nature of the expertise required.
                                  . The subject matter is highly complex and subject
                                  to frequent change.
                               . Extensive preparation of learning materials.
                                  . Extensive assessment of student work outside
                                  the student contact time due to the length, nature
                                  and complexity of assignments and the number of
                                  students.
                                  . Considerable customisation to meet the needs of
                                  the specific client group.
                                  . Interpretation of curriculum or competencies is
                                  required.
                   19.1.3 Class 3 Subjects classified in this category are deemed to
                   be of such scope and nature that the teaching effort requires:
                                  . Substantial preparation of learning materials.
                                  . Interpretation of curriculum or competencies.
                                  . Substantial assessment outside the student
                                  contact time due to student numbers and the
                                  nature and range of assessments.
                                  . The subject matter is complex.
                                  . Some customisation to meet the needs of the
                                  specific client group.
                   19.1.4 Class 4 Subjects classified in this category are deemed to
                   be of such scope and nature that the teaching effort requires:
                                  . Considerable preparation.
                                  . Some customisation for the needs of individuals
                                  within the group.
                                  . Some assessment but less than class 3 due to
                                  the number of students and nature of
                                  assessments eg assessment guides are available,
                                  there is computer based assessment, or there is

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                                   the opportunity for a significant proportion of the
                                   assessment to occur in the student contact time.
                   19.1.5 Class 5 Subjects classified within this category have been
                   deemed to be of such a nature that the teaching requires limited
                   preparation. Adult Community Education subjects would in the
                   majority of such cases utilise the Class 5 rate. Apart from music
                   subjects any hourly paid instructor involved in individual teaching
                   will be paid at the Class 5 rate."
AEU submissions
[549] The current HPI classification structure is based upon certain deemed
characteristics of the subject or course which an HPI is engaged to teach. The
current provisions permit the employer to deem particular subjects taught in TAFE
as falling within particular "classes of instruction". The employer deems a subject
to be of a particular classification and HPIs are paid according to the classification
of the subject they have been engaged to teach.
[550] The AEU proposes a classification structure which classifies employees
according to their qualifications and experience in substitution for the existing
prescription. The AEU's proposal is moulded upon the rationale of the existing
lecturer classification structure whilst taking into account the nature of HPI
employment. It provides for an objective classification structure which is consistent
with the lecturers' classification structure both in terms of progression within the
structure and in terms of alignment with the rates paid to full-time and part-time
lecturers.
[551] DETE's proposal seeks to tinker at the edges of the existing arrangements.
Its adoption will exacerbate the current problems.
[552] The HPI mode of employment and the classification structure which was
developed for it, if ever appropriate, are no longer appropriate for the way in which
HPIs are now used.
[553] The work of HPIs and other lecturers is essentially the same. Despite
performing the same work, the classification structure for HPIs adopts a very
different and inappropriate rationale and pay from that for lecturers. As a
consequence, in terms of pay and career structure, HPIs suffer significant
disadvantage. The high proportion of the TAFE teaching load which is undertaken
by HPIs demonstrates their widespread use as de facto permanent lecturers, the
extent of the problem and the urgent need for it to be addressed.
[554] This arbitration is not the first time that the conditions of employment of HPIs
have been the subject of extensive review. A very important review occurred in
October 1991. That review was conducted by the DETAFE Human Resources
Division and is known as the "Review of Conditions of Employment of Part-Time
Instructors" (the 1991 PTI Review).
[555] In the 1991 PTI Review, the Commission has evidence of a thorough
investigation leading to a widely held consensus view shared by the
representatives of the industrial parties and others. That consensus view identified
widespread inequitable treatment and disadvantage and called for fundamental
changes to be made to the conditions of employment of HPIs. The working group
recognised that "major changes" were required in circumstances where each
submission received by it "expressed the view that many of the conditions under
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which the current system developed no longer existed and so a whole new policy
should be considered". The recommendations for change made in the report are
consistent with those for which the AEU contends.
[556] The current classification structure fails to reward teaching skills and
teaching experience in line with the rationale for the lecturer scale.
[557] The "classes of instruction" set down in the current classification structure
are sufficiently ill-defined to be open to inconsistent and arbitrary interpretation by
DETE. This has led to incidents of arbitrary lowering of pay rates by the
educational manager to accommodate budget restrictions.
[558] The classifications of subjects within the current structure and DETE's
proposed one is entirely discretionary.
[559] The proposed DETE classification structure is based on assumed
differences in the levels of subject complexity and in the corresponding amount of
marking and preparation.
[560] The changes proposed by DETE to the classification structure do not
diminish or redress the problem of subjectivity in the structure. Not only will the
adoption of DETE's proposal maintain the existing irrationalities but it will
exacerbate HPI disadvantage by downgrading existing classifications and may
result in lower rates for some subjects.
[561] The allocation of pay rates on the basis of subject complexity and marking
and preparation does not occur elsewhere in the South Australian education
system, either in schools or TAFE.
[562] In order to make a proper comparison between the rates of pay of HPIs and
of lecturers, it is necessary to convert the annual salaries prescribed for lecturers
into appropriate hourly equivalents.
[563] In its proposed salary scale for HPIs, the AEU has, correctly, formulated the
proposed rates on the basis of the lecturer scale alone. Given the nature of the
work performed by HPIs it would be anomalous to adopt any other criterion.
[564] The inequity and anomaly in pay between lecturers and HPIs is clear. A
comparison of the bottom 75% of the current classification structure with the
bottom 75% of the lecturers' scale shows a disparity of pay for instructional time
ranging between $9-$15 per hour using 840 as the divisor or between about $2-
$10 per hour using 960 as the divisor.
[565] The lack of security and working conditions of HPIs has further led to HPIs
being disadvantaged relative to other TAFE employees. The 1991 PTI Review
confirmed these disadvantages. There is evidence that the current financial
pressures are subjecting HPIs to exploitation.
[566] Disadvantages suffered by HPIs include:
(1) the discounting of the hourly rate for marking, preparation or assessment;
(2) the lack of a minimum payment for short attendance; and
(3) not being paid for travelling time.
[567] The whole range of inferior conditions to which HPIs are exposed is relevant
in determining their rate of pay.
[568] The extent of the disadvantages is demonstrated by, among other things:
(1) the intended short-term ("backfill") nature of HPI employment;
(2) the abuse of the HPI mode of employment (including that many HPIs are
employed for more than 10 hours per week and may carry greater than a 0.4
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fractional teaching load and are not offered permanent or temporary contract
employment) contrary to the Conditions of Employment Manual incorporated in
the DETAFE (Educational Staff) Interim Award;
(3) the proportion of the total teaching effort within TAFE institutes undertaken by
HPIs is very high. Rather than declining, the use of HPIs is increasing; and
(4) that current financial pressures will result in further overuse and abuse of HPI
employment.
[569] The AEU has demonstrated the inequitable pay for HPIs and the irrationality
and inappropriateness of the existing classification structure. The AEU's proposal
is based on the pay and classification structure of lecturers with appropriate
modifications. It may well be the case that the adoption now of a regime which
was first called for nearly 10 years ago will lead to significant increases in pay. So
it should.
[570] The rationale for payment of TAFE casual teachers varies markedly across
Australia and there is little or no consistency as there is with respect to school
teachers. It is apparent, however, that outside South Australia, only in Western
Australia and the Northern Territory do the rates paid to casual teachers depend
on the classification of the courses which are taught.
[571] In order to ensure that proper account is taken of qualifications and
experience, the AEU's proposal requires that encouragement and recognition be
given to the obtaining of an educational qualification. An additional level is
proposed for that purpose.
[572] Additionally, the AEU's lecturer classification structure ensures that
experience is taken into account by providing for annual incremental progression.
[573] With respect to the AEU's conditions claims:
(1) the payment of a reduced rate for setting and marking of examination papers
and for the assessment of major assignments is unfair and inappropriate. The
evidence makes it plain that preparation is required in both the setting of and
marking of examination papers and major assignments. The basis for the current
discounting is contradicted by the evidence and defies logic. The AEU seeks that
there be no discounted rate for teaching and lecturing functions undertaken by
HPIs, including the function of setting and marking examinations and major
assignments because such discounting cannot be justified;
(2) a minimum 3 hour payment is needed to overcome the inconvenience which
results from having to attend for a short period. It can be assumed that many
classes run for at least 3 hours. It can hardly be suggested that the absence of a
reasonable minimum payment for an attendance by an HPI is nullified by HPIs
having a choice as to whether or not they accept work requiring attendances of
short duration. Provisions requiring minimum payment for short attendances are
commonplace in industrial awards and agreements especially in relation to the
employment of casuals. A direct parallel can be drawn with the way in which
casual relieving teachers in schools are protected by being paid not on an hourly
basis but on a half daily basis; and
(3) there is evidence that HPIs are having to travel in their own time to undertake
the field assessment of students at different placement sites. There can be no
reasonable explanation for denying HPIs employed within the same program
within an institute payment for time spent travelling to deliver courses when that
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time is greater than an hour for a round trip. The AEU claim is modest. It attempts
to redress an inequity which exists in relation to HPI employment and which is
already recognised informally in some institutes as an unfair practice.
[574] With respect to duties of HPIs other than teaching:
(1) the issue is raised whether the Commission should make award provisions as
proposed by the AEU in its former clause 30.5;
(2) there is no claim before the Commission;
(3) the former clause 30.5 was withdrawn on 13 March 2000;
(4) DETE said that it agreed with former clause 30.5, subject to whether payment
should be at 75% or two-thirds of the normal hourly rate;
(5) in the circumstances, the Commission should not deal with the issue; and
(6) there is nothing to prevent DETE making a separate application to vary the
DETAFE (Educational Staff) Interim Award.
DETE submissions
[575] As to the classification criteria:
(1) DETE's proposal seeks to clarify, not alter them; and
(2) if the Commission decides to maintain the status quo, but not in the wording
proposed by DETE, it should either leave the position as it is or direct the parties
to bring in a further version for settling in the minutes.
[576] The incremental payment scale proposed by the AEU should be rejected for
reasons including that:
(1) it was not a matter at issue during the bargaining period;
(2) even if it were, it was not the subject of negotiation between the parties;
(3) it has been developed by the AEU only during the course of this arbitration;
(4) it involves a fundamental change to the basis of payment of HPIs in the South
Australian TAFE sector;
(5) it would result in a substantial salary increase for most HPIs, but not because
of any work value change;
(6) there is an absence of evidence justifying such a fundamental change;
(7) to the extent it is appropriate to have regard to interstate comparisons, they do
not support the AEU claim; and
(8) general considerations so indicate.
[577] As to reason (1) (not at issue during the bargaining period):
(1) DETE is addressing the factual questions;
(2) relevantly, what was at issue during the bargaining period were the criteria or
descriptors used for each level of classification for hourly paid instructors. A
proposal for a complete restructuring involving an alteration of the basis of
payment of HPIs in the manner now proposed by the AEU was not at issue during
the bargaining period;
(3) the AEU amended its proposed s.170MX award in relation to the new
classification and pay structure for HPIs on 3 occasions after the initial award was
served;
(4) evidence in relation to a working party established by DETE was "it was further
agreed that this matter, i.e. the need for clarity of descriptors and consistency of
application would be addressed as part of the enterprise bargaining process";
(5) in its notice of initiation of bargaining period, under the heading "Classification
Issues" in relation to TAFE, the AEU set out (relevantly) the following:
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           "Further refinement of some classification structures is needed. They
           include the following areas.
        4.1 The Pay Rate criteria for Hourly Paid Instructors to be reviewed";
(6) also in the notice of initiation of bargaining period under the heading
"Classification Issues" there was a note which in part read as follows:
    "a range of classification issues require attention. Cost cutting in TAFE has
    resulted in many staff undertaking duties outside of their classification, e.g.
    lecturing staff doing management/coordinator tasks, lecturer's assistants doing
    lecturing. The criteria on which Hourly Paid Instructor rates are based are
    inappropriate and need urgent review";
(7) the reference to pay rate criteria in the AEU's notice of initiation of bargaining
period was a reference to the descriptors or criteria which were contained in the
Conditions of Employment Manual for HPIs or, in the alternative, to descriptors or
criteria like them. This can be seen from the AEU proposed form of certified
agreement of 7 December 1998. The proposal of the AEU in relation to HPIs was
relevantly contained in clause 9.5 as follows:
           "9.5 Hourly Paid Instructors and Non Permanent Employees Rates and
           Classifications and Employment Conditions
           9.5.1 The parties agree to develop and implement a new classification
           structure for Hourly Paid Instructors. This will include new role and
           function statements and clear, easy to interpret criteria, with a view to
           promoting appropriate and consistent application of pay rates.
           (emphasis added)
           9.5.2 The parties commit to establishing a working party to review the
           classification structure and criteria. It is agreed between the parties that
           implementation of any agreed outcome will occur by way of variation to
           this agreement";
(8) the parties were not far apart in this respect and it is notable that DETE
proposed the following:
           "9.6.4 Classification of Hourly Paid Instructor Class Levels
           9.6.4.1 The parties commit to establishing a working party to develop
           clear and concise position descriptors for the Hourly Paid Instructor
           classes.
           9.6.4.2 The parties are committed to completing the tasks specified on
           9.6.4.1 by December 1999 and agree to implementation for the
           commencement of the academic year 2000"; and
(9) the matter at issue in this respect was the claim by the AEU for a "review" of
the pay rate criteria for HPIs. The AEU made no claim or demand beyond that. In
particular, what it was proposing was the "development" and implementation of a
refined (or even new) classification structure. What it now seeks is neither a
"review" of the existing structure by the parties or even a "classification" structure
at all. The AEU proposal is for payment of HPIs according to an incremental pay
scale. Classification criteria are not proposed. The AEU proposal is one for rates
of pay and a means of determining the position of the HPI on the pay scale which
does not include any process of reclassification.
[578] As to reason (2) (not the subject of negotiation), it would be inappropriate to
change in the fundamental and radical way sought by the AEU the underlying
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basis of the employment of HPIs in a s.170MX arbitration without the parties
having discussed or negotiated the matter at all, without the parties having an
opportunity to negotiate with each other and without the Commission undertaking
a full review of the balance of the terms and conditions of employment of HPIs.
The Commission has not been presented with the evidence necessary for such a
full review.
[579] As to reason (3) (AEU's proposal only developed during the course of the
arbitration), the provisions which the AEU sought in the proposed s.170MX award
filed on 12 August 1999 were two rates - a class 1 rate and a class 2 rate. Each
was to be a flat rate and the matter which distinguished the two rates was that the
class 1 rate was payable to an HPI with the requisite educational qualifications
and the class 2 rate to an HPI who did not have those qualifications. Clause 30
from that basic beginning developed and has been amended on 3 further
occasions. The AEU proposal was not in issue, it not apparently having even
reached the stage of conception. As the Commission cannot have regard to a
"fundamental matter", it is contrary to the purpose of a s.170MX arbitration for the
Commission to make a prescription on this topic.
[580] As to reason (4) (fundamental change), the clauses proposed by the AEU
would, for the first time, change the basis of payment of HPIs within the TAFE
sector in South Australia from payment which is based upon the subject taught by
the HPI, in particular, the complexity of the subject and the amount of preparation
and marking time involved, to a method in which payment would be determined by
the possession or otherwise of a teaching qualification and the number of hours
that an individual HPI had previously taught.
[581] As to reason (5) (salary increase with no work change):
(1) the AEU's proposal would result in substantial increases for HPIs in addition to
the general salary increase; and
(2) as a result, TAFE may be unable to offer all the courses currently provided.
[582] As to reason (6) (absence of evidence):
(1) the Commission has heard from only two HPI witnesses (out of some 3477
individual HPIs) and these two were engaged in only two areas of TAFE; namely,
vocational preparation and community services;
(2) HPIs do not perform the same work or have the same responsibilities as
lecturers;
(3) since the 1991 PTI review, relied on by the AEU, award restructuring has
occurred. It was not a reserved matter in the award made in 1992 and the 1996
DETAFE Enterprise Agreement did not include any proposal like the present;
(4) there is no prohibition on HPIs working more than 10 hours a week; and
(5) the AEU's proposals do not take into account, or fully into account, the
diversity of subjects taught at TAFEs.
[583] As to reason (7) (interstate comparisons):
(1) no support for the AEU proposals can be gained from them;
(2) they are in any event inappropriate; and
(3) they show that South Australia, the Northern Territory and Western Australia
all pay their HPIs rates which depend on the nature of the courses taught.
[584] As to reason (8) (general considerations):

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(1) the AEU appears to want to increase HPI rates to such a level that DETE will
employ permanent or part-time lecturers in preference to HPIs;
(2) the AEU's proposal advantages HPIs with educational qualifications to the
disadvantage of other HPIs; and
(3) the requirement in the AEU proposal to take into account part-time teaching
experience may be difficult to give effect to.
[585] All the abovementioned circumstances show that it would be contrary to the
public interest to accede to the AEU's claim.
[586] With respect to the AEU claim with respect to HPI duties other than
teaching, DETE proposes a clause in the terms of clause 30.5 originally proposed
by the AEU:
    "30.5 Hourly rate duties other than teaching (DOTT)
                 30.5.1 An Hourly Paid Instructor who is required to undertake
                 duties other than teaching will be paid 75% of the applicable level
                 rate for time so spent.
                 30.5.2 Duties other than teaching do not include marking,
                 preparation or assessment."
except that the rate should be two-thirds of the applicable rate.
[587] The AEU clause 30.5 (as now proposed) is opposed by DETE because:
(1) the hourly rate of an HPI takes into account both the non-contact time and the
contact time. Built into the pay scale is an allowance for work which will need to be
performed by way of preparation, marking and the like to enable the one hour
contact time to take place;
(2) the current rate payable for these duties is two-thirds of the normal hourly rate
payable to an HPI;
(3) the AEU proposal changed to one seeking payment at the same hourly rate for
all time engaged; and
(4) there is no evidence to suggest that the time period allowances set in the staff
manual are inappropriate or unfair or support an alteration to the current rate of
pay or the current method of payment.
[588] The AEU's clause 30.6 (minimum payment) is opposed because:
(1) the clause is inappropriate in the case of payment for HPIs. The current rate of
pay is an hourly rate but is set on the basis that there will be additional work
performed in relation to preparation, marking and the like;
(2) whilst there is no evidence of how many classes taught by HPIs are less than
3 hours it is clear that there must be many;
(3) HPIs who are engaged for more than 3 hours per week are also likely to have
classes which are less than 3 hours; and
(4) The Commission must have regard to the consideration set out in section
170MX(5)(d) ("how productivity might be improved in the business or part of the
business concerned"). A clause of the type proposed by the AEU will not increase
productivity; rather, it would reduce the flexibility that TAFE institutes currently
have.
[589] AEU proposed clause 30.7 (travelling time) is opposed because:
(1) there should be no payment payable to an HPI for travelling from one campus
to another where that HPI has applied for and is successful in obtaining
employment at more than one campus or more than one institute of TAFE;
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(2) there is no evidence of any course being conducted in such a way that an HPI
is required to conduct classes at more than one campus; and
(3) in the event that the Commission proposed to grant an allowance for travelling
time, it would be inappropriate for it to be paid at the same rate as instruction time.
Conclusions
[590] The AEU claim seeks a fundamental change to the classification structure
and remuneration of HPIs whilst DETE seeks, in essence, a continuation of the
present provisions.
[591] Except with respect to the AEU's claim for a minimum payment for HPIs, we
are not, in the circumstances before us, prepared to alter the current provisions
applicable to HPIs.
[592] The present classification structure and basis of remuneration have been in
existence for some time. Despite the 1991 review, the present structure continues
in the DETAFE (Educational Staff) Interim Award and 1996 DETAFE Enterprise
Agreement.
[593] The material before us satisfies us that the AEU's proposals with respect to
HPI classification structure and salaries have not been formulated, in their present
terms, until recently and have not been the subject of discussion or negotiation
between the AEU and DETE.
[594] The evidence does not provide us with a sufficient basis for granting the
AEU's claims. This is not to say that the claims do not have merit. They may well
have. But we do not think that, in the circumstances mentioned in the previous
paragraph and on the material before us, we should make the fundamental
changes sought.
[595] Despite these views, we think that a case for a minimum payment has been
substantiated, broadly for the reasons for it advanced by the AEU. We are,
however, not persuaded that the minimum payment should be for 3 hours. In our
view, it should be for 2 hours. We will, accordingly, include a provision for a 2 hour
minimum payment for HPIs in our s.170MX award.
[596] In concluding, we express the view that, in the near future, the parties
should fully discuss the classification structure and remuneration of HPI's to see
whether it is possible to achieve agreement.
TAFE - INSTITUTE DIRECTORS
The agreed issues
[597] Should there be a provision for:
(1) the classification of, and increased salary for, institute directors as proposed by
the AEU in its clause 32;
(2) the employer and an employee coming to an agreement as proposed by DETE
in its clause 21?
AEU claim
[598] Proposed clause 32:
                              "32 - INSTITUTE DIRECTORS -
                               CLASSIFICATION CRITERIA
          32.1 Two Tier Structure
          There will be a two tier structure for Institute Directors as follows:
                 32.1.1 Institute Director Level 2 (ID2)

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                                     Institute Director Level 2 is the classification level
                                     given to a officer appointed under the Technical
                                     and Further Education Act 1972 to the position of
                                     Institute Director in charge of an Institute of TAFE.
                    32.1.2 Institute Director Level 1(ID1)
                                     Officers classified at this level will undertake one
                                     or more of the following roles and responsibilities:
                                     . provide support for the role of Institute Director
                                     Level 2 through undertaking significant
                                     responsibility for the day-to day running of an
                                     institute; or
                                     . have over-arching responsibility for large,
                                     complex, single or multi-disciplinary teams across
                                     a program, campus or institute;
                    32.1.3 An Institute of TAFE which has a total annual expenditure
                    of $20,000,000 or more will be allocated at least one Institute
                    Director - Level 1 position.
        32.2 Translation Arrangements
                 32.2.1 An officer who holds the current classification of College
                 Director 2 (CD2) or College Director 3 (CD3) and has been
                 appointed to the position of Institute Director will translate to the
                 classification of Institute Director Level 2 (ID2). This provision will
                 not apply in the case of an Institute Director who holds that position
                 in an Institute with a total annual expenditure of less than
                 $20,000,000. In that case, the officer will translate to the
                 classification of Institute Director Level 1 (ID1).
                 32.2.2 An officer who holds the current classification of either
                 College Director 1 (CD1) or College Director 2 (CD2) and who is
                 not an Institute Director will translate to the classification of Institute
                 Director Level 1 (ID1).
                 32.2.3 On translation no officer will lose any current entitlement.
        32.3 Rates of Pay
                 The rates of payment for Institute Directors are set out in Schedule
                 1(f) of this award."
DETE claim
[599] Proposed clause 21:
   "21. INSTITUTE DIRECTORS-CONDITIONS: TAFE
           21.1 Deleted
           21.2 Nothing in this Award prevents the employer and an employee
           coming to an agreement as to the terms of employment of the employee
           as an Institute Director which are different from, but which are, when
           considered as a whole, not inferior to, those contained in this Award."
AEU submissions
[600] With respect to its claim:
(1) it seeks to introduce a new 2 tier structure and that at least one institute
director be employed at level 1 where a TAFE has an annual expenditure of
$20,000,000 or more;
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(2) it recognises the substantial change which has occurred in the TAFE sector
over the last 10 years. It is appropriate that the classification of institute director
reflect alterations in responsibilities by having some regard to the size of the
budget of the particular institute; and
(3) the salaries for the institute directors range from $71,235 (CD1) to $88,025
(CD3). Given that 7 of the 8 institutes now have budgets in excess of
$20,000,000, that each operates over a number of campuses and the evidence
concerning increased competition and demands for productivity and efficiency, a
substantial extra salary increase is warranted.
[601] With respect to DETE's claim:
(1) no evidence was presented which sought to explain the need for it;
(2) a review of institute directors' conditions of service was contemplated by the
1996 DETAFE Enterprise Agreement. Should such a review take place, any
alterations ought to be incorporated into the relevant industrial instruments
applicable at the time;
(3) it is not consistent with the objects of the Act. The notion of fair agreement
making contemplates that agreements meet a no-disadvantage test. The test
proposed by DETE is potentially wider than the statutory no-disadvantage test;
and
(4) it would legitimise an agreement making process outside the award and where
the agreement would be free from scrutiny pursuant to the no- disadvantage test.
DETE submissions
[602] With respect to its claim:
(1) DETE proposes no change in relation to institute directors except that the
review concerning their terms and conditions of employment be completed and
that if appropriate they be able to enter into agreements with DETE, provided such
agreements are not inferior when considered as a whole to the conditions
contained in the award;
(2) a need for a review of the conditions of service of directors was identified in the
1996 DETAFE Enterprise Agreement; and
(3) as no agreement has as yet been reached in that review, DETE wishes to
complete the review and have the ability to enter into agreements as appropriate
with institute directors. No institute director is to be worse off as a result of
entering into such an agreement.
[603] With respect to the AEU's claim:
     it infringes the implied constitutional limitation;
     in any event, as a matter of the exercise of the Commission's discretion, the
        Commission ought not impose a classification structure upon the State in
        circumstances where a different classification structure is specifically
        prescribed by the State and entrusts to the Minister the power of appointing
        an officer to one of three classifications. Before the Commission would
        intervene it would need substantial evidence that the State was exercising
        its power inappropriately;
(3) there is simply no or no sufficient evidence to support the clauses proposed by
the AEU in relation to institute directors nor the salary increases proposed;


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(4) there was no evidence from institute directors as to their duties or their change
of duties nor was there any evidence of the type that one would expect to see in a
work value type case; and
(5) given the small number of people involved, the most appropriate way to deal
with the matter is to insert the clause proposed by DETE so that the institute
directors are not prejudiced but will still have an opportunity to continue the review
process with DETE and, if appropriate, enter into agreements as contemplated by
the DETE proposal.
Conclusions
[604] Both the AEU's and DETE's claims for institute directors should be rejected
on their merits.
[605] The present classification structure for institute directors has been in place
for some time, the DETAFE (Educational Staff) Interim Award providing for 3
levels of college director.
[606] The AEU seeks a greater salary increase for directors than its general
percentage increase. We are not satisfied that directors should be more
favourably treated than the generality of employees. The salary claim is,
accordingly, refused.
[607] Neither are we satisfied that DETE's claim should be granted, largely for the
reasons in opposition to it advanced by the AEU. DETE's claim is also refused.
[608] We add that it is our view that the parties should, as soon as possible,
undertake the review contemplated by the 1996 DETAFE Enterprise Agreement.
The reasons for our decision to reject both the AEU's and DETE's claim include
that we do not want to prejudge the outcome of such a review.
TAFE - WORKLOAD AND ANNUALISED HOURS FOR TAFE OFFICERS
The agreed issues
[609] Should there be a provision with respect to the work of TAFE Officers as
sought by DETE in its clause 15.3, or as sought by the AEU in its clauses 27 (and
15B) and 31, and, in particular, should there be provisions:
(1) prohibiting any requirement that an officer undertake an excessive or
unreasonable workload (AEU clause 27.1);
(2) for determining annualised hours (DETE clause 15.3; AEU clause 31) and
fixing the maximum annual number of hours of instruction time for lecturers (AEU
clause 31);
(3) for the establishment and function of an Institute Hours Advisory Committee as
sought by the AEU in its clause 31.2;
(4) establishing grievance procedures for workload issues (AEU clauses 27.2 and
28)?
AEU claim
[610] Proposed clauses 26, 27, 28 and 31:
                                           "26 - DEFINITIONS
             `class' means a group of students assigned to a Lecturer or Hourly Paid
             Instructor and undertaking a common course of instruction which may
             occur through a variety of means including face-to-face teaching,
             lecturing, tutoring or training, or by flexible learning methods including
             distance mode, video-conferencing and on-line.

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             `classification committee' means the classification committee as defined
             in clause 5 of the state award.
             `institute hours
             advisory committee' means a committee within each institute comprising
             an equal number of nominees of the AEU and the chief executive officer
             to recommend to the institute director appropriate annualised instruction
             hours for each program area.
             `instruction time' means the time engaged with teaching, lecturing or
             tutoring of students assigned to the Lecturer or Hourly Paid Instructor and
             includes:
                    . class teaching; lecturing, tutoring or training which may be
                    delivered face-to-face, or by flexible learning methods including
                    distance mode, video-conferencing and on-line;
                                                          . actively assisting students
                                                          engaged in resource-based
                                                          learning; and
                                                          . assessment involving
                                                          observation and/or supervision."
                               "27 - WORKLOAD - TAFE OFFICERS
             27.1 No officer will be required to undertake an excessive or
             unreasonable workload.
             27.2 Where any grievance arises over the workload of a particular officer
             or group of officers, the grievance procedures in clause 28 will be
             followed."
                                   "28 - GRIEVANCE PROCEDURES
             28.1 Where a grievance about excessive or unreasonable workload
             arises the following procedure will apply.
                   28.1.1 The aggrieved employee, in the first instance, will attempt to
                   seek a personal resolution by raising the matter with the
                   responsible line manager or with the AEU representative who will
                   raise the matter with the responsible line manager.
                   28.1.2 Where this fails to resolve the matter, the aggrieved
                   employee will lodge a statement of details of the grievance with:
                                            28.1.2(a) the Institute Director; and
                                            28.1.2(b) with the union or employee
                                            representative.
                      28.1.3 If the grievance is not resolved within two working days,
                      the Institute Director will inform the Director, Human Resources
                      or his or her delegate of the grievance and supply, as soon as
                      practicable, to the Director, Human Resources or his or her
                      delegate a copy of the statement required under paragraph
                      28.1.2 above.
                      28.1.4 Upon receiving notice of the grievance the Director,
                      Human Resources will form a conciliation committee constituted
                      of one person nominated by the Department and one person
                      nominated by the union or employee representative. The

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                         conciliation committee will establish the extent and nature of the
                         disputation and attempt to resolve the grievance. The nominees
                         may seek assistance from the Department or the union during
                         the conciliation process.
                         28.1.5 The role of the conciliation committee is to assist the
                         parties to resolve the matter through a negotiated solution
                         satisfactory to both parties. In attempting to achieve a fair
                         resolution to the grievance the nominees must have regard to all
                         relevant factors including the need for reasonable exigencies of
                         the educational service to be met.
                 28.2 When considering a grievance related to excessive or
                 unreasonable workload, the conciliation committee will take into
                 account the full range of factors relating to the workload of that officer
                 or group of officers. The factors include but are not limited to the
                 following:
                     28.2.1 the actual instructional time load of the individual officer or
                     group of officers;
                     28.2.2 the number of students allocated to a particular class or
                     classes;
                     28.2.3 the number of students in a particular class or classes with
                     physical or intellectual disabilities;
                     28.2.4 the number of students in a particular class or classes where
                     there are specific learning difficulties and/or language barriers;
                     28.2.5 areas of learning being taught and the circumstances in
                     which they are being taught; the learning methodology employed;
                     and the complexity of curriculum in the classroom;
                     28.2.6 the geographic location of the worksite/s and the time spent
                     travelling between worksites;
                     28.2.7 the range of additional duties associated with delivery of
                     curriculum including the teaching of classes additional to those
                     rostered; extra marking; assessment; curriculum development, and
                     maintenance of endorsed quality standards;
                     28.2.8 the range of duties associated with generation of income
                     from non-recurrent sources including fee-for-service work, industry
                     liaison and marketing;
                     28.2.9 the availability of administrative and other support such as
                     student counselling services, curriculum consultancy services;
                     learning resource assistance, maintenance of the learning
                     environment and
                            28.2.10 the time required to consult with colleagues and
                            clients.
                 28.3 A grievance shall be resolved where the parties to the grievance
                 reach agreement. When a grievance is resolved the parties at the local
                 worksite level will confirm their agreement in writing including an
                 implementation timetable and method of implementation.
                 28.4 The implementation of these procedures will take place without
                 delay and be completed as soon as practicable. The employer and the
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             union will each as far as practicable avoid action which may
             exacerbate the dispute or predetermine the outcome of any attempt to
             resolve the grievance.
             28.5 The employer or the union may refer an unresolved grievance to
             the Board of Reference pursuant to clause 15 of this Award."
                     "31 - ANNUALISED HOURS - INSTRUCTION TIME
         31.1 The number of hours of instruction time for lecturers will be
         annualised across the calendar year. Lecturers will commence each
         calendar year with a zero balance.
         31.2 The Institute Hours Advisory Committee will recommend to the
         Institute Director the appropriate number of annualised hours of
         instruction time for each program area. In determining the number of
         instruction hours reasonably required in delivering an educational
         program consideration will be given by the Committee to:
         . the complexity of the course/program
         . the nature of the course/program
         . the learning methodology (including distance learning)
         . student learning abilities
         . class size and complexity
         . occupational health and safety
         . physical resources
         . other responsibilities in addition to teaching
         31.3 The total number of instruction time hours which may be required of
         a Lecturer in a year will be no greater than 840 hours based on a weekly
         instruction time load of twenty one (21) hours over the forty (40) weeks of
         the teaching year. These total hours will be programmed throughout the
         year except during non-attendance time and leave.
         31.4 Lecturers may be required ordinarily to spend up to twenty one (21)
         hours per week in instruction time but by agreement between the
         employee and the educational manager may spend up to twenty five (25)
         hours per week in instruction time provided that the annualised limit does
         not exceed 840 hours.
         31.5 The employer is required to maintain accurate records of
         programmed instruction time and these records shall be made available
         for inspection by the employee and by the union on request."
DETE claim
[611] Proposed clause 15.3 (we also include 15.4):
   "15.3 Annualised Hours
                15.3.1 Annualised educational program contact hour benchmarks
                will be established by the employer across all educational programs
                including Learning Support.
                15.3.2 The benchmarks are to be based upon the provision of
                educational programs to clients normally undertaken in 18-24 hours
                per week for the teaching year. For each educational program an
                annual benchmark figure will be established by the employer with
                reference to preparation and other normal duties as well as Institute
                requirements.
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                 15.3.3 Annualised hours may be achieved flexibly allowing up to
                 60% (minimum 40%) of the annualised target to be delivered in
                 either semester within a calendar year. Similarly, a 25% variation in
                 normal weekly contact hours (18-24) would be the usual maximum
                 variation.
                 15.3.4 Any variation in the normal weekly contact hours requires
                 the agreement of the Lecturer concerned taking into account any
                 occupational health safety and welfare issues as well as the quality
                 standard of the educational program.
              15.4 In this clause, `contact hour(s)' refers to educational interaction
              recorded through a note book."
AEU submissions
[612] The DETAFE (Educational Staff) Interim Award provides in clause 7 that the
normal hours of duty for TAFE lecturers are 35 hours per week. Standard hours of
work are nominal in their effect and the primary determinants of workload are the
lesson and student loads of teachers and lecturers.
[613] The lesson load of a lecturer is ineffectually dealt with in clause 13.1.2,
Annualised Hours, of the 1996 DETAFE Enterprise Agreement.
[614] The AEU seeks to address workload for TAFE lecturers by clauses 27, 28
and 31 of its proposed award. Clause 31 deals with each of the fundamental
factors identified in the current provision, but in addition seeks to specify an
overarching maximum contact time limit for lecturers across all program areas.
[615] The workload of TAFE lecturing staff, educational managers and institute
directors has been increasing in degree and complexity. Incremental increases in
the skills, duties and responsibilities of lecturers, educational managers and
institute directors have occurred since the early 1990s. In the past 3 to 4 years
these increases have become marked.
[616] Through nationally driven initiatives, wide-ranging reforms have, over a
short period of time, initiated the implementation of the following broad objectives:
(1) encouraging greater participation in post-compulsory education for those in
work and those seeking work;
(2) enhancing the role of industry representatives in the specification underpinning
the outcomes of vocational education;
(3) encouraging the converging of general and vocational education; and
(4) encouraging a more diverse and competitive vocational education and training
market through the use of choice and competitive tendering for the delivery of
training programs.
[617] The fundamental changes to TAFE have created a very different work
environment and have been achieved through increases in work output by both
lecturers and other education staff.
[618] The changes have occurred within a context of budgetary restrictions and
competition for funds at the State level. The TAFE system has increased its
efficiency despite cuts to staffing numbers at a time when government expenditure
is declining.
[619] Lecturing staff, educational managers and institute directors have been
required to do more with less and have met this challenge. As a consequence,
TAFE lecturers and other TAFE employees are generally working longer hours
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under significant pressure in an industry which is increasingly subject to
organisational change, market competition and shrinking funding. The trend of the
past decade is set to continue.
[620] Additional workload has come as a consequence of a combination of:
    increased lesson loads;
    increased workload as a result of changes in the way teaching is now
       conducted; and
    a wide range of new non-instructional responsibilities imposed upon
       lecturers.
[621] Teaching has become far more complex and far more customised to the
needs of the students concerned. As a result for each hour of teaching there are
additional demands on lecturers by way of preparation and professional
development.
[622] A wide range of new duties had been required of lecturers beyond those
associated with their teaching. A whole range of marketing and developmental
duties are now required together with increased administrative responsibilities
resulting from of the devolution of functions and other factors including increased
accountability.
[623] In the circumstances, it is not difficult to see that there is a capacity for
lecturers to have imposed upon them unreasonable workloads. Improved
workload protections are required to address that problem.
[624] The AEU's proposal picks up and in some respects improves upon each of
the fundamental elements of the current regulation of annualised hours.
[625] The AEU proposal in respect of annualised hours is modest by comparison
with interstate standards. Upper limits to annual instruction hours of fewer than
840 are set in all States other than Western Australia and South Australia. The
adoption of the AEU proposal would still see South Australian TAFE lecturers
working significantly more annualised hours than the vast majority of TAFE
lecturers elsewhere in Australia.
[626] The existing regulation, and DETE's proposal, both contemplate that
benchmarks or limits be established in relation to each educational program area.
The AEU agrees. The AEU's proposal contemplates that this be done through
consultation including the representatives of the employees involved.
[627] The evidence suggests that the consultative mechanism by which
annualised benchmarks are to be established under clause 13.1.2 of the 1996
agreement have simply not worked.
[628] The AEU intends that a more formal and structured consultation process be
put in place. This would involve consideration at a higher level than the work
group level by an Institute Hours Advisory Committee comprising equal
membership of nominees of the institute concerned and of the AEU.
[629] DETE witnesses were almost silent in response to the AEU's proposal for a
maximum annualised contact hour limit of 840 hours.
[630] When a comparison is made between what the AEU seeks to define as
instruction time and what in clause 15.4 DETE seeks to define as contact hours, it
is evident that, if there is a dispute, it is not about the concept but perhaps about
how it is expressed.

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[631] On every appropriate comparator available, the solution proposed by the
AEU is reasonable. In contrast DETE's proposal is radical in the extreme. The
position around Australia is that maximum annualised hours provisions are not left
to employer discretion but are regulated by industrial awards and agreements. No
direct evidence in support of DETE's proposal was proffered.
DETE submissions
[632] The DETE proposal preserves the current annualised hours provisions in
the 1996 DETAFE Enterprise Agreement except that benchmarks are to be set by
the employer rather than through the consultative process provided for in the
agreement.
[633] The concept of annualised hours is imperative to the fundamental operation
of TAFE.
[634] Whilst the AEU opposes the insertion of the DETE proposed clause in
relation to annualised hours, there is really no evidence to suggest that the
annualised hours provisions currently contained in the enterprise agreement are
inappropriate or are not working fairly or properly.
[635] DETE opposes the insertion of clause 27.1 because:
(1) it is unnecessary;
(2) it purports to prohibit certain conduct but does not define with any specificity
the conduct to be prohibited;
(3) it is of uncertain operation;
(4) it has the potential to be productive of unnecessary disputation; and
(5) it would be an unusual award provision and has appeared only in the Teachers
(Victorian Government Schools) Conditions of Employment Award, 1995.
[636] DETE repeats its submissions in respect of clause 16.1 of the AEU
proposed award.
[637] TAFE officers' hours of work are regulated by the DETAFE (Educational
Staff) Interim Award and the 1996 DETAFE Enterprise Agreement. One or more
of them provide:
(1) that normal hours of duty shall be 35 hours per week;
(2) for normal spans of hours;
(3) for time off in lieu at a penalty rate if a lecturer works outside the normal span;
(4) an entitlement to lecturers of 29 working days non-attendance a year; and
(5) that the provision of educational programs will normally be undertaken in 18-24
hours per week for the teaching year.
[638] The DETE proposed s.170MX award will preserve the existing prescription
regulating the work which can be required of a TAFE officer, including a lecturer.
[639] There are in place mechanisms which provide, in a practical way, for a fair
allocation of work and avoid any individual employee being asked to undertake an
excessive workload. These are the work groups which operate in each program,
sub-program area or teaching area.
[640] The Commission should not insert the proposed clause 31 because it
contains matters which were not claimed by the AEU during the bargaining period
and which have not been the subject of negotiation.
[641] In its notice of initiation of bargaining period, the AEU proposed only that
there should be an upper limit of weekly teaching hours of 22. There was no
proposal for a reduction from 960 to a limit of 840. Furthermore, in the form of a
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certified agreement proposed by the AEU, the AEU did not propose a reduction in
the upper limit of annualised hours. The proposed limit of 840 is something that
has emerged since the termination of the bargaining period.
[642] The fixing of an upper limit of annualised hours is a relatively unusual
industrial prescription.
[643] The AEU's proposed clause 31 involves a significant variation to the current
annualised hours provision by reducing the number of contact hours that a
lecturer may have from the current range of 18 to 24 hours per week to a new
maximum of 21 hours per week (or, with the agreement of the individual lecturer
up to 25 hours per week). Further, the AEU's proposal involves a new annual limit
on the number of contact hours of a lecturer. That limit is 840 hours (compared
with the current position where the contact hours over a year can be set in the
range of 720 to 960 hours).
[644] Clause 13.1.2 of the 1996 DETAFE Enterprise Agreement deals with
annualised hours.
[645] The current workload provisions covering the hours of work per week that
may be required of officers and lecturers is reasonably comprehensive and
consists of an integrated package and includes the span of hours within which the
ordinary hours are to be worked, the range of hours within which educational
programs may be delivered and the provision of 29 working days non-attendance
time for lecturers in addition to four weeks annual leave and public holidays.
[646] The AEU is seeking to reduce one aspect of this prescription, namely, the
number of hours which a lecturer may be required to be engaged in the provision
of educational programs to students, from the current 18 to 24 hours per week to
a limit of 21 hours per week. The AEU is also seeking a prescription that
instruction time hours be no greater than 840 hours per year.
[647] Under the current award and enterprise agreement, the maximum number
of weeks a lecturer could provide instruction would be 42 (plus a balance of one
day). In practice, it is less because TAFE courses are delivered over a number of
weeks in the year which do not exceed 40.
[648] The clauses sought should not be inserted in the award because:
(1) the workload prescriptions in the award and enterprise agreement which DETE
proposes will continue to provide adequate regulation;
(2) they are not necessary;
(3) the current regime contemplates that the number of contact hours will depend
on the nature of the course being delivered. In some courses, the upper end of the
span is necessary for the proper delivery of the course and does not result in an
unreasonable workload;
(4) the limitation sought by the AEU is not supported by the evidence;
(5) any limitation as proposed by the AEU would potentially reduce the flexibility
and productivity of TAFE and is contraindicated by s.170MX(5);
(6) it is unclear how the limitation proposed by the AEU would operate with the
new methods of delivery and instruction as TAFE moves away from the traditional
class based structure;
(7) private competitors of TAFE do not have restrictions of the type sought by the
AEU;

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(8) the upper limit of weekly teaching hours proposed by the AEU in its notice of
initiation of bargaining period was 22;
(9) although the AEU during the bargaining period proposed maximum weekly
teaching hours of 22 (which would have the effect over 40 weeks of limiting
annual hours to 880), it did not expressly seek a reduction of annualised hours to
840 or to any other figure;
(10) a change to the existing workload restrictions was not the subject of
negotiation in the bargaining period; and
(11) in general, in the other States and in the Territories TAFE lecturers may be
required to teach up to 24 hours in any one week, although in practice most teach
less.
[649] Before the Commission could make the prescription sought, it would need to
be satisfied:
(1) that the number of instruction hours being proposed by the AEU is in fact the
reasonable maximum instruction hours that could be required of a lecturer;
(2) that employees are in fact being asked to exceed the maximum; or
(3) there is a real chance that in the future employees may be expected to exceed
the maximum;
and there is scant evidence of that character.
[650] There is no evidence that the current benchmarks are set outside of the
allowable range of 18 to 24 hours per week.
[651] There is no evidence that the current system in relation to setting
benchmarks and requiring lecturers to lecture between 18 to 24 hours per week is
not working satisfactorily in any program area anywhere within TAFE.
[652] The evidence adduced by the AEU suggests that the actual contact hours
being worked by lecturers are fewer than the contact hours proposed by the AEU.
[653] The average contact time for lecturers within the TAFE system is in the
vicinity of 840 hours. Nonetheless there are some programmed areas where the
contact time of lecturers is 900 hours and some where all 960 hours of the current
entitlement are used.
[654] This evidence demonstrates the need of DETE to maintain the range of
weekly hours at 18 to 24 and the annual hours to be maintained with an upper
maximum of 960 hours.
[655] The evidence adduced by the AEU in support of its case of an increased
workload within TAFE is really evidence of changes that have occurred within
TAFE over a period of approximately 10 years.
[656] In addition to the AEU proposal to reduce the contact hours that a lecturer
may be required to undertake, the AEU proposes the insertion of definitions of
"class" and "instruction time". The AEU proposal is flawed in that it is unclear what
precisely is caught by these definitions.
[657] Lecturers are required to be in attendance on campus for 35 hours per
week. Outside of their contact hours, part of their normal duties is to be available
for students to see them with queries. The inclusion of these types of queries into
instruction time and then meshing that in with the limit on contact time proposed
by the AEU clauses would not be appropriate.
[658] Because the support that lecturers are usually available to give students
during non-contact time would be included in the AEU instruction time definition
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when dealing with, for instance, e-mail contact by a student, it would be difficult to
predict and control instruction time.
[659] The AEU proposes (clause 31.2) to create an Institute Hours Advisory
Committee to make recommendations as to the number of annualised hours of
instruction time for each program. There is no equivalent committee now in
existence. A College Hours Advisory Committee existed under the DETAFE
(Educational Staff) Interim Award but was abolished, by agreement, in the 1996
DETAFE Enterprise Agreement.
[660] The problem with the proposal for one committee within each institute to
advise on the appropriate annualised instruction hours for each program area can
be seen when one has regard to the evidence in relation to the various program
areas, sub-program areas and teaching areas in TAFE. The Institute Hours
Advisory Committee is not appropriate given the current structure of TAFE in
South Australia and there is no evidence supporting the re-introduction of a
committee of the type belatedly (13 March 2000) sought by the AEU.
[661] The AEU proposes (clauses 27.2 and 28) a specific workload grievance
clause with a separate procedure and process for a workload grievance in TAFE.
DETE opposes the introduction of a separate grievance procedure in relation to
workload.
[662] DETE's submissions in relation to the proposals in AEU clauses 27.2 and 28
about Grievance Procedures are dealt with under the heading "General -
Grievance Procedures".
Conclusions
[663] In 1996 the parties agreed to the inclusion of clause 13.1.2 in the 1996
DETAFE Enterprise Agreement:
          "13.1.2 Annualised Hours
                           Annualised educational program contact hour
                           benchmarks will be established across all educational
                           programs including Learning Support.
                           The benchmarks are based upon the provision of
                           educational programs to clients normally undertaken in
                           18 - 24 hours per week for the teaching year. The
                           benchmarks will be established by use of a consultative
                           process which will be based upon Institute and Program
                           Performance Agreements, be led and coordinated by
                           State (Program) Managers and involve staff and
                           managers from the work group level. For each
                           educational program a benchmark figure will be
                           established with reference to preparation and other
                           normal duties as well as institute requirements. College
                           Contact Hours Advisory Committees will be abolished.
                           Teaching or class contact is an educational interaction
                           recorded through a roll book.
                           Any variation in the normal weekly contact hours would
                           be with the agreement of the lecturer concerned and
                           would take due regard of the OHSW issues as well as
                           the quality standard of the educational program.
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                               Annualised hours can be achieved flexibly allowing up
                               to 60% (minimum 40%) of the annualised target to be
                               delivered in either semester. Similarly, a 25% variation
                               in normal weekly contact hours (18-24) would be the
                               usual maximum increase."
[664] In our view, the evidence does not establish that the workload of TAFE
officers is significantly different from what it was in 1996. There is, in our view, no
basis for changing the provisions agreed to in 1996. The claims of both the AEU
and DETE are rejected. We will include clause 13.1.2 in the s.170MX award.
TAFE - ESSENTIAL QUALIFICATION REQUIREMENTS
The agreed issue
[665] Should there be a provision with respect to the essential qualification
requirements for principal lecturers, educational managers and institute directors
in the terms proposed by DETE in its clause 16?
DETE claim
[666] Proposed clause 16:
    "16. ESSENTIAL QUALIFICATION REQUIREMENTS: TAFE
          16.1 To avoid doubt, this clause is in substitution for references to
          qualification criteria in relation to Principal Lecturer, Education Managers,
          and College Directors referred to in Schedule 2 `Classification Criteria' of
          the DETAFE (Educational Staff) Interim Award.
          16.2 `Principal Lecturer'
                 16.2.1 The essential qualification requirements of a Principal
                 Lecturer will be `a tertiary qualification in education plus
                 qualifications and/or experience which is recognised by the relevant
                 industry as denoting a high level of expertise in that particular
                 occupation/industry'.
                 16.2.2 The Chief Executive will appoint an expert panel to assess
                 relevance and equivalence of educational qualifications for
                 reclassification of Principal Lecturers.
                               This expert panel will comprise:
                                     . An Institute Human Resource Manager with
                                     expertise in classification matters
                                     . A departmental officer with expertise in issues of
                                     accreditation and recognition
                                     . A person from a University in this State.
              16.3 `Educational Managers (Levels 2-5)'. The essential qualification
              requirements of Educational Managers (Levels 2-5) will be
              `appropriate tertiary qualifications in education and/or management'.
              16.4 `Institute Directors'. The essential qualification requirements of
              Institute Directors will be `appropriate tertiary qualifications in
              education and/or management'. Institute Directors will also be required
              to have gained extensive experience in management in an education
              and training environment."
DETE submissions
[667] DETE proposes to remove the mandatory requirement for tertiary
qualifications in both education and management for educational managers and
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institute directors and to recognise that, in the case of a principal lecturer, a higher
level of expertise in a particular industry or occupational area may, in conjunction
with tertiary qualifications in education, be sufficient for appointment.
[668] In the DETAFE (Educational Staff) Interim Award Schedule 2 there are
currently qualification requirements for principal lecturer, educational managers
and college directors. The DETE proposal is to broaden the range of persons who
can be appointed to these classifications. This will acknowledge the focus at
TAFE on competencies of the individual rather than formal qualifications.
[669] The DETE proposal is consistent with improvement of productivity in the
business, a matter which the Commission must take into account pursuant to
s.170MX(5)(d).
[670] As part of the DETE proposal it is intended to abolish the Classification
Committee and replace it with a simplified committee to deal with the equivalence
of qualifications as set out in DETE proposed clause 16.2.2.
[671] It can be inferred that the AEU opposition is an attempt to protect its own
patch.
AEU submissions
[672] The provisions of Schedule 2 of the DETAFE (Educational Staff) Interim
Award were inserted into the award at the time it was created in 1992. They were
included at the request of the Government and were consented to by the AEU.
[673] The AEU opposes the attempt by DETE to remove the minimum educational
qualification requirements on the following grounds:
(1) they are integral to the existence of a career path for TAFE lecturing staff. The
necessary qualifications form the foundation for educational requirements needed
to achieve higher level classifications. Once a lecturer has obtained the minimum
qualification, that lecturer can, with further experience and demonstration of
expertise, move to either a higher level of classification in the lecturing stream or
into the educational management stream;
(2) removal of the required educational qualification is likely to result, in time, in a
change to the mix of staff and, specifically, to a greater number of educationally
unqualified or less qualified staff. This will lead to an additional workload for the
educationally qualified staff; and
(3) a professional education institution should not appoint educationally
unqualified lecturing and management staff to positions which require both
educational and additional qualifications.
[674] With respect to principal lecturers:
(1) the DETE proposal will lessen the essential qualification requirement;
(2) it is not clear whether the tertiary qualification in education is to be a formal
academic award qualification or some other qualification of a lower
standard/status or quality;
(3) the second limb of the DETE proposal leaves the position unclear as to what
sort of qualification or experience will be recognised by the relevant industry;
(4) the proposed expert panel, unlike the Classification Committee, will have no
representative from the organisation which represents the professional and
industry interests of the lecturers, namely the AEU;
(5) there is no good reason put forward for the removal of the Classification
Committee on which employees are represented; and
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(6) the DETE proposal about qualifications and/or experience which will be
required over and above the tertiary qualification in education is vague.
[675] With respect to educational managers:
(1) one must question the purpose which is served by encouraging them, on the
one hand, to manage in circumstances where they may have no tertiary
qualifications in management, or, on the other hand, to provide educational
leadership without having an educational qualification;
(2) if there are staff members who have proven to be excellent managers and who
could do the job on merit but who lack the prescribed qualification, the merit
position cannot be considered separately from the qualification issue. Further, if
there are unqualified staff members who have proven to be capable managers,
they should be assisted and encouraged to gain formal recognition of their skills
by obtaining appropriate qualifications; and
(3) the DETE clause would jeopardise the career path now available to TAFE
lecturers of moving into the management stream.
[676] With respect to institute directors:
(1) the effect of the DETE proposal, which is to require a qualification in only
education or management, is to narrow the breadth of qualification for this most
senior position, particularly regarding educational qualifications. It is not
appropriate that a person could be appointed to the most senior position in an
educational institution without having any tertiary qualifications in education; and
(2) educational and managerial staff who are qualified for their own positions
would have little confidence in being lead by an institute director who had no
formal educational qualifications.
[677] DETE's case has no evidence to support it and is misconceived.
Conclusions
[678] While it is our general view that the qualification requirements (if any) for a
classification are generally a matter for the employer (who carries the
responsibility of running the enterprise), in the present case, the AEU's
submissions have considerable merit having regard, in particular, to the history of
the qualification requirements and their role in providing a career progression.
[679] Having considered the material, it is our view that DETE's proposal should
be granted for institute directors and refused with respect to educational
managers and principal lecturers.
TAFE - LECTURER PROGRESSION
The agreed issue
[680] Should there be a provision with respect to the appointment and progression
of lecturers as proposed by DETE in its clause 18 and Schedule 1 Part 6?
DETE claim
[681] Proposed clause 18 and Schedule 1 Parts 6.1, 6.2 and 6.3:
    "18. LECTURER PROGRESSION: TAFE
           18.1 To avoid doubt, this clause is in substitution of clause 2(a)(iii)
           `Progression' in Schedule 1 Salaries in the DETAFE (Educational Staff)
           Interim Award.
           18.2 The provisions relating to the appointment and progression of
           Lecturers in the incremental salary scale are detailed in Schedule
           1.Wages and Salary Rates of this Award."
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Schedule 1 Parts 6.1, 6.2 and 6.3
   "6.1 A Lecturer shall be paid in accordance with the above salary range with a
   minimum salary appropriate to the incremental step specified in the following
   clause.
         6.2 Appointment and Progression
                6.2.1 A Lecturer shall be appointed to an incremental step in the
                range which fairly and adequately reflects the qualifications,
                experience and any special expertise possessed by the Lecturer.
                6.2.2 A Lecturer who holds a Diploma in Teaching or a degree shall
                not be appointed below incremental Step 2.
                6.2.3 A Lecturer who is appointed to incremental Step 1 and
                subsequently completes the requirements for a degree shall be
                given credit for one additional increment from the date the degree is
                conferred.
                6.2.4 A Lecturer shall progress automatically to the next
                incremental step upon the annual anniversary of his/her
                appointment.
             6.3 Any dispute arising as to the proper commencing salary of a
             Lecturer determined in accordance with 6.2.1 above will be dealt with
             in accordance with the Procedures for Preventing and Settling
             Industrial Disputes contained in this Award. A consideration of
             commencing salary will pay due regard to market salary levels for
             persons of the qualifications and level of expertise and experience
             possessed by the said Lecturer."
DETE submissions
[682] The DETE proposal is to remove the restriction on a lecturer's ability to
move through the incremental scale beyond step 7 without obtaining certain
educational qualifications. The current restriction on a lecturer's ability to progress
through the incremental steps to step 8 is an anachronism.
[683] The DETE proposal will make it easier for lecturers to progress through the
incremental steps by removing the requirement that a lecturer must have achieved
a particular educational qualification before proceeding beyond step 7.
[684] Lecturers are often recruited because of their expertise in the discipline area
rather than their educational qualifications. It is not always appropriate to require
them to complete educational qualifications.
[685] TAFE needs to be in the position to meet the demands of its clients. It is for
TAFE and DETE to determine the best way to meet those demands in so far as
that involves a consideration of the appropriate people to be employed to deliver
courses and/or to manage the delivery of courses and/or manage campuses
and/or institutes.
[686] The opposition of the AEU to this clause also appears to be based on an
attempt by it to protect its own patch.
AEU submissions
[687] The DETE clause will remove the current requirement that a lecturer have
completed an essential qualification requirement, or the equivalent, before being
able to progress beyond incremental step 7 on the salary scale set out in
Schedule 1 of the DETAFE (Educational Staff) Interim Award. This would remove
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an incentive for lecturing staff to gain appropriate qualifications in the field of adult
education and will lead to a downgrading of the educational qualifications of TAFE
staff.
[688] The DETE proposal is wholly misconceived. The limitation which it seeks to
remove applies with respect to the progression of a lecturer from step 7 to step 8.
That limitation however, does not apply with respect to the process of
appointment.
[689] The current clause allows DETE adequate flexibility in attracting
appropriately qualified staff and allows the new appointment at step 8 of a lecturer
despite the lecturer not having the specific qualifications required for progression
from step 7 to step 8. The barrier to progression, to the extent that it is a barrier,
should remain.
[690] In any event, there is little practical difference between what DETE proposes
and the position under the award.
[691] Some lecturers may never progress beyond step 8. Therefore, it is
appropriate that, except in the case of a lecturer with the qualifications, experience
and special expertise to allow for appointment direct to step 8, there be a
requirement for an educational qualification before final incremental advancement
to step 8 can be achieved. It is better that such a barrier be imposed before a
person can reach the top of the incremental scale.
[692] The proper approach is for DETE to make application to the IRCSA to vary
the DETAFE (Educational Staff) Interim Award to widen, to the extent appropriate,
the terms of the schedule so as to give a wider discretion to the Classification
Committee than that which DETE believes it has.
Conclusions
[693] We think that, in relation to this issue, the AEU's submissions are more
persuasive than those of DETE. In particular, we agree with the AEU that the
proper approach is for DETE to make application to the IRCSA to vary the
DETAFE (Educational Staff) Interim Award with respect to the applicable criteria
and the approach to be taken by the Classification Committee.
TAFE - LECTURERS - SPAN OF HOURS
The agreed issue
[694] Should a provision be made with respect to the span of hours for lecturers
as proposed by DETE (DETE clauses 15.1 and 15.2)?
DETE CLAIM
[695] Proposed clauses 15.1 and 15.2:
   "15.1 Span of Hours for Lecturers
                15.1.1 The normal span of hours for lecturers will be 7am - 6pm
                Monday to Friday.
                15.1.2 Educational program contact hours worked between 6pm -
                10pm will attract a loading of 50%.
                15.1.3 Educational program contact hours worked from 10pm - 7am
                will attract a loading of 100%.
                15.1.4 Educational program contact hours worked on Saturdays
                and Sundays will attract a loading of 100%.
                15.1.5 All loadings will come off non-contact time within the normal
                hours of duty.
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                  15.1.6 The `loadings' referred to in this clause are time loadings
                  and will not be converted to a monetary payment.
                  15.1.7 The time loading will be taken as time off in lieu within the
                  semester in which the loading accrued and so as not to interfere
                  with educational program delivery.
                  15.1.8 To avoid doubt, clauses 7(f) and 7(g) of the State Award
                  continue to operate.
              15.2 Any second or subsequent educational program contact session
              outside the normal span of hours shall be subject to the agreement of
              the Lecturer concerned. In the absence of agreement of Lecturer, the
              procedures in this Award for preventing and settling industrial disputes
              will apply."
DETE submissions
[696] DETE's proposal is to retain the position as it existed in the 1996 DETAFE
Enterprise Agreement with some slight modifications.
[697] Clauses 15.1 and 15.2 replicate or are consistent with the existing span of
hours clauses which were implemented in that agreement.
[698] The DETE proposal modifies the existing position in two ways:
(1) it specifically mentions that time loadings will not be connected to a monetary
payment and that time off in lieu will be taken "so as not to interfere with
educational program delivery". DETE in specifically raising these matters is merely
spelling out what is the current position. Whilst the words in the enterprise
agreement appear to be plain, DETE's proposal is made in the light of the AEU's
opposition to it; and
(2) DETE, by its proposed clause 15.1.8, does not pick up the travel time clause
from the existing clauses 13.1.1 of the 1996 DETAFE Enterprise Agreement. It
intends that the travelling time clause which exists in the DETAFE (Educational
Staff) Interim Award will apply.
[699] DETE proposes this clause in order to remove uncertainty as to the true
entitlement to travelling time.
AEU submissions
[700] DETE's proposal for the most part reflects clause 13.1.1 of the 1996
DETAFE Enterprise Agreement.
[701] Clause 15.1.7 is a new provision in that it has additional wording to that in
the agreement, which simply said: "The time off in lieu must be taken within the
semester".
[702] DETE has presented no evidence to show that the right to take time off in
lieu has been exercised in such a way as to interfere with educational program
delivery.
[703] Clause 15.1.8 is a new provision and, if granted, would override the
provisions of the 1996 DETAFE Enterprise Agreement in relation to time off in lieu
for lecturers who are required to travel (exceeding one hour round trip) to deliver
an educational program within the normal span of hours.
[704] There has been no evidence produced by DETE to show that the current
entitlement to credit for travel time to be allowed with respect to both contact and
non-contact time has caused any difficulty with respect to the delivery of
educational programs.
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[705] The Commission has no jurisdiction to grant the DETE application. The
matters at issue between the parties did not ever include the suggestion of any
change at all to this core condition.
Conclusions
[706] DETE's claim seeks to alter clause 13.1.1, Span of Hours for Lecturers, of
the 1996 DETAFE Enterprise Agreement by adding the reference to educational
program delivery (in clause 15.1.7) and adding clause 15.1.8.
[707] In our view no basis has been made out by DETE for altering the provisions
agreed to in 1996. Accordingly, we will include DETE's clauses 15.1 and 15.2,
excluding the additional words in clause 15.1.7 and excluding clause 15.1.8.
LECTURERS' NON-ATTENDANCE DAYS
The agreed issue
[708] Should a provision be made with respect to non-attendance of lecturers who
do not deliver educational programs as proposed by DETE (DETE clause 15.5)?
DETE claim
[709] Proposed clause 15.5:
   "15.5 Lecturers who do not deliver educational programs and who are
   appointed on or after 1 December 1996 will be entitled to up to 10 non-
   attendance days in any college year."
DETE submissions
[710] Currently, pursuant to clause 13.1.3 of the 1996 DETAFE Enterprise
Agreement, lecturers who do not deliver educational programs have an
entitlement of 10 non-attendance days in any college year (in addition to annual
leave and public holidays). DETE proposes to retain the current position. It is
appropriate to include that provision in the s.170MX award to continue the existing
conditions of employment and to make the provision readily accessible.
[711] No basis for opposition to this clause has been identified in the AEU
evidence.
AEU submissions
[712] There is no dispute that the proposed DETE clause 15.5 preserves a
condition which is contained in the 1996 State DETAFE Enterprise Agreement.
[713] Whilst the AEU agreed to clause 13.1.3 as part of the enterprise agreement
from 1 December 1996, developments since then in relation to the scope of the
activity encompassed by "delivery of an educational program" have clouded the
extent of the application of the clause. The activity involved in the "delivery of an
educational program" is not as easily defined or understood as may once have
been the case.
[714] The narrower the activity encompassed by the delivery of an educational
program, the more lecturers there will be to whom either of clause 13.1.3 of the
enterprise agreement or proposed DETE clause 15.5 will apply.
[715] The evidence justifies the concern of the AEU that DETE will adopt a narrow
view of what activities come within the concept of delivery of an educational
program, particularly of the on line type. It is quite likely that the current clause
13.1.3, if imported into the s.170MX award in terms of DETE clause 15.5, will be
interpreted in a way so as to disadvantage certain lecturers engaged in new and
flexible modes of delivery.
Conclusions
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[716] The clause sought by DETE is essentially the same as clause 13.1.3 of the
1996 DETAFE Enterprise Agreement. If there is an issue about the meaning of
"delivery of an educational program" there are appropriate means of resolving it.
As the terms of the proposed clause were essentially agreed in 1996, we propose
to include the same terms in our award.
TAFE - LECTURERS' LOSS OF NON-ATTENDANCE DAYS
The agreed issue
[717] Should there be a provision with respect to conversion of non-attendance
days for payment as proposed by DETE in its clause 22?
DETE claim
[718] Proposed clause 22:
    "22. LECTURERS LOSS OF NON-ATTENDANCE DAYS: TAFE
          22.1 Lecturing staff may be able to apply to convert up to fourteen non-
          attendance days a year to duty time in return for a payment in
          accordance with this clause.
          22.2 This initiative requires voluntary participation by staff and this
          opportunity will only be available, at the discretion of the Institute Director.
          22.3 Despite clause 21 of the DETAFE (Educational Staff) Award,
          lecturing staff who participate in this arrangement will be paid for the
          converted days at a rate equivalent to the rate of payment for a full day
          which a temporary relieving teacher would receive as prescribed in
          Schedule 1.Wages and Salary Rates of this Award, in addition to normal
          salary.
          22.4 The arrangement must be for a minimum of five days, with
          arrangements then possible on a daily basis up to the maximum of
          fourteen days."
DETE submissions
[719] Lecturers have an entitlement to 29 non-attendance days in addition to
annual leave and public holidays. The DETE proposal is to permit a lecturer to be
engaged, on a voluntary basis, to perform instructional duties on these non-
attendance days. Lecturers would be paid an amount in addition to their salary
with respect to any days they so worked.
[720] The clause would enable TAFE institutes to better meet the demands of
their clients.
[721] The DETE proposal involves an institute director identifying a need to have
a lecturer perform some duties during the non-attendance days and then a
request to a lecturer to come in during some of those non-attendance days. The
position as far as the lecturer is concerned is voluntary. The proposal of DETE
does not require that the lecturer attend on non-attendance days.
[722] DETE's proposal is that a lecturer who accepts the offer would then be paid
$179 per day in addition to the lecturer's salary. (The rate of $179 is determined
by adopting the daily rate which temporary relieving teachers would receive
pursuant to DETE's proposed clause 10.)
AEU submissions
[723] DETE proposes the clause on the basis of evidence of the need for flexibility
in order to respond to the market, and upon anecdotal evidence suggesting that
TAFE has a reputation for not being active in January.
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[724] It is asserted that staff are happy to participate in cashing out. Whilst this
may be the case with some, there are others who would not wish to participate.
[725] The proposal for cashing out non-attendance days contemplates payment
for the converted days voluntarily given up by a lecturer at a rate which equates
only to payment for a full day for a temporary relieving teacher. There is no
explanation as to why this rate has been chosen. It is considerably lower than the
normal daily rate paid to most lecturers.
[726] If there is to be a clause in the terms proposed by DETE, it should only be
granted upon terms which require reimbursement to participating staff members
for each converted day of an amount being the temporary relieving teacher rate
per day, or their pay for a normal day, whichever is the higher.
Conclusions
[727] In our view DETE's proposal, should be granted. It imposes no obligation on
an employee. It is a matter for each employee to choose whether to convert non-
attendance days to duty time. We will include clause 22 in the s.170MX award.
TAFE - LECTURER'S ASSISTANTS
The agreed issue
[728] Should there be a provision with respect to lecturer's assistants as proposed
by DETE (DETE clause 15.6)?
DETE claim
[729] Proposed clause 15.6:
   "15.6 Lecturer's Assistants
                15.6.1 The ordinary hours of duty for Lecturer's Assistants shall be
                an average of 75 hours worked within a work cycle of 14
                consecutive days or 150 hours worked within a work cycle of 28
                consecutive days. The normal span of hours within which these
                hours may be worked is 7am - 6pm Monday to Friday.
                15.6.2 Despite clause 15.6.1 of this Award, Lecturer's Assistants
                may be required for ordinary hours of duty up to 10 pm Monday to
                Friday but on no more than two evenings per week. Any
                subsequent evenings to be worked shall be by agreement of the
                Lecturer's Assistant and the Institute Director or delegate.
                15.6.3 Lecturer's Assistants provide support to lecturers by:
                             . assisting in the conduct of workshop practice, practical
                             and/or tutorial classes
                             . preparing materials and equipment for practical
                             learning sessions
                             . collecting information which will assist Lecturers in the
                             development of courses and preparation of teaching
                             . demonstrating equipment and other supporting
                             educational aids
                             . taking responsibility for setting up and configuration of
                             a practical teaching area
                             . assisting in the development of learning materials
                             . assisting in the organisation and conduct of work
                             experience activities

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                    15.6.4 In this clause the term `assist' does not infer that duties
                    must necessarily be carried out under the direct supervision of a
                    lecturer.
                    15.6.5 To avoid doubt, this clause 15.6 is in substitution for
                    clause 7B. Lecturer's Assistants placita (i) and (ii) of the State
                    Award but not placita (iii) - (xi) thereof."
DETE submissions
[730] The DETE proposal is to preserve the current hours clause and provisions
in relation to lecturer's assistants in the 1996 DETAFE Enterprise Agreement.
[731] It is appropriate to include the proposed clause in the s.170MX award as it
was agreed in the enterprise agreement.
[732] Further there has been no evidence that the span of hours, or the way in
which lecturer's assistants may provide support to lecturers, are inappropriate or
unworkable. They should continue to apply under the s.170MX award.
AEU submissions
[733] The DETE clause is said to reflect the provisions of clause 13.1.4 of the
1996 DETAFE Enterprise Agreement but does not do so.
[734] The DETE proposal seeks to go further than clause 13.1.4 and to exclude
the entitlement to the loading for work done after 6pm on a weekday which arises
from the DETAFE (Educational Staff) Interim Award. For reasons which are not
explained, the DETE provisions will deny to employees the weekday loading, yet
allow the loadings for work on weekends and public holidays to continue to apply.
[735] The DETE claim ought to be rejected because:
     no evidence has been presented to support a removal of the entitlement of
       lecturer's assistants to the weekday loading;
     it is discriminatory and seeks to withdraw a current entitlement; and
     the DETE claim as now made was not a matter at issue between the parties
       during the bargaining period. The Commission has no jurisdiction to grant it.
Conclusions
[736] This is another claim that seeks to alter a provision agreed in the 1996
DETAFE Enterprise Agreement. In this case, the change sought is to add clause
15.6.5. In our view, the position agreed in 1996 should remain and, accordingly,
we do not think that clause 15.6.5 should be awarded. (We will incorporate the
1996 clause unchanged, except that the word "infer" in clause 15.6.4 will be
changed to "imply").
TAFE - ADVANCED SKILLS LECTURERS (ASLs)
The agreed issue
[737] Should there be a provision with respect to classification of ASLs as sought
by DETE in its clause 17?
DETE claim
[738] Proposed clause 17:
           "17. ADVANCED SKILLS LECTURER CLASSIFICATION AND
           PROGRESSION: TAFE
           17.1 To avoid doubt, this clause is in substitution for the following parts of
           the DETAFE (Educational Staff) Interim Award: Schedule 1 clauses 3 and
           4; and Schedule 2 `Advanced Skills Lecturer' - `Classification' and
           `Qualifications'.
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             17.2 The criteria for classification as Advanced Skills Lecturer 1 are:
                   . A degree or post graduate diploma, or equivalent qualifications in
                   adult education and continuous relevant professional development;
                   and
                   . demonstrated excellence in educational practice; and
                   . contemporary discipline knowledge; and
                   . leadership and initiative.
                17.3 The criteria for classification as Advanced Skills Lecturer 2 are:
                   . the criteria for Advanced Skills Lecturer 1; and
                   . Demonstrated capacity to provide leadership in the design,
                   development and implementation of new program delivery and
                   methodology; and
                   . Demonstrated ability to provide leadership in the maintenance of
                   educational standards; and
                   . Demonstrated ability to impart knowledge and skills to other
                   lecturing staff and to contribute to the continuous upgrading of skills
                   of others through ongoing professional development.
                17.4 Shifted
                17.5 The Chief Executive will appoint an expert panel to assess
                relevance and equivalence of educational qualifications for
                reclassification purposes.
                This expert panel will comprise:
                   . An Institute Human Resource Manager with expertise in
                   classification matters
                   . A departmental officer with expertise in issues of accreditation and
                   recognition
                   . A person from a University in this State.
                17.6 An Institute Director will refer an application for reclassification to
                ASL 1 and ASL 2 to a committee for advice on the application for
                reclassification. That committee will comprise:
                . A convenor
                . An expert in the discipline
                . A nominee of the applicant.
                   Where the Institute Director is advised by the committee that the
                   applicant satisfies the criteria for reclassification and the Institute
                   Director approves the application, the applicant shall be reclassified
                   from the date upon which his/her application is approved by the
                   Institute Director, or three months after the date his/her application
                   is lodged, whichever is the earlier.
                17.7 A 5 year review will be conducted by the employer of Lecturers
                who are reclassified to ASL1 or ASL2 in accordance with the
                preceding criteria to ensure advanced skills are maintained and
                applied.
                   17.7.1 A lecturer, after the date of making this Award, who is
                   classified as an Advanced Skills Lecturer 1 or an Advanced Skills
                   Lecturer 2 for a period of 5 years commencing on and from the date
                   of classification fixed by clause 17.7, will, subject to this Award, be
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                  entitled to be paid as Advanced Skills Lecturer 1 or as Advanced
                  Skills Lecturer 2 as the case may be.
                  17.7.2 At least 10 months prior to the expiration of any 5 year
                  period during which a lecturer is entitled to be paid as an Advanced
                  Skills Lecturer, the lecturer may make application to be reassessed
                  in accordance with this clause and, if assessed as satisfying the
                  criteria, the lecturer will be entitled to be paid as an Advanced Skills
                  Lecturer 1 or as an Advanced Skills Lecturer 2 for a further 5 years
                  commencing on and from the day following the expiration of the
                  previous 5 year period.
                  17.7.3 A lecturer who upon assessment or reassessment does not
                  meet the criteria is not entitled to be further assessed pursuant to
                  this clause earlier than during the second calendar year after the
                  year in which the lecturer was last assessed or reassessed.
              17.8 Only Lecturers at Step 7 or 8 of the incremental scale will be
              eligible to apply for reclassification as an Advanced Skills Lecturer."
DETE submissions
[739] The clause proposed by DETE, in effect:
(1) puts the criteria for classification both as to ASL1 and ASL2 into the body of
the award;
(2) enables the Chief Executive to set up an expert panel to assess relevance and
equivalence of educational qualifications for reclassification purposes;
(3) devolves to the institute the role of establishing a committee to advise the
director on applications for reclassification;
(4) provides for a 5 year review of an ASL classification; and
(5) restricts the ability to make an application for reclassification to an ASL to
lecturers at steps 7 or 8 of the incremental scale.
[740] The criteria in the proposed award, together with the requirement that a
lecturer be at step 7 or 8 of the incremental scale prior to applying, emphasise the
role of the advanced skill classification to reward excellence in teaching and
industry expertise.
[741] The clauses of the proposed award are generally consistent but are more
prescriptive in order to better clarify the differences between ASL1 and ASL2
classifications and to ensure the positions are filled by lecturers by demonstrated
excellence.
[742] The proposed 5 year review will apply only to those lecturers appointed to
ASL positions after the date of making the s.170MX award.
[743] DETE proposes the replacement of the Classification Committee with a
panel to be appointed by the Chief Executive and specifies the composition of the
panel so as to ensure that the committee (panel) has the level of expertise and
knowledge to make appropriate recommendations.
[744] The AEU evidence does not oppose the concept of a 5 year review.
Therefore the method of review proposed by DETE should be implemented.
Alternatively, the Commission could direct the parties to further discuss the
method of implementing a 5 year review with a view to returning minutes of order
to the Commission in due course.
AEU submissions
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[745] The DETE proposal will alter the mechanism for progression to the ASL
level. The DETE proposal involves the following elements:
(1) removal of the need for agreement between the AEU and the Chief Executive
officer as to the relevant criteria for progression;
(2) replacement of the Classification Committee which currently considers the
issue of equivalence of qualifications and the assessment panel which assesses
applications for reclassification in accordance with the agreed criteria;
(3) that 2 committees be set up to undertake the functions of the Classification
Committee, the first being an expert panel to consider equivalence of educational
qualifications (with no AEU or employee representative included) and the second
a committee to advise with respect to approval of applications for reclassification,
which committee is to be established by the relevant institute director (and in
neither case will there be an AEU representative in contrast to the position with
respect to the Classification Committee);
(4) that after 5 years there be a review of those who are reclassified as ASLs to
ensure that advanced skills are maintained and applied; and
(5) that only lecturers at step 7 or step 8 of the incremental scale be eligible to
apply for reclassification as ASLs.
[746] At present, applications for ASL1 and ASL2 are assessed by members of
assessment panels formed for this purpose. The members of the panels
undertake an evaluation of applications and prepare recommendations for
approval or non-approval. Applicants are required to satisfy certain set criteria
including having a prescribed teaching qualification and 2 years of equivalent
teaching experience, together with demonstrated expertise in the relevant area.
[747] The proposal of DETE to restrict eligibility for application to the ASL level to
those lecturers on step 7 or step 8 will penalise more recently recruited lecturers
who have appropriate educational qualifications and experience. They will then
have to serve time until they reach step 7 before application can be made.
[748] The proposal to abolish employee input into the determination of appropriate
criteria is contrary to the interests of the employees generally.
[749] The 5 year review process in the application and maintenance of advanced
skills could best be achieved in a far less bureaucratic fashion by ensuring that
there is a proactive and ongoing process of professional development in place
rather than a review every 5 years.
[750] There has been no adequate evidence put forward to support the change
which is sought. Arguments based upon increased flexibility or managerial
prerogative without any supporting evidence should not be accepted by the
Commission as a sufficient basis upon which to alter provisions which were
consented to by the employer as part of the structural efficiency process.
Conclusions
[751] In our view, DETE has not made out a case for the inclusion of proposed
clause 17. We, by and large, accept the AEU's submissions. To the extent that
DETE's proposed clause may have some merit, we do not think that this is
outweighed by the countervailing arguments of the AEU.
TAFE - HIGHER DUTIES
The agreed issue

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[752] Should there be a provision with respect to payment for higher duties for
TAFE officers or lecturer's assistants in the terms proposed by the AEU in its
clause 29?
AEU claim
[753] Proposed clause 29:
                          "29 - PAYMENT FOR HIGHER DUTIES
           An officer or a lecturer's assistant who performs temporarily the duties of
           a higher position and performs such duties for a continuous period of one
           week or more, will be paid for the whole of such period the salary and
           increments he or she would receive if appointed to the higher position."
AEU submissions
[754] Its intention is to alter the qualification period for receiving payment for
higher duties from a period in excess of one week, as it is now, to a period of one
week or more.
[755] Staff normally carry out higher duties in the absence of a person who is
away on leave. If the period of leave is only for one week, the employee
performing the duties in the higher position receives no extra payment.
DETE submissions
[756] The question of changing the higher duties provision was not a matter at
issue during the bargaining period.
[757] The only award with which this arbitration is concerned which has a higher
duties clause which applies where an employee performs higher duties for a
period not exceeding one week is the Pre-School (Kindergarten) Teaching Staff
Award which, in clause 5.6, provides for a higher duties allowance where an
employee acts in a higher position "for a consecutive period of 5 working days or
more". On a comparative basis there is, therefore, no support for the clause
proposed by the AEU and it has not otherwise been shown to be warranted.
Conclusions
[758] The AEU has failed to make a case to change the entitlement that now
arises in respect of a period in excess of one week to an entitlement that would
arise in respect of a period of one week. We accept DETE's submission that an
overall comparison with the position in other sectors fails to support the AEU's
claim. It is refused.
GENERAL - COUNTRY INCENTIVES
The agreed issues
[759] With respect to country incentives, should the Commission make:
(1) the award provisions as sought by the AEU/CPSU in their clause 10 and
Schedule 2; or
(2) the savings provisions as sought by DETE in its clause 28 and Schedule 2?
AEU/CPSU claim
[760] Proposed clause 10:
                               "10 - COUNTRY PROVISIONS
           10.1 Employees other than Permanent Relieving Teachers or Temporary
           Relieving Teachers employed at the locations set out in Schedule 2 of
           this Award will receive the following allowances in the amounts set out in
           that Schedule:

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                 10.1.1 Employees who relocate to a specified location in order to
                 take up an appointment will be paid a relocation incentive
                 allowance as a cash payment at the time of appointment to the
                 specified location.
                 10.1.2 A country service incentive allowance paid annually in the
                 second and subsequent years of service at that location. An
                 employee who is not engaged as a full-time employee shall receive
                 the incentive allowance on a pro rata basis.
              10.2 Such allowances will be in addition to any allowances or benefits
              contained in State Awards or the DECS Enterprise Agreement 1996 or
              the DETAFE Enterprise Agreement 1996.
              10.3 Nothing in this clause will prevent the employer and employees
              from agreeing to substitute the allowances payable under this clause
              for other benefits of equivalent monetary value which may include:
              . Payment of HECS fees;
              . Leave;
              . Study;
              . Loans;
              . Rental subsidies; or
              . Revised arrangements for superannuation.
              10.4 Special conditions for employees in Anangu schools may be
              negotiated beyond the allowances set out in this clause.
              10.5 The employer will meet all costs associated with relocation,
              storage and depreciation."
[761] Schedule 2 of the proposed AEU award contains a list of locations classified
into 5 levels. It then provides:
                           "Relocation Incentive      Country Service Incentive
                           Allowance                  Allowance
Level 1                    $1,000.00                  $1,000,00
Level 2                    $1,750.00                  $2,000,00
Level 3                    $2,500.00                  $3,000,00
Level 4                    $4,000.00                  $4,000,00
Level 5                    $5,000.00                  $5,000.00"
DETE claim
[762] Proposed clause 28 and Part 1 of Schedule 2:
   "28. SCHEDULE 2: PRESERVATION OF COUNTRY INCENTIVES
          28.1 `Schedule 2: Preservation of Country Incentives' forms part of this
          Award.
          28.2 The provisions contained in Schedule 2 to this Award will continue to
          apply to any teacher having service of the kind specified in Schedule 2.
          28.3 This clause does not apply to a teacher who elects to the employer
          in writing to that effect."
Part 1 of Schedule 2
   "1. SCHEDULE 2 - PRESERVATION OF COUNTRY INCENTIVES
          1. (a) After 4 years service in a country school, a teacher in Band 1, an
          Advanced Skills Teacher, a Senior or a Special Senior appointed prior to

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             7/12/94 shall be entitled to a transfer to a permanent position in a school
             in the metropolitan area.
                     (b) A teacher in Band 1, an Advanced Skills Teacher, a Senior or a
                     Special Senior appointed prior to 7/12/94 who has worked in a
                     school that attracts 3.0 isolation placement points:
                                   . or two years; shall be entitled to a transfer to another
                                   country school; or
                                   . for three years; shall be entitled to a transfer to a
                                   school in the metropolitan area.
                         (c) Only Teachers (including an Advanced Skills Teacher, a
                         Senior or a Special Senior) covered by this Schedule appointed
                         on or after 7/12/94 for 1995, to any of the schools covered by
                         this Schedule, in the following circumstances, namely:
                                   . teachers appointed to permanent vacancies in all
                                   schools attracting 3.0 and 4.0 isolation points and,
                                   . teachers appointed to vacancies created as a result of
                                   the former incumbent being appointed as a Band 3
                                   teacher or a Band 2 teacher,
                         shall be entitled to transfer to a permanent position in a school in
                         the metropolitan area after four years service in a country
                         school.
                 2. Band 1 Teachers, Key Teachers, Seniors, Special Seniors,
                 Coordinators, Assistant Principals and Advanced Skills Teachers shall,
                 provided that such teacher was appointed to a designated school prior
                 to the date on which this Award comes into effect, be paid a $500
                 allowance on the satisfactory completion of each year of approved
                 study if:
                     . they have served at least 4 years in a designated school accrued
                     from 1990 or thereafter and have remained in the designated
                     school area; and/or
                     . during the first two years subsequent to their return to the
                     metropolitan area, if they have served 6 years in a designated
                     school accrued from 1990 or thereafter.
                 3. Band 1 Teachers, Key Teachers, Seniors, Special Seniors,
                 Coordinators, Assistant Principals and Advanced Skills Teachers in
                 Aboriginal and Anangu Schools shall, provided that such teacher was
                 appointed to a designated school prior to the date on which this Award
                 comes into effect, be entitled to one term study leave with pay after 2
                 years of service in these schools after 1/1/90.
                 4. (a) For the purposes of this clause:
                     `Service' means service accrued from commencement of the 1987
                     school year.
                                   `Qualifying period' means the period of service referred
                                   to in sub-clause (b).
                         (b) Provided the teacher was appointed to a designated school
                         prior to the date on which this Award comes into effect, and
                         subject to this clause, teachers will receive the following periods
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                        of leave with pay (or at the employees' option to receive the
                        equivalent in monetary terms) after continuous service in a
                        designated school, or in two schools, which together attract 9.5
                        or more isolation placement points:
                                  . one term's leave on full pay after six years of
                                  continuous service;
                                  . two terms' leave on full pay after eight years of
                                  continuous service;
                                  . one year's leave on full pay after ten years of
                                  continuous service.
                        (c) (i) Provided the teacher was appointed to a designated
                        school prior to the date on which this Award comes into effect,
                        periods of leave without pay for more than a term, other than
                        accouchement leave or parenting leave, will result in the
                        qualifying period recommencing; and
                                         (ii) No period of leave without pay, including
                                         accouchement or parenting leave, will count
                                         towards the qualifying period.
                        (d) Teachers will be eligible for this incentive leave on only one
                        occasion in each location(s).
                 5. Provided the teacher was appointed to a designated school prior to
                 the date on which this Award comes into effect, teachers who
                 complete 7 years of country service in a school that attracts 3.5 or
                 more isolation placement points, will receive an allowance determined
                 by the Chief Executive of the Department for Education and Children's
                 Services on the basis of the reasonable cost of removal from that
                 location to the metropolitan area. This allowance will be paid at the
                 completion of the school year and will continue to be paid at the
                 completion of each year, up to the end of the 10th year in that school.
                 6. Provided the teacher was appointed to a designated school prior to
                 the date on which this Award comes into effect, Band 1 teachers shall
                 be entitled to:
                     . an allowance equivalent to one additional salary increment up to a
                     maximum of Step 12, for teachers remaining beyond four years in a
                     school which attracts 3.5 isolation placement points;
                     . an allowance equivalent to two additional salary increments, up to
                     a maximum of Step 12, for remaining beyond four years in a school
                     which attracts 5.5 or more isolation placement points;
                 7. (a) Provided the teacher was appointed to a designated school prior
                 to the date on which this Award comes into effect, and subject to this
                 clause, Band 3 teachers in Aboriginal and Anangu Schools will be
                 eligible to receive the following incentives:
                                  (i) A four week induction program. This should include
                                  attendance at the Principal Induction Program (one
                                  week), Aboriginal Culture and Studies Course at the
                                  Aboriginal Education Unit (one week) and two weeks

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                                  negotiated observation programs. 50% of the induction
                                  program should be taken during school vacations.
                                  (ii) Teachers who have completed three years
                                  continuous service in a Band 3 position in an Aboriginal
                                  or Anangu School and employees remaining in a Band
                                  3 position are entitled to an allowance equivalent to the
                                  annual rent paid on their "Real Estate Management"
                                  residence at the end of year to a maximum of $2000 in
                                  their fourth and subsequent years.
                                  (iii) After 3 years continuous service in a Band 3
                                  position in an Anangu School a teacher will be granted
                                  one term's approved Training and Development leave.
                                  Teachers completing three years' continuous service in
                                  a Band 3 position in an Aboriginal School or Yalata
                                  Anangu School will be granted a term's approved
                                  Training and Development leave. Teachers will be
                                  eligible for this incentive leave on only one occasion in
                                  each location.
                                  (iv) After 3 years continuous service in a Band 3
                                  position in Anangu or Aboriginal Schools a teacher will
                                  be offered a Band 3 position within 150 km of Adelaide
                                  for a period of 2 years, or salary maintenance without
                                  pegging in another location for a further 2 years.
                        (b) For the purposes of this clause:
                                  (i) `Anangu Schools' means schools located in the
                                  communities of Pipalyatjara, Amata, Fregon, Ernabella,
                                  Mimili, Murputja, Kenmore Park and Indulkana.
                                  `Aboriginal Schools' means schools located in the
                                  communities of Yalata, Koonibba, Oodnadatta, Marree,
                                  Nepabunna, Raukkan and Pt Pearce.
                                  (ii) The operative date for the purpose of determining
                                  service in relation to these incentives is teachers
                                  appointed to Band 3 positions in Aboriginal and Anangu
                                  schools from the beginning of the 1990 school year.
                 8. The entitlements specified in clauses 2, 3, 4, 5, 6 and 7 apply only
                 to those teachers appointed to the schools referred to in those clauses
                 prior to the date of commencement of this Award.
                 9. For the purposes of this Schedule:
                 `Isolation placement points' means the points determined in
                 accordance with the Appendix attached to this Schedule.
                 `Band 1 teacher' means a teacher paid in accordance with Clause 1 of
                 Schedule 1. Salaries of this Award.
                     `Band 2 teacher' means a teacher holding a position as a Key
                     Teacher, Coordinator or an Assistant Principal.
                     `Band 3 teacher' means a teacher holding a position as a Principal
                     or Deputy Principal.

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                 `Designated school' means a school included in Appendix 1A of this
                 Schedule.
                 `Country School' means a school included in Appendix 1B of this
                 Schedule."
AEU submissions
[763] Despite a long history of proposals, enquiries, reports and schemes directed
at providing incentives to attract employees to country regions, there has been a
failure by DETE to deal with country incentives in a satisfactory manner.
[764] The difficulty of attracting education staff to country regions and persuading
them to remain in rural locations is a longstanding problem. The current country
incentives fail to attract metropolitan teachers to the country.
[765] There is an urgent need to introduce salary incentives applying in all country
regions and to all staff. The incentives should be attractive and should become
more generous with increased isolation. They should be available after a relatively
short qualifying period of country service (one year). As an immediate incentive, a
relocation allowance should be paid to all employees who relocate to take up a
country appointment, in addition to the existing actual costs of relocation which
should be met by DETE.
[766] The AEU award proposal is directed at providing an immediate cash
incentive for employees to relocate to country regions and, after a one year
qualifying period, a further allowance to be paid annually whilst they remain in
particular country locations. It allows for flexible substitution of benefits to provide
a broad attraction and seeks to remove a major financial disincentive to country
service, the cost of relocating.
[767] Were the DETE award application to succeed the current country incentives
would not apply to teachers appointed to designated schools after the award
comes into effect.
[768] The DETE proposed s.170MX award does not include any provisions for
ongoing country incentives or any new entitlements. Essentially DETE is asking
the Commission to remove its obligation to continue to provide existing
entitlements to paid leave, removal allowances, accelerated incremental
progression and study allowances without disclosing what if any incentives
employees could expect in the future. Whatever such promised incentives may be
they would not be protected in any industrial sense and would be subject to
change as DETE sees fit.
[769] The DETE approach seeks to redirect money which currently provides
individual entitlements through the existing agreement and make it generally
available as departmental expenditure.
[770] The AEU claim does not seek to change the current incentives for teachers
in designated schools. It proposes transparent salary incentives based on zones
of isolation. This approach is consistent with other schemes and has been urged
on DETE by various consultants.
[771] The proposal recognises that individuals may require a variety of incentives
to attract them to the country and has the flexibility to cater for different individual
needs. It provides industrial protection for individual entitlements and provides
employees with certainty when making decisions about country service.

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[772] The DETE approach seeks to discontinue the current incentives and
provides for employees to waive existing entitlements in order to fund undisclosed
incentives in the future.
[773] The two most popular incentives, salary supplements and leave with pay,
are either not under consideration or have been specifically ruled out. The effect
of adopting the DETE award proposal would be to create greater uncertainty and
reluctance than ever before about working in country regions.
CPSU submissions
[774] Equity demands the availability of country incentives be extended to non-
teaching staff. As the DETE proposal does not achieve this it should not be
granted by the Commission.
[775] With the advent of specialist and senior positions, staff such as bursars may
need to be attracted to regional centres. The provision of the country incentives
proposed by the CPSU/AEU will facilitate this.
DETE submissions
[776] As the benefits in the nature of compensation are not in issue in this
arbitration, DETE does not address them. In relation to those benefits which are in
the nature of incentives, it is presently one sector only of the occupational groups
which are the subject of this arbitration which has any entitlement to incentive
payments, namely, school teachers. It is those country incentives described in
schedule 2 which are the subject of DETE's proposed clause 28 and schedule 2 of
the s.170MX award.
[777] The DETE proposal is that persons who were appointed to the schools
specified in schedule 2 of the 1996 Enterprise Agreement prior to the making of
the s.170MX award should continue to have those entitlements, but that those
incentives would not apply in relation to any future appointments. Instead, DETE
wishes to institute a scheme of incentives for country service which, like the
housing rental rebate and other incentives, would be dealt with administratively.
[778] DETE wishes to introduce a new scheme for country incentives because the
present scheme has a number of deficiencies and a scheme of country incentives
which are in the nature of inducements is, in any event, not a matter appropriate
for award or certified agreement regulation.
[779] As part of the review required by clause 9.2.13 of the enterprise agreement
and arising out of negotiations with the AEU, DETE commissioned consultants
Ernst & Young to review and report upon incentives to attract and retain teachers
in the country. Ernst & Young identified deficiencies in the scheme contained in
schedule 2 of the enterprise agreement and recommended the removal of the
incentives contained in schedule 2, clauses 4, 5, 6 and part of 7.
[780] The current country incentive scheme results in payments and benefits to
teachers in some locations where there is no difficulty in attracting or retaining
teachers. Further the entitlement to additional leave and the entitlement to cash in
lieu of removal allowance often rewards teachers who have made a particular
location their permanent home.
[781] These considerations make continuation of the present scheme
inappropriate. DETE proposes a scheme which would be administratively based
and with the flexibility to meet the particular needs and circumstances of the

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location to which teachers need to be attracted and to meet the particular
circumstances of those teachers.
[782] The elements of the AEU proposal are:
(1) prescriptions with respect to incentives in the nature of inducements to be
contained in an industrial award;
(2) an entitlement to all employees bound by the award (other than permanent
relieving teachers (PRTs) or TRTs) to incentives in the nature of a monetary
payment at the time of appointment to the location and in each subsequent year of
service at that location;
(3) continuation of the current country service incentive scheme;
(4) the monetary entitlements proposed by the AEU to be in addition to whatever
entitlements the employee may have under the current country service incentive
scheme;
(5) some possibility for negotiation for the substitution of other forms of incentive
for the monetary entitlement and, in Anangu schools, for additional entitlements;
and
(6) an obligation upon DETE to meet "all costs associated with relocation, storage
and depreciation".
[783] AEU is seeking an entirely new form of incentive, namely, a cash payment
at the time of appointment to a country location.
[784] The AEU proposed award prescription would mean that all employees
bound by the s.170MX award (other than PRTs and TRTs) would be entitled to
the incentive. Apart from one hearsay and unparticularised statement, there is no
other evidence which demonstrates any need for the provision of incentives to
SSOs, preschool directors and teachers, ECWs, AEWs, TAFE lecturers or
lecturer's assistants.
[785] The incentive which the AEU seeks is the payment of a flat monetary sum.
This is inconsistent with the flexible package approach which DETE wishes to
provide administratively. It is also inconsistent with the concept of country
incentives proposed by the AEU in the bargaining period.
[786] The flat monetary sum for the incentives proposed by the AEU/CPSU range
from $1,000 applicable to level 1 to $5,000 applicable to level 5. The AEU/CPSU
have not presented evidence as to the appropriateness of those figures.
[787] The AEU in the present arbitration asks this Commission to adopt as the
basis for prescription of monetary allowances a scheme of isolation points which it
has agreed is no longer appropriate and which it agrees should not continue to be
applied for the purpose for which it was established.
[788] The absence of coherence in the grouping of schools for the proposed
country incentives in schedule 2 of the s.170MX award proposed by the AEU is
demonstrated by a comparison of the currently agreed schedule and the locations
listed in schedule 2 of the AEU proposed award.
[789] The inappropriateness of the points system used in the placement system
for the purpose of country incentives is emphasised by the proposal made by the
AEU for country incentives during the bargaining period.
[790] The AEU proposes that the country incentive payments be paid to each
employee, irrespective of his or her classification, irrespective of whether the
employee will be engaged at that location for the full year and, other than in the
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case of country service incentive allowance, irrespective of whether the person is
full-time or part-time.
[791] The AEU prescription contains no definition of the concept of "service" in the
specification of entitlement to the country service incentive allowance.
[792] There are difficulties in the drafting of the provision for a relocation incentive
allowance.
[793] As the AEU proposes that the existing country incentive scheme should
remain in place, this involves the prospect of an employee being entitled to the
country service incentive allowance for each year of service in addition to the
existing incentives available.
[794] The AEU proposal that "the employer will meet all costs associated with
relocation, storage and depreciation" should not be granted because it is
unnecessary and, in any event, imprecise.
[795] In the absence of detailed negotiation about the recommendations of the
Ernst & Young Report, it is inappropriate for this Commission to be inserting a
prescription with respect to country incentives which, as stated above, are to be
for the purpose of inducement only.
[796] The aggregate cost of the AEU proposal would be over $6,000,000 per
annum. The size of that expenditure underlines the public interest in not having
the AEU proposal incorporated into the s.170MX award.
[797] If the Commission does decide to include prescriptions for country
incentives, it should specify that they operate with prospective effect only.
[798] If the payment is to be inducement to an employee to remain at a country
location, it should operate only with respect to future service.
[799] If the Commission inserts prescriptions with respect to country incentives, it
would be appropriate to specify that the allowances are not intended to form part
of the salaries prescribed in the salary clause of the s.170MX award.
Conclusions
[800] All parties have acknowledged that there are deficiencies in the existing
scheme of country incentives. The issue has been the subject of a number of
reviews in recent years, including a review conducted in accordance with the 1996
DECS Enterprise Agreement.
[801] By its claim the AEU seeks to maintain the current provisions as an award
entitlement, to create further salary incentives based on "zones of isolation" with
some additional reimbursement arrangements and to extend the provisions to
most classes of employee subject to these award proceedings.
[802] DETE, on the other hand, proposes to guarantee the existing provisions as
an appendix to the award applicable only to teachers appointed to the nominated
country incentive schools prior to the date of operation of the award. For "new"
teaching appointments, the DETE proposal would permit any country incentives to
be applied by administrative arrangements rather than by award or agreement
prescription.
[803] This matter was, during the bargaining period, discussed at some length.
The consultant's report commissioned under the 1996 DECS Enterprise
Agreement was provided to the parties very late in the bargaining period and
differences have emerged as to elements of the recommendations and the cost

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neutral position advanced by DETE. The present s.170MX arbitration has
effectively prevented negotiations following the receipt of the consultant's report.
[804] It is important that the existing entitlements be guaranteed for those
teachers who have made transfer decisions based on them. It is desirable that the
arrangements for new transferees be clearly defined and operate on a consistent
and fair basis. However, additional flexibility to arrange incentives to suit the
actual requirements and circumstances of all the employees concerned is
appropriate to the concept of incentives and broadly supported by the material
before us.
[805] We have a number of substantive and drafting concerns as to the interaction
between the new elements of the AEU proposal and the existing provisions. The
DETE proposal, however, for new appointees is not sufficiently defined so as to
meet the considerations referred to above.
[806] The AEU has not established a sufficient basis to extend the country
incentive arrangements beyond the existing coverage of teachers in schools.
There have been differing arrangements and transfer requirements for teachers in
schools, on the one hand, and for other classifications, on the other. A case for
providing country incentives with respect to classifications other than school
teachers has not been made out.
[807] We will leave the issue of relocation expenses to the present regulations
under the Education Act 1972.
[808] In all the circumstances, we have decided that the country incentive
provisions in schedule 2 of the DETE proposed award will operate as a condition
of the s.170MX award. Subject to two exceptions, those provisions will apply to all
eligible teachers undertaking country service within the schedule, including
teachers appointed or transferred during the life of the s.170MX award. The
exceptions are:
(1) the award will provide that any alternative scheme of country incentives agreed
in writing between the AEU and DETE may be applied in lieu of schedule 2; and
(2) the award will allow the provisions in schedule 2, or any agreed alternative, to
be subject to modification by written agreement between a teacher and DETE.
GENERAL - PROFESSIONAL DEVELOPMENT
The agreed issue
[809] Should there be a provision with respect to professional development in the
terms sought by the AEU/CPSU in their clause 12?
AEU claim
[810] Proposed clause 12:
                         "12 - PROFESSIONAL DEVELOPMENT
          12.1 Professional Development
                12.1.1 The Department will provide professional development
                opportunities to all employees to enhance their professional skills.
                12.1.2 The Department will meet all costs, including travel costs,
                reasonably incurred for approved professional development and
                training.
                12.1.3 The Department will provide funding to release every
                employee from their normally rostered duties to attend a minimum
                of five days release time for the purpose of system training and
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                    development priorities in their normal working time. These
                    professional development days are in addition to and not a
                    substitution for any leave entitlements or professional development
                    undertaken on days when students are not required to attend
                    school.
                    12.1.4 The Department will consult with employees on the nature
                    and programming of professional development and any changes to
                    the provision and funding of and access to professional
                    development.
                    12.1.5 Hourly paid, Temporary, part-time employees and those in
                    job-sharing arrangements have the same rights, conditions and
                    access to professional development as permanent full-time
                    employees save that the release days referred to in Clause 12.1.3
                    shall be applied on a pro rata basis.
                    12.1.6 The Department will support professional development
                    which relates to:
                                        . system initiatives that address priorities
                                        implemented on a statewide basis;
                                        . where appropriate, work based priorities that
                                        address system initiatives and worksite
                                        improvement. These may be initiated by worksites
                                        in cooperation with the Department;
                                        . individual priorities negotiated at the worksite
                                        level and directed at supporting employees to
                                        identify professional development and training
                                        needs and to plan and access programs. The
                                        Department will work with the AEU to facilitate the
                                        provision of programs;
                                        . recognition of prior learning and experience;
                                        . articulation with other forms of recognised
                                        training and academic studies.
                 12.2 Professional Development Fund
                    12.2.1 The Department will establish a Professional Development
                    Fund to assist employees undertaking relevant study or training in
                    areas not otherwise provided for by the Department through the
                    professional development support outlined in clause 12.1.
                    12.2.2 The Department will contribute to the fund at the rate of
                    $0.10 per hour of contact time undertaken by its employees in
                    schools and pre-schools and instruction time undertaken by its
                    employees in TAFE Institutes.
                    12.2.3 The fund will be governed by a Board comprised of
                    nominees of the AEU and the Department and its funds disbursed
                    to employees to support purposes and activities including but not
                    limited to the following in a manner determined by the Board of the
                    Fund:
                                        12.2.3(a) payment of HECS and other
                                        professional development fees/charges for
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                                           relevant study in training in accordance with
                                           agreed guidelines;
                                           12.2.3(b) the development of a range of
                                           professional development activities associated
                                           with schools, pre-schools or TAFE institutes as
                                           relevant;
                                           12.2.3(c) making available sabbatical/study leave
                                           to support relevant study, observations and
                                           exchange in accordance with agreed guidelines;
                                           12.2.3(d) providing access to and support for
                                           participation in accredited training/study to SSOs,
                                           AEWs and ECWs, lecturers assistants and
                                           contract and hourly paid employees.
                                           12.2.3(e) providing release time for employees to
                                           attend training and development programs."
AEU submissions
[811] The importance of professional development is recognised by DETE. So
much is confirmed by the DETE commitments in the State DECS Agreement and
by other public statements made on behalf of DETE. Events which have occurred
since 1996 indicate that the DETE policy and public commitment to the
importance of professional development are not matched by the provision of
resources which allow adequate and equitable access to professional
development in the workplace.
[812] The manner of the introduction of the Shorter School Year Policy 1999
broke two DETE commitments. In 1996, DETE had committed itself to
consultation in relation to changes in conditions and to employee participation in
review of systems, processes and practices within DETE. Notwithstanding this
commitment, there was no consultation with the AEU or DETE employees in
relation to the introduction of the new policy in relation to professional
development, known as the Shorter School Year Policy. The blatant breach of the
commitment to consultation by DETE demonstrates the need for an award clause
in the form of clause 12.1.4 of the AEU proposal.
[813] The second commitment broken by DETE upon the introduction of the
Shorter School Year Policy was the commitment to ensure there was equitable
access to training and development activities for all employees. The shortcomings
of the policy demonstrate this breach of commitment.
[814] The Shorter School Year Policy suffers because it was not introduced on its
merits and after consultation but only as a reaction to a Government requirement
that DETE meet a certain level of savings.
[815] The new policy exacerbates the bias of available training and development
options towards system and workplace priorities at the expense of a more
rounded type of professional development.
[816] The problem of access to an adequate range of professional development is
not alleviated by the alternative of undergoing training and professional
development in the last week of term 4.


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[817] The Shorter School Year Policy unfairly discriminates against those
employees who are restricted in their ability to access training and professional
development programs out of hours.
[818] It is incongruous that the removal of a substantial means of support for
educators in their training and professional development needs has occurred at a
time of rapid and continuing change in the education industry.
[819] The policy has had the effect of increasing the amount of training and
professional development done out of hours by staff in schools. This has resulted
in such staff bearing to a greater degree the expense of such training and
professional development. The impact of these expenses also bears
disproportionately on ancillary staff who must bear expenses to the same degree
in relation to those professional development courses which are available to them.
[820] With respect to TAFE:
(1) DETE agreed in the 1996 DETAFE Enterprise Agreement to give
consideration to provision of a staff entitlement for development purposes;
(2) the absence in South Australia of award or agreement entitlements to staff
professional development stands in stark contrast to the position in most other
States and in the Territories;
(3) the failure of DETE to act to further the professional development entitlements
of staff is particularly striking given the apparent intention of the former
Department of Employment, Education and Training to pursue the issue;
(4) there is no overall plan in relation to the provision of professional development
either across DETE as a whole or within TAFE; and
(5) the main responsibility for finding funds for professional development appears
to have devolved to the employees.
[821] The intention of the AEU clause is to provide two layers of support for
professional development. The first layer is to be directed towards support for
what might be described as 3 levels of professional development. The second
layer of support is to be provided through the allocation of funds accumulated in
the Professional Development Fund.
[822] There needs to be a significant boost to the level of professional
development available to DETE employees.
[823] The education system generally is undergoing a state of rapid change. On
top of the plethora of system initiated policies and initiatives designed to address
these changes is the ongoing technological revolution which in turn has a
significant effect upon teaching methodology and the need for training in this
specialist area. The provision of resources for professional development comes a
poor second in terms of resource priorities given that there has been a decline in
the level of resources provided by the State Government.
[824] In such circumstances, there is no alternative, if the training and
development of staff are to be met so as to permit them to adequately deal with
changes, than to introduce into industrial regulation a requirement that a basic
level of professional development resources must be provided by the employer.
CPSU submissions
[825] The access to training provided to SSOs is severely limited and the current
obligations on DETE to provide SSOs with training and development are vague
and general.
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[826] With the advent of Partnerships 21 and broader devolution in schools there
is a necessity for more highly skilled administrators at schools particularly in the
area of finance.
DETE submissions
[827] AEU evidence gives a quite misleading impression about the provision of
professional development to education workers by DETE. The true position is that
professional development and training is recognised and valued within DETE, that
substantial resources are presently allocated by DETE to that end, that all
employees have reasonable access to professional development and that the
prescriptions sought by the AEU/CPSU are unnecessary.
[828] A feature of DETE's arrangement for the provision of professional
development is the Shortened School Year Policy introduced in 1999.
[829] The training and professional development which the employee might
undertake during the mandatory 37.5 hours can be of a variety of types. There are
two requirements. The development activities must be negotiated between the
employee and his/her line manager and should address the individual's learning
needs.
[830] The evidence shows that, apart from the provision of professional
development by the Training and Development Unit (TDU), training and
professional development is provided to educational workers:
(1) through the Council of Education Associations of South Australia Incorporated
which receives funding from DETE of $170,000 per annum;
(2) through the universities;
(3) through the South Australian Centre for Leaders in Education;

(4) through the Technology School of the Future;
(5) through DETE's Curriculum Division;
(6) through the Aboriginal Education Unit;
(7) at local school level;
(8) by special projects; and
(9) by Discovery Schools and Focus Schools.
[831] Each school council is authorised to permit 2 pupil free days and one school
closure day each year.
[832] In addition to the provision of training and development referred to above,
DETE provides to schools, preschools play centres and corporate units a training
and development grant of $1.09 million.
[833] DETE provides $500,000 annually for re-training of teachers.
[834] What the shorter school year makes mandatory is the undertaking of 37.5
hours of professional development each year. It can all be taken in the final week
of fourth term which has been made pupil free for this purpose.
[835] It has been accepted since at least 1990 that teachers will meet some of the
expense of professional development.
[836] All courses provided by DETE are heavily subsidised.
[837] Given the circumstances with respect to professional development within
DETE, the AEU/CPSU proposed prescription with respect to professional
development is not shown to be necessary.

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[838] The AEU/CPSU propose that DETE be required to establish a Professional
Development Fund, that DETE be required to contribute to the fund at the rate of
10 cents per hour of contact time undertaken by employees in schools and
preschools and at the rate of 10 cents per hour of instruction time undertaken by
employees in TAFE and that the moneys in the fund be dispersed to employees.
[839] This clause infringes the implied constitutional limitation, is not an industrial
matter and is outside the ambit of the dispute in respect of which the Commission
is arbitrating.
[840] If, notwithstanding those submissions, the Commission finds that it does
have power to award the prescription, DETE's submission is that as a matter of
discretion it ought not. It is a clause which goes to the expenditure of public
monies by the State of South Australia.
[841] The vagueness of the AEU/CPSU clause underlines its undesirability.
[842] Professional development is provided by DETE to those in the preschool
sector in the same way as it is to those in the school sector.
[843] TAFE lecturers presently have an entitlement to one form of assistance in
relation to professional development, namely, an entitlement to paid study leave in
the form of release time.
[844] Because TAFE is a Quality Endorsed Training Organisation it is required to
ensure that certain professional development activities are in place. TAFE has
done so.
[845] In relation to TAFE a number of approaches are adopted to provide
professional development and DETE repeats the submissions made by it in
relation to schools. In addition, DETE submits that:
(1) a requirement for paid release time is unnecessary in TAFE;
(2) it is reasonable to assume that persons in a professional occupation such as
TAFE lecturers be required to meet some of the costs of their own professional
development;
(3) the State TAFE award provides for study leave;
(4) there are a number of difficulties concerning the Professional Development
Fund; and
(5) other sources of funds continue to be available to TAFE lecturers.
Conclusions
[846] While professional development is obviously an important matter, we are
satisfied that, having regard to the arrangements made by DETE for it, no basis
has been established for us to intervene. Accordingly, we do not propose to
include in the s.170MX award provisions relating to professional development.
GENERAL - GRIEVANCE PROCEDURES
The agreed issue
[847] What provision should be made by the Commission with respect to
grievance procedures:
(1) should there be a general provision as proposed by DETE in its clause 25;
(2) should there be a general provision together with separate provisions relating
to workload issues as proposed by the AEU/CPSU in their clauses 9, 17, 18.5,
19.3, 24.6, 25.6, 28?
AEU/CPSU claim

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[848] Proposed clauses 9, 17, 18.5, 19.3, 24.6, 25.6, 28. All these clauses, except
clause 9, have been set out earlier when dealing with the various workload claims.
Clause 9 is:
                 "9 - CONSULTATION AND DISPUTE AVOIDANCE
                         AND SETTLEMENT PROCEDURES
         9.1 The parties bound by this award are obliged to make every
         endeavour to facilitate the effective functioning of this procedure.
         9.2 Consultation over the introduction of Change
               9.2.1 Notification to Employees and the Union
               9.2.1(a) Where the employer proposes to make changes to
               educational programs, curriculum, class sizes, courses, workplace
               organisation, school classification structure or technology that are
               likely to have a significant effect on employees, the employer will
               notify the employees who may be affected by the proposed
               changes and the union.
               9.2.1(b) `Significant effect' includes major changes in the
               composition of and the skills required of the employer's workforce;
               the elimination or diminution of job opportunities; promotional
               opportunities or job tenure; the alteration of hours of work; the need
               for retraining; and the restructuring of jobs or any other such
               circumstance.
      9.2.2 Consultation with the Union
                                    9.2.2(a) The employer will consult with the
                                    employees affected and the union on, inter alia,
                                    the introduction of the changes referred to in
                                    subclause 9.2.1(a) above, the effects such
                                    changes are likely to have on them and measures
                                    to avert or mitigate the adverse effects of such
                                    changes on employees.
                   9.2.2(b) The consultations will commence as early as practicable
                   after notification by the employer and, other than in exceptional
                   circumstances, before the introduction of any proposed changes.
                       9.2.3 Provision of Information
            For the purposes of such consultation, and at least one week before
            consultation commences, the employer will, as far as practicable,
            provide in writing to the union all relevant information about the
            changes, including the nature of the changes proposed; the likely date
            and method of implementation of the changes; the expected effects of
            the changes on employees; and any other matter likely to affect
            employees.
            9.3 Dispute Avoidance and Settlement Procedures at the Worksite
            Level
      The dispute avoidance and settlement procedures set out in this clause
      cover grievances over decisions taken at a workplace and which affect one
      or more employees at that workplace and questions, disputes or difficulties
      arising under this Award or any of the State Awards or State Agreements
      referred to in clause 7 above. The procedures do not apply to a grievance in
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        relation to the workload of an employee or group of employees which is
        dealt with in accordance with the workload clauses contained within Parts 2,
        3 and 4 of this Award. The resolution of a grievance, question, dispute or
        difficulty under these procedures must be capable of being implemented by
        action at the workplace.
        Note : in this context a "decision" includes a refusal or failure to make a
        decision.
            9.4 Any dispute, grievance, question, or difficulty (including matters the
            subject of this Award) ("a dispute") or any matter likely to create a dispute
            must be dealt with in the following manner:
                   9.4.1 The AEU will advise employees at each worksite of the
                   name(s) of the representative(s) responsible for consultation
                   matters arising on the job.
               9.4.2 Any employee with a dispute is able to:
                                . seek a personal resolution by raising the matter with
                                the person responsible for the dispute;
                                       . raise it directly with the line manager; or
                                   . raise it with the AEU representative who will raise
                                   the matter with the most immediate line manager; or
                                   . in the case of a school, raise it with a member of
                                   the Personnel Advisory Committee, ("PAC") in which
                                   case the PAC will meet and advise the immediate
                                   line manager on the matter.
                      9.4.3 The line manager will endeavour to resolve the dispute,
                      and in the case of schools, may refer the dispute to the PAC if it
                      has not already been raised with the PAC.
                      9.4.4 The matter will be addressed within two working days of it
                      being raised either by agreement on a final resolution or
                      agreement as to the method and timeframe for proceeding to
                      resolution of the dispute or if the matter is not capable of
                      resolution, it may be referred to Director, Human Resources or
                      delegate.
                      9.4.5 For disputes which have not been resolved at the worksite
                      level within two working days, the following procedures will be
                      used:
                      9.4.5(a) The parties or their representatives will notify each other
                      in writing of the name of their nominated representatives, if any,
                      who will be responsible for seeking resolution of matters which
                      cannot be resolved at the worksite level.
                      9.4.5(b) The union's representative(s) or other employee
                      representative(s) thus accredited will be the only person/s
                      entitled to make representations on behalf of departmental
                      employees.
                      9.4.5(c) The department's accredited representative(s) will be
                      responsible for dealing with matters raised by the employee
                      representative(s).

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              9.4.5(d) When the matter is referred to the Director, Human
              Resources, or delegate, in accordance with subclause 9.4.4, a
              conference of the relevant parties will be called to discuss the
              matter.
              9.4.5(e) The conference will be held within 48 hours of the dispute
              or likely dispute having been referred to the Director, Human
              Resources, or delegate, or within such period as may be agreed by
              the parties.
           9.5 After consultation between the parties has taken place in
           accordance with the procedures, at any time either party may request
           and be entitled to receive a response to its representations within two
           days or such longer time as agreed by the parties.
           9.6 If the dispute or likely dispute is not resolved in accordance with
           these procedures, either party may refer the matter to the Board of
           Reference.
           9.7 Without prejudice to either party, and except where a bona fide
           health and safety issue is involved, work should continue, without
           disruption by means of industrial action, on a status quo basis while
           the dispute is being dealt with in accordance with these procedures.
           "On a status quo basis" means the work situation in place at the time
           the matter was first raised in accordance with these procedures.
           9.8 If there is undue delay on the part of any party in responding to the
           matter creating a dispute or likely dispute, the party complaining of the
           delay may take the matter to another level of the procedure if the party
           believes it is desirable to do so.
           9.9 In the event of a party failing to observe these procedures, the
           other party may take such steps as determined necessary to resolve
           the matter.
           9.10 These procedures will not restrict the Department or its
           representative(s) or a duly authorised official of a union or
           representative of an employee making representations to each other.
           9.11 Dispute Avoidance and Settlement Procedures involving Multiple
           Worksites
              9.11.1 Where a dispute or likely dispute arises in relation to the
              matters set out in subclause 9.2.1 that affects employees at more
              than one worksite and where it is not practical to resolve the matter
              at the local level the following will apply:
              9.11.1(a) The matter will be referred to the Chief Executive Officer.
              9.11.1(b) The procedures from subclauses 9.4.5(e) to 9.10 above
              will apply save that the Director Human Resources or delegate will
              be replaced by the Chief Executive Officer.
9.12 Implementation of Curriculum Initiatives
              9.12.1 The Department will establish a Curriculum Initiatives
              Committee to consider all proposals for revised curriculum,
              assessment methods or teaching methodology which may be
              trialed or implemented on a widespread basis.

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                      9.12.2 The Committee will comprise representatives of the Union
                      and the Department.
                      9.12.3 The Committee will advise the Chief Executive on the
                      financial, professional and industrial relations implications of
                      proposals and the levels of consultation, training, resource
                      provision, evaluation or other considerations to be taken into
                      account in implementation."
DETE claim
[849] Proposed clause 25:
   "25. PROCEDURES FOR PREVENTING AND SETTLING INDUSTRIAL
   DISPUTES: GENERAL
         25.1 The parties to this Award will make every endeavour to facilitate the
         effective functioning of this procedure.
         25.2 This procedure aims to avoid industrial disputes, or where a dispute
         occurs, to provide a means of settlement based on consultation,
         cooperation and discussion and the avoidance of interruption to work
         performance.
         25.3 Without prejudice to either party, and except where a bona fide
         health and safety issue is involved, work should continue, without
         disruption by means of industrial action, on a status quo basis while
         matters in dispute are being dealt with in accordance with these
         procedures. `On a status quo basis' shall mean the work situation in
         place at the time the matter was first raised in accordance with this
         procedure.
         25.4 Any industrial dispute or matter likely to create an industrial dispute
         arising under this Award should be dealt with in the following manner:
                25.4.1 The employee representative(s) who are parties to this
                Award will advise the staff at each worksite of the name(s) of the
                representative(s) responsible for consultation on matters arising on
                the job.
            25.4.2 Any staff member with a dispute is able to:
                                  25.4.2.1 seek a personal resolution by raising the
                                  matter with the person responsible for the dispute;
                                  25.4.2.2 raise it directly with the site manager; or
                                  25.4.2.3 raise it with the employee representative
                                  who shall raise the matter with the most
                                  immediate site manager.
            25.5 If requested by the site manager, the subject of the dispute shall
            be put in writing, so far as is reasonably practicable.
            25.6 The site manager shall endeavour to resolve the dispute and in
            the case of schools, may refer the dispute to the Personnel Advisory
            Committee for advice.
            25.7 The matter shall be addressed as soon as possible either by way
            of an agreed resolution or by negotiating an agreed method and
            timeframe for proceeding.
            25.8 If the matter is not resolved at this level the employee or
            employee representative should ask for it to be referred to the
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                 Director, Human Resources (or delegate) or Institute Director (or
                 delegate) (as appropriate) who shall arrange a conference to discuss
                 the matter.
                 25.8 For matters which have not been resolved at the worksite level,
                 or for matters beyond the worksite level, the following procedures shall
                 be used:
                    25.9.1 The parties or their representatives should notify each other
                    in writing of the name of their nominated representatives, if any,
                    who would be responsible for seeking resolution to matters which
                    cannot be resolved at the worksite.
                    25.9.2 The employee representative(s) or the representative(s) of
                    the other parties thus accredited will be the only person(s) entitled
                    to make representations on behalf of the employee(s).
                    25.9.3 The employer representative(s) thus accredited will be
                    responsible for dealing with matters raised by the employee
                    representatives or other parties.
                    25.9.4 When a matter is referred to the Director, Human Resources
                    (or delegate) or Institute Director (or delegate) (as appropriate) a
                    conference of the relevant parties shall be called to discuss the
                    matter. When a matter is referred to an employee representative,
                    that person shall refer it to the Director, Human Resources (or
                    delegate) or Institute Director (or delegate) (as appropriate) who
                    shall call a conference as described.
                    25.9.5 The conference shall be commenced within 48 hours of the
                    dispute or likely dispute having been referred to the Director,
                    Human Resources (or delegate) or Institute Director (or delegate)
                    (as appropriate) or within such longer or shorter period as may be
                    agreed by the parties.
                 25.10 At any stage in the procedure after consultation between the
                 parties has taken place, in accordance with the procedure, either party
                 may request, and be entitled to receive a response to its
                 representations within a reasonable time, as may be agreed upon
                 between the parties.
                 25.11 When a dispute is not resolved in accordance with this
                 procedure, the matter may be referred to the Australian Industrial
                 Relations Commission by any party to both the dispute and to this
                 Award.
                 25.12 If there is undue delay on the part of any party in responding to
                 the matter creating a dispute or likely dispute, the party complaining of
                 the delay may take the matter to another level of the procedure if the
                 party believes it is desirous to do so.
                 25.13 In the event of a party failing to observe this procedure, the
                 other party may take such steps as determined necessary to resolve
                 the matter.
                 25.14 This procedure will not restrict the employer or its
                 representative(s) or a duly authorised official of a union or
                 representative of an employee making representations to each other."
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AEU submissions
[850] The difference between the general procedures proposed in clause 9 of the
AEU award and the workload grievance procedures is that the workload
procedures contemplate the formation of a conciliation committee which is to
adopt an objective role in the dispute resolution process.
[851] The DETE claim purports to narrow the range of matters which might be
dealt with in accordance with the dispute resolution procedures.
[852] The evidence is that the establishment of a grievance procedure in the
terms of clause 11 of the 1996 DECS Enterprise Agreement has been productive
and useful in settling disputes which have arisen at individual worksites.
[853] The Commission should not narrow the application of the dispute resolution
clause and should either allow it to cover the range of matters contemplated by
the AEU application or, at the very least, allow it to cover the same range of
matters as are now covered by clause 11 of the 1996 Agreement.
[854] The proposed AEU clause seeks to retain the same role the PAC currently
has under clause 11 of the 1996 Agreement.
[855] For reasons which have not been explained, the DETE clause contemplates
a more limited role for the PAC.
CPSU submissions
[856] The DETE proposal does not contain a specific mechanism to deal with
systemic disputes that occur across work sites.
[857] It is both time consuming and inefficient to have these matters run through
the hierarchy of a grievance procedure which is designed for dealing with single
workplace grievances.
[858] It is appropriate for there to be specific grievance procedures for workload
issues.
DETE submissions
[859] DETE proposes a single and comprehensive grievance and dispute
resolution procedure capable of dealing with any grievance or dispute or any
matter which is likely to create an industrial dispute. The issue can be dealt with at
the relevant work site with the assistance of the PAC's advice (where applicable)
and if unresolved can be dealt with at higher levels and, ultimately, referred to the
AIRC.
[860] DETE's proposal is similar, both conceptually and in detail, to the existing
agreement and award prescriptions which have worked effectively.
[861] There is no evidence, or insufficient evidence, of the need for a multiplicity
of procedures, or for a multiplicity of levels of participation by committees, or for
distinctions being drawn as to DETE persons to be involved at the higher levels
based merely on classification.
[862] DETE's proposed clause is a simple, straightforward mechanism which
provides for the early and expeditious means of resolving or avoiding disputes
without suffering the several layers of process proposed by the AEU/CPSU in their
clause.
[863] During the bargaining period the AEU, in its proposed certified agreement,
detailed a similar clause to that which DETE proposes in this arbitration.


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[864] The AEU/CPSU have provided no evidence or justification for the
substantial variations sought in respect of the existing procedures or as to the
purpose or intent in relation to the change in terminology.
[865] DETE's proposal avoids a multiplicity of processes and the unnecessary
bureaucratisation of the process in the manner proposed by the AEU/CPSU.
[866] The multiple layered structure proposed by the AEU/CPSU involves a
marked change from the current position. It involves the introduction of a further
level of consultation (in addition to the proposal for the introduction of a board of
reference) and introduces confusion in relation to separate grievance procedures
depending on the nature of the dispute or grievance.
Conclusions
[867] Subject to a minor change to it which we specify below, clause 25 proposed
by DETE should be the only grievance procedure clause in the s.170MX award.
[868] In so deciding, we have had regard to the conclusions we have reached with
respect to workload for teachers, the Personnel Advisory Committee and the
claims for a board of reference.
[869] We have noted that the various awards and agreements applying to the
parties contain dispute resolution procedures. These procedures differ from each
other, and those in the 1996 and 1998 agreements are the most detailed. We
have also noted that teachers and TAFE officers have available to them complaint
and grievance procedures under legislation.
[870] In our view, the AEU/CPSU proposals for a number of grievance procedures
(proposed clauses 9, 17, 18.5, 19.3, 24.6, 25.6 and 28) are unnecessarily
complicated and confusing. Further, within clauses proposed by the AEU/CPSU
are provisions relating to conciliation committees and boards of reference. In the
next section of this decision we reject a board of reference clause proposed by the
AEU/CPSU. Neither are we attracted to the idea of introducing conciliation
committees into an award grievance procedure clause. We agree with DETE's
submission that the union proposals introduce a multiplicity of processes and
unnecessary bureaucratisation of processes. Disputes may arise as to which of
the various procedures is applicable in a particular case.
[871] It is desirable that the s.170MX award contain a single set of grievance and
dispute resolution procedures. It is also appropriate to ensure that the procedures
are capable of applying to the range of issues and employment sectors without
being unnecessarily complex or subject to debate as to the appropriate procedure
in a particular case.
[872] The evidence does not show that the existing dispute resolution procedures
in the 1996 DECS and DETAFE Enterprise Agreements have not worked
effectively. We are satisfied that the scope of issues and the process specified in
DETE's proposed clauses are sufficient to deal with grievances (including
workload issues) that may arise at work sites.
[873] The emphasis must be upon the resolution of issues at the school,
preschool or institute level, with the capacity to have appropriate matters
addressed if necessary at departmental level with senior officials of the union or
unions. Access to this Commission, where required to resolve matters, should
then be available without unnecessary delay.

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[874] The change we make to the DETE clause is specify that the procedure is to
apply to "grievances, industrial disputes or matters (including matters the subject
of this award)". This adopts, and slightly adapts, the terminology used in the 1996
agreements.
GENERAL - BOARD OF REFERENCE
The agreed issue
[875] Should there be a provision with respect to a Board of Reference as
proposed by the AEU/CPSU in their clause 15?
AEU/CPSU claim
[876] Proposed clause 15:
                              "15 - BOARD OF REFERENCE
         15.1 For the purpose of this award a Board of Reference, hereinafter
         called the Board, shall be constituted consisting of one person to be from
         time to time nominated by the union and one person to be from time to
         time nominated by the employer, and a member of the Australian
         Industrial Relations Commission as Chairperson. Where the employer or
         the union fail to nominate a representative or representatives within a
         reasonable period, the Chairperson shall nominate persons to represent
         that entity or entities.
         15.2 The function of the Board, in accordance with the provisions of this
         award, shall be to allow, approve, fix, determine or deal with the matter or
         thing referred to it under subclauses 9.6, 17.7 and 28.5 and to decide all
         disputes arising as to the proper application and implementation of this
         Award.
         15.3 Any person appointed as a member of the Board may appoint a
         substitute to act in his or her stead at any time, provided that a union
         nominee may only exercise this power with the consent of the union.
         15.4 The Board shall sit at such time and place as the parties may agree
         or in default of agreement as the Chairperson may fix.
         15.5 The Board may resolve the dispute in such manner as it thinks fit
         provided that where the matter under consideration concerns teacher
         workload, the Board shall take into account the range of factors referred
         to in clause 16.6 in Part 2 of this Award, or where appropriate, clause
         28.2 in Part 4.
         15.6 Subject to sub-clause 15.7 of this clause, a decision of the Board of
         Reference shall be binding on the parties before the Board of Reference,
         and shall be conclusive of the matters which it determines.
         15.7 A decision of the Board may be reviewed and altered by the
         Commission on application of either party to this Award, provided that
         notice of an application for a review of such decision or decisions is given
         to the other party to the proceedings within 7 days and that the
         application for review is lodged with the Industrial Registrar, and served
         on the other party to the proceedings, within 21 days of the date of the
         decision but the Commission may, on application, extend the time for
         notice or lodgement of the application.


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          15.8 Nothing in this clause shall prevent any party from applying to the
          Federal Court of Australia for an interpretation of any clause of this
          award."
AEU submissions
[877] The AEU clause proposes a variation to current arrangements by seeking to
have matters not resolved at the workplace or managerial level go to a board of
reference rather than to a single member of the Commission because, given the
special and complex nature of the education industry, it would be productive of
dispute resolution to include a board which contained a person nominated by the
union and a person nominated by the employer.
[878] There ought to be a clear expression in the award as to the powers of the
body to which ultimately recourse may be had in the event that a dispute cannot
be resolved by a board of reference.
CPSU submissions
[879] Given the resources available to the employer and the unique types of
issues that the board would be empowered to deal with (e.g. staffing allocation)
the appointment of a specialist board of reference as a penultimate step before
proceeding to the Commission is likely to lead to a more efficient resolution of
disputes.
DETE submissions
[880] A clause establishing a board of reference was not a matter at issue during
the bargaining period.
[881] Section 131 does not authorise the Commission to make an award
prescription in the terms sought.
[882] There is no evidence of failure of the present grievance processes which
might suggest that a board of reference is necessary or appropriate.
Conclusions
[883] We have considered whether a board of reference provision is appropriate
having regard to our decision generally and, in particular, our decision regarding
workload matters and grievance procedures.
[884] Consistently with our views about the grievance procedures issue, we reject
the claim for a board of reference clause. In our view, it adds unnecessary
complication to the procedures. It introduces a need to constitute a board and
provides for a review process of board decisions. There would be scope for
argument about the powers of and procedures to be followed by a board. The
review process would require the involvement of a member of the Commission
other than the one who chaired the board. Further, the review process contains
time limits extending to 21 days. We are not persuaded that the provision should
be included in the award.
GENERAL - OCCUPATIONAL HEALTH AND SAFETY (OHS)
The agreed issue
[885] Should there be a provision with respect to occupational health and safety
as proposed by the AEU/CPSU in their clause 13?
AEU/CPSU claim
[886] Proposed clause 13:
                     "13 - OCCUPATIONAL HEALTH AND SAFETY

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          13.1 The Department and Union will cooperate in the development and
          implementation of programs designed to prevent or reduce the incidence
          of workplace injury and will support and cooperate to improve
          rehabilitation processes.
          13.2 The Department will ensure that worksites are adequately funded to
          enable principals, directors and Institute directors to receive support
          materials and appropriate training in:
                 13.2.1 high risk work safety areas as part of their professional
                 development which will enable them to implement special initiatives
                 relating to these areas;
                 13.2.2 workers compensation and rehabilitation with the particular
                 object of enhancing the identification and remedying of problems
                 identified at the site level.
             13.3 The Department will provide programs aimed at reducing the
             number of work place injuries and promoting an earlier return to work
             of injured employees by making available suitable work.
             13.4 Employees in all worksites will be provided with adequate
             resources to enable them to take an active role in meeting the
             WorkCover Preventions Performance Standards and in particular
             Occupational Health and Safety representatives will be afforded
             adequate time release from normal duties to allow them to undertake
             their role and attend relevant training.
             13.5 The Department in conjunction with the AEU and Occupational
             Health and Safety Consultative Committees will monitor the activities
             described in subclauses 13.1-13.4 above to ensure that Level 3 of the
             existing WorkCover Preventions Performance Standards are met."
AEU submissions
[887] There is a lack of consistency between, on the one hand, DETE's public
stance that there should be cooperation between employer and union and the
provision of appropriate training and resources to health and safety
representatives (HSRs) for occupational health, safety and welfare (OHSW)
matters and, on the other hand, the reality of DETE practice.
[888] The lack of provision of resources by DETE shows that it does not take
seriously either its rhetoric or its obligations under s.34 of the Occupational Health
Safety and Welfare Act 1986 (OHSW Act).
[889] The evidence shows that there is an excessive workload imposed upon
HSRs.
[890] HSRs are forced to use non-instructional time at work, recess and lunch
breaks and after school and at home time for OHSW matters which inevitably
means that planning and preparation, which might otherwise have been done with
respect to the normal teaching load, is done later, at home or on weekends.
[891] An award provision in relation to OHSW is necessary notwithstanding that
there is legislation which imposes obligations on DETE as an employer because:
(1) the legislative obligations with respect to HSRs are very general; and
(2) if DETE is in breach of its general duty with respect to provision of a safe
workplace or of any of its obligations with respect to HSRs, the individual
employee concerned is not able to take action in relation to that breach.
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[892] What is needed in the present circumstances is an industrial instrument
which reinforces the general legislative requirements of the OHSW Act by obliging
the employer to provide appropriate resources to allow the legislative
requirements to be met and, in particular, to allow sufficient time for an HSR to
carry out the duties contemplated by the Act.
CPSU submissions
[893] The CPSU adopts the AEU submissions.
[894] An award obligation is necessary to ensure that adequate resources in
terms of time and training are available to HSRs to ensure they can adequately
perform their role.
DETE submissions
[895] DETE is opposed to the insertion of clause 13 because:
(1) the clause is unnecessary and inappropriate. DETE is already subject to
detailed regulatory requirements, principally the OHSW Act and the Workers
Rehabilitation and Compensation Act, 1986;
(2) DETE is conscientious in attending to its obligations under the current
legislative regime;
(3) the clause is not within the jurisdiction and power of the Commission to grant
because it infringes the implied constitutional limitation and it is not a claim which
can form part of an industrial dispute;
(4) it is inappropriate to make an award prescription where the standards are set
by a third party;
(5) the clause uses vague concepts which are inappropriate for award regulation;
and
(6) the AEU seeks the clause to be inserted to facilitate appropriate compliance
with the State legislation by DETE. This an inappropriate basis for seeking an
award prescription.
Conclusions
[896] South Australia has enacted legislation dealing comprehensively with
occupational health, safety and welfare.
[897] The AEU argued that DETE does not take its obligations under this
legislation seriously. If this means that DETE is in breach of the legislation, the
appropriate remedy is to enforce it.
[898] In our view, the determination of OHSW standards and requirements in
South Australia is, primarily, a matter for the Parliament of that State.
Notwithstanding the particular circumstances of the education industry to which
our attention was drawn, we are not persuaded that there is any proper basis for
granting all or any of the provisions sought by the unions. We reject them on their
merits.
GENERAL - INTEGRATED SITES
The agreed issue
[899] Should there be a provision in relation to hours of work of employees at an
integrated site as proposed by DETE in is clause 8.6?
            Note: DETE also proposes that there be a provision as to consultation
            (DETE clause 8.5). The AEU/CPSU agrees to this award provision.
DETE claim
[900] Proposed clause 8.6 (part of clause 8 - Integrated Sites):
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          "8.6 In relation to an integrated site, to the extent ordinary hours of work
          of employees at that site are prescribed in a State Award, the ordinary
          hours of work required shall be the time required to meet the delivery of
          educational, training or related services in relation to the integrated site,
          provided that this will not apply to a person engaged in any of the
          following classifications: AEW; SSO; ECW."
DETE submissions
[901] The only change which DETE seeks is to ensure industrial harmony by not
having different ordinary hours of work provisions applicable to the one group of
staff.
[902] It is in the industrial and public interests of the parties and employees that
employees at an integrated site are subject to the same ordinary hours of work.
[903] The prescription sought would improve productivity at an integrated site and
minimise the potential for disharmony amongst employees who might otherwise
be subject to different ordinary hours of work yet in receipt of the same salary.
AEU submissions
[904] An increase in DETE resourced non-contact time would be necessary in
relation to integrated preschool teaching staff before the DETE proposal in clause
8.6 would be acceptable.
[905] The AEU, whilst indicating a willingness to consult on integration proposals
and to allow the current integration process to further develop, sees the need for
such integration to take place only in the context of the maintenance of current
employment rights, conditions and entitlements.
CPSU submissions
[906] Insofar as is relevant to SSOs, the CPSU adopts the submissions of the
AEU.
Conclusions
[907] With respect to DETE's proposed clause 8.6 we accept, in general terms,
that it may be undesirable to have teaching staff at the one site subject to different
hours of work arrangements. While the present arrangements in each sector are
largely the result of historical factors, they are also the result of the different
modes of operation of each sector, particularly the TAFE sector;
[908] Where a site integrates preschool and schools sectors and genuinely
creates a single teaching cohort, it may be appropriate to apply to all teachers the
hours of work arrangements applicable to the majority. The integration of school
and TAFE sectors, however, raises more difficult problems because of the
substantially different modes of operation of each sector.
[909] We have decided that the s.170MX award will require the parties to discuss
the hours of work arrangements to apply to the teaching staff at an integrated site.
The award will also provide that any agreement between the parties on this issue
will be capable of being applied. Where the parties are unable to agree, the
s.170MX award will provide that application may be made to the IRCSA to vary,
with respect to an integrated site, the ordinary hours of work provisions in the
DETAFE (Educational Staff) Interim Award and/or the Pre-School (Kindergarten)
Teaching Staff Award. It will then be a matter for the IRCSA to determine such
application on its merits.
GENERAL - CROSS SECTOR FLEXIBILITY
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The agreed issue
[910] Should there be a provision in relation to salary, employment conditions and
entitlements where an employee may be required to work in more than one of the
preschool, school or TAFE sectors as proposed by the AEU/CPSU in their clause
14.
AEU/CPSU claim
[911] Proposed clause 14:
                            "14 - CROSS SECTOR FLEXIBILITY
           14.1 The Department and the AEU will cooperate in arrangements
           designed to ensure the improved provision of educational pathways for
           students which involve the transfer of staff between the pre-school,
           school or TAFE sectors.
           14.2 Where an employee is required to transfer between sectors and
           where different salaries, employment conditions, rights or entitlements
           exist between the sectors under this Award or an Act or a State Award or
           a State Agreement, the employee shall be entitled to maintain or receive
           the more favourable salary, employment condition, right or entitlement.
           14.3 Prior to giving effect to a transfer between sectors the Department
           will provide the employee with written confirmation detailing the salary
           provisions, employment conditions, rights or entitlements which the
           employee will receive or maintain."
AEU submissions
[912] The AEU is willing to continue to cooperate in arrangements to improve the
provision of education pathways for students which might result in the transfer of
staff between preschool, school and TAFE sectors. This is reflected in proposed
AEU clause 14.1. In the same spirit, the AEU has indicated its agreement to a
clause involving participation in consultation as set out in DETE clause 8.5 (see
"General - Integrated Sites").
CPSU submissions
[913] Insofar as is relevant to SSOs, the CPSU adopts the submissions of the
AEU.
DETE submissions
[914] The AEU's proposed clause 14 does not progress the positions adopted in
making the 1996 DECS Enterprise Agreement.
[915] The clause would lead to education staff at the same site being subject to
different award conditions.
[916] It is not consistent with the proposals and terms of the AEU's notice of
initiation of bargaining period and its proposed certified agreement.
[917] It does not reflect the accepted reality of preschool teachers doing some
work outside the prescribed ordinary hours.
Conclusions
[918] With respect to the AEU/CPSU's proposed clause:
           (1) clause 14.1 is largely a policy statement and we note that all parties
           are committed to the concept embraced in it. We will include it in our
           award;
           (2) clause 14.2 would be difficult to apply in practice, could lead to
           problems for individuals and to different conditions being applied to the
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         same classifications at the same site. We have, therefore, decided not to
         include clause 14.2 in our award; and
         (3) we have, however, decided that it is appropriate as a matter of
         industrial fairness to include AEU proposed clause 14.3.
GENERAL - PAID MATERNITY, PATERNITY AND ADOPTION LEAVE
The agreed issue
[919] Should there be a provision with respect to:
(1) paid maternity leave in the terms -
         (a) proposed by DETE allowing for a period of 2 weeks paid maternity
         leave (DETE clause 24); or
         (b) proposed by the AEU/CPSU allowing for a period of 12 weeks paid
         maternity leave (AEU/CPSU 11.1);
(2) paid paternity leave in the terms proposed by the AEU/CPSU allowing for a
period of 2 weeks paid paternity leave (AEU/CPSU 11.2);
(3) paid adoption leave allowing for a period of 2 weeks paid adoption leave
(DETE clause 24)?
AEU/CPSU claim
[920] Proposed clause 11:
                        "11 - PAID MATERNITY / PATERNITY LEAVE
         11.1 Paid maternity leave of 12 weeks may be taken in conjunction with
         unpaid maternity leave provided for in a State Award, Agreement, Act or
         Administrative Instruction.
         11.2 Paid paternity leave of two weeks may be taken at any time during
         the period from the date of confinement until three months after the birth
         of the child."
DETE claim
[921] Proposed clause 24:
   "24. PAID MATERNITY LEAVE AND PAID ADOPTION LEAVE: GENERAL
         24.1 An employee who applied for and was granted maternity leave or
         adoption leave commencing after the date of operation of this Award will,
         in respect of the whole or part of leave occurring on or after the date of
         such operation, be entitled to the benefits provided by this clause as if
         this clause was in force at the time of having commenced to take such
         leave.
         24.2 Subject to this clause, an employee, other than a casual employee,
         who has completed 12 months continuous service immediately prior to
         the birth of the child, is entitled to two weeks paid maternity leave.
         24.3 Subject to this clause, an employee, other than a casual employee,
         who has completed 12 months of continuous service before taking
         custody of an adopted child is entitled to up to two weeks paid adoption
         leave.
         24.4 The following conditions apply to an employee applying for paid
         maternity leave or paid adoption leave:
                24.4.1 The total of paid and unpaid leave is not to exceed 52
                calendar weeks;
                24.4.2 An employee will be entitled to two weeks leave (up to two
                weeks for adoption leave), paid at the employee's ordinary rate of
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                 pay (excluding allowances, penalties or other additional payments)
                 from the date maternity/adoption leave commences. The paid
                 maternity/adoption leave is not to be extended by public holidays,
                 rostered days off, programmed days off or any other leave falling
                 within the period of paid leave.
             24.5 Part-time employees will have the same entitlements as full-time
             employees on a pro-rata basis according to the average number of
             contracted hours during the immediately preceding 12 months
             (disregarding any periods of leave).
             24.6 During periods of paid or unpaid maternity leave, sick leave with
             pay will not be granted for a normal period of absence for confinement.
             However, any illness arising from the incidence of the pregnancy may
             be covered by sick leave to the extent available, subject to the usual
             provisions relating to production of a medical certificate and the
             medical certificate indicates that the illness has arisen from the
             pregnancy.
             24.7 For the purposes of this clause, `12 months continuous service'
             will be taken to include service where the employee has been
             employed for each of the terms or semesters (as applicable) during
             the 12 month period immediately preceding the birth of the child or
             taking custody of an adopted child."
AEU submissions
[922] Entitlements to paid maternity leave exist for most government school
teachers nationally.
[923] The AEU claim for 12 weeks paid maternity leave for education workers is in
line with current entitlements in the education sector nationally. Most education
workers are women. The provision of paid maternity/adoption/paternity leave is
crucial to maintain the standards and supply of the teaching profession. The claim
reflects the growing trend in industry, both public and private sectors, to grant paid
maternity/adoption/paternity leave to employees.
[924] The AEU does not specifically refer to adoption leave. However, the AEU
supports the concept of paid adoption leave and submits that, to the extent that
the Commission grants paid maternity leave in excess of the 2 weeks of leave
which DETE will accept, paid adoption leave shall be granted for the same period
of time.
CPSU submissions
[925] The CPSU adopts the submissions of the AEU.
DETE submissions
[926] The evidence does not warrant a determination that it would be appropriate
to grant 12 weeks paid maternity leave or that it would be appropriate to grant two
weeks paid paternity leave.
[927] The grant of the 12 weeks maternity leave and two weeks paternity leave
sought by the unions would result in an estimated cost impost on DETE of
$2,696,000 per annum (or approximately $2,000,000 per annum having regard to
the two weeks paid maternity leave which DETE proposes).
[928] The Commission should not, and there is no evidence on which to, grant
any greater entitlements than apply generally within the South Australian public
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sector as provided by the State and Federal Wages Parity Enterprise Agreements
(to which the CPSU is a party).
[929] The Commission should grant two weeks paid maternity/adoption leave with
the terms and conditions proposed by DETE.
[930] The position adopted by DETE during the bargaining period negotiations in
relation to leave entitlements is consistent with the policy expressed in the South
Australian Government Wages Parity Enterprise Agreement.
[931] DETE's proposal is in the same terms as the paid maternity/adoption leave
provision in each of the State and Federal Wages Parity Enterprise Agreements.
The only substantive difference is that the provision proposed by DETE in this
arbitration specifically defines "twelve months continuous service".
[932] The present AEU/CPSU proposal is a significant change from that adopted
by the AEU and CPSU in their respective bargaining periods. DETE's proposed
grant of two weeks paid maternity/adoption leave is consistent with the proposal
put by it in each of its proposed certified agreements.
[933] The AEU/CPSU case appears in substance to be that, because some
interstate employers have consented or agreed to provisions of the kind it seeks,
similar prescriptions ought to be made in the s.170MX award. It is not enough for
a claimant to merely point to the fact that some other award contains a provision
similar to that claimed.
Conclusions
[934] Section 170MX(5)(a) provides that the Commission must have regard to the
matters that were at issue during the bargaining period. The claim made by the
AEU and supported by the CPSU is significantly in excess of that made by either
union during the respective bargaining periods.
[935] The evidence is not sufficient to support a prescription in the terms sought
by the AEU and CPSU.
[936] The DETE claim for leave provisions in accordance with the South
Australian public sector standard is granted. This is consistent with the AEU and
CPSU positions during the bargaining periods. We note that the South Australian
public sector standard is, of course, applicable to the many public servants
employed by DETE in classifications other than those the subject of the present
s.170MX arbitration.
GENERAL - RELATIONSHIP OF s.170MX AWARD WITH AWARDS AND
AGREEMENTS
The agreed issues
[937] The issue is the relationship between the terms of the award and the terms
of each of the DECS Enterprise Agreement 1996, the DECS Certified Agreement
1998 and the DETAFE Enterprise Agreement 1996 ("the agreements"):
(1) should the award operate to the exclusion of each of the agreements (DETE
clauses 6.1 and 6.2);
(2) should the award take up and incorporate the provisions of the agreements
(AEU/CPSU clauses 15A.1 and 15A.2)?
Note: The parties agree the award is to be read in conjunction with the State
Awards (DETE clause 6; AEU/CPSU clause 15A.3).
AEU/CPSU claim
[938] Proposed clause 15A:
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                     "15A - PRESERVATION OF OTHER CONDITIONS
             15A.1 The provisions of the Agreements specified below are taken up
             and incorporated in this Award and shall be enforceable as provisions of
             this Award.
                               15A.1.1 The following provisions of the Department for
                               Education and Children's Services Certified Agreement
                               1998 approved by the Australian Industrial Relations
                               Commission:
                                           (a) Clause 8.1 in relation to allocation of
                                           staff subject to the relevant formula as to
                                           schools being that described in the
                                           document 1999 STAFFING ALLOCATION
                                           updated April 1998, and as to pre-schools
                                           as applied in 1998.
                                           (b) Clause 8.2 as to placement of teachers
                                           in schools and Schedule 2 as to country
                                           incentives and the teacher placement
                                           process.
                                           (c) Clause 8.3 as to fallback provisions.
                                        (d) Clause 8.4 as to Part-Time Employment.
                                           (e) Clause 8.5 as to extension of school day
                                           in re-entry schools.
                                           (f) Schedule 1(g) and Attachments 1 and 2
                                           to Schedule 1 in regard to Principal and
                                           Deputy Principal structure.
                                           (g) Schedule 1(b) and Attachment 3 to
                                           Schedule 1 in relation to classification of
                                           Aboriginal Education Workers.
                                           (h) Schedule 1(c) in relation to the
                                           classification of Early Childhood Workers.
                                           (i) Schedule 1(d) and Attachment 4 in
                                           relation to Pre-School Centre
                                           Classifications.
                                  15A.1.2 The following provisions of the Department
                                  for Employment Training and Further Education
                                  Enterprise Agreement 1996 approved by the
                                  Industrial Relations Commission of South Australia:
                                           (a) Clause 13.1.1 in relation to Span of
                                           Hours for Lecturers.
                                           (b) Clause 13.1.4 in relation to Lecturer's
                                           Assistants - Working Arrangements.
                      15A.2 To the extent that there is any inconsistency between the
                      express provisions of this Award and the terms incorporated
                      from the Agreements referred to in sub clause 15A.1, the
                      express provisions prevail to the extent of that inconsistency.
                      15A.3 This Award is to be read in conjunction with the following
                      State awards:
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                                       . Teachers (DETE) Award
                                             . School Services Officers (Government Schools)
                                             Award
                                             . Pre-School (Kindergarten) Teaching Staff Award
                                             . Early Childhood Worker Award
                                             . Aboriginal Education Workers (DECS) Interim
                                             Award
                                             . DETAFE (Educational Staff) Interim Award
                                             but this Award prevails to the extent of any
                                             inconsistency with the provisions of the State
                                             awards."
DETE claim
[939] Proposed clause 6:
    "6. AWARDS AND AGREEMENTS
          6.1 This Award operates to the exclusion of the agreement made
          between the employer and the AEU in C No. 50806 of 1998 and certified
          on 15 October, 1998 with a nominal expiry date of 1 December 1998 (the
          1998 DECS Certified Agreement).
          6.2 This Award prevails over any other provision of a State Award to the
          extent of any inconsistency, but otherwise this Award is to be read in
          conjunction with the following State Awards:
          . Aboriginal Education Workers (DETE) Award
          . DETAFE (Educational Staff) Interim Award
          . Early Childhood Worker Award
          . Pre-School (Kindergarten) Teaching Staff Award
          . School Services Officers (Government Schools) Award
          . Teachers (DETE) Award."
AEU submissions
[940] It is not appropriate to make a s.170MX award in terms which allow existing
conditions which the parties have not either generally or specifically raised as
matters for change during the course of negotiations to be expressly or impliedly
overridden by the terms of a s.170MX award. This would be the effect of granting
the DETE proposal.
[941] The inappropriateness of that course is made even more apparent when it is
realised that the terms of the 1998 Federal Certified Agreement which are sought
to be maintained will, if not maintained, be in any event revived once the s.170MX
award is no longer in operation.
[942] Whatever the terms of the s.170MX award, it should incorporate the
continuation of "key existing arrangements" referred to in the 1998 Federal
Certified Agreement.
[943] In addition, whether or not the Commission determines to make an award
providing for enhanced workload protections as sought by the AEU, it should
nevertheless incorporate the terms of clause 8.1 of the Federal Certified
Agreement in any award it makes so as to continue to maintain the current staffing
allocation document and the current school staffing formula.
[944] The s.170MX award should incorporate certain of the key conditions
contained in the State DETAFE Agreement, but not all of them.
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CPSU submissions
[945] The CPSU adopted the submissions of the AEU. Further, in CPSU v The
Crown in Right of the State of Victoria (Print S4568) the Full Bench accepted the
consent application of the parties that various non-union collective agreements
which had been made prior to the making of the s.170MX award should be
incorporated by reference into the award and apply through that mechanism
except to the extent of any inconsistency with the s.170MX award. The regulation
that came into being as a result of that arbitration is similar to that claimed by the
CPSU and AEU in relation to this matter.
DETE submissions
[946] The s.170MX award should operate to the exclusion of each of the
agreements. If the s.170MX award is silent as to the relationship with any
agreement, then that agreement "does not operate at any time while the award
operates" (s.170LY(2)).
[947] To the extent there are provisions in the agreements which DETE asserts
should be incorporated into the s.170MX award, DETE has replicated those
provisions in its proposed s.170MX award.
[948] If there are any provisions in the agreements which are to continue to have
force and effect after the making of the s.170MX award, such provisions should be
contained explicitly in the s.170MX award.
[949] The AEU's proposal does not insert any of the clauses from the agreements
into its s.170MX award. Rather, by clauses 15A.1 and 15A.2 the AEU/CPSU
proposes that the provisions of the agreements are "taken up and incorporated in
this Award and shall be enforceable as provisions of this Award". As a general
principle it is unsatisfactory for a s.170MX award to have a prescription in the
terms sought by the AEU/CPSU in clause 15A.1.
[950] The proposal of the AEU/CPSU invites confusion and uncertainty.
Conclusions
[951] We have, in paragraph [76], rejected DETE's submission that proposed
clause 15A.1.1(b) infringes the implied constitutional limitation. We have, in
paragraph [90], rejected DETE's submission that proposed clause 15A.1.1(b) is
not about a matter that was at issue during the bargaining period.
[952] The parties agree that the s.170MX award will operate in conjunction with
the existing State awards, as varied from time to time, except to the extent of any
inconsistency with the s.170MX award. We will therefore insert AEU clause 15A.3
(which is in essence the same as DETE clause 6.2) in the award.
[953] We note that the classification arrangements for the new SSO level 5 are,
by agreement, to be inserted in the relevant State award. In addition, we have left
certain other issues to be dealt with by the IRCSA for reasons stated earlier in this
decision. We record, however, that it is not our intention to permit the parties to re-
run any elements of the present matter before the IRCSA, except where
specifically contemplated in this decision.
[954] Given the duplication of matters in our proposed award (on the one hand)
and the State awards and agreements (on the other hand), any preservation of
"agreement" provisions should be by direct reference, appropriate for an award of
this Commission, and be clearly warranted.

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[955] The AEU has proposed that certain provisions of the 1998 DECS Certified
Agreement be preserved in the s.170MX award. We deal with these provisions in
turn.
Clause 8.1 - staffing allocation.
[956] We dealt with a jurisdictional issue concerning clause 8.1 in paragraph [90].
In the light of our decision in relation to workload matters, it is not appropriate to
directly prescribe the staffing allocation formulas as provisions of the s.170MX
award.
Clause 8.2 - country incentives and placement of teachers.
[957] We have dealt with the matter of country incentives by way of specific
provisions in the s.170MX award.
[958] The Teacher Placement Policy Document (the "TPP Document") (see
paragraph [72]) represents a significant commitment made between the parties. In
general it would be appropriate for the TPP Document to be preserved in the
manner proposed by the AEU. However, the TPP Document is updated from time
to time and some elements of it would now need to be revised in light of our
decision with respect to workload issues and to take account of the implications of
Partnerships 21.
[959] We have decided that the TPP Document, subject to 3 limitations, will be
preserved by the s.170MX award. First, the award will recognise that the
document has already been amended by agreement between the parties and that
these amendments will continue to operate. Second, the TPP Document is to be
capable of revision by DETE so as to ensure consistency with the s.170MX
award, but only following negotiations with the AEU about any proposed change.
Third, references in the TPP Document to specific groups and classifications are
to be read as references to DETE itself.
Clause 8.3 - Fall-back provisions.
[960] The AEU has said that, in light of a commitment made by DETE, it does not
press for the preservation of clause 8.3. DETE's commitment is as follows:
    "DETE intends to apply administratively the provision in its present terms and
    will not alter its terms other than in consultation and agreement with the AEU.
    DETE gives that commitment for the period from the making of the 170MX
    award until the making of an agreement under either the Workplace Relations
    Act 1996 or the Industrial and Employee Relations Act 1994 which postdates
    the date on which the 170MX award is made."
Clause 8.4 - Part-time employment.
[961] The part-time employment policy is part of the TPP Document and,
accordingly, will be preserved as discussed above.
[962] We note and accept DETE's commitment in the following paragraph of its
written submissions:
           "DETE intends to apply administratively the `Part-Time Teachers Policy'
           in its present terms and will not alter its terms other than in consultation
           and agreement with the AEU. DETE gives that commitment for the period
           from the making of the 170MX Award until the making of an agreement
           under either the Workplace Relations Act 1996 or the Industrial and
           Employee Relations Act 1994 which postdates the date on which the
           170MX Award is made".
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Clause 8.5 - Extension of the school day in re-entry schools.
[963] We note and accept the following commitment in DETE's written
submissions:
           "DETE agrees that it will apply administratively the provisions of the
           Clause in its present terms and will not alter its terms other than in
           consultation and agreement with the AEU. DETE gives that commitment
           for the period from the making of the 170MX Award until the making of an
           agreement under either the Workplace Relations Act 1996 or the
           Industrial and Employee Relations Act 1994 which postdates the date on
           which the 170MX Award is made."
Schedule 1(g) and Attachments 1 and 2 to schedule 1 - Principal and Deputy
Principal structure.
[964] The difference between the parties is one of form rather than substance.
The DETE proposal in schedule 1 to preserve reference to the school
classification budget criteria in the 1998 DECS Certified Agreement achieves the
same result as the AEU proposal on this point. We, however, agree with the AEU
that it is desirable that the school classification criteria (budget) (attachment 1 of
Schedule 1 of the agreement) be set out in the award for ease of reference.
Schedule 1(b) and Attachment 3 to schedule 1 - AEWs.
[965] This issue has been dealt with in the underlying State award and the parties
have now agreed that the preservation of these provisions is unnecessary.
Schedule 1(c) - ECWs.
[966] We accept the DETE position that the preservation of these provisions in the
manner proposed by the AEU is unnecessary.
Schedule 1(d) and Attachment 4 - Pre-school Centre Classifications.
[967] It is now agreed that these matters of continuing relevance ought to be
taken up in the relevant State award and we endorse that approach.
[968] We turn now to the 1996 DETAFE Enterprise Agreement and deal with the
provisions the preservation of which is sought by the AEU.
Clause 13.1.1 - Span of hours for lecturers.
[969] This matter has already been dealt with: see paragraphs [706] and [707].
Clause 13.1.4 - Lecturer's Assistants.
[970] This matter has already been dealt with: see paragraph [736].
[971] Clause 15A.2 of the AEU's proposed award is unnecessary as we have
incorporated the relevant provisions into the s.170MX award rather than preserve
them by reference to the agreements.
[972] As earlier mentioned, clause 15A.3 is agreed and will be included in the
s.170MX award. Finally, DETE's proposed clause 6.1 is, we think, unnecessary:
see s.170LY(2).
GENERAL - DURATION OF THE s.170MX AWARD AND RETROSPECTIVE
OPERATION
The agreed issue (duration of the s.170MX award)
[973] The issue is the duration of the award:
(1) as proposed by DETE to commence from the first pay period on or after the
date made and with a nominal expiry date of 31 March 2002 (DETE clauses 3.1
and 3.2);

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(2) as proposed by the AEU/CPSU to commence 1 January 1999 with a nominal
expiry date of 1 September 2000 (AEU/CPSU clauses 4.1 and 4.2).
[974] As mentioned in paragraph [97], it is convenient to deal with this issue
together with the issue of retrospective operation.
The agreed issue (retrospective operation)
[975] Should any part of the award with respect to claims for financial
entitlements, if allowed, be given a retrospective operation as proposed by the
AEU (T.1602)?
AEU claim
[976] Proposed clause 4:
                                      "4 - DURATION
          4.1 This award commences on 1 January 1999.
          4.2 The nominal expiry date (see subsection 170MZ(1)) of this award is 1
          September 2000."
DETE claim
[977] Proposed clause 3:
          "3. DURATION
          3.1 This Award commences from the beginning of the first pay period to
          commence on or after the date made.
          3.2 The nominal expiry date of this Award is 31 March 2002."
AEU submissions
[978] The proposed commencement date of the AEU award being 1 January 1999
obviously contemplates the granting of a retrospective operation. The claim for
retrospectivity is, however, limited to that aspect of the claim which relates to the
salary increases sought pursuant to clause 8.2 of the AEU's proposed award.
(Clause 8.2 is set out in paragraph [100]). The AEU does not seek retrospectivity
in relation to any other claims which may provide for some other benefit in
financial terms.
[979] Objectives such as stability, ability to plan and predictability will not be
achieved by the imposition of an award on the parties which has more than a
relatively short nominal life. This is more particularly so when DETE seeks, in the
context of the award, to further progress the introduction of a policy such as
Partnerships 21, the implementation of which will have a significant impact of the
work of employees in ways which may not now be foreseen. The introduction of
greater local school management is a reason to make an award of shorter
duration rather than longer duration.
[980] Before the nominal expiry date of the award is reached, no bargaining
period may be initiated under s.170MI for the purpose of negotiating an
agreement in relation to employees whose employment is dealt with in the award.
The Commission would most effectively further the principal object of the Act of
providing a framework for cooperative workplace relations by allowing one or
other of the parties, should they so wish, to resume negotiations for an agreement
after a relatively short nominal award life.
CPSU submissions
[981] The CPSU adopted the AEU's submissions as to the duration of the award.
[982] As to retrospectivity, after applying the principles about the making of
retrospective awards in accordance with the factors specified in s.170MX(5),
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together with the Commission's duty to act in equity and good conscience, the
Commission should give those clauses which confer a financial entitlement at
least some retrospective effect.
[983] Reference was also made by the CPSU to a number of decisions relating to
retrospectivity.
DETE submissions
[984] As to duration:
(1) a s.170MX award having a long duration will give DETE a greater period of
certainty and stability and will allow the implementation of Partnerships 21 to be
worked through without DETE and the schools being distracted by further salary
negotiations and possible industrial disruption;
(2) it is desirable in the public interest that, after the protracted s.170MX process,
there be an extended period of stability before the next round of negotiations (see
s.147(2)(b));
(3) it is desirable that the expiry of the award and the negotiations with respect to
a new agreement should not coincide with the commencement of a new school
year; and
(4) the AEU has not justified the nominal expiry date it seeks.
[985] As to retrospectivity:
(1) there is some question as to whether s.146 applies to a s.170MX award.
Irrespective of the resolution of that question, s.146(2) contains the principle which
should guide the Commission;
(2) even if s.146 does not apply, the general principle adopted by the Commission
is that retrospective operation is not given to award prescriptions unless special
circumstances exist;
(3) the circumstance of the interim award having been made and a salary increase
granted makes inappropriate an award of retrospective salary increase or
increases;
(4) it is inappropriate that DETE should be required to make retrospective salary
increases where it will not be able to obtain retrospective productivity or efficiency
improvements;
(5) there is nothing in the conduct of DETE during the bargaining period which
would make retrospective operation of the s.170MX award appropriate;
(6) the evidence justifies a positive finding that blame cannot be attributed to
DETE for the failure of the parties to achieve agreement during the bargaining
period. This was a case of the parties being unable to come to agreement on
terms acceptable to both;
(7) whilst DETE regrets the circumstances which led to an adjournment on the
arbitration proceedings, in the events that have happened, the loss of those days
may well have not caused any delay in the conclusion of the arbitration;
(8) some delay in the completion of the arbitration can be attributed to the AEU;
and
(9) it is generally contrary to the public interest for retrospective operation of
award provisions.
[986] It is DETE's position that:
(1) the s.170MX award should be entirely prospective;

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(2) in the event that the Commission decided to include any of the following
clauses in the s.170MX award, they should have an operative date which is no
earlier than the commencement of the 2001 school year:
   . Country Provisions;
          . Professional Development;
          . Board of Review;
          . Teacher - Workload;
          . Grievance Procedure re Workload;
          . Workload - SSOs;
       . Workload - AEWs;
          . Workload - Preschool Teachers;
          . Workload - ECWs;
          . Workload - TAFE Officers; and
          . TAFE - Grievance Procedure - Workload.
[987] If any of the clauses set out below are incorporated in a s.170MX award, the
service which attracts any entitlement should only be that service that accrues
after the date of the making of the s.170MX award:
          . Country Provisions;
          . AEU proposal for paid maternity/paternity leave;
. TAFE - HPIs; and
. Paid Adoption Leave.
Conclusion
[988] With respect to duration:
(1) we have come to the conclusion that the award we make should have a
nominal expiry date of 31 March 2002;
(2) one reason for this conclusion is the timing of the salary increases we have
determined; see paragraph [170]. In our view a reasonably substantial period
should elapse between the date of the final increase (1 October 2001) and the
nominal expiry date of the award. Also, we are of the view that, having regard to
the large number of issues in this arbitration, a significant period should elapse
before the nominal expiry date of the award; and
(3) we have also taken into account that it is desirable that the nominal expiry date
should not coincide with the start of a new school/academic year.
[989] With respect to retrospectivity:
(1) we note that the only matters in respect of which retrospectivity is sought are
the salaries claims. We have decided, in paragraph [170], that there should be
retrospectivity for certain salary increases;
(2) we have had regard to the duration of the hearing;
(3) without deciding whether s.146(2) applies to a s.170MX award, we have had
regard to the legislative policy in that section; and
(4) we note the remarks we made in our decision of 22 December 1999 with
respect to retrospectivity (Print S1986, especially paragraph [39]).
[990] We reject DETE's submission that service which attracts an entitlement
should only be service that accrues after the date of the making of the s.170MX
award.
ISSUES AGREED
[991] We note that the parties are agreed:
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(1) that a fifth level in the SSO classification structure should be established, and
also the classification criteria for that level, and that the classification and criteria
should be inserted into the DETAFE (Educational Staff) Interim Award;
(2) that there should be a provision with respect to notification of change in the
terms proposed by DETE in its clause 7;
(3) that there should be a provision as to consultation with respect to an integrated
site in the terms proposed by DETE in its clause 8.5;
(4) that the award should be read in conjunction with the State Awards (DETE
clause 6; AEU/CPSU clause 15A.3);
(5) that there should be a provision in respect of a visiting specialist in the terms
proposed by DETE in its clause 19.1.1; and
(6) that the DETE proposed clause 23 with respect to family carers' leave should
be included in the s.170MX award.
[992] To the extent that such matters are agreed to be included in the s.170MX
award, we will award accordingly.
THE SECTION 170MX AWARD
[993] The parties are directed to prepare a draft award to give effect to this
decision. The draft award will be settled by Hampton DP with reference, if
necessary, to the Full Bench.
[994] The terms of the award will, of course, partly depend on whether DETE is
prepared to give the commitment referred to in this decision (see paragraph
[285]). We request that DETE advise us and the unions of its decision in this
respect as soon as possible and, in any event, no later than 31 October 2000.
[995] In paragraph [170] we have specified the dates on which the salary
increases we have awarded are to be paid. The award we make will, with respect
to salaries, maternity, paternity and adoption leave and family carers' leave
commence on the date of this decision and, in all other respects, will commence
on 1 January 2001. The nominal expiry date will, as earlier stated, be 31 March
2002. Finally, in our view, it would be appropriate for negotiations for a new
agreement to commence no later than the beginning of 2002.
BY THE COMMISSION:
VICE PRESIDENT
Appearances:
M. Bromberg of counsel with P. Hannon, solicitor, for the Australian Education
Union.
M. Perica for CPSU, the Community and Public Sector Union.
R. White QC with M. Evans of counsel for Her Majesty the Queen in Right of the
State of South Australia in relation to the Department for Education, Training and
Employment.
Hearing details:
1999.
Adelaide:
July 8;
August 16;
October 25, 26, 27, 28.
2000.
Adelaide:
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February 15, 16, 17, 22, 23, 24;
March 13, 14, 15, 16, 21, 22, 23, 24, 29, 30, 31;
April 3, 4, 5, 6, 16, 18, 19;
June 26, 27, 28, 29.
Printed by authority of the Commonwealth Government Printer




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