[2025] FWCFB 191

Fair Work Act 2009

s.160 - Application to vary a modern award to remove ambiguity or uncertainty or correct error

Application to vary the Educational Services (Post-Secondary Education Award 2020) - Sch B clause B.2.1 - research paper published - provisional view.

1. Ms Vickie Pollock, who is employed as Director of Studies at Pacific English Studies, has lodged an application pursuant to s 160 of the Fair Work Act 2009 (Cth) (FW Act) to vary clause B.2.1(a) of the Educational Services (Post-Secondary Education) Award 2020 (2020 Award).[1]

[2] Clause B.2.1 of the 2020 Award relevantly provides:

B.2.1 Based on an assessment of a teacher's qualifications, a teacher will be classified in one of the following categories:

(a) Category A - a teacher having a degree and diploma of education or equivalent and either a diploma in TESOL (e.g. Dip SRA, Grad Dip TESOL); or a postgraduate diploma in applied linguistics, languages other than English (LOTE), or multicultural education.

(b) Category B - a teacher having a degree and diploma of education or equivalent plus a recognised TESOL certificate; or a degree and diploma including LOTE/TESOL method.

[3] The application sought to vary clause B.2.1(a) by removing the word 'either' in the descriptor for Category A.

1. At the hearing on 25 October 2023,[2] Ms Pollock indicated she sought further variations to those set out in her original application. She lodged an amended application on 10 November 2023.[3] The amended application proposed a variation to clause B.2.1(b) of the 2020 Award (which describes two types of qualifications for Category B teachers) to specify that the second type of qualification a Category B teacher is required to have is a degree and diploma of 'education' including LOTE/TESOL method. The variations sought were further clarified in correspondence filed by the applicant on 1 December 2023.[4] The correspondence outlined proposed variations to clause B.2.1(a) and clause B.2.1(b).

[5] The applicant contends that the use of 'either' as a grammatical determiner in clause B.2.1(a) to indicate one of two options does not make sense given the semicolon comes after the word 'either'. She submits that the effect of the semicolon coming after the word 'either' rather than before the word 'either' confuses the qualifications the employee must hold to be classified as a Category A teacher.

1. At the hearing on 1 December 2023, the presiding Member foreshadowed that the Fair Work Commission (Commission) would undertake its own research into the history of clause B.2.1.[5] The research paper prepared by staff of the Commission is published with this Statement.[6]

2. It is evident from the research that a grammatical error seems to have occurred during the migration of clause 7.2 from the Teachers (English Colleges) Award 1994[7](1994 Award) and its predecessor, the Teachers (English Colleges) Interim Award 1992[8] (1992 Award), to the Teachers (English Language Centres of Australian Universities) Conditions of Employment Award 1996[9] (ELICOS Award). This error was then carried across into the Educational Services (Post-Secondary Education) Awards 2010 (2010 Award) and the 2020 Award_._

[8] As set out in the award comparison in paragraph [29] of the research paper, the semicolon appears before the word 'either' in the 1992 Award_._ In the ELICOS Award and the 2010 Award, the semicolon comes after the word 'either', changing the effect of the clause.

[9] It is this grammatical error that results in the ambiguity described by the applicant in clause B.2.1(a). For this reason, it is our provisional view that clause B.2.1(a) should be varied pursuant to s 160 of the FW Act to remove the ambiguity and restore the wording and grammar for a Category A teacher similar to that contained in the 1994 Award. We are not persuaded that an amendment to clause B.2.1(b) is necessary to resolve ambiguity.

[10] It has also become apparent during proceedings that a broader review of the 2020 Award may be necessary in the future to consider whether the provisions of the award reflect contemporary qualification requirements for post-secondary education teachers.

[11] A draft determination giving effect to the provisional view outlined in paragraph [9] is published with this Statement. Interested parties are directed to file submissions in relation to the provisional view at [9], the draft determination, and any comments in relation to the research paper by 4:00 pm (AEST) on Friday, 3 October 2025. Submissions should be sent to awards@fwc.gov.au.

1. [1] MA000075.
2. [2] Transcript, 25 October 2023.
3. [3] Ms V Pollock, Amended application, 10 November 2023.
4. [4] Ms V Pollock, Correspondence, 1 December 2023.
5. [5] Transcript, 1 December 2023 PN 60.
6. [6] Fair Work Commission, History of the award provisions for teachers employed in English language colleges or in TESOL courses (Research paper, September 2025).
7. [7] Teachers (English Colleges) Award 1994 [L2575].
8. [8] Teachers (English Colleges) - Interim Award 1992 [K3518].
9. [9] Teachers (English Language Centres of Australian Universities) Conditions of Employment Award 1996 [N7878].

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