Crown Employees (Teachers in Schools and TAFE and Related Employees)... [2004] NSWIRComm 340 | Case summary

Crown Employees (Teachers in Schools and TAFE and Related Employees)... [2004] NSWIRComm 340 | Case summary | Zoe

INTERVENOR Minister for Industrial Relations FILE NUMBER: IRC 3597 of 2003 CORAM: Wright J President; Walton J Vice-President; Boland J; Grayson DP; McLeay C CATCHWORDS : Award - Application to vary - Part time casual teachers employed by TAFE - Rates of pay - Hours of work - Adequacy of hourly rate for teachers that work a significant number of weekly hours over a long period - Jurisdiction - Whether application sought new category of teacher - Responsibilities and duties of part time casual teachers - Need for flexibility in TAFE in respect of engagement and deployment of part time casual teachers - Special case principle - Pay equity - Cost implications of granting application - Findings that inequities exist between the terms and conditions applying to part time casual teachers compared to those fur full time teachers - Parties directed to consider terms of an appropriate award variation based on Commission's findings Annual Holidays Act 1944 Education Commission Act 1980 (Repealed) Government and Related Employees Appeal Tribunal Act 1980 LEGISLATION CITED : Industrial Arbitration Act 1940 (Repealed) Industrial Relations Act 1991 (Repealed) Industrial Relations Act 1996 Public Service Act 1902 (Repealed) Technical and Further Education Commission Act 1990 Clerks (State) Award and other Awards, Re [1959] AR 470 Crown Employees (National Art School) Case, Re [1998] NSWIRC 660 Crown Employees (NSW Fisheries Salaries and Conditions of Employment) Award, Re [2003] NSWIRComm 405 Crown Employees (Part Time Technical Teachers) Award, Re [1951] AR 657 Crown Employees (Teacher - Technical Education - Overtime) Award, Re [1960] AR 29 Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award, Re (2000) 102 IR 202 Crown Employees (Teachers in Schools and TAFE and Related Employees Salaries and Conditions Award, Re [2004] NSWIRComm 114 Crown Teachers (Casual) Award, Re [1983] AR 672 Crown Teachers (Casual) Award, Re (1989) 34 IR 214 Equal Remuneration Principle, Re (2000) 92 IR 177 CASES CITED : Gurnett & Anor v Haines (1985) 16 IR 136 Health and Community Employees Psychologists (State) Award, Re (2001) 109 IR 458 Health Employees Pharmacists (State) Award and other Awards, Re (2003) 132 IR 244 New South Wales Teachers' Federation and Public Service Board - Face to Face Teaching Hours in Technical Colleges, Re [1977] AR 121 NSW TAFE Commission (Teachers and other Educational Staff) Salaries and Conditions Award 1996, Re (1999) 123 IR 360 Pastoral Industry (State) Award, Re (2001) 104 IR 168 Riverina Water County Council Enterprise Award 1998, Re (1999) 87 IR 24 State Wage Case 2003 (2003) 121 IR 446 Teachers - Technical Education Award, Re [1969] AR 29 Teachers (Non-Government) Pre Schools (State) Award, Re (2001) 120 IR 3 Technical Teachers - Hours Case, Re [1977] AR 121 HEARING DATES: 07/14/2003; 09/01/2003; 09/02/2003; 09/05/2003; 09/09/2003; 09/10/2003; 09/17/2003; 09/18/2003; 09/22/2003; 09/23/2003; 09/30/2003; 10/13/2003; 11/03/2003; 12/17/2003; 05/17/2004; 05/20/2004; 05/21/2004; 08/13/2004 DATE OF JUDGMENT: 12/20/2004

10 The respondents opposed the application on the jurisdictional basis that the application was seeking to establish a new category of teacher with different duties and conditions of employment to those PTC teachers already covered by the Award. In the alternative, the respondents opposed the application on the basis that it is inappropriate to apply pro rata salaries and (some) conditions of employment applicable to permanent FT teachers to PTC teachers engaged to teach on an hourly basis. 11 The original application in these proceedings sought to include in the Award a new definition for a pro rata PTC teacher. The amended and further amended applications did not do so, but sought to incorporate certain rates of pay and conditions of employment for some of the group of employees already defined in the Award. We are satisfied that the further amended application marked as exhibit 85 ("the application") does not seek to establish a new category of worker. It follows that the application does not offend s 19 of the Technical and Further Education Commission Act 1990 which states: 19 Legal proceedings not to be brought in respect of appointments etc (1) The appointment or failure to appoint a person to a vacant position on the staff of the TAFE Commission, or any matter, question or dispute relating to such an appointment or failure, is not an industrial matter for the purposes of the Industrial Relations Act 1996. (2) Subsection (1) applies whether or not any person has been appointed to the vacant position. (3) No proceedings, whether for an order in the nature of prohibition, certiorari or mandamus or for a declaration or injunction or for any other relief, lie in respect of the appointment or failure to appoint a person to a position on the staff of the TAFE Commission, the entitlement or non-entitlement of a person to be so appointed or the validity or invalidity of any such appointment. (4) Subsection (3) does not affect the operation of the Government and Related Employees Appeal Tribunal Act 1980. 12 Having cited the majority judgment in Re NSW TAFE Commission (Teachers and Other Educational Staff) Salaries and Conditions Award 1996 (1999) 123 IR 360 and the decision of the Full Bench in Re Crown Employees (NSW Fisheries Salaries and Conditions of Employment) Award [2003] NSWIRComm 405, the respondents submitted that the jurisdictional question requiring determination was whether the claim (or any part of it) related to the appointment or failure to appoint persons to the staff of the TAFE Commission. 13 We do not accept that the application seeks to establish a new category of employee, nor that it seeks to confer preference in employment for pro rata PTC teachers over other PTC teachers or to restrict PTC employment to those who work less than eight hours per week over a period of four weeks or longer, as contended by the respondents. We do not find that the application, if successful, would affect the power of the TAFE Commission to appoint staff. 14 The further amended application avoided the jurisdictional question which the respondents raised earlier in proceedings, when the Federation's application sought to insert a new definition for pro rata PTC teachers. The final form of the application sought to provide a new set of conditions of employment for some of a previously defined group of teachers who satisfy a minimum number of hours worked over a definite period. The minimum requirement for teachers who are the subject of the claim is that they teach eight hours a week for four weeks. 15 Therefore, in general terms, we do not accept the respondent's jurisdictional objection to the amended application. However, as we later explain, there will need to be further discussions between the parties as to the final form of the award variation we propose to grant. It is therefore appropriate to reserve our final decision on the jurisdictional issue until the final form of the award variation is known. RESPONDENTS' FURTHER OBJECTIONS 16 The further bases of the respondents' opposition were outlined as follows: a. The proposed regime would replace a system that is easy for employees to understand and relatively easy to administer with a system that has immense complexity that would be difficult (and possibly impossible) to administer; b. The proposed regime embraces an extraordinary concept of "floating" conditions of employment of individual employees which at any one point in time would be contingent upon satisfying (and then maintaining) certain specified criteria; c. The claim is based on the erroneous assumption that the employment of PTC teachers within TAFE is analogous with that of permanent FT teachers; d. The Federation does not (contrary to the submissions of the Federation) seek the application of the conditions that apply to FT teachers on a "pro rata" basis but rather seeks to "cherry pick" the attractive attributes pertaining to each system. Furthermore, the claim raises an uncertainty relating to the classification of "coordination" duties as to whether they would be regarded as direct teaching or duties related to teaching. 17 The respondents rejected the proposition that the provision of leave entitlements for PTC teachers is either inappropriate or unfair. PTC teachers can presently access long service leave, sick leave, leave for declared emergencies and leave to attend jury duty in specified circumstances. The respondents further rejected the proposition that the work performed by PTC teachers is of equal or comparable value to that performed by permanent FT teachers. 18 The respondents also asserted that should the Commission find the remuneration and/or conditions of employment of PTC teachers are not fair then the appropriate mechanism to redress any such finding would be by way of variation to the present regime of conditions for PTC casual teachers. The respondents submitted that the application, if granted, would severely constrain the current operational flexibility that TAFE needs to meet the competitive challenges in the vocational and educational training market place.

20 Essentially, the Federation's claim is that the PTC teachers who teach at least eight hours a week over a minimum of four weeks are not adequately paid for the work they perform. The claim is that, because this group of employees work a significant number of hours on a regular and planned basis, they are engaged in part time rather than casual work and they should be remunerated and receive leave and other benefits more like their full time colleagues. 21 The respondents submitted that, despite the Federation's contention that a significant number of PTC teachers could be properly classified as "part time", there was no definition of part time teachers in the Award. When a comparison is made between the duties, responsibilities and qualifications of PTC teachers and those of permanent FT teachers, the assumption that they are the same, or substantially the same, is shown not to be the case. 22 The respondents submitted that PTC teachers have a narrower or less comprehensive range of duties to those of FT teachers. The qualifications and criteria for engagement of PTC teachers usually relate specifically to the course/subject/module they are engaged to deliver and in that sense are less stringent than those for FT teachers. There is no coincidence of the value of work of PTC teachers and FT teachers, nor the need to have similar programs of work during both teaching and non-teaching weeks. 23 Specific responses were provided by the respondents to each of the Federation's grounds and reasons. 24 In response to paragraph 1 of the Federation's Grounds and Reasons the respondents acknowledged that there are more persons employed under the classification of "Part time casual teacher" (as defined in clause 2.76 of the Award) as compared to persons employed under the classification of "TAFE Teacher" (as defined in clause 2.83 of the Award). It is relevant, they said, that the term TAFE Teacher does not include persons employed as PTC Teachers. 25 In response to paragraph 2, the respondents did not accept the proposition that "all part time casual teachers are currently remunerated on a casual basis" fairly described the range of conditions prescribed by clause 60 of the Award. The respondents accepted that PTC teachers are paid an hourly rate of pay inclusive of most incidents of employment.

26 In response to paragraph 3 of the Grounds and Reasons, the respondents said the rates of pay for PTC teachers attract a substantial loading that adequately compensated such employees for the absence of separate leave entitlements (apart from long service leave and sick leave for those part time casual teachers who work the equivalent of half a permanent full time teacher's workload which are provided). 27 In response to paragraph 4, the respondents rejected the proposition that the employment of a significant number of PTC teachers is properly to be characterised as part time. 28 In response to paragraph 5, the respondents also rejected the assertion that PTC teachers are required to perform duties for which they receive no remuneration. The rates of pay for part time casual teachers, Coordinators and Counsellors have been determined to compensate for all such work required to be performed (e.g. clauses 59.2; 59.5; 59.7; 59.10; 59.11; 59.13). 29 In response to paragraph 6 of the Federation's Grounds and Reasons, the respondents denied any improper pressure is placed on PTC teachers to maximise their chances of being re-employed in the future. This assertion is really an unfair criticism of lower tiers of the TAFE management (for example, Head Teachers). Appropriately qualified PTC teachers are eligible to apply for externally advertised permanent FT and permanent part time teacher positions. 30 In response to paragraph 7, the respondents said that it is an infrequent occurrence when a PTC teacher is required to teach at different colleges or campuses associated with a particular engagement. 31 In response to paragraph 8, the respondents rejected the assertion that rates paid to PTC teachers teaching significant numbers of hours are unfair when compared to permanent FT teachers. Any valid comparison must have regard to differences between PTC teachers and permanent FT teachers such as qualifications required; criteria for appointment; hours of work; and, the range of duties required. 32 In response to paragraph 9, the respondents said:

This principle does not apply to applications for awards consented to by the parties, which will be dealt with in the terms of the Act, or to enterprise arrangements, which will be dealt with in accordance with the Enterprise Arrangements principle. 39 The principles relevant to determining whether a particular case will warrant the Commission's intervention as a 'special case' were discussed at length by the Full Bench of the Commission in Re Health Employees Pharmacists (State) Award and other Awards (2003) 132 IR 244 and quoted with approval more recently by the Full Bench in Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award [2004] NSWIRComm 114. Similarly, we adopt the statement of principles set out in the Pharmacists case. 40 Mr Crawshaw of senior counsel for the Federation submitted that the case brought by the Federation in support of the application is one which is "out of the ordinary", "special" and has "special attributes" such as to warrant its success. We are satisfied that the application fits the requisite criteria to be treated as a special case. A particular factor which we consider makes out a special case is the anomaly and inequity that exists between the remuneration for FT teachers and PTC teachers who teach an equivalent number of hours. A further factor is the demonstrated undervaluation of the work of PTC teachers over a long period. AWARD HISTORY 41 The Federation provided the following history of the industrial regulation of PTC teachers. 21. The former Industrial Commission first considered the work of what were then called "part time technical teachers" in Re Crown Employees (Part Time Technical Teachers) Award [1951] AR 657. In that case, the Federation made application for a first award setting rates of pay for such teachers. At that time, a regulation made under the Public Service Act 1902 (set out at p.661 of the decision) applied to part time technical teachers, and prescribed their duties as follows: Part time Teachers. Remuneration and Hours of Duty 431. A part time teacher shall be required to be in attendance in the class-room at least five minutes before the commencement and at least five minutes after the completion of the lesson. The wages paid to a part time teacher shall be deemed to cover the duties on which he is engaged during the hours for which he has been authorised to give actual class tuition and all duties incidental to teaching, including attendance in the class-room before the commencement and after the completion of the lesson, setting and marking of term examination papers, assessing and marking students' practical work, preparing special lectures and lecture demonstrations and completing records and returns.

[29]

In determining the matter, Bauer J made the following significant findings: 29.1 "Although the terminology used in the TAFE area describes the non-permanent teachers as 'part time', this seems to be a terminology which is historical rather than accurate. It might well be that a closer analysis of the teaching organisation would lead to the conclusion that ' casual' concepts of employment might also be involved. Furthermore, 'part time' workers under New South Wales awards participate in the additional beneficial incidents of full time employment in some proportionate manner. It is to be presumed that the 1974 agreed rates involved some such concept. On the material before me it is not clear how." [p.728]. 29.2 "An examination of the evidence of the witnesses in this application leads to the view that the most that could be inferred is that part time teachers, with respect to each hour of face-to-face teaching, perform work of similar value to permanent teachers. The evidence ... indicates that there are duties and responsibilities performed by permanent teachers beyond that of part time teachers" [p.751]. 29.3 "It is also probably true that the closer a part time teacher approaches a full time load, the closer the value of that work approaches. But the fact is that less than 10 percent of TAFE teachers are engaged for more than ten hours' face-to-face teaching (see Annexure H)" [p.752]. 29.4 It was clear that at the time of the 1950 consideration of rates (i.e. Re Crown Employees (Part Time Technical Teachers) Award [1951] AR 657), part time teachers "almost without exception" had other full time work. However, over the thirty-two years since then, partly because of the substantial increase in non-technical further education, there has been "an increased number of teachers who seek to earn a living by part time teaching" in TAFE. A serious problem for the Commission was "that there was no analysis of the difference between the type of award prescription which should be made for such teachers and those who teach a course either out of civic duty, an immediate need for money, or a complex mixture of motives". [p.752]. 29.5 The material presented by the Federation did not allow a determination of appropriate rates once there was a failure to establish a coincidence of the value of work between part time and permanent employees. 29.6 It could not reasonably be inferred that this was an industry which had moved from part time employment to full time employment [p.753]. This finding was based on the statistical evidence referred to in paragraph 27.3 above.

[35]

In determining the appeal, the Commission's main findings were, relevantly, as follows: 35.1 The employment of part time teachers by TAFE was, on balance on the available evidence, in the nature of casual rather than part time employment [p.222]. 35.2 Section 88C(2) of the Industrial Arbitration Act 1940 did not apply to casual employees, so that the Commission was not required to award sick leave entitlements to TAFE part time teachers [pp.225-6]. 35.3 The majority of part time teachers are engaged in other full time employment which would give them an entitlement to at least one week per annum. There was little, if any, merit in an award of sick leave to casual or part time employees who are already entitled to it by virtue of other full time employment [p.226]. 35.4 The position of the part time teacher who worked substantial hours in each year and was solely reliant upon his or her earnings from TAFE was, as a matter of merit, to be viewed differently. The issue was to determine the number of teaching hours per year beyond which a part time TAFE teacher might reasonably be presumed to be solely reliant on his or her TAFE earnings, and be regarded, from an overall work content and work value point of view, as compared with a full time teacher, as warranting some pro rata entitlement to sick leave [p.227]. 35.5 The Commission assumed that a full time teacher would work about 1400 hours per annum - i.e. in excess of the award hours of attendance. Proceeding on the basis that, for part time teachers, each teaching hour involved an additional half hour of incidental work (which was an estimate made by the advocate for the Federation and, apparently, not a matter established by evidence), the Commission concluded that a part time teacher working half the hours of a full time teacher would be teaching 13 hours per week or 468 hours per annum. It concluded that part time teacher teaching 468 hours per annum could reasonably be presumed to be solely dependent on his or her TAFE earnings and entitled to some reasonable pro rata participation in sick leave benefits [pp.227-8]. 35.6 Having regard to the wage fixing principles and the cost, the Commission determined to award part time casual employees who worked 468 hours per annum two weeks' sick leave per year on a pro rata basis [p.229] 35.7 In all of the circumstances, including the nature of the employment and the purpose of short leave, the grant of short leave to part time teachers was determined not to be appropriate [p.229].

[39]

The 1996 award was replaced by the Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award 2000 327 IG 582 (the Award). The Award reserved leave to the Federation to make an application, not before July 2003, to vary the conditions of part time casual teachers in respect of the conditions of full time teachers [clause16, p.598]. The current application was brought pursuant to this provision. 42 The respondents "for completeness" referred also to the Teachers - Technical Education Award case (1969) AR 29 and to the Technical Teachers - Hours Case (1977) AR 121. 43 The respondents' submissions on these cases were as follows: In the latter case Dey J reviewed the work load of permanent full time technical teachers and noted one of the difficulties in the case was the degree of generalisation from the specific which had to be made (p. 165). In that case Dey J noted the Federation submitted "… that in general the hours which the teachers have to put in 'are getting at least to 10, if not more in some instances' above the 30 hours of attendance. " (p 164). He noted at p 166 that: "The necessity to devote time to preparation, marking and other miscellaneous tasks outside school hours is an accepted feature of a teacher's occupation. The time required for preparation inevitably varies greatly according to a number of factors, including the nature of the subject taught, changes in the range of knowledge in the field, the degree of experience of the teacher, lack of familiarity with the subject being taught, the extent to which the course is being repeated, the availability and suitability of previously prepared material and developments requiring revision of previous lessons, the quantity and quality of the ancillary support available and the personality and degree of dedication of the teacher." And at 168 he stated: "The matter is one of considerable complexity. As I have already observed, there are a number of variables affecting teachers individually, and the pressures on them have peaks and troughs. The very nature of the occupation, the great range of activities and the differing context in which the work is performed all make it virtually impossible to discern any clear pattern of demand on the general body of teachers." These factors have equal application today. 44 The further submissions of the respondents on the issue of Award history were as follows: The respondents refer to paragraph 32 of the Teachers Federation's submissions and note that the decision in Gurnett v Haines clearly established that part time casual teachers' rate is assumed to include a component for annual leave. As Watson J. said there was such an inference and that inference has been acted upon by the parties subsequent to that decision up to the present time: (see also Re Crown Employees (National Art School) Case [1998] NSWIRC 660. The respondents refer to para. 36 of the Teachers Federation's submissions and note that in fact the parties entered into an enterprise agreement with effect from 31 December 1994. That enterprise agreement had 2 chapters, the first dealing with general conditions and the second dealing with teachers and other educational staff. The agreement was to be known as the "NSW TAFE Commission Enterprise Agreement". Clause 20 of Chapter 2 made provision for "permanent part time work" for TAFE teachers. Clause 20.4 provided that permanent part time work would only be available for "no less than 9 hours and no more than 16 hours per week face to face teaching, plus professional development time, plus incidental time". Clause 20.2 provided that permanent part time teachers of TAFE were to be entitled to conditions as set out in Appendix B3 of the Agreement that generally involve all conditions enjoyed by permanent full time teachers of the same classification on a pro rata basis determined by the hours worked each week by the permanent part time staff. In Appendix B-3 Clause 4.6 defined the duties of permanent part time positions. It relevantly provided that teaching staff are to be allocated work on the basis of what could be realistically covered by the agreed hours. The amount of work was to be proportionate to the full time equivalent. Clause 4.13 set out a scale to determine teaching loads which depended on the number of part time hours worked. For example, if the hours per week for the part time teacher were 15 then that would involve a teaching load of 10 hours per week plus 5 hours of incidental. The respondents refer to paragraph 38 of the Teachers Federation's submissions which make reference to the NSW TAFE Commission Teachers and Other Educational Staff - Salaries and Conditions Award, 1996. It is relevant that Clause 2 Dictionary included the following definitions: 2.27 "Part-time Casual" in Clause 36 means educational staff engaged on an hourly basis by the Commission, including teachers, coordinators and consultants. 2.28 "Part-time Staff" means those staff employed to work less than full time hours for a classification or for less than the full year. 2.29 "Permanent Part-time Work" means employment which is undertaken for less than the full ordinary working hours per week for the classification on a continuing basis for set and regular hours. The rate of pay, all conditions and leave entitlements of a permanent part-time staff member are on a pro rata basis." There was no separate additional provision dealing with the conditions for permanent part time work, presumably because it would have been assumed the definition dealt with the matter. Those definitions were repeated in the 1999 reviewed award but (except for the definition of part time casual teacher) were deleted from the 2000 Award. 45 In summary, the Federation submitted that, although the fundamentals of their method of remuneration has not changed, the characteristics of the work that PTC teachers perform has changed significantly. 46 The respondents, on the other hand, claimed that ongoing arbitral review and regular periodic consent variations of the work of PTC teachers ensured that the conditions of employment applicable to them were fair and reasonable. They submitted that the work as set out in clause 59.7 of the Award has changed little since the 1951 review. THE FEDERATION'S CONTENTIONS 47 The Federation's claim was based on the following contentions: 1. The employment of a large proportion of part time casual TAFE teachers is not genuinely casual in nature, but is more analogous to full time or part time employment. This arises from their engagement on a regular basis over a number of years to perform a significant number of hours of work such as to make TAFE their primary or only source of income. 2. It is industrially inappropriate that such employees be denied the range of leave entitlements available to full time and part time employees, or that they be regulated as if they were casual employees when in actuality they are not. 3. Part time casual teachers, who are predominantly female, perform work which is equal or comparable in value to that performed by full time teachers, who are predominantly male. However, their remuneration and conditions of employment are significantly inferior to those of full time teachers. 4. In light of the above, the current remuneration and conditions of employment of part time casual teachers provided for by the Award are not fair and reasonable as required by section 10 of the Industrial Relations Act 1966 ("the Act"), nor do they provide equality with the remuneration and conditions of employment of other employees under the Award whose work is of equal or comparable value as required by section 23 of the Act. 5. The Federation's application if granted, would: • provide for an appropriate form of industrial regulation for part time casual teachers whose employment is analogous to that of full time or part time teachers; • remove the inequality in remuneration and conditions of employment as between part time casual and full time teacher; • provide for fair and reasonable remuneration and conditions of employment for part time casual teachers consistent with section 10 of the Act, and also bring such remuneration and conditions of employment in conformity with section 23 of the Act; and • retain for TAFE the current operational flexibility associated with the use of part time casual employees. THE EVIDENCE

49 In response, the respondents called expert evidence from Dr James Athanasou who is Associate Professor, Faculty of Education at the University of Technology, Sydney and called evidence from: · Robin Shreeve, Deputy Director General TAFE · Graham Devlin, Deputy Director TAFE NSW Northern Sydney Institute · Graeme Dobbs, Relieving Executive Director TAFE · Marie Persson, Director, Sydney Institute TAFE · Neil Black, Director, North Coast Institute TAFE · Barry Peddle, Director, Illawarra Institute TAFE · Ian Gillespie, Director, Financial Accounting, Department of Education and Training · Kenneth Dixon, General Manager of Finance, Department of Education and Training 50 In addition, the Intervenor presented evidence from John Pierce, Secretary to the New South Wales Treasury. 51 Generally speaking, the teachers called to give evidence were highly qualified and experienced within their respective fields of expertise. A 2001 Australian Education Union research report by Michaela Kronemann, TAFE Teachers: Facing the Challenge, quoted by Dr Junor in evidence, said that 64.6 per cent of casual TAFE staff held a degree or postgraduate qualification in education, as did 75.7 per cent of permanent staff. 52 We note that the Award sets out the qualifications required of a TAFE teacher at clause 52, Qualifications for Appointment. There is no Award differentiation between the qualifications required for a FT teacher and those required for appointment as a PTC teacher. 53 An analysis of records of employment, provided as part of the facts agreed between the parties, provided the following table of teaching hours recorded by PTC teachers who were witnesses in the proceedings. The number of years reflects only employment since 1990, since computerised records were not available prior to that time. Name Average hours over last 3 years No of years employed by TAFE since 1990 Average overall J Barnes 718.33 12 615.40 H Bell 202.83 13 171.19 C Bindels 716 6 531.25 D Carey 817.33 10 742.80 K Chamberlain 805.83 7 671.50 J Day 576.5 12 573.5 E Doyle 648.66 13 511.84 E Gewandt 390.09 7 342.43 S J Heather 708.66 8 644.08 T Keeley 655.50 7 552.78 D Mullin 626 13 455.14 D Nolan 365.69 13 175.46 R Noltorp 514.83 13 146.86 P Reilly 760.06 8 506.25 D Sykes 601.96 9 268.96

· interview select and enrol students · prepare programmes and lessons · liaison with industry teachers, counsellors and case managers · attend staff meetings · maintain roles · develop resources · order text books · arrange excursions · counsel students (educational and vocational) · telephone absent students · arrange work experience · assess and mark students' work · record results in rolls and on results sheets · archive accountable documents · produce playlets, mini-theatre, role plays and short video clips · familiarisation with the syllabus · initial student inductions · researching and gathering information for the lesson · preparing that information into relevant session plans · photocopying resources and student handouts · marking assignments · attending each class before and after sessions · assessing and marking student's practical work · assessing vocational and educational training (VET) students while they perform work placements duties (attend staff meetings) · follow up work such as phone calls, letters and emails with students out of hours · security and care for young VET students out of class hours · compiling and documenting necessary paperwork for TAFE and Board of Studies, especially for VET students · colleague induction · curriculum · writing references for potential employment or further education · immigration/overseas students' attendance reports · liaison with galleries, museums and libraries to organise and schedule excursions for students · altering the delivery of modules to allow for a range of special needs like language, physical and/or intellectual disabilities · attending student graduation ceremonies · attend staff meetings · mentor new part time casual teachers · organising tutorial times for students where extra help is needed or where assessments have been missed · paperwork and administrative work relating to ever increasing work requirements · answering customer course inquiries · ordering replacement paper/toner/stapler cartridges for photocopiers · replacing printer cartridges · develop orders for consumables for practical classes · contact employers to notify of apprentice or trainee absence from class · travel to teaching venues distant from normal place of employment · assist with the evaluation and introduction of revised training packages · attending Board of Studies curriculum update meetings It was conceded that not all FT teachers or all PTC teachers attend to the entire range of duties listed. 58 Similarly, PTC teachers employed as coordinators noted that work included a range of tasks. Ms Mullin provided the following list: · enrolment of students · interviews with students · counselling on course matters · attendance at disciplinary procedures for wayward students · parent interviews · attendance checks · administrative duties

65 The Award allows for the payment of a specified rate for Duties Other Than Teaching ("the DOTT rate"), being duties other than teaching (or related duties as defined above) and coordination. The circumstances in which the DOTT payment is made are not set out in the Award. 66 The evidence related to the duties other than teaching ("DOTT") rate was that PTC teachers received this payment differently. Mr Albani, a senior head teacher, said that he paid the DOTT rate to PTC teachers for induction, orientation and mentoring of new teachers up to a maximum of 10 hours, for the testing associated with assessment for Recognition of Prior Learning, for entering assessment records on the computer and for overseeing enrolments. Mr Albani stated that he had been admonished by management for using too many part time teaching hours, because payments at the DOTT rate come out of the teaching budget. 67 By contrast, Ms Armin-Grimm gave evidence that payment she claimed for time spent entering assessments on the computer records were deducted from her ordinary teaching hours claim. She was a member of the induction team and attended prize-giving nights and staff meetings, without payment. Ms Doyle, for one semester, was paid four hours at the DOTT rate for unspecified duties. 68 Ms Nicholson's comments in regard to the Award facility to make payments to staff at the DOTT rate for attendance at staff meetings were similar to her comments about payment for related duties. She gave evidence that "there is no extra money in budgets to pay staff for meetings. The money comes out of course delivery hours." 69 Ms Sykes, a PTC teacher, said: I rarely attend staff meetings as I am usually unavailable and therefore not included in the decision making in the sections in which I am employed. On one occasion when I was free to attend a staff meeting in a particular section I asked my supervisor if part time casual teachers were to be paid for their attendance. I was told there was no money in the budget for this. I did not attend the meeting and was told later the meeting was really only an information session. 70 Further, Ms Sykes gave evidence that: At the commencement of a semester one year, my part time casual colleagues and I were asked to agree to a 15 minute reduction in wages for every three hours taught over the semester, to maintain employment. We agreed, as we did not wish to be responsible for a colleague losing their work.

Q. Is it the case that at those meetings you're required to attend? A. We're asked to go to all meetings. Say, if the meeting goes for two or three hours, we're normally paid for one. 73 Ms Milliken, a FT teacher who has previously worked as a PTC teacher, said: In my section part time casual teachers are required to carry out the same duties as full time teachers. They are given full responsibility for enrolment, course administration, student contact, community liaison and so on. Duties related to teaching are sometimes paid for at the Duties Other Than Teaching (DOTT) rate and these might include setting up and coordinating a new program; supporting other part time casual teachers; assisting with lesson planning; liaising with outside agencies and completing end of course paperwork required for outside funding sources. However, the hours paid never cover the work done. The use of computerised enrolment records (CLAMS) is another activity that means part time casual teachers give unpaid time to the section. I estimate that the part time casual teachers are doing up to five hours of unpaid work in the section each week and this is apart from the preparation and marking they would be doing at home. The biggest complaint I hear is the number of unpaid hours part time casual employees put in attending planning meetings, student welfare discussions, program coordination, completing paper work associated with the administrative aspects of enrolling students, accessing the computerised administrative system that we have in Wagga Wagga and answering emails. 74 Further, she said: Part time casual teachers are not entitled to any payment to attend staff development activities outside their teaching hours but they are expected to attend anyway. For compulsory training such as child protection, staff have been given a video and an information booklet and asked to do the training in their own time. 75 Another PTC teacher of long standing, Mr Keeley, said that: My employment does not begin until two weeks into the teaching year; I do not get paid during holiday periods rarely get public holidays and my employment ceases two weeks earlier than permanent teachers at the end of the year. Theoretically, but never practically, my marking, recording of final results and other office work should all be completed by this time.

76 The Federation's contention was that work was either required or expected beyond that which was set out in the Award. While the evidence showed that this view was not uncommon amongst teachers, there was not any evidence put to show that the respondents carried an expectation that work be performed beyond that set out in the Award. It is not necessary for us to consider which duties are required to be performed. Rather, we are to consider the question of whether the work of PTC teachers who are the subject of the application are adequately remunerated. This requires a comparison of the combined aspects of work, payment and other conditions or benefits, between the subject group and FT teachers. 77 PTC teachers who teach a minimum of 18 hours a week in any one institute may be paid for an additional 1.5 hours per week, and be apportioned a part of the FT teaching duties. However, this may not occur. They may be paid the DOTT rate for attendance at staff meetings, but are not otherwise compelled to attend such meetings. The evidence was that some PTC teachers are involved in Recognition of Prior Learning, and may be paid the DOTT rate for this task. 78 Ms Day, among others, noted the changes in duties and responsibilities over time. In 1983, Bauer J found that the evidence showed that "there are duties and responsibilities performed by permanent teachers beyond that of part time teachers". While that is still the case, we find that there is no longer such a significant difference for the group of PTC teachers to whom this application applies, except for those duties which would normally be performed in the non-teaching weeks at the commencement and following the end of each teaching semester, to justify the level of wage discrepancy that currently exists between them and their FT colleagues. 79 A FT teacher is required to attend for five additional weeks per year before and after the teaching weeks and to perform certain duties including enrolment, administration, industry liaison and consultancy duties. It seems to us that any additional payments made to PTC teachers require additional hours of attendance and may be offset by the work performed by FT teachers during the five non-teaching weeks. The evidence of a number of PTC teachers went to the need for home offices, or the need to work from home, to attend to duties related to teaching and we are satisfied that the hours of work required of PTC teachers is similar, if not equivalent, to the hours of attendance required of FT teachers during the teaching weeks, when the same number of teaching hours is required. 80 In all, we are satisfied that the work performed by PTC teachers who are the subject of the application is comparable to that of FT teachers, to the extent that it is substantially similar to that of FT teachers during the teaching weeks.

PAY EQUITY ISSUES 81 Dr Anne Junor is a Lecturer in the School of Industrial Relations and Organisational Behaviour at the University of New South Wales. Her principal professional activities are in the areas of teaching, research training, expert commentary, administration and research, with specialisations in the areas of non-standard employment, diversity and pay equity for the last 11 years and public sector employment relations for three years. 82 Dr Junor noted that there is little published statistical data on PTC TAFE teaching. In preparing her evidence, she relied on the statistics that were available as well as quantitative evidence drawn from recent surveys of PTC teachers and transcripts of interviews with 35 PTC teachers and others. 83 Dr Junor's analysis of the available data showed an increased casualisation of TAFE teaching, confirmed in a number of documents including the Final Report of the Vinson Public Education Inquiry and the 2002 agreement between the Federation and the Minister for Education and Training on staffing in TAFE. She stated her belief that it is likely that "at least 18 per cent of PTC teachers have relied for their primary income, often for a period of years, on insecure hourly-paid work and short-term engagements, lacking pro-rata entitlements". 84 From her survey of academics, Dr Junor found that discontinuity of employment was a concern for 73 per cent of those interviewed, not receiving sufficient notice of re-engagement was a concern for 59 per cent of respondents and the impact of income insecurity on family life was an issue for 54 per cent of them. Dr Junor found these and other issues echo the issues raised in one-to-one and group interviews with TAFE teachers, indicating that they apply equally to PTC TAFE teachers. 85 Dr James Athanasou is, as we have noted, Associate Professor of Education at University of Technology, Sydney. His speciality is in the field of measurement and evaluation, especially in relation to employment, education and training. He has been involved in industrial, organisational and vocational fields since 1973, in both private industry and the public sector. 86 In his report on the evaluation of research evidence provided in Dr Junor's affidavit, Dr Athanasou questioned the generalisations made by Dr Junor across the PTC teaching workforce, arising from the limited sources on which she relied. He said: On the basis of the information available to me, it would appear that there is a substantial proportion of female part-time employment within TAFE. This mirrors the pattern in the general population but is less segregated than in the overall workforce or even within the education sector. There is evidence to suggest some potential anomalies in the management or administration of some part-time employment within TAFE. This is to be expected in a Statewide part-time labour force of some 15,600 employees and the Affidavit may be helpful in highlighting areas for potential improvement. Nevertheless, the continued existence of part-time employment within TAFE over some 50 years points towards its utility and necessity for the provision of vocational education and training in New South Wales but this is really a matter for government educational policy. The involvement of 15,600 employees working a total of 3.2 million hours also attests to the popularity of this form of employment. The inferences of widespread gender inequity and exploitation of part-time employees from the three sources of evidence cited in the Affidavit are suspect and any generalisations to the entire New South Wales part-time TAFE labour force are fraught with difficulties. 87 Notwithstanding Dr Athanasou's questioning of the generalities of Dr Junor's findings, we are satisfied that "at least 18 per cent of PTC teachers have relied for their primary income, often for a period of years, on insecure hourly-paid work and short-term engagements, lacking pro-rata entitlements", as that figure was based on available data rather than her research. The concept, although not the figure itself, is further supported by the evidence of other witnesses, as outlined earlier in this judgment. We accept that at least 18 per cent of PTC teachers rely on teaching as their primary income, insecure as it is, often for a period of years. 88 It follows from this fact that there is a real difference between the reliance of PTC teachers on teaching as their primary source of income, rather than occurring after "a normal day's work at his usual calling" as was the case in 1951 or that PTC teachers were "following another occupation as their main livelihood" as in 1973. Of course, there are doubtless a large number of PTC teachers who continue to rely on some other primary source of income. However, it is necessary that all PTC teachers receive remuneration for the work performed, whether or not it is a primary source of income, which is fair and equitable.

92 In final submissions, the Federation stated that the salary of a full-time teacher, prior to the interim salary increase awarded in December 2003, was $58,992. It was submitted that a PTC teacher who worked equivalent number of face-to-face teaching hours with the obligation to perform related duties, attended for five additional weeks and performed 30 hours of duties other than teaching, was paid $40,791, that is, 31 per cent less than a full time colleague. The Federation's submission is validated to some extent by the figures in the table above, but a precise comparison between PTC and FT teachers' salaries is not available. On the evidence, we accept that there is an inequity when a comparison is made of the work of PTC and FT teachers during teaching weeks. 93 As regards travel, there was evidence that it was "extremely difficult" for PTC teachers to access a TAFE vehicle, even when required to fulfil duties which satisfied the nominal requirement for a TAFE vehicle. Ms Bindels, a PTC teacher of Staff Training, Workplace Assessor, Communications and Retail, gave evidence as follows: In one area in which I teach, I believe that I am particularly exploited and, because my duties have not yet been properly defined, I feel I have no recourse to complain. During the time when my students are on work placement, a mandatory part of their curriculum, I am expected to travel from workplace to workplace assessing on-the-job trainees and I do not get a meal allowance or a travel allowance, nor am I permitted, as a part time casual teacher, access to a TAFE car. The Board of Studies requires that I spend one hour with each student assessing them. In 2002, preparation for work placement alone took 10 hours during which time I made numerous phone calls; found work placements for the students; attended to paperwork and prepared students for their duties and employer expectations. I had 17 students in this particular class. I travelled 100 kilometres and spent 35 hours assessing. I was paid a total of four hours only. When I confronted the Head Teacher about this, I was reluctantly given four more hours. Two weeks later, the last class of the year was cancelled, thus my section recouped the four hours extra given to me. This year I will have 10 students. I will again only be allotted four hours pay. 94 Ms Bindels was not the only witness to talk of classes being cancelled prior to the expected end of the semester. We note the Award provision set out in Clause 59 at 59.12, Class Cancellation allows, in effect, for any class to be cancelled without reason and without payment to the PTC teacher so long as at least two hours notice is provided. Clause 59.12.1 reads as follows: Where a part time casual teacher reports for duty on any day on the basis of a request by an authorised officer and then is advised that their services are not required or receive less than two hours notice of cancellation, the teacher shall be entitled to receive payment for the scheduled duties. 95 Ms Reilly gave evidence about the lack of travel allowance entitlements for PTC teachers. She said: In 2002 I attended two staff developments in Newcastle. One of them was a teaching day and I was paid for my normal teaching hours. The other was not a teaching day but it was expected that I attend. That day consisted of two hours travel and approximately four to five hours of learning. I was not paid for any of this. A full time teacher is paid for both. WORKFORCE FLEXIBILITY ISSUES 96 The increased use of PTC teachers over recent years was noted in evidence. In 1982, 90.2 per cent of all part time TAFE teachers in the Sydney Metropolitan area taught less than 10 hours per week and 1.3 per cent taught over 20 hours per week. In 1989 this figure was 91 per cent teaching up to 10 hours per week and 0.9 per cent over 20 hours. In 2002 the figures given in evidence by Graeme Dodds, the Relieving Executive Director, TAFE, were not strictly comparable at the 10 hour level (66 per cent taught less than 8 hours and a further 10.1 per cent taught 8 to less than 12 hours), but showed that 9.8 per cent of PTC teachers taught 20 hours or more per week. 97 The evidence of Mr Peddle, the Director of the Illawarra Institute of TAFE, was that it was more economical to employ a PTC teacher than a FT teacher, and that cost was a relevant factor in deciding to engage a PTC teacher. Mr Keeley, the chairperson of the Federation's Part Time Casual Special Interest Group, gave evidence as follows: Many part time casual teachers have reported to the group that they have been requested to work extra hours unpaid by supervisors who cite insufficient funds. Often, such teachers have reported to the group that they are placed in the invidious position of either requesting payment for these hours or seeing courses cut and students suffer. 98 Some teachers who wished to gain employment as FT teachers noted an additional difficulty. The evidence revealed that PTC teachers are not eligible to apply for positions that are advertised internally, but only for those that are advertised externally. The rate of advertising of FT teaching vacancies was particularly low. One PTC teacher, Ms Doyle, said she "lived in hope of finding permanent work during the last 15 years". Another, Ms Barnes, said there has only been one FT position advertised in the section where she works over the last 12 years. Ms Noltorp said that at least ten PTC teachers applied for a temporary/permanent half-time position advertised within her department. Ms Reilly said that no positions had become available on the Central Coast in her area of teaching since she was employed as a PTC teacher in 1995. 99 Mr Dodds gave evidence about the dynamic, demand-driven nature of TAFE service provision and the resultant pressures on workforce planning. The flexibility is maintained by "a carefully managed balance" of the appropriate contributions of expertise and experience of PTC teachers and permanent teachers. The wide variety in the ratio of PTC to permanent teachers across course areas reflected the relatively stable industry demand in traditional and well-established areas such as panel beating, architectural drafting, electrical trades, metal fabrication and plumbing, compared with the less traditional and more recently evolving areas of TAFE course provision such as welfare, adult basic education, information technology and nursing studies. 100 We consider that the application by the Federation does not necessarily interfere with the capacity of the TAFE Commission to manage its workforce in a flexible way in so far as it sets no limits on either the numbers or proportions of teachers to be employed on a FT or a PTC basis, nor does it set any other restriction or hindrance on the employment of PTC teachers. In our view, the outcome of the application, if successful, would be to change the remuneration and access to leave in such a way as to remove any inequity as might currently exist in the employment of PTC teachers. If it removes a financial incentive for the respondents to prefer to employ PTC teachers to permanent teachers, the TAFE Commission remains free to continue to apply the principles which provide it with the flexibility in workplace planning that it requires. 101 We note too that the Award is not inflexible in terms of the work that can be undertaken by PTC teachers. Mr Woodcock referred to work performed by PTC teachers as "additional work outside the guidelines of the award", but the Award allows for payment at the DOTT rate without specifying any limitation to the range of duties that might be performed. While the Award does not require PTC teachers to perform duties beyond those listed at clause 59.7, the lack of payment for duties other than teaching is, in our view, a budgetary consideration rather than a matter requiring Award review.

The Federation submitted that this provision was the subject of consideration by a Full Bench of the Commission in Re Equal Remuneration Principle (2000) 92 IR 177. In the majority judgment (of Wright J, President, Hungerford J, Schmidt J and Sams DP), the following conclusions were expressed (at 203-4 pars [103]-[105]): What then does s 23 require of the Commission? Some consideration was given to this by Walton J, Vice-President in Re Riverina Water County Council Enterprise Award 1998 (1999) 87 IR 24. His Honour observed (at 26): "The word 'must' appearing in s 23 is mandatory in nature and imposes a requirement upon the Commission in all circumstances where it exercises its jurisdiction to make an award (see State Personal/Carer's Leave Case 1998 . See also Posner v Collector for Inter-state Destitute Persons (Vic) (1946) 74 CLR 461 at 490 per Williams J in dissent. The well settled meaning of the word 'ensure' as 'guaranteeing, securing or making certain' in the context of ss 15 and 16 of the Occupational Health and Safety Act 1983 (NSW): WorkCover Authority (NSW) (Inspector Plowright) v Shaft and Tunnel Pty Ltd (unreported, NSW Industrial Relations Commission, Peterson J, 16 May 1997, p 3); (and see Carrington Slipways Pty Ltd v Inspector Callaghan (1985) 11 IR 467 at 469-470 and WorkCover (Inspector Reid) v CSR Ltd t/a CSR Wood Panels (unreported, NSW Industrial Relations Commission, No CT 1176, 10 August 1995, pp 19-21)) is, in my view, applicable to the use of that word in s 23 of the Act. 105 In the Federation's view, the section requires that, in determining what remuneration and other conditions of employment are to be fixed by an award, consideration is to be given by the Commission to the remuneration and other conditions of employment proposed in the award for men and women performing work of 'equal or comparable value' so as to ensure that such remuneration and other conditions are indeed equal. In other words, submitted the Federation, the Commission must ensure that the remuneration and other conditions of employment which the award prescribes are the same for men and women who are performing the same work or different work but which has equal or comparable value. 106 There is nothing startling about this concept in the context of the framework of conciliation and arbitration established by the Act, said the Federation. It conforms, for instance, with the approach adopted to valuation of work outlined in the 1959 Clerks Award (Re Clerks (State) Award and Other Awards) [1959] AR (NSW) 470 test case earlier referred to. It requires that rates and conditions fixed by an award reflect the proper value of the work, irrespective of the sex of the person performing the work. 107 The Federation cited Walton J, Vice President, who made the following statement as to the purpose of section 23 in Re Riverina Water County Council Enterprise Award 1998 (at 26): The clear and evident purpose of s 23 (particularly when operating in conjunction with s 19(3)(e) which imposes requirements in the case of award reviews) is to achieve equal remuneration for men and women doing work of equal or comparable value by preventing the inclusion in and expunging from the system of awards in this State provisions which fail to meet this requirement.

s Ms Simpson, the then President of the Federation, clearly identified as outstanding the issue of the female predominance of PTC TAFE teachers, and signified the intention of the Federation to raise it as an equal remuneration matter pursuant to the leave reserved clause; s Counsel for the Federation identified the previous decision of the Commission distinguishing between the work value of non-permanent employees and permanent employees, and submitted that the matters raised by Ms Simpson could only be resolved by the Commission receiving evidence as to the pattern of employment and the distribution of male and female employees within those employment arrangements, as well as to the work value of the respective categories of employment; and s The Commission qualified its finding in relation to section 23 as follows (at 213 pars [43]-[44], with emphasis added by the Federation): · On the evidence available to the Commission, the proposed award does not offend s 23 of the Act, and indeed, is designed to remove difficulties that might have otherwise attracted the intervention of the Commission pursuant to s 23. It would appear that the contentions raised by the Federation are largely matters of speculation which, as conceded by Mr Crawshaw, really require further investigation before any firm position can be ascertained. · This is not to say that a mere assertion by parties to a consent award that s 23 of the Act is not attracted in a particular case would result in a conclusion being reached by the Commission that the requirements of s 23 had been satisfied in any particular matter. It may well be appropriate that in a particular case the Commission may make further inquiries of the parties. However, in the present matter, and having regard to the evidence led in the proceedings, and the significant reforms introduced by the Award consistent with s 23 of the Act we do not consider this course to be warranted. We also note in this respect the leave reserved provisions contained within the award which will enable the parties to address any relevant issue which may arise.

112 The Federation submitted that the decision in Re Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award was, therefore, not an impediment to a finding, based on the extensive evidence before the Commission in these proceedings, that the remuneration and other conditions of employment prescribed by the Award for those PTC teachers affected by the application, offend section 23 of the Act. 113 Dr Junor's evidence provided some practical application of the issue raised in section 23. Her analysis of available data resulted in the finding that the areas of highest female density of teachers strongly overlapped with the areas where casual employment was highest, strengthening the argument, she said, that there is an element of systemic gender discrimination in the pattern of casual employment in TAFE. Also, she found that the areas of highest casual and female density strongly overlap with areas most likely to be taught by teachers whose weekly hours of work are eight or more. 114 Dr Junor conceded that the majority of subjects of her interviews came from these areas. She claimed this was unsurprising since the interest in participating in her survey reflected a level of dissatisfaction, showing "a clearly defined problem requiring redress amongst a specific subset of TAFE casual employees". 115 Dr Junor further contended that the group of PTC teachers teaching eight hours or more, the subject of the application, represented a feminised area of TAFE, rasing the possibility of systemic or indirect gender bias in the employment of this group. She provided extensive written submissions on a number of issues which she identified as pay equity and equal opportunity concepts, namely, segregation, low visibility, the relationship between hourly and annual rates, under-recognition of work value, career progression, salary increments and professional development. 116 Whilst Dr Athanasou was critical of the generalisations made by Dr Junor on the basis of the limited number of study participants, some statistical analysis was based on the respondents' figures. The evidence overall showed a real gender imbalance in the proportion of females employed as PTC teachers compared with the proportion of females in FT teaching. It follows that we will consider any inequities found when comparing the pay and conditions of the two groups, and ensure they are rectified, in accordance with s 23 of the Act.

124 Having reviewed Mr Gillespie's statement of evidence, Dr Guthrie commented that he was unable to validate the figures. Rather, he said: ... one conclusion that might validly be drawn is that the best that can be said for Mr Gillespie's evidence is that it highlights the breathtaking extent to which one class of teachers (part time casual teachers) are in aggregate being systematically under compensated for their work product, when compared against their full time peers with ostensibly similar responsibilities and producing ostensibly similar actual performance outcomes. 125 In summary, Dr Guthrie said: Second, notwithstanding my reservations about certain of the methodological choices implicit in Mr Gillespie's evaluation of the likely cost associated with the provision of access to pro-rated benefits for certain teachers currently classified and paid as part time casuals, there can be little doubt that an incremental cost would be borne by the Department were the initiative requested by the New South Wales Teachers Federation to be implemented. I interpret this cost as a measure of the implicit current subsidy being delivered to TAFE NSW by many staff currently classified and paid as part time casuals, notwithstanding the fact that in substance they cannot accurately be described as casuals. 126 Dr Guthrie also reviewed Mr Dobbs' evidence and said that the data provided indicated that the high proportion of hours taught by PTC staff suggested that the primary consideration for employing such a large number of PTC teachers was cost management rather than operational flexibility. In concluding his comments relating to Mr Dobbs' evidence, he said: Third, Mr Dobbs' evidence reinforces the claim I make above that many teachers presently classified and paid as part time casuals are misclassified, and reinforces the legitimacy of my description of their lower relative pay as representing an implicit subsidy currently being captured by TAFE NSW. The data contained in Mr Dobbs' submission in no way allows the firm conclusion that a continued cost wedge is justifiable or necessary for the maintenance of operational flexibility. Indeed, in extremis, one might argue that at least from one perspective, Mr Dobb's evidence adds very little in the sense that the matter in contention is not as to whether TAFE NSW ought to be able to hire staff on other than a full time basis (which would have strong flexibility implications), but rather, at what cost those resources ought reasonably be made available. Ironically, a more equitable level of pay for part time casual teaches might accentuate organisational flexibility by paying an adequate risk premium to employees in such a position, thus inducing a greater supply of labour. 127 The cost estimates contained in Mr Gillespie's affidavit were significantly inflated and exaggerated, said the Federation, because of a number of false assumptions made by him.

140 Therefore, submitted the Federation, to the extent that the consideration of the application involves the exercise of a discretion by the Commission, the issue of cost ought not lead to an unfair system of remuneration of part time casual teachers continuing in order, effectively, to subsidise TAFE's operations. If the Federation's submissions in relation to sections 21(1)(b) and 23 of the Act are accepted, it was submitted that the Commission will be required to vary the Award and the issue of cost will not be a relevant consideration. 141 On the other hand, the respondents' submission was that the cost of the application is substantial. Even if the Commission were to accept all of the Federation's submission on the issue of costs, it would be between $59.23 million and $94.3 million. This compares with the respondents' estimate of between $84.23 million and $119.3 million. Given the size of the cost implication, the respondents submitted that cost is a relevant consideration that ought be taken into account by the Commission pursuant to the special case principle, if the Commission finds there is some inequity that needs to be addressed. In this context the respondents reiterated earlier observations that there may be other, more appropriate, options to redress any inequity than the adoption of the application, once the parameters of any inequity are identified. 142 In Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award [2004] the Full Bench commented (at [471] to [495]) on the economic considerations put in that case, the evidence in regard to which was imported into the current proceedings. Those comments remain current. 143 Again, we are mindful of the economic evidence and the principles set down in Health and Community Employees Psychologists (State) Award (2001) 109 IR 458. We note the evidence including that of Ms Sykes, Mr Keeley, Ms Armin-Grimm, Ms Reilly, Ms Mullin, Mr Albani and Ms Nicholson in regard to ongoing budgetary constraints. In particular, we stress the need to ensure that any modification to the outcome of the claim does not do an injustice to PTC teachers.

3 Mr Shreeve conceded that the matter was capable of a fairly straightforward administrative solution. 147 The evidence from Mr Peddle and Mr Shreeve for the respondents was that administrative difficulties were compounded by the need to determine work programmes of PTC staff prior to their engagement, in an operational context when time was critical, compared with the determination of long service and sick leave which could be calculated on an individual basis without the time pressures inherent in the enrolment period. Mr Devlin described the implementation of the system potentially resulting from the application as being "difficult, if not impossible, for Institutes to administer efficiently." 148 It was submitted by the Federation that TAFE has failed to demonstrate that there are issues of effect on operational flexibility or of administrative practicability which would prevent the claim from being granted. 149 We accept that the issues of implementation go beyond the administrative demands of changed method of payment, the variation over time of some employees from one set of conditions to another, keeping track of PTC teachers who work over more than one site or institute, to the provision of physical resources such as office space, desks and computers for PTC teachers who may be required to attend their place of work for periods of time that they were not previously required to do so, to undertake duties relating to teaching. 150 Keeping track of PTC teachers who work over more than one site or institute is a task already required to be completed by TAFE for a range of administrative purposes and cannot be considered to be an onerous task given the movement towards centralised computerised payroll. All of the issues outlined above may cause difficulties of greater or lesser degree but are insufficient in their impact to stand in the way of just and equitable remuneration and conditions of work. 151 However, we acknowledge, in particular, the difficulties caused by the potential movement of employees in and out of the nominated group arising from the requirement to vary a range of salary and conditions of employment, including an employee's hourly rate of pay, should the application be successful in its present form. We note the Federation's submission that most PTC teachers caught by the application are not teaching around the borderline of eight hours but teach well in excess of these hours. That submission relied on figures provided by Mr Dobbs, showing 6.88 per cent of PTC teachers working six to eight hours per week on average and 5.63 per cent working 8 to less than 10 hours. We consider this combined figure of 12.5 per cent to be a substantial proportion of PTC teachers who could potentially float in and out of the group to whom the application applies. 152 An example is provided in the evidence of Mr Bell, employed as a PTC teacher for varying hours over each of the last 13 years. In 2000, for example, Mr Bell taught 275.5 hours. We do not know whether that total number represented 7.6 hours spread evenly over the 36 teaching weeks of the year, or whether for some period(s) extending over four weeks or more, he may have taught eight hours or more. If so, this would create for a relatively short time an entitlement, should the application be successful, to a different (lower) hourly rate of pay and a range of other conditions of employment including the payment for an additional period of either one or two weeks and the possible requirement to attend and perform duties during that same one or two weeks following the end of the semester. CONSIDERATION 153 As stated earlier, we are satisfied that the work performed by PTC teachers who are the subject of the application is comparable to that of FT teachers, to the extent that it is substantially similar to that of FT teachers during the teaching weeks. A FT teacher also has the security of ongoing employment, a predictable rate of pay and access to leave of various types beyond the leave available to PTC teachers. In the normal course of events, the lack of such benefits for casual employees is compensated for by way of additional payment or loading on the hourly rate of pay. However, on the evidence, the PTC TAFE teachers in question receive few of the benefits that usually pertain to either group.

154 We note the variation in the nature of PTC employment over time. In particular, the current figure of 9.8 per cent of PTC teachers teaching 20 hours or more per week can be compared with 1.3 per cent of Sydney metropolitan part time teachers in 1982, and 0.9 per cent (metropolitan) to 1.4 per cent (country) in 1988. The number of witnesses who gave evidence about the long term nature of their employment with TAFE as PTC teachers (including one who averaged over 740 hours over a ten year period) is also relevant, as is the concession by Mr Peddle that the lower cost of employing a PTC teacher was a relevant consideration in engaging employees. The evidence shows that, even for long serving PTC teachers, teaching hours could vary within a semester and did vary considerably from semester to semester. In this respect, the work is on a basis of "as required", common to casual employment, driven by the dynamic market for TAFE courses. On the other hand, the evidence of a pattern of employment, being over many years with large numbers of teaching hours based on courses run, usually, for the duration of a teaching semester, is inconsistent with any notion that such employment is indeed casual employment. We are satisfied that there is a body of PTC teachers whose pattern of employment is more akin to part time employment. 155 The title "part time casual" indicates that the work under review does not have the distinguishing features exclusively of a casual employee or exclusively of a part time employee. The Federation contended that it was inappropriate for PTC teachers who satisfied the relevant criteria to be remunerated as if they were casuals. The Federation further contended that it was inappropriate not to apply standard entitlements of FT teachers to this group of employees. As we have indicated, we are satisfied that there is a body of PTC teachers who work a significant number of hours each week on a regular and planned basis and have done so consistently over many years. The nature of the employment of this group of teachers is more akin to part time employment than casual employment. It is not appropriate that this class of teacher be treated as casual for the purpose of determining salary and employment conditions.

158 The respondents criticised the cut-off point of eight hours per week, on the basis that the only rationale for it was the relationship with the permanent part time policy. However, the Federation pointed out that the TAFE Staffing Agreement Principles, a document in which is set out the commitment of the parties to increase the proportion of permanent TAFE teachers to PTC teachers, also contains an eight hour cut off point for PTC teachers to apply for permanent positions. That document states, in part: Additional permanent TAFE teacher positions shall be filled in the following order: · suitably qualified excess and displaced permanent teachers; · permanent teachers with an approved application for compassionate transfer; · internal merit selection within an Institute to allow current long serving* part-time casual and current long serving temporary teachers to apply; · other transfers of permanent teachers; · general advertisement and merit selection. * For the purpose of the appointment process, long serving refers to part-time casual TAFE teachers who have been selected through a merit selection process and who have worked on average eight hours or more per week for two years or more immediately prior to this agreement. 159 However, any particular cut off point carries with it the same difficulties as the proposed eight hour point. The difficulties arise from the complexity of the application itself, in that it is sought to vary the salary, by way of the hourly rate, the number of hours for which work is paid and penalty rates, progression under the salary scale, the conditions of work including hours of attendance and access to leave, the range of duties required to be undertaken and entitlement to travelling compensation benefit for a group of employees. The complexity is compounded by the fact that membership of that group is not static; nor can it be defined for each employee at the time of entering into the employment arrangement. Even a relatively minor change in teaching requirements could change the status of employees whose hours are close to the threshold mark. 160 There appears to be no sound basis for the selection of eight hours, other than the administrative match with some other Award conditions. The vast majority of witnesses have worked beyond the threshold point proposed. It is useful to minimise the possibility of teachers dropping in and out of the subject group within a semester, thus simplifying the practical outcome for both teachers and administrators. We consider that the proposed threshold, if one is to apply, would appear to be set far too low for the purpose of differentiating between those PTC teachers who employment is more akin to casual and those whose employment is more akin to part time. 161 In all, we are of the view that a simpler solution is required than that proposed in the application. We believe that the complexity of the proposal is such that it would be difficult for employees to understand as well as being difficult to administer. We also wish to ensure, as far as practicable, that any Award variation avoids potential adverse consequences for the flexibility required by the respondents in managing their business. 162 We are satisfied that PTC teachers receive significantly less remuneration than FT teachers performing the same teaching hours and the same range of duties. It is an inequity that must be remedied. 163 We are also concerned about a number of inequities that are described in the evidence. That PTC teachers are denied any allowance when required to travel as part of their duties, as in the case of Ms Bindels who was required to assess students in work placements, is unfair. This restriction apparently comes about by the definition of "teacher" in Schedule 12, Excess Travel and Compensation on Official Business - TAFE Teachers. Clause 1.1.3 of the Schedule reads relevantly: "Teacher" means all persons employed permanently or temporarily in TAFE in full time teaching positions, including head teachers, special program coordinators, TAFE counsellors and adult literacy officers.

CONCLUSIONS 165 We are not prepared to grant the Federation's claim in its current form. Further, given the complexities of the issues raised in the Federation's application and our concern that we have not been provided with enough information by the parties to formulate an appropriate variation to the Award that overcomes the inequities we have identified in this decision and at the same time avoids burdening the respondents with inflexible or administratively problematic staffing and related arrangements, we do not intend to impose our own solution on the parties, at least not before there is consideration of this decision by the parties. 166 As we noted earlier, the respondents asserted that, should the Commission find the remuneration and/or conditions of employment of PTC teachers were not fair, then the appropriate mechanism to redress any such finding would be by way of variation to the present regime of conditions for PTC teachers. It was further submitted by the respondents that, if the Commission were to decide that there was some inequity in the rates paid to and/or other conditions of employment of that group of employees who are the subject of the application, the respondents sought the opportunity to be able to explore the feasibility and/or timing of the implementation of any specific variation contemplated. 167 We agree in-principle with the respondents' proposal, in so far as we believe it is appropriate for the parties to discuss means by which our findings might best be translated into an Award variation and to prepare draft orders in that respect. The relevant findings that we have made in the course of this decision are as follows: (a) The basis of the application before us is that the work of PTC TAFE teachers who work for eight hours or more per week over a period of four weeks or more is analogous to that of FT TAFE teachers. On the evidence, the work of the subject group is analogous in some respects, but not entirely, to that of FT teachers. It retains elements of a casual nature and will continue to do so, because of the dynamic, demand-driven nature of TAFE service provision and the resultant pressures on workforce planning. However, during teaching weeks, the evidence shows that the work of PTC teachers who regularly teach a large number of hours is analogous to the work of FT teachers. (b) There is a predominance of females employed as PTC teachers while FT teachers are predominantly male. This fact of itself does not support the granting of the application. However, it is important that the detriment currently pertaining to the predominantly female group is rectified. (c) We are satisfied on the evidence that a group of teachers who are the subject of these proceedings perform work of comparable value to that of FT teachers during teaching weeks. Their remuneration and conditions of employment in that respect, however, are not of a comparable level to that of their FT colleagues. To that extent the conditions of employment for PTC teachers the subject of these proceedings are not fair and reasonable conditions of employment. (d) We are satisfied that there is a considerable proportion of PTC teachers who work a significant number of hours each week on a regular and planned basis and have done so consistently over many years. Mr D Corey and Ms J Barnes are good examples of this group of teachers. The nature of the employment of this group of teachers is more akin to part time employment than casual employment. It is not appropriate that this class of teacher be treated as casual for the purpose of determining rates of pay and other conditions of employment. Consideration needs to be given to providing rates of pay and other employment conditions for this group of teachers that more properly reflects the regularity and ongoing nature of their employment. (e) We are also satisfied that there is a large pool of PTC teachers whose employment is intermittent and short term and more in the nature of casual employment. There was no evidence from PTC teachers who teach less than eight hours a week to determine whether they perform the range of duties performed by those who gave evidence. (f) The dichotomy between those PTC teachers whose employment is more akin to part time employment and those whose employment reflects the characteristics of casual employment would suggest that any Award variation relating to PTC teachers has to recognise this difference. (g) We are not satisfied that the threshold proposed by the Federation, which to a limited extent seeks to recognise the dichotomy referred to in the previous sub-paragraph, is appropriate. If there is to be such a threshold, it would appear to be set far too low for the purpose of differentiating between those teachers whose employment is more akin to part time employment and those whose employment is more in the nature of casual employment. There is also the consideration whether a distinction should be drawn between classes based on monthly, semester or yearly hours. (h) We are concerned that the Federation's claim as presently framed would be administratively burdensome, having possible adverse consequences for the flexibility that the respondents require in managing their business in what was described in the evidence as "a highly dynamic, demand driven market place". Any award variation is to avoid such an outcome. (i) PTC teachers are denied any allowance when required to travel as part of their duties. Clause 1.1.3 of Schedule 12 of the Award should be amended to cover all teachers who may be required to use their vehicles in the performance of their duties. (j) It would appear that only actual teaching or coordination are recognised in a PTC teacher's service record, affecting the accumulation of service towards long service leave. This stands out as an area in which conditions of employment of PTC teachers are inequitable and ought be corrected. 168 The parties shall confer as to the terms of the necessary variation to the Award and file the resulting document by 31 January 2005. Absent agreement, the parties shall file and serve a draft variation to the Award, together with a written outline of the contentions in support of their proposal, by 15 February 2005. Should a hearing be necessary to finalise a variation to the Award, it shall occur before a member of the Full Bench. 169 Finally, although we consider, for reasons earlier given, that the award to be made will not be precluded by the respondents' jurisdictional objection, a final decision on that issue should await any contest as to the form of the award variation and submissions filed in respect thereof, which submissions should also deal with any residual issue. __________________

Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award [2004] NSWIRComm 340

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