Teachers (Non-Government English Colleges) (State) Award [2003] NSWIRComm 20 (9 May 2003)

Last Updated: 22 May 2003

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Teachers (Non-Government English Colleges) (State) Award [2003] NSWIRComm 20

FILE NUMBER(S): IRC 4201 of 2001 & IRC 2611

HEARING DATE(S): 07/08/2002, 09/08/2002, 12/08/2002, 13/08/2002, 14/08/2002, 16/08/2002, 14/10/2002, 28/10/2002

DECISION DATE: 09/05/2003

PARTIES:

NSW/ACT Independent Education Union

Employers First

JUDGMENT OF: Grayson DP

LEGAL REPRESENTATIVES

Ms C Mathews, NSW/ACT Independent Education Union

Mr P Ryan, Employers First

CASES CITED: Carpenters and Joiners and Bricklayers, Construction (State) Award, Re [1968] AR (NSW) 32)

Corrections Health Service Nurses' (State) Award, Re (No 2) (2002) 112 IR 402

Crown Employees (Administrative and Clerical Officers) (State) Award and Other Awards, Re (No 2) (1993) 52 IR 243

Employers First v NSW/ACT Independent Education Union and Another (2002) 115 IR 8

Equal Remuneration Principle, Re (2000) 97 IR 177

Hotel &c Employees (State) Award, Re (2001) 111 IR 393

Metal, Engineering and Associated Industries Award, Re 1998 - Part 1 (2002) 110 IR 247

Operational Ambulance Officers (State) Award, Re (2001) 113 IR 384

Pastoral Industry (State) Award, Re (2000) 104 IR 168

Public Hospital Nurses (State) Award, Re (2002) 115 IR 183

Social and Community Services Employees (State) Award, Re (2001) 113 IR 119

State Wage Case 1994 (1994) 57 IR 1

State Wage Case 2001 (2001) 104 IR 438

State Wage Case 2002 (2002) 114 IR 81

Teachers (Non Government Pre Schools) (State) Award, Re [2001] NSWIRComm 335

Teachers (Non-Government Schools (State) Award and Other Awards, Re (Unreported; Fisher P, Sweeney, J and Varnum DP, 17 August 1990

Transport Industry (State) Award, Re (1996) 95 IR 126

LEGISLATION CITED: Child Protection (Prohibited Employment) Act 1998, Commission for Children and Young People Act, Industrial Relations Act 1996, Ombudsman Amendment (Child Protection and Community Services) Act

JUDGMENT:

- 28 -

INDUSTRIAL RELATIONS COMMISSSION OF NEW SOUTH WALES

Coram: Grayson, DP

Friday, 9th May 2003

Matter 4201 of 2001

Teachers (Non-Government English Colleges) (State) Award

Application by the NSW/ACT Independent Education Union for a new award

Matter 2611 of 2002

Teachers (Non-Government English Colleges) (State) Award

Application by Employers First for a new award

DECISION

[2003] NSWIRComm 20

Background

1 The NSW/ACT Independent Education Union (the IEU) and Employers First (EF) move the Commission to make a new Teachers (Non-Government English Colleges) (State) Award to replace the existing award of the same title which was made on 20 March 2000 (IRC 99/2300 and 99/2439) and published on 25 August 2000 at 318 IG 1.

2 The existing common-rule award which applies to approximately 170 teachers employed in non-government colleges as defined, is expressed to have taken effect on 20 March 2000 with a nominal term of 12 months. Thus in a technical sense, it has run its course.

3 The terms in which a new award should be made is the subject of vigorous contest between the industrial parties with the IEU moving upon its last amended application filed in the Registry on 5 August 2002 in IRC 01/4201 and EF moving upon its last amended application filed in court on 16 August 2002 in IRC 02/2611.

4 Both matters, including any Special Case aspect of them, have been allocated by the President to be dealt with by the Commission as presently constituted.

5 By consent, and following a protracted course of attempted conciliation, which it might be noted succeeded in narrowing the issues between the parties to those remaining for determination here, the matters were joined and heard concurrently over six days of evidence in August 2002 and later by way of written submissions which were received at various times throughout September 2002 and October 2002.

6 Excluded from coverage by the existing award are teachers employed in a recognised school and employers who are respondents to a federal award, the English Colleges Award 1998. The Commission was advised further that there are no enterprise agreements applying to colleges covered by the existing state award and further yet, that there are some English colleges attached to independent schools which are covered by the Teachers (Independent Schools) (State) Award (329 IG 533). This award provides more favourable rates of pay and conditions of employment than the existing state award.

7 Further yet, there is a group of colleges belonging to an organisation known as the Education Providers Industrial Association (EPIA) which are covered by certified agreements. These agreements also provide more favourable rates of pay then the existing state award.

The Claims

8 The union in its application seeks increases in rates of pay of approximately 16% over a three year period. In addition, it seeks improved provisions in respect of public holidays, regulation of hours of attendance and face-to-face teaching, amendments to the presently prescribed ceiling on points for teaching experience and changes to the existing Area, Incidence and Duration clause.

9 The union seeks to bring its case within the Special Case principle enunciated by the Full Bench in State Wage Case 2002 (2002) 114 IR 81 as follows:

10 Special Case

Except for the flow on of test case provisions, any claim for increases in wages and salaries, or changes in conditions in awards, other than those allowed elsewhere in the principles, will be processed as a special case before a Full Bench of the Commission, unless otherwise allocated by the President.

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.

10 The employers claim, also brought under the Special Case principle, seeks to alter the divisor for the calculation of hourly rates for casual teachers from the present prescription of 5 to a new prescription of 7.6. This is said to more adequately and reasonably reflect the true proportionate relationship between the daily rate payable under the award and the actual number of hours that teachers are required to work in return for the daily rate.

11 It is said further that whilst the divisor of 5 may in the past have been acceptable as fair and reasonable, it ceased to be so following the new award made by the Commission with the consent of the parties on 20 March 2000 (IRC 99/2300 and 99/2439) the effect of which, among other things, was to afford hourly casuals an additional 15 minutes pay for each hour worked in consideration of lesson preparation time and other non-scheduled teaching duties (cl.3.6 (e) of the existing award). The employer's claim seeks to amend this provision to a less prescriptive payment for "all time reasonably spent on preparation".

12 The divisor used to calculate hourly rates for casual teachers also impacts on other employment conditions presently prescribed by the award and the employer claim seeks consequential amendments to those provisions as well.

13 The first of those is the provision which allows hourly casual teachers to accrue points for teaching experience by deeming each 5 hours worked to constitute one day for the purpose of such accrual (cl.3.3 (d) (ii) (B) of the existing award). The second is the provision which applies flat amount State Wage Case increases to hourly rates by dividing the flat amount by 25 and adding the result to the hourly rate for casuals (cl.3.6 (f) of the award).

14 The employer claim seeks a new sub-clause expressly providing for purposes of clarity, the actual formula for calculating hourly casual rates. The user of the present award is left to deduce the formula from the monetary rates tables at the back of the existing award.

15 Finally, the employer claim seeks to vary the existing award provision which requires a "casual teacher to be paid by reference to a daily rate except where the teacher agrees to be paid an hourly rate" (cl.3.6 (a) of the existing award). The employer claims seeks, in lieu thereof, a provision which simply allows for a casual teacher to "be paid by reference to the daily rate or hourly rate".

The Evidence

16 In addition to documentary evidence upon which it relies, the IEU called evidence from the following witnesses:

· Ms V Heron, IEU Industrial Officer

· Ms S Tobin, IEU Industrial Officer and Organiser

· Mr G Mackinnon, ESL Teacher

· Mr J Howe, ESL Teacher

· Mr P Milo, ESL Teacher

· Ms K Lane, ESL Teacher/Administrator

· Mr J Moon, ESL Teacher

17 For its part, Employers First called evidence from:

· Mr S Takayasu, Director of Access Language Centre

· Ms C Moran, General Manger of Universal English College

· Ms G Warner, Principal of Uniworld Colleges

· Prof K Kennett, President and Joint Managing Director, Excelsior College

· Ms J Vieira, Director of Studies, K v B Institute of Languages

· Mr M Lucas, Managing Director of Aspect International Language Academies

18 Ms Heron, in her capacity as the IEU officer with overall responsibility for English Colleges, gave a comprehensive overview of English Colleges and their growth and regulatory development since the first college opened in 1965. She described the initial accreditation procedures introduced in the early 1980's by the Commonwealth Department of Education and Training to apply specifically to colleges offering English Language Intensive Courses for Overseas Students (ELICOS). She said that accreditation guidelines for ELICOS colleges, as they developed, become more complex requiring adherence to or compliance with criteria relating to management structure, student assessment, financial plans, class sizes, student welfare matters, course organisation and curriculum, teaching resources and marketing guidelines. In about 1990, the regulatory function devolved from the federal government through state and territory governments to a body representative of and funded by the industry, the National ELICOS Accreditation Scheme (NEAS).

19 Throughout this period, minimum prerequisite qualifications were progressively introduced to the extent that from 1993, following review findings by the Board of NEAS, teachers in ELICOS colleges have been required to hold three year tertiary qualifications plus or including specific qualifications in Teaching English to Speakers of Other Languages (TESOL). The tertiary qualification, with certain limited exceptions, is required to be a recognised teaching qualification.

20 In so concluding, the Board of NEAS observed:

After analysis and discussion, the Group concluded ELICOS teachers are called upon to engage in the full range of teaching and curriculum development activities expected of TESOL teachers in other systems. These include syllabus and course design, materials selections and adaptation, student needs analysis, classroom and self-access management, testing and evaluation, and a teaching approach flexible enough to accommodate a range of student ages, levels and backgrounds. It was agreed also that ELICOS teachers may have additional pressures placed upon them related to the circumstances of the client group and the context of their employment.

21 Ms Heron estimated that there are presently 59 private and 13 public institutions accredited to offer ELICOS courses in NSW. The existing award covers around 35 of these colleges. The history of award regulation applying to ELICOS colleges, as detailed in Ms Heron's evidence indicates, at least as far as this state is concerned, initial coverage by an award of this Commission (or rather its predecessor) in 1989, and shortly thereafter, coverage by federal awards which up until 1996 were extended to rope in new ELICOS colleges as they emerged. Between 1990 and 2000 the state award, apart from the operation of test case decisions, effectively lay dormant until the consent award to which I have earlier referred was made.

22 Ms Heron said, and there would appear to me to be nothing in the body of evidence to contradict this, that when the new award was made by and with the consent of the parties on 20 March 2000, the prescribed rates of pay initially reflected rates applying under certified agreements to those ELICOS colleges which were members of EPIA. Subsequently, from 1 January 2001, the prescribed rates reflected those applying in government and Catholic Schools as at 20 March 2000 when the existing award was made. As the transcript of proceedings before his Honour Sams DP reveals, it was the expressed intention of the IEU at the time, and it may be inferred the position clearly understood although not agreed to by the Employers Federation as it then was, that rates for teachers in ELICOS colleges should move broadly in line with rates in government and Catholic schools.

23 Ms Heron pointed in her evidence to the range of duties required of ELICOS teachers which may be summarised as follows:

· Four hours face to face teaching per day

· Developing and preparing resources and lesson materials

· Developing and preparing resources for self access and supervising self access

· Regularly reviewing and updating materials and courses

· Preparation, supervision, marking and recording of assessment tasks and other exams

· Maintenance of accurate attendance roll and notifying the College, relevant authorities and students regarding attendance

· Academic counselling including referring students with problems relating to visas, fees, homestay, and any other issues they may face

· Organisation and attendance at excursions and other activities

· Attendance at staff meetings

24 She described the negotiated arrangements with respect to the use of casual and sessional teachers in EPIA colleges and the various agreements to which the union is a party which in turn regulate face-to-face teaching load and attendance time in the various enterprises covered by those agreements.

25 Ms Heron's evidence canvassed changes which have occurred within the ELICOS industry since the making of the first federal award in 1992, such changes going to a propensity to employ teachers on short-term sessional contract or an exclusively casual basis; the emergence of NEAS requirements for provision of extra-curricular activities for students, enactment of and developments in child protection legislation in various forms (see for example, Commission for Children and Young People Act; Child Protection (Prohibited Employment) Act; Ombudsman Amendment (Child Protection and Community Services) Act).

26 Advice to and counselling of students is now required by NEAS as is the provision of a range of social and recreational activities suited to the age of the students and sensitive to their cultural backgrounds. Ms Heron said that teachers generally are responsible for attending to these requirements.

27 Teachers in ELICOS colleges are increasingly required to produce their own resources, lesson programmes and the like.

28 Most colleges now accept students on a weekly basis, which Ms Heron described as a new phenomenon, and there is now a significant variation in duration and requirements of visas of students who enrol in the colleges. Teachers are expected to cater for these different classes of students.

29 Furthermore, there has been an increased expectation by colleges that teachers will actively promote the college and its courses. This involves the teachers providing a service extending well beyond formal classroom instruction. As the major regional markets for ELICOS institutions are in a constant state of expansion and contraction, teachers must now continually acknowledge differences in culture and the first language of students and adapt teaching methods accordingly.

30 Ms Heron alluded to recent statements made by the Federal Minister for Education, Training and Youth Affairs and to statistics published by the Department of Education, Training and Youth Affairs, which identify education as a major earner for the Australian economy generating some $3.7 billion of export income and most notably, which reveal that the ELICOS sector had increased in 2000 by 25.8% over 1999. There has also been a significant growth in the number of ELICOS institutions.

31 Ms Heron expressed the view based on her extensive contact with teachers and employers that teaching in ELICOS colleges requires a similar level of skills as teaching in schools.

32 The other union officer to give evidence, Ms Tobin, focussed upon industrial disputes which involved colleges covered by the existing award. Ms Tobin described difficulties which had been encountered with particular colleges being unaware of or, to put in as neutrally as I can, reluctant to observe their obligations under the existing award and the particular difficulty associated with the exercise of the option under the award to employ casuals on a daily or hourly basis. She spoke as others did, of the NEAS requirement that ELICOS students be provided with not less than 25 hours of tuition each week with 20 of those hours being by way of face-to face teaching.

33 Ms Lane was called by the union in her capacity over many years as an administrator and teacher in the field of English language teaching. Between 1988 and 1999, she was full-time Head of the Department of Language Teacher Education at the Institute of Languages, University of NSW.

34 Ms Lane's experience in the affairs of ELICOS colleges comes from her ongoing communication with Institute graduates who gain employment in the colleges and who share their experiences with her. It further comes from her contact with Directors of Studies at ELICOS colleges whom she meets at seminars, and it comes from her role as a union representative between 1988 and 1997 during which time she made herself aware of conditions at other colleges including ELICOS colleges in NSW.

35 As a teacher educator, Ms Lane was able to comment on the professional requirements for an ELICOS teacher involving the preparation, writing and delivery of coherent programs of work for a range of classes from rank beginner levels to those students who may wish to enter university through a direct entry class, a foundation study program or by preparing for a specific entry test such as the International English Language Testing System (IELTS). She likened this in broad terms to the teaching span between kindergarten and HSC level.

36 Ms Lane alluded in her evidence, as did others, to the relatively recent trend in ELICOS colleges to enrol new students every week particularly in general English classes. She said this places additional pressure on teachers to ensure that classes are being taught a coherent program that caters to all levels. She thought this required levels of expertise not mirrored in any other educational field.

37 She spoke of the frequency of turnover and change in levels of students which in her view required teaching preparation additional to what might be regarded as the norm in other fields of teaching, and likewise, the frequency of reporting and assessment of ELICOS students was higher than in other educational fields.

38 Mr Howe was called by the union and deposed to current employment as an hourly casual teacher at the K v B Institute of Languages, an accredited ELICOS college. He said, by way of describing the circumstances in which he had been employed at K v B since 1999, that he was paid for 5 hours each day which entails 4 hours of face-to-face teaching and 1 hour preparation. His actual preparation time exceeds that for which he is paid and further time is spent each day on student issues such as visas, accommodation and the like. Mr Howe referred, as did others, to the frequency of student assessment required of ELICOS teachers. Mr Howe, in a supplementary statement commented upon aspects of evidence given by K v B Director of Studies, Ms Vieira.

39 Mr Mackinnon in the union case, was employed until early 2002 by Excelsior English College to teach an International English Language Testing System (IELTS) program. This is a program designed to equip students to pass the IELTS test, an internationally accredited test of English language proficiency. For the greater period of his employment from 1999, Mr Mackinnon worked on full-time contracts tapering off to casual work towards the end. He described certain difficulties with college management with respect to payment for preparation, provision of extra curricular activities for students and what he felt were inappropriate enrolments of students who struggled to meet IELTS requirements. Mr Mackinnon disagreed with the propositions advanced in the employer case, particularly by his ex-employer, to the effect that ELICOS teachers possess levels of qualifications which are generally lower than teachers in mainstream schools; that ELICOS courses rarely vary; that the work of ELICOS teachers is less demanding in terms of marking and preparation than that of English high school teachers and that ELICOS classes are smaller and are comprised of adults and not children. I note in that regard, that some colleges cater for students who are under 18 years of age according to the evidence of other witnesses.

40 Mr Moon, who holds a graduate diploma in education and works as an ESL teacher at Uniworld English College, also taught for a number of years at a state high school in rural NSW. His evidence in the union case indicated certain differences in the work of a high school teacher and an ESL teacher but by and large, the work was of an equally demanding and difficult character in his experience.

41 Mr Moon gave a detailed account of his teacher responsibilities including preparation, assessment and grading, record keeping, notification of federal immigration authorities if visa requirements for minimum 80% attendance are not met and the like. He also spoke, as others did, of the relatively recent NEAS requirements that teachers in ELICOS colleges provide academic counselling for students on a regular basis.

42 As a teacher employed on an hourly casual basis, Mr Moon is paid for 5 hours each day between 7.30am and 1pm and estimated that he would spend an additional 2½ hours each day on preparation, the majority of which he does away from the workplace. He compared his own arrangements with other teachers at Uniworld who were employed as daily casuals. These teachers receive the same pay and teach the same 20 hours face-to-face each week, but are required to be in attendance between 8.15am and 3.30pm. In that time, the daily casual performs additional duties such as supervision of self-access study. He pointed out that hourly casuals would receive extra pay if they were required to remain in attendance and perform such additional duties. He pointed to the obvious discrepancy in the daily casual rate and the additional work requirements attaching thereto when compared with the hourly casual rate arrangements. Understandably, the college encourages its teachers to accept daily casual arrangements and equally understandably, teachers such as Mr Moon prefer to retain the hourly casual arrangements.

43 Mr Moon commented upon the evidence in the employer's case by the Principal of Uniworld College and in so doing asserted, as an experienced Higher School Certificate (HSC) marker, that the testing and grading or assessment of ESL students requires comparable levels of skill. He further asserted, as did others, that the relatively recent practice of enrolling students on a weekly basis creates additional work for teachers. This is because the new student, who may be at the same general ability level as the rest of the class, will not have covered the same course content as the rest of the class, thus requiring the teacher's assistance whilst the work of the rest of the class continues.

44 Mr Milo, the final witness in the union case described his experience as a primary and secondary school teacher and as a teacher of English to speakers of other languages in particular, his experience at Lloyd's College covered by the existing award. He disagreed with statements made in the body of employer evidence to the effect that preparation required of ELICOS teachers is minimal. He cited his own experience as evidence to the contrary stating that whilst preparation time might vary depending on the level of classes taught and the extent of equipment availability (eg, photocopiers/computers/laminators, etc) it will still be in substantial proportion to the face-to-face teaching time. Like Mr Mackinnon, he referred to practices of enrolling students who struggle to meet course requirements as making teaching work more onerous and he spoke about the restrictive effect of the 35 point cap on experience points at cl.3.3 (e) of the existing award.

45 Mr Takayasu was called in the employers case and deposed to ownership and operation of two ELICOS colleges, one of which is covered by a federal EPIA agreement and the other, a newer college established in 1997, which is covered by the existing state award.

46 Access Language Centre which is covered by the state award, employs 12 teachers, 4 on a sessional basis as defined in the award and the remainder as casuals.

47 Mr Takayasu's practice with respect to casual teachers was to employ them on an hourly basis for the first four weeks after which they were given the option of being employed on a daily basis. Prior to the existing award being made in March 2000, teachers in both Mr Takayasu's colleges were remunerated at the same rate presumably that which the federal EPIA agreement prescribed. Following the making of the new state award in March 2000 and the significant updating of the rates therein prescribed, particularly with respect to the preparation time loading paid to hourly casuals, teachers at Access Language Centre do not opt for the daily rate. In fact, as Mr Takayasu described it, a teacher on the hourly casual rate being paid an additional 15 minutes for each hour worked, need only work four hours on any day to receive the same pay as the daily casual who works seven hours.

48 Mr Takayasu observed, as I think is generally agreed, that the colleges covered by the existing state award tend to be the smaller, more recently established colleges such as Access Language Centre. These colleges, he said, have less presence in the overseas market and growth is hindered by being required to pay higher rates under the state award.

49 He said immigration laws introduced in 2001 have made entry into Australia much tougher for English students with the result that student numbers from countries such as Korea, Indonesia and Thailand are decreasing whilst the Vietnamese market is virtually lost to competitors such as New Zealand and Canada, where immigration laws are less restrictive. Mr Takayasu felt that increased employment costs arising from the union claim being granted would force him to reduce teacher numbers and terminate hourly casuals. He said his ability to offset increased employment costs by increasing class sizes was limited by NEAS guidelines. Further, it was not viable to move the college to smaller and cheaper premises because of minimum space requirements per student and the need for colleges to be in attractive locations such as Sydney CBD, North Sydney, Bondi or Manly.

50 Mr Takayasu said he was shocked when he learned of the preparation time loading for hourly casuals having been assured that the changes to the state award being sought by the union in March 2000 were only minor. For this reason he took no active part in the proceedings before Sams DP in March 2000.

51 Ms Moran was called by Employers First. She is the general manager of Universal English College and a committee member of EPIA. Her college is covered specifically by a federal certified agreement and more generally by the federal award. Neither industrial instrument prescribes a preparation time loading for hourly casuals.

52 Ms Moran was concerned that an award increase, as here claimed by the IEU namely 16% would, if granted, put state award rates ahead of EPIA rates and substantially ahead of federal award rates and would be used by the IEU as leverage in the bargaining process to gain increases in the federal instruments greater than would otherwise be regarded as reasonable. As the existing state award applies to a relatively small number of teachers, she felt it would be unreasonable to allow it to set the benchmark for negotiations with EPIA.

53 She said significant salary increases will impact on the financial stability of Australian colleges who have been forced by recent changes to student visa regulations to discount tuition fees in order to retain market share in a number of countries and in order to remain competitive with the USA, the UK, Canada and New Zealand.

54 Ms Warner next gave evidence in the employers case. She is the Principal of Uniworld Colleges which incorporates Uniworld English College, Uniworld Business College and Uniworld High School.

55 Uniworld offers courses in English from elementary to advanced levels and students may enrol for periods between 2 and 52 weeks. The English college employs between 15 and 20 teachers and operates under the existing state award. Students receive 25 hours of tuition each week according to NEAS requirements. This is arranged by way of 4 hours of face-to-face teaching per day and 1 hour of supervised self-study per day.

56 Ms Warner referred, as did others, to changing visa regulations which have resulted in decreased enrolment from major regional markets in Korea and Indonesia. She referred also to the competition from Canada, the US and the UK and from New Zealand.

57 Uniworld employs all its teachers as either daily rate or hourly rate casuals. Hourly rate casuals usually do 4 hours of face-to-face teaching for which they are paid 5 hours pay which, because of the operation of the 1/5th divisor, is the same amount received by a daily rate casual who performs some 7 hours of work each day.

58 Ms Warner did not consider the keeping of attendance records or the weekly enrolment of students as novel or particularly onerous for teachers, and she did not consider the salary increase sought by the IEU as reasonable or justified having regard to the levels of work, skill and responsibility of ELICOS teachers. She did not consider there had been any change to those levels.

59 She said Uniworld has little or no ability to offset such increases by cutting costs or passing on the increases to students. The college was very close to NEAS requirements for average class size and per capita space allocation, and would not expect the same student numbers unless it was attractively and expensively located in the Sydney CBD.

60 Ms Warner pointed out that teachers receive pay rises by way of annual incremental progression under the present award provisions and the college would not wish to replace more experienced, more qualified teachers with less expensive, less experienced and qualified teachers in order to offset the costs of a 16% pay increase. She thought it was unfair that colleges operating under the same regulatory and market conditions should be in positions of competitive advantage or disadvantage depending on whether they operate under a federal award, a federal certified agreement or a state award.

61 She disputed the proposition advanced by Mr Moon that NEAS recently asked that teachers provide academic counselling on a regular basis, and she said that if and when Mr Moon is called upon to carry out extra curricular work he is paid for it. She was of the same view as Mr Moon, that the existing arrangement which allows an hourly casual to work 4 hours each day and receive the same pay as a daily casual working 7 hours each day, is deficient.

62 Professor Kennett was called in the employer case. He deposed to presidency and joint managing directorship of Exclesior College, a secondary school and a NEAS accredited English college. The English college experienced a substantial decrease in enrolments especially from China and Korea following changes to visa regulations in July 2001 to the extent that the college, which until late 2001 had approximately 250 students and 10 English teachers, now has around 50 students and 3 teachers. He said the college had been involved in a number of disputes with the IEU resulting from a mistaken belief that it was covered by a federal award and consequently, the non-payment of the preparation loading prescribed by the state award.

63 Professor Kennett described a routine teaching day as 7.5 hours in time and involving activities such as face-to-face teaching (4 hours), supervision of self-study (1 hour) with marking, research and other preparation along with designated breaks making up the remainder. He said the curriculum and a detailed program for each particular English course are provided to the teachers by the Director of Studies and from these, teachers prepare lessons. Teachers take the class role each day and pass it on to college administration for entry into the computer. Attendance irregularities are handled by the college administration or student services, as he described it.

64 The Director of Studies assesses new students, I apprehend for proficiency levels. It is unexceptional for new students to start on Mondays and for existing students to transfer from class to class as appropriate.

65 Prior to the existing state award provision, Professor Kennett had never known of a loading for preparation time being paid to hourly casuals and the 25% loading prescribed by the existing award, in his view, represents double payment for that which has historically been contemplated within the ordinary hourly rate for casuals.

66 In terms of the 16% increase sought by the union, Professor Kennett was of the view that it is without justification. Qualification levels of ESL teachers are generally lower when compared with teachers in schools. English courses rarely vary and even the advanced courses (IELTS) are less demanding in terms of breadth and level of preparation and more so in terms of marking than duties allocated to English high school teachers. Professor Kennett gave as an example, the case of an English high school teacher taking in excess of 25 students for Years 7, 9,11 and 12 with 4 distinct preparations involving a constantly changing curriculum that includes different plays, novels, poets and videos, whilst the English college teacher will have 15 assigned students, mostly adult at a pre-determined level of English language proficiency.

67 He said an increase of the type sought by the union, if awarded, would render the Excelsior College non-viable and would result in its probable closure, leaving only the high school to operate. Alternatively it may force its sale in a deflated market place. As with other employer witnesses, he pointed to the competitive disadvantage for colleges such as Excelsior, of operating under the state award when compared with those operating under federal instruments.

68 Ms Vieria is Director of Studies at K v B Institute of Languages. The ELICOS school within the K v B Institute employs 2 teachers as hourly casuals. One works 5 days each week and the other less than 5 days. Both teachers work 5 hour days with 4 of those being contact hours and the remainder for preparation. Ms Vieira also takes classes in General English and is fully responsible for IELTS training.

69 Like other employer witnesses, Ms Vieira said it would be difficult for her organisation to pass on salary increases to students given the high level of competition in the marketplace. She thought that a number of English colleges would be forced to close their doors with the obvious implications for teacher employment thus, in a sense, defeating the purpose of the IEU claim for improvements in salaries and conditions of employment.

70 Ms Vieira made the point by way of comparison, that on average, class sizes in secondary schools are approximately double those in ELICOS colleges; that secondary school teachers carry a substantially higher extra-curricular burden often involving weekends and that secondary school teachers mark large numbers of essay papers on a regular basis.

71 She did not consider that the work requirements of ELICOS teachers had significantly increased and she did not see the need for ELICOS teachers to produce original material for each and every lesson with so many high quality publications available on the Internet. Moreover, and by reference to evidence in the union case, Ms Vieira said there is nothing novel about mixed ability classes which, according to current research, were inherently beneficial for both learners and teachers.

72 The final witness in the employer case was Mr Lucas who is the managing director of an entity known as Aspect International Language Academies. He described Aspect as a global educational company operating colleges in 8 countries with its English college located jointly at Bondi Junction and North Sydney. Mr Lucas is also Chair of the Australian Council for Private Education and Training (ACPET), an organisation with membership ranging from sole traders delivering "Train the Trainer" and workplace courses through to private high schools, vocational colleges, higher education centres and private English language providers.

73 Aspect is a respondent to the federal English Colleges Award and a party to a certified federal agreement within the EPIA group. Most Aspect teachers are employed as daily casuals and are expected to remain in attendance at the workplace after their face-to-face teaching has finished.

74 Mr Lucas was of the view that full-time or daily rate teachers should be available for work throughout the day just as school teachers are. In his view, the marking and reporting requirements of an ELICOS teacher is not unduly onerous when compared with a primary and/or high school teacher who might be expected to provide detailed reports for as many as 180 students at least twice a year. Mr Lucas spoke from his own experience as a qualified high school teacher who worked in that capacity for some years in various NSW high schools.

75 He said ELICOS teachers do not have the same responsibilities as school teachers with respect to ancillary duties or issues such as playground duties, supervision of sporting activities, student discipline, parent/teacher night or social activities such as school dances and the like. By and large, a school teacher's role involves far more pastoral care than is required in the ELICOS environment.

76 He said ELICOS college teaching is often cyclical work revolving around set texts and grammatical concepts and as such, a teacher with several years' experience can often take a class with a minimum amount of preparation required.

77 ELICOS teaching is also a global industry and teachers will often look to go overseas on working holidays. Likewise, Australia is a popular destination for teachers from overseas to come and work. This results in an industry where teachers are often quite young and travel the world with their skills - often, in his view, producing a somewhat itinerant mindset in the work attitudes of teachers.

78 The ELICOS industry is one of the most highly regulated industries in Australia and without doubt, when compared to competitor countries, is the most government controlled English language training industry in the world.

79 He referred, as did others, to recent Department of Immigration, Multicultural and Indigenous Affairs (DIMA) regulations which changed the visa status of certain countries and had a substantial impact on student numbers. Potential students from Korea and Indonesia, traditionally significant markets for overseas students in Australia, now face much more stringent requirements before a student visa will be issued. Financial requirements and English testing prerequisites on potential Russian students, previously a growing market, have significantly damaged that market as well.

80 The export education industry in general and the ELICOS sector in particular are also susceptible to external factors which can also negatively affect the industry. The events of September 11 for example, had a huge negative impact on overseas study as people became more reluctant to travel, although fortunately this particular problem seems to be reversing. In 1997 the Asian economic crisis had an even greater effect on the industry, to the point where the number of Asian students fell by as much as 60% over the space of 6 months. Another example is 1991 when the ramifications of the closure of the Chinese market after Tianeman Square incidents led to at least 30 colleges closing, including some well established and previously very successful colleges.

81 Mr Lucas felt that incidents such as these reinforce the reality that the ELICOS industry is often subject to extreme negative external factors beyond its control and as such must be able to react quickly to downturns in student volumes in order to survive.

82 Currently, there are around 190 accredited ELICOS colleges in Australia, approximately 120 of which are private colleges. In this diverse sector, there is a large variance between the size, fees and in a minority of cases, standards of these colleges, producing a business environment which is subject to very tight competition especially in Sydney. It is a national industry and there is no reason that Mr Lucas could see, why teachers in New South Wales should enjoy better conditions than teachers across the country. Students normally come through overseas agents who charge commissions ranging from 20-45%. Newly established colleges tend to charge lower fees and pay higher commission to agents.

83 Colleges face very high costs for premises due to the fact that central, attractive locations close to public transport are necessary in order to maintain a market presence in a competitive environment. This had led to some colleges having to move from less expensive suburban locations into the CBD in order to remain competitive. A poor location off the main public transport routes will have major issues with regards accommodation for their students, and such a college will find it extremely difficult to maintain student numbers. Premises in good locations and in buildings that meet the stringent regulatory requirements do not come cheaply and rents are often in the range of $250 - $500 per square metre.

84 NEAS, state regulatory bodies, local councils and the Federal Government also have stringent requirements for premises. Colleges face high standards with respect to building codes on fire safety, air conditioning, student numbers etc. NEAS has a classroom requirement that regulates a minimum amount of space for each student. This has just moved from 1.6 square metres to 2 square metres per student. NEAS also requires that colleges have suitable facilities such as library, resource centre, student areas, resulting in a significant amount of non-teaching space.

85 Internationally, Australia competes with the UK, USA, Canada and New Zealand for overseas English students. The USA and the UK are the strongest. Generally Australia has been the third largest recipient of international students behind these two countries, but recently Canada has outgrown Australia and New Zealand has grown to the point where it has surpassed Australia in terms of the per capita contribution of export education. New Zealand's market share has boomed as Korean, Chinese and Russian students that have found it increasingly difficult to meet Australia's toughened visa requirements, have tended to go there instead. Indonesian students finding it difficult to gain entry into Australia are also tending to study English in other Asian countries such as Malaysia and Singapore. Australia is the only country that requires students from certain non-English speaking countries to actually sit a test to prove they have a high level of proficiency in English before they study here.

86 Mr Lucas referred, as did others, to NEAS requirements on class numbers. Colleges must not exceed an average of 15 students per class with a maximum of 18 in any class. Some colleges have smaller class sizes as a marketing tool, but most need to operate at a yearly average of 12 or more students per class in order to be financially viable.

87 He said that notions of high profit levels in English colleges are misconceived. This was revealed in a recent benchmarking exercise conducted by ACPET on behalf of the Australian National Training Authority (ANTA) which provided an indicative breakdown of expenditure for colleges surveyed as follows:

Expenditure

% of total income

· Wages / salaries

30-40

· Agent's Commission

20

· Marketing

20

· Rent

10-15

88 Relatively minor shifts in market conditions can erode margins and turn surpluses into deficits.

89 Mr Lucas regarded salary increases of the nature sought by the union as unsustainable and any attempt to offset such increases by raising tuition fees would affect Australia's standing as a cost effective country in a globally competitive industry. He said the Asian markets are particularly cost sensitive at the present time.

90 Furthermore, in his opinion, there have been no changes of significance in the work of English college teachers since the late 1980's and attempts to compare them with teachers in schools was, in his experience of having worked in both sectors, unrealistic.

Consideration

91 The IEU contends that the salary increases sought in IRC 4201/2001 can be justified in accordance with the Special Case principle most recently enunciated in the State Wage Case 2002 (2002) 114 IR 81 as follows:

10 Special Case

Except for the flow on of test case provisions, any claim for increases in wages and salaries, or changes in conditions in awards, other than those allowed elsewhere in the principles, will be processed as a special case before a Full Bench of the Commission, unless otherwise allocated by the President.

92 The operation of the Special Case principle has been extensively considered by the Full Bench in recent cases such as Re Public Hospital Nurses (State) Award (2002) 115 IR 183; Re Social and Community Services Employees (State) Award (2002) 113 IR 119 and Re Operational Ambulance Officers (State) Award (2001) 113 IR 384.

93 In Nurses at [11] and [12] the Commission said:

We have taken the view that in considering each of the claims by the Association we should test it against what we consider to be the relevant principle. In that respect we note that the most recent authoritative discussion on the nature of a special case was that by the Full Bench in Re Social and Community Services Employees (State) Award (2001) 113 IR 119 and by a subsequent Full Bench in Re Operational Ambulance Officers (State) Award (2001) 113 IR 384. In Re Social and Community Services Employees (State) Award the Full Bench said:

[22] As Mr Reitano for the Union argues, the present Special Case principle is not relevantly different from that found in the State Wage Case - May 1991 (1991) 36 IR 362 which was considered in Re Crown Employees (Administrative and Clerical Officers) (State) Award and Other Awards (No 2) (1993) 52 IR 243. In the latter decision the Full Commission held at (376-377):

"in our view, the special case section of the principles provides a mechanism whereby a claim for enhanced wages or conditions beyond those normally allowed under the principles may be brought before the Commission. The hearing of such a claim is to be conducted by the Full Commission (formerly the Commission in Court Session) thus emphasising the special nature of the case. It will be a matter for the Full Commission, after hearing the evidence and the submissions, particularly relating to the matters relied on to take the case "out of the ordinary" and thus to make it "special", to decide whether the claim, in part or in whole, should succeed.

Some of the cases brought under the special case provision have relied, it is true, on the Work Value Changes principle, a principle which is not relied on here. But other cases, some of which have earlier been identified, have substantially been brought on the basis that developments in the workplace reform of a structural efficiency kind, in which employees have participated or to which they have contributed, have been such as to justify wage increases beyond those normally allowable under the principles. On a number of occasions such applications have been approved by the Commission. In some of them the amounts of wage increase have been agreed by the parties but in others they have not, and the Commission has made an arbitrated decision in the matter.

In our view the present application can fit comfortably into the class of case to which we have just referred, certainly so far as it seeks wage increases by way of award prescription...

...

We therefore find that the applicants are entitled to bring their case under the special cases provisions of the principles.

That, of course, is not the end of the matter. The Full Commission must decide whether, on the whole of the material before it, and bearing in mind the respondent's opposition, the claim should in whole or in part succeed, and, if so, what increase should be awarded and what conditions, if any, should be prescribed. But we repeat our view that, in accordance with the principles, it is entirely appropriate for this claim to be heard and for the Commission to grant the claim in whole or in part if considered justified on the merits.

It is also entirely appropriate, if it is concluded that, in general, the claim should succeed, the Commission have regard to economic considerations, including the changing value of money over time, when deciding the amount of increase which should be awarded. Matters which may be considered in that regard are the date on which the last wage increase for employees in question took effect, and changes in money values which have occurred since that time or are forecast during the prescribed life of the award to be made.

[23] Further in Re Transport Industry (State) Award (1996) 95 IR 126 a Full Bench of the Commission observed (at 130-131):

"Mr Warren submitted that the Carpenters case (Re Carpenters and Joiners and Bricklayers, Construction (State) Award [1968] AR (NSW) 32) principle is irrelevant to the determination of a special case; but the principles of wage fixation operate, in effect, as a code which provides all the principles of application. We are unable to accept this view. The approach adopted by the Full Commission in the Crown Employees case (Re Crown Employees (Administrative and Clerical Officers) (State) Award (No 2) (1993) 52 IR 243) was that a case, if made out to be "special", may be determined according to its circumstances. That approach requires, in effect that the Commission be satisfied that the case is not an ordinary one, but has special attributes which warrant its approval despite the restrictive considerations imposed generally by the principles of wage fixation. That does not mean that the Commission is precluded in an appropriate case, from deciding that an award should be made over the objection of a particular employer or group thereof. Indeed, a special case does not require consent at all."

[24] Thus it can be seen, as in our view Mr Reitano correctly submits, that strict compliance with the wage fixing principles generally or with the work value principle and structural efficiency considerations in particular is not required where as here a case is advanced as a special case.

[25] in saying that we should not be taken to mean that such considerations will necessarily be excluded from the special case. As much is clear from the Crown Employees case. It is however appropriate to observe, again as Mr Reitano submits, that the present Special Case unlike its 1990 predecessor does not require that cases be considered "in accordance with the structural efficiency and other relevant principles". It requires, as was said in the Transport Industry case, that special attributes exist which warrant approval by the Commission despite the restrictive considerations imposed generally by the principles of wage fixation and that is the essential basis upon which the Commission will approach the determination of the present application.

...

[312] We are persuaded that this is a special case that warrants the granting if not in whole then in significant part, of the Union's claim. In that regard we note in addition to what has been observed earlier that a Full Bench of the Australian Industrial Relations Commission recently expressed a view as to what constitutes a special case within the meaning of the wage fixing principles. In Metal, Engineering and Associated Industries Award 1998 - Part 1 (2002) 110 IR 247 at 266-267 the Full Bench said:

"In our view, 'special case' as used in Principle 10, is not a self defining term. The identification of a special case is reserved to a Full Bench level of determination. It is not necessary or desirable to attempt to paraphrase that requirement into a set of principles, or a code of considerations for general application. A case by case approach is necessary. The circumstances of the Award and the industry in which it operates are of fundamental importance in determining whether the requirement is satisfied. In this matter, the special case requirement entails that the AMWU has the task of satisfying the Commission that there are sufficiently compelling reasons for awarding, as minimum rate conditions to apply across the industries covered by the Award, the substantive changes that it seeks. Should the AMWU satisfy that requirement, it will, in our view, have made out a special case in the circumstances applying the Award".

[313] At least for the purpose of these proceedings we do not consider the approach set out in that decision is materially different to the approaches laid down in the 1993 Crown Employees case and the 1996 Transport Industry case. Particular reference has, however, been made to the unique history of this award and we note in the recent Full Bench decision in Re Corrections Health Service Nurses' (State) Award (No 2) (2002) 112 IR 402 at par 31, that one of the factors which led to the Full Bench determining a special case had been established was the history of industrial regulation of the relevant employees.

After referring to the decision in the Social and Community Services Employees case and other decided cases, the Full Bench in Re Operational Ambulance Officers (State) Award stated:

[168] A number of principles may be distilled from these authorities bearing upon the contention advanced by the HAC. In order to make out a special case the applicant is required to make out that the variation is necessary to establish fair and reasonable conditions of employment and that the matter has special attributes. In doing so, the applicant is not required to meet a higher onus or standard of proof. The evidentiary requirements of a special case are no more strict than would apply in an ordinary matter, although the applicant to a special case will need to establish an adequate evidentiary foundation for those factors which are relied upon as showing the special case attributes of the case. Whilst respect will be afforded earlier decisions of the Commission or its predecessors, the conditions of employment earlier established need to be ultimately tested against the requirements of s 10 of the Act and that which we have discussed as being applicable to making out a special case. Where, as here, the former decision involved a test case, particular care should be taken to ensure that the factors relied upon by an applicant in support of its claim do not replicate factors which were taken into account by the Commission or its predecessors in establishing the general standard emerging from such case. In any event, the basis for and circumstances under which the conditions in the award were established will be significant considerations in the Commission's deliberations in order to assess whether the factors relied upon by the applicant in support of the case have already been accommodated by the earlier made award (in which case the present prescription may adequately compensate for those factors).

94 The Commission expressed the further view in Nurses at [13]:

We respectfully agree with the observations of the Full Benches in the Social and Community Services Employees case and the Operational Ambulance case. We emphasise the need to "establish an adequate evidentiary foundation for those factors which are relied upon as showing the special case attributes of the case". Further, although these is no general requirement that a special case must, to succeed, satisfy other specific principles (Employers First and NSW/ACT Independent Education Union (2002) 115 IR 8 at par 8) other principles may have relevance; for example, because of the way in which the case is advanced: see also the passages cited above from the decisions in the Social and Community Services Employees and Operational Ambulance cases.

95 The principles distilled from those authorities are of course to be applied in the context of the Commission's general award making powers and in the particular context of s 10 of the Act which provides:

SECTION 10 COMMISSION MAY MAKE AWARDS

10 The Commission may make an award in accordance with this Act setting fair and reasonable conditions of employment for employees.

96 Where an award does not fix fair and reasonable rates, the Commission should act to rectify the problem (Re Equal Remuneration Principle (2000) 97 IR 177 at [30].) This discretion, the IEU submits, is not limited to the making of awards setting minimum entitlements for employees as in the federal system (State Wage Case 2001 (2001) 104 IR 438 at [87], [88]).

97 In the course of a special case application matters of public interest and the cost of the claim arise for consideration (Pastoral Industry (State) Award (2000) 104 IR 168). The Commission may also consider, in the course of a special case application, matters which would otherwise arise in the nature of the work value and structural efficiency consideration (Social and Community Services case above). Moreover, matters such as increases in flexibility and efficiency are also relevant (Crown Employees case above) as are issues of undervaluation.

98 As to question of claims cost and public interest, the IEU submits correctly in my view that the cases fall to be decided within the Special Case principle by reference to claims cost against the broader public interest test.

99 In Teachers (Non Government Pre Schools) (State) Award [2001] NSWIRComm 335, Schmidt J described it this way at [30]:

[30] The onus falling upon the Union under the Special Case principle is well established - see for example Pastoral Industry (State) Award (2000) 104 IR 168 at 184. The onus to make out the case falls upon the applicant and the cost of the claim and the public interest also arise for consideration. Even if the cost of the claim is not negligible, the increase may however be granted if the Commission is satisfied that the public interest is met by the making of the order - see Teachers (Non-Government Schools (State) Award and Other Awards (Unreported; Fisher P, Sweeney, J and Varnum DP, 17 August 1990).

100 The IEU concedes that the cost impact of the increases sought is significant but points to a number of factors in mitigation.

101 English colleges covered by the existing state award have generally only been established since 1996 and in that time the only increase in wages was pursuant to the award made in March 2000 with the second stage of that increase taking effect in January 2001. The IEU claim presently before the Commission is for pay increases occurring sequentially over the three year life of the proposed award and employers have been on notice of the claim arguably since the existing award was made and certainly since the application presently before the Commission was filed. Furthermore, as the evidence indicates, there is considerable variation in the fee structure as between colleges which would suggest a capacity for colleges charging lower fees to increase them without necessary disadvantage. Enrolments are generally healthy notwithstanding repositioning of regional markets in consequence of changes to visa regulations and the like and the value of the Australian dollar against other currencies ensures that the Australian ELICOS industry is well-placed relative to its international competitors.

102 The IEU argues that the cost impact of the other changes sought is unlikely to be significant given, for example, as experience would indicate, that work on public holidays attracting the claimed penalty rate would be virtually non-existent.

103 As to public interest, the Commission would have regard to the significance of education of international students as an export earner and the fact that ELICOS is both a key element of the industry both in its own right and also is a pathway to higher education. Moreover, NEAS requirements going to the employment of teachers and the expectation that their skills will be properly utilised would warrant that such requirements be supported and reflected in appropriate levels of pay and working conditions. This concept is found in the ELICOS Accreditation Handbook published by NEAS in the following terms:

The institution ensures that teachers' working conditions and rates of pay compare favourably with similar teaching systems, to promote equitable and harmonious employment arrangements which enhance the quality of education offered.

104 In terms of work value change, the IEU points to the existing regulatory regime administered by the NEAS Board and its notable difference in scope and substance to that which was administered in earlier times by the federal Department of Employment, Education and Training as it then was.

105 Among other things, there has been a significant increase since 1993 in the minimum acceptable qualifications required of ELICOS teachers. Although there is some controversy as to this, the IEU urges upon the Commission the evidence upon which it relies to the effect that ELICOS teachers are now expected to produce their own resources to a greater extent than before and are more likely than before to be allocated new students by way of weekly enrolments. Additionally and with respect to students under the age of 18 years, there are additional responsibilities and obligations created by various pieces of legislation directed at the protection of children. There are also increased expectations as to the marketing of the colleges by employed teachers and as to their participation in extra curricular activities.

106 In terms of increased flexibility productivity and efficiency, the Commission would note that smaller colleges covered by the existing award employ fewer managerial staff in consequence of which administrative functions otherwise carried out by such staff, devolve to teachers thus adding to their productivity. Furthermore, the significant increase in the number of casual teachers employed in the industry since 1990 has given employers greater flexibility in adjusting staffing levels in line with enrolment fluctuations thus adding to the fiscal and administrative efficiency of the various enterprises.

107 In the event that change in work value is established and consistently with the obligation to set their fair and reasonable rates of pay and/or to deal appropriately with any issue of undervaluation arsing from these proceedings, the IEU points to a number of comparator awards as follows:

· Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award

· NSW Adult Migrant English Service Crown Employees (Teachers and Related Employees) Award 2001

· Teachers (Independent Schools)(State) Award 2001

· Teachers (Archdiocese of Sydney and Dioceses of Broken Bay and Parramatta) (State) Award 2000

· Teachers (Country and Regional Diocese) (State) Award 2000

108 By reference to the top step in the incremental scale accessible by three or four trained teachers in each of those awards, the IEU points to the discrepancy in rates presently prescribed for ELICOS teachers. The IEU submits that such comparison is valid given among other things, the reference to rates of pay applying in "other educational establishments" when the first State English colleges award was made in 1989. The IEU acknowledges in that regard that no nexus was thereby conceded nor I would add, established.

109 As the evidence reveals, the first award had the effect of prescribing rates of pay for ELICOS teachers which were higher than those prescribed for teachers in schools at the time.

110 Clearly, that is not the case now nor will it be even if the union obtains the relief it seeks in respect of the existing ceiling on experience points. Further and for reasons which are not readily apparent, the position of ELICOS teachers at the maximum prescribed rate relative to teachers in the compulsory education sector at the maximum prescribed rate changed to the extent that the Full Bench of the Australian Industrial Relations Commission was required to determine, in an otherwise consent environment, whether there should be a common maximum or final rate, as it was called, across the various teaching awards.

111 In so doing, the Full Bench at p5 of the decision 29 May 1992 Print K3032 said this:

In relation to award no.2 there is a disagreement between the union and the employers as to the final rate. The argument centres on $13 per annum, but in reality reflects a fundamental difference between the parties as to the appropriate relationship with external awards in the employers' view also proper internal relationships. The ITF proposes a final rate of $38,950 this being generally accepted benchmark rate for four year trained teachers on the maximum in the compulsory education sector. It is the rate which also applied to Level Academics and Related Staff (Salaries) Award 1987. The employers on the other hand propose a final rate of $38, 963.

In proposing the application of the benchmark rate for ELICOS teachers the ITF takes the view that the skills, responsibilities and knowledge of an ELICOS teacher at the final point on the incremental scales is the same as or similar to that required of a four year trained teacher on the maximum, and a Level A academic on the maximum. The employer disputed this view and submitted that neither the skills, responsibility or knowledge required of ELICOS teachers is the same as classroom teachers, and a more appropriate comparison is with the Metal Industry Award...

The skills and responsibility exercised by ELICOS teacher was the subject of evidence. It is apparent that various witnesses for the employers to award no.2 in arguing that ELICOS teachers could be distinguished from teachers in the compulsory education sector, relied in the main on distinctions concerning class size and teaching load. In our view all the evidence before the Commission warrants the conclusion that at least on the maximum it is not unreasonable to accept that overall the skills, responsibility and knowledge exercised by an ELCIOS teacher is comparable with a teacher in the compulsory education sector or a Level A academic on the maximum...

Indeed there is no sufficient consistency with teachers in our view to warrant the direct alignment of any but the top increment rate. Our view is reinforced by the significant difference in incremental patterns and the differing qualification requirements and conditions which apply to ELICOS teachers.

112 In later proceedings before Sams DP in March 2000 - that is to say, after some eight or more years of regulation of this industry by federal awards and agreements, the industrial parties here represented agreed that the existing award should be made.

113 His Honour was informed at the time that if the proposed award was made (as indeed it ultimately was) it would firstly, prescribe rates with immediate effect similar to those rates applying at the time under the federal EPIA agreements and secondly, it would prescribe rates with effect from 1 July 2001 similar to those applying to the teachers in schools. It may be noted again that the end result of proceedings before his Honour was the adoption of the consent position reached by the parties and in consequence thereof, the making of the existing award.

114 In the course of these proceedings the IEU advances as a primary proposition, the fixing of rates of pay for ELICOS teachers having regard to those payable to teachers in schools.

115 In considering such a proposition the Commission would be mindful of similarities in the two fields of teaching where for example, an English college offering High School Preparation courses to students intending to enrol in an Australian school must provide teaching with recognised qualifications or at least 12 months of secondary teaching experience. Many English colleges offer courses which qualify students for university entry. These courses, the IEU submits, are directly analogous to year 11 and 12 and in secondary schools. Further, English language tuition to adults is offered variously by TAFE colleges and by the Adult Migrant Education Service (AMES) but also by English colleges who successfully tender for it. The evidence would suggest that the work of teachers is comparable in that regard throughout the various institutions.

116 Employers in the compulsory education sector generally, but not exclusively require new teachers to be 3 or 4 year university trained whereas in ELICOS colleges, a teacher must now have teaching qualifications plus or including TESOL qualifications, or alternatively, plus a year of teaching experience.

117 The IEU submits that face to face teaching loads are comparable between English colleges and schools as is lesson preparation, assessment and counselling and the requirement for teachers in schools to perform playground duty may be contrasted with the requirement for teachers in English colleges to supervise self-access study.

118 As to the proposition advanced by employer witnesses to the effect that the pay increases sought would, if granted, create an imbalance between the state award and federal EPIA agreements, the IEU points to the expectation on EPIA'S part that the bargaining process upon expiry of those agreements is more likely than not to result in increases between 8% and 15% for three-year period from 28 February 2003 (the expiry date).

119 Furthermore, ELICOS colleges operated by TAFE and universities also pay rates in excess of those payable pursuant to the state award.

120 The IEU notes that the EPIA incremental rates in force from 1 September 2002 do not exceed the state award rates by a uniform percentage as had previously been the case. This is because the existing state award adopted by agreement between the parties and with effect from 1 January 2001, rates more closely aligned with schools awards. I am bound to say at this point that the basis of that alignment is attended by a certain degree of obscurity on the evidence as it stands but be that as may, it is reasonably clear that such an outcome was intended in the proceedings before his Honour Sams DP in March 2000.

121 The IEU in the current proceedings submits that it would not be opposed to an outcome which restored the internal relativities within the existing award to those within the EPIA scale provided that the relativity with the top step in the schools award was maintained. Self-evidently the relativity with the schools award of which the IEU speaks is that which existed at the time of the proceedings before Sams DP in March 2000.

122 In seeking to rely on a comparison between the rates of pay in schools, TAFE and Adult Migrant Education Service (AMES) awards, the IEU notes there is no possibility of leapfrogging - a matter to which the Commission must have regard - given that the rates here claimed for teachers in English colleges would, if granted, be no higher in July 2004 than those presently prescribed for teachers in schools as at 1 January 2003. The IEU notes further that whilst the existing state award covers approximately 170 ELICOS teachers, there are approximately 80,000 teachers employed under awards applying to schools, TAFE and AMES and that over-award payments occur in a number of schools covered by the Teachers (Independent Schools) (State) Award.

123 As to face-to-face teaching and attendance, the IEU seeks award provisions which limit the ordinary hours of face-to-face teaching to 4 per day or 20 per week averaged from Monday to Friday each calendar week. The union claim further envisages that each additional hour of face-to-face teaching will be paid for at one quarter of the daily rate. Moreover, a teacher may be required in addition to supervise a maximum of 2 hours of self-access study per week and may not be required to attend at the workplace for more than six hours per day averaged from Monday to Friday each calendar week. The union claim envisages that each additional hour of attendance for other than face-to-face teaching activities will be paid for at one sixth of the daily rate and that preparation and marking work need not be performed at work.

124 In support of its claim in that regard, the IEU relies upon the evidence that approximately 45 of the 50 or so colleges covered by existing state and federal awards have adopted 20 hours per week of face-to-face teaching as a standard. Of those colleges which have adopted more than 20 hours per week as a standard, a number are subject to certified federal agreements providing a range of benefits in excess of general industry standards. Exclesior College about which Professor Kennett spoke adopts 25 hours per week as a standard although in that case, a global view is taken about the interchangeability of face-to-face teaching and self-access supervision.

125 The IEU contends that lack of regulation of face-to-face teaching hours allows random variation by employers thus confirming competeivie advantages on colleges requiring longer hours and conversely, visiting detriment upon teachers with respect to their working conditions and rates of pay. The Commission would conclude on the evidence that there is little educational advantage in offering more than 4 hours of face-to-face tuition each day.

126 Furthermore, regulation of face-to-face teaching hours is commonplace for teachers generally (see for example Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award; New South Wales Adult Migrant English Services Crown Employees (Teachers and Related employees) Award 2001; Teachers (Victorian Government Schools) Conditions of Employment Award and also Work Practices Agreement Diocese of Parramatta and Framework for Workplace Practices in Secondary Schools conduction by the Catholic Education Office, Archdiocese of Sydney.)

127 The IEU contends that regulation of face-to-face teaching is consistent with the Commission's obligation to set fair and reasonable conditions of employment, both as between teachers in English colleges and other areas of teaching. Such an award prescription, on the evidence as it stands would have little impact on the overall costs of operation of colleges given that only two colleges covered by the existing state award notionally or potentially exceed the 20 hour standard proposed by the IEU.

128 The preponderance of evidence would suggest that for present purposes, an objective distinction exists between face-to-face tuition and supervision of self-access where in the latter case, the teacher essentially supervises students undertaking their own work. The NEAS ELICOS Accreditation Handbook, for example, recognises such a distinction. Self-access groups may be larger thus allowing colleges to meet their obligations to students with less teacher resources during periods of self-access supervision. The evidence indicated that daily casuals, where they are employed, are used for self-access supervision rather than hourly casuals and the IEU most properly concedes that difficulties may arise in colleges which employ mostly hourly casuals where the burden of self-access supervision falls unreasonably on the daily casual or sessional teachers. Clearly there is a diversity of employment practice in that regard which would render the across-the-board operation of a specific award provision with respect to self-access supervision, problematic. To my mind, this militates against the prescription by common rule award of a straightforward and unqualified condition of employment such as is here proposed.

129 As to attendance time, the IEU claim envisages teachers not being required to attend work for in excess of 6 hours on average each day without additional payment. In support of its claim in that regard, the IEU contends as follows:

· There is currently considerable variation between colleges as to the attendance time requried

· Some colleges which require longer attendance have sought that daily casual teachers perform general tasks not directly related to classroom teaching. This would not be a usual expectation of teachers.

· Some teachers prefer to perform preparation at home depending on the resources available at work and it is unreasonable that such work be required to be performed at the workplace merely to assist the college in corporate performance monitoring, for example. It is noted that colleges already have easy access to other forms of performance monitoring

· Requirements for teachers in other educational areas are generally consistent with the union claim and well below the high end of attendance required in English colleges.

· There have been a considerable number of disputes about changes in attendance time and it is in the interests of both employees and teachers that this issue be regulated by the award.

· The required attendance times for teachers in other comparable educational institutions regulated by industrial instruments (ie, TAFE and AMES) are 30 hours per week inclusive of 20 face-to-face teaching hours (see NSW Adult Migrant English Service Crown Employees (Teachers and Related Employees) Award 2001 and Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award.

· In schools, teachers are generally required to be in attendance for a maximum of 1 hour per day or 5 hours per week outside student attendance times.

130 As to experience points, the IEU contends that the existing award is in a manner of speaking, in conflict with itself by providing on the one hand for a maximum of 40 points to be available after 7 years relevant teaching experience (see cl. 3.3(a) of the existing award) and on the other hand, limiting the number of such points which can be used for salary purposes to 35 (see cl.3.3(e) of the existing award). The Commission, on the IEU evidence, would have little difficulty concluding that such an award prescription was an oversight and an unintended outcome of the consent position adopted inter partes in proceedings before Sams DP in March 2000. This is demonstrably so when one has regard to the counterpart provisions in the federal award and to the intention of the IEU at least, to import those federal award provisions into the upgraded state award in March 2000. It was not a matter which was the subject of disagreement or contest in March 2000.

131 The final aspect of the IEU claim seeks the inclusion of 2 additional provisions in relation to the public holidays. The first such provision would, if granted entitle those required to work on a public holiday to be paid at two and a half times the ordinary rate with a minimum of four hours to be worked. The second such provision would, if granted, import the EPIA agreement standard which entitles sessional teachers to payment for public holidays falling within a period of closedown of a particular college provided that the sessional teacher was employed as such on the days immediately before and immediately after the closedown.

132 The first such provision, at first glance, would to appear by its terms to be intended to apply to any teacher who is requested to and in fact works on a public holiday and if that is the case, it may be although the evidence does not disclose this, that notwithstanding the apparently restrictive terms in which the existing public holidays provisions are expressed, that teachers other than casual teachers actually work on public holidays from time to time.

133 This may appear to the casual observer to be somewhat curious given the urging of the existing award that:

5.1 No teacher, other than a casual teacher may be required to work on New Year's day, Australia Day, Good Friday, Easter Saturday, Easter Monday, Anzac Day, Queen's Birthday, Eight Hour Day, Christmas Day and Boxing Day, the first Monday in August (or such other day agreed between an employer and the majority of teachers affected) and any other day gazetted as a public holidays for the State (collectively referred to as public holidays).

134 As to the employer's claim, it is contended that the award made by Sams, DP in march 2000 was made, despite attempts made by his Honour to elicit the facts, upon an incomplete explanation by the consenting parties of its full implications. EF contends that the Commission was not advised properly and comprehensively what was being sought and further, that the parties did not fully disclose to the Commission the intended consequences of the consent position for which ratification was being sought by the Commission in the form of a binding common rule award (see Re Hotel & c Employees (State) Award (2001) 111 IR 393.

135 The effect of the existing award or at least that aspect of it which most aggrieves employers is that hourly casual teachers must now be paid an additional 15 minutes for each hour of teaching. The additional 15 minutes pay for each hour worked is expressed to be in consideration of preparation time and other non-scheduled teaching duties (cl.3.6(e)).

136 I am bound to say at this point that on one view of things, it is not particularly helpful to the present inquiry to analyse the circumstances in which a consent position was presented to the Commission in March 2000 as it inarguably was. The essential question to be answered is whether the existing award prescription provides fair and reasonable conditions of employment and to the extent that it does not, would that objective be achieved by granting the employers claim. It is abundantly clear from the evidence that the provision in question has been the subject of disputation and that it continues to be problematic in the employment of daily casuals. EF argues that both forms of casual engagement are necessary in an industry which operates predominately on casual labour and that the existing disharmony between hourly and daily casuals is a matter the Commission would have regard to in considering whether the award operated fairly and reasonably. Prior to the existing award, the approach to the calculation of daily and hourly rates was a longstanding and operationally efficient one whereby in the case of the former, the annual salary was divided by 261 (the number of weekdays in a year) and to the result was added 20% by way of a casual loading. The hourly rate was then arrived at by dividing the daily rate by 5. By that means, all incidents of casual employment were contemplated and paid for in a balanced and fair way and the imposition of what is, in effect, a 25% loading on top of the hourly rate amounts to double dipping which in turn disturbs the industrial balance and creates unfairness. The IEU disputes that the foregoing is an accurate depiction of a pre-existing arrangement and I am bound to say that the evidence as it stands is permissive of speculation only in that regard.

137 EF proposes to remedy the unfairness by discounting the hourly rate to a value which would see the hourly casual, viz 7.6 hours receiving the same pro-rata pay, as the daily casual. EF further proposes the replacement of the additional 15 minutes pay for each hour worked by the daily casual with a provision which contemplates payment for reasonable time spent on preparation. I have doubts about the industrial efficacy of such a provision.

138 EF submits that the appropriate course for the Commission to take is to place itself at the point in time prior to March 2000 when the additional loading on the hourly rate was introduced and subject to satisfying itself that the hourly rate using the 1/5th divisor already compensated for preparation, preserve the status quo or in the alternative, simply discount the hourly rate by replacing the divisor of 5 with a divisor of 7.6.

139 EF further submits in respect of the IEU claim that no attributes have been demonstrated which would in the exercise of the Commission's discretion, take the claim out of the ordinary such as to invoke the Special Case principle. That being so, the claim falls to be decided under the otherwise restrictive provisions of the Work Value principle and the Standard Hours principle in which case the IEU claim would fail on the contested evidence. In the event that work value changes are established the Commission would have regard to the fact that the existing award had the effect of increasing prescribed rates of pay for the period 1991 and 2001 by percentages ranging from 21.58% at Step 1 to 28.88% at Step 10 whereas the State Wage Cases throughout the same period, if otherwise applied to this award, would have increased rates by percentage ranging from 14.76% at Step 1 to 9.67% at Step 10.

140 It might be again noted in that regard that prior to March 2000, in fact for almost a decade, the state award played no real or effective role in regulating the industrial affairs of the parties. The evidence in these proceedings suggests that employers covered by the state award may have looked to the conditions of employment prescribed federally and although not strictly obliged by respondency to the federal instruments, may have felt it operationally appropriate to pay their employees by reference to the federal instruments. Conversely, there was no evidence to suggest that employers covered by the State award were employing teachers and paying them under the State award prior to March 2000 and perhaps in some cases, prior to the IEU actively seeking to enforce the provisions of the state award. I am not convinced that in the circumstances which prevailed in March 2000 which might be described in part as breathing life back into the state award by aligning it with counterpart federal instruments, it is appropriate or useful to compare actual salary movements to movements which would otherwise have occurred by reason of State Wage Cases.

141 In a manner of speaking, such a comparison overlooks the practical reality which is, simply put, that employers covered by the state award by and large paid their employees as though they were covered by federal instruments prior to March 2000 and one may assume safely I think, that this was one of the major considerations leading to the consent arrangements presented to his Honour Sams DP at that time.

142 In other words, employers at that time implicitly agreed that what they were paying their employees was fair and reasonable and thus had little difficulty in agreeing to those standards being imported into the state award. Whether by uninformed consent as EF now contends, or otherwise, it is also the case that the parties agreed to a second stage adjustment which took effect on 1 Jan 2001 and which aligned ELICOS teachers with teachers in schools.

143 EF further contends that it would be unsafe for the Commission to venture into an exercise of comparison between the existing award and other awards and agreements given the absence of evidence as to how and why rates had been struck in any of the awards advanced by the IEU as being appropriate for comparison. This is particularly so when by the union's admission, there has never been an agreed nexus between the existing award and any other award. Further, the basis for movement in rates in other consent awards is unavailable for consideration and consistently with the long standing custom of industrial tribunals, such consent arrangements are therefore of limited precedent value in proceedings such as these (see for example, State Wage Case (1994) 57 IR 1 at 36).

144 As to the IEU claim in respect of hours of face to face teaching and attendance, EF submit that the restrictions proposed would, on the evidence be unworkable and would involve cost increases of a very high order of magnitude - say up to 49% in the case of a teacher required to work 7 hours a day. Further, the IEU contention that the present lack of award prescription in that regard gives rise to the possibility of industrial disputation calls for speculation on the Commission's part and is not borne out by the relatively trouble- free operation of the existing industrial instruments. Further yet, EF points to the absence within the union case of any suggestion as to how colleges might realistically timetable programs within the proposed restrictions in the absence of which would be forced to bear the brunt of increased costs. At all events, an award prescription which in effect set standard hours of work below 38 per week is not permissible under the Wage Fixing Principles.

145 With respect to the IEU claim for additional public holiday provisions EF points to the absence of evidence in the union case and to the only evidence in the proceedings being on the employers side which suggests no basis for change to the existing provisions.

146 After careful consideration and again noting the vigorous contest as to the terms in which a new award should be made, I am satisfied and comfortably so that this case is not an ordinary one. I am further satisfied that special attributes have been demonstrated which bring the case within the Special Case principle thus warranting approval albeit in part only, of the IEU claim despite the restrictive considerations imposed generally by the principles of wage fixation.

147 The problematic task of setting fair and reasonable conditions of employment for employees covered by this award where, as here, the evidence is strongly suggestive of undervaluation, is not dissimilar to that considered by the Commission in Re Teachers (Non Government Pre Schools) (State) Award [2001] NSWIRComm 335.

148 In that case her Honour Schmidt J said this at [394] to [401]:

The difficult question which the Commission must come to grips with here, is how the demonstrated undervaluation of this work is to be remedied. I am well satisfied that a case has been made out for significant wage increases and that a fair assessment of proper rates for the teachers employed under these awards, cannot be made in a context where rates paid to other similarly qualified and experienced teachers is ignored. Indeed in their final submissions the employers conceded the necessity of such an approach, given the terms of the Work Value principle, but still urged that the same rates would not be awarded as those paid to teachers employed in the schools, even if the view were reached that wage increases were warranted.

In 1990 the parties agreed that the nexus between these awards and those applying to schools should no longer operate. Of course, that was at a time when rates for teachers employed in long day care were agreed to be 4% higher that those of schools teachers and those of preschool teachers the same as those applying to schools. That position was abandoned by the employers in 1999 and now they seek rates, which over time, will be 26% lower than those for teachers employed in schools. I am utterly convinced on the evidence that such a differential can not be awarded. It would not result in fair and reasonable conditions of employment for these teachers.

Nor, however, have I been able conclude on the evidence, that precisely the same rates should here be awarded, as those paid to teachers employed in Catholic and Government schools. I do not exclude the possibility that a case for such rates could be made out, but have taken the view that it would require a closer examination of the basis upon which increases for such teachers were agreed under the awards being relied upon, together with a more detailed investigation of the similarities and differences in the work of the two groups than was here undertaken. That is not to say that I accept the views expressed by employer witnesses as to the nature of the differences in the work of teachers employed in the early childhood and those employed in schools. I am convinced that no proper basis for such views was demonstrated. Nevertheless, I am not convinced that on the evidence here led, the rates claimed can be awarded.

This conclusion was unavoidable, given the evidence led and the existing legislative scheme, which has given rise to the current award position. This claim was advanced in circumstances where salaries paid to teachers with similar qualifications and experience, has over recent years fragmented markedly, depending upon by whom they are employed and in what sector of the teaching industry.

The legislative regime altered significantly in 1992, with the repeal of the 1940 Act and the enactment of the 1991 Act, itself repealed in 1996, when the Act was enacted. The Wage Fixing Principles fixed under that legislation have also altered significantly over that time. As was observed in Re Transport Industry - Waste Collection and Recycling State Award (Unreported; Wright J President, Hungerford J and Patterson C; 30 January 2001) at p8:

As is clear from these references to the background to the making of the Principles, they developed because of the objectives of both the Industrial Relations Act 1996 that there should be a "process of devolution of industrial affairs to the parties" and the recognition that, where parties are in agreement as to the terms of their industrial arrangements, the Commission should be "less prescriptive" and "less interventionist".

The end result for teachers has been wage differentials, not only between the two groups of teachers here under consideration, but also within those groups themselves, there being evidence of agreements, including enterprise agreements approved under the Act, providing for wage increases, having been reached by the Union with some employers covered by these awards. Wage differentials now also exist between Government and non-Government school teachers; teachers employed in other non-governmental schools and those employed in other early childhood services. In this State there are now many different rates of pay applying under various industrial instruments to teachers employed in schools, preschools and long day care centres.

What agreements were reached in relation to these various rates of pay was in the main unclear on the evidence. It is thus not possible to ascertain precisely how, or why, the various rates were fixed, although it is undoubted that current rates of pay reflect various agreements reached between the relevant parties over the years and in some cases, decisions of the Commission. What such agreements comprehend is difficult to say. It is entirely possible, and no doubt likely, that they reflect wage increases agreed having regard to productivity improvements and accepted work value increases. While there was no evidence about this, they could also have included a whole host of other matters, such as attraction and retention payments, an issue which arose here. On the evidence, it is, however, not possible to know or helpful to speculate. As I have noted there are also significant differences in award conditions not explored in these proceedings.

In those circumstances, I have refrained from the undeniably attractive option of simply awarding the rates claimed, as reflecting the rates paid to many school teachers, having in mind the evidence of the similarities in the work performed by these teachers, compared to those employed in schools, as well as their respective responsibilities. The fact that some teachers employed in preschools also already receive the rates here claimed under the awards which apply to them, made this even more attractive, but there was no evidence led as to that work or the circumstances in which that agreement was made. The end result is that the rates fixed by these awards, will increase significantly during the term of these awards, but will not exceed those paid to teachers in schools. It may be that in other proceedings a different result could emerge in future. I am satisfied that this is a proper result on the case and the evidence here advanced.

149 In refusing leave to appeal her Honour's decision in that case, the Full Bench in Employers First v NSW/ACT Independent Education Union and Another (2002) 115 IR 8 said this at [8] and [12]:

[8] We have determined that leave to appeal should be refused in this matter. We consider that the appellant has not demonstrated that there was an error of principle at first instance. It was open to her Honour to make the award under the Special Case principle of the wage fixing principles having regard to the fact that no substantial issue was taken on the appeal otherwise as to her Honour's finding as to changes in work value or the undervaluation of work. There was no requirement for her Honour and no warrant in this appeal, to dissect the components of the wage adjustment granted by reference to the operation of wage fixing principles other than the Special Case principle.

[12] Finally, we note that the rates which were awarded by her Honour constitute no basis for "leap frogging", or for the grant of increases or claims thereof, in any other award or for any other group of employees. So much was appropriately conceded by the respondent union. In any event, this conclusion follows from the way in which the rates in the award made by her Honour have been fixed as they derive from a finding that there existed a special case under the wage fixing principles consisting of elements including undervaluation of work and substantial work value changes.

150 Clearly in appropriate circumstances, the Commission may have regard to rates of pay and conditions of employment beyond those prescribed by the existing award and having done so with due care and caution as the authorities require, the prerequisite view must then be formed as to what is fair and reasonable. I consider in the circumstances of this case that increases of a lower order of magnitude than those claimed but which nonetheless come into effect progressively throughout the life of a new award are warranted.

151 I do not consider that the IEU claims with respect to face to face teaching and attendance and with respect to public holidays have been made out although, as was observed in Teachers (Non Government Pre Schools) above, it may be that in other proceedings with the benefit of closer exploration of the differences in their entirety in the various awards relied upon, that a different result could emerge in the future.

152 In the case of the IEU claim for an adjustment to the restrictive provisions of cl 3.3(e) of the existing award, there is clear and compelling argument in its favour and little to contradict it. Ms Heron's evidence to the effect that the existing cl 3.3(e) mistakenly preserves the 35 points ceiling on experience points was not called into significant question nor was it sufficiently challenged in cross-examination. To my mind, the claim has a logic to it that is inescapable when one looks at the objective facts.

153 In that regard, one needs only to look at the provisions of the federal English Colleges Award and to consider its mirror image in the existing State award save for the 35 points ceiling on experience points to see why and how, as the IEU submits, there is an inherent inconsistency within the latter. The evidence makes clear that the intention of the parties in proceedings before his Honour Sams DP in March 2000, was to create within the state award a mirror image of the federal award with respect to the way in which the points system operates in determining salary levels. To increase the maximum number of available experience points from 35 to 40 and then at the same time to impose a restriction of 35 on the number of such points which can be used for salary purposes is to my mind highly suggestive of oversight as the IEU contends and inherently unfair in its operation. It should be corrected.

154 I am not persuaded, however, that there should be an alteration to the 1/5th divisor as it applies to hourly casuals or that hourly casuals should lose the additional payment for preparation time.

155 To grant the employers claim in that regard would in my opinion, cause unfairness in the operation of the award which I again note, presently gives primacy in a manner of speaking, to the payment of casual teachers by reference to a daily rate except where the teacher agrees to be paid on hourly rate. The effect of such a provision seems to reserve to employers the right to extend or decline to extend offers of hourly casual employment on grounds of operational efficiency and cost benefit.

156 As the Full Bench observed in Pastoral Industry (State) Award (2000) 104 IR 168 at [77]:

Existing award conditions are, of course, not immutable. Subject to compliance with the requirements of the Act and applicable principles, they can be varied upon the basis of the consent of the parties, or in the case of contested proceedings, if a case is made out on the evidence, upon the basis that the award conditions in question no longer provide fair and reasonable conditions of employment. In a contested case, the onus falls on the applicant to make out a case for an alteration to an award, which otherwise will remain undisturbed.

157 In this case, I remain to be convinced that the relevant provisions of the existing award operate unfairly or unreasonably to the extent that the relief claimed by EF should be granted. That is not to say that the provisions are free from any degree of imperfection. The evidence demonstrates otherwise but as the IEU submits, there is a potential injustice in the granting of the EF claim for abolition of payment for preparation time if one accepts as I do on balance that the most common or usual face-to-face teaching load is 4 hours per day or 20 hours per week. If the divisor is 25 and no or no additional or insufficient preparation time is paid, an hourly casual with the same teaching load as a full-time teacher could be paid 1/25th x 20 of the full time rate. I note further the IEU submission that casual hourly hire is in the present context, properly characterised as an option available under the existing award to give greater flexibility to employers where daily engagement is not required. It is not intended as the major form of casual engagement. I am of the view that the existing award provisions should remain undisturbed in that regard.

158 There being no evidence or submissions as to the proposed alterations to the existing Area, Incidence and Duration clause, it shall remain relevantly unchanged.

159 The Commission therefore makes a new Teachers (Non Government English Colleges)(State) Award with effect from the date of this decision. The new award will remain in force for a period of 3 years and will differ from the existing award in respect of monetary rates and experience points. It will in other respects be essentially the same as the existing award.

160 As to monetary rates, it is not unreasonable in my opinion, having regard to the totality of the evidence and the competing arguments, to award the following increases:

· 3% from date of decision

· 3% from date 6 months thereafter

· 4% from date 6 months thereafter

· 4% from date 6 months thereafter

161 As to the experience points, the existing ceiling of 35 will be varied to 40.

162 The parties are directed to prepare and file an award document to give effect to this decision within 21 days.

LAST UPDATED: 09/05/2003