The Industrial Magistrate has determined, as a preliminary issue, that the Educational Services (Post-Secondary Education) Award 2010 (the Award) covers two truck driving instructors and assessors and applies to their employment with the respondent.

The respondent operates a business which provides training and practical driving assessments for heavy vehicle drivers.

The employees alleged that the respondent contravened the Award and the Fair Work Act 2009 (Cth).

Industrial Magistrate Scaddan determined that two preliminary issues required resolution. The first was whether the Award covers the employees and the respondent, and the second whether the Award applies to the employees’ employment.

Clause 4.3 of the Award lists a number of industries which encompass post-secondary educational services. The employees relied upon ‘(a) vocational education and training (VET) teaching leading to a qualification recognised within the AQF’ to support their contention that the respondent is an industry employer in the ‘post-secondary educational services’.

Meaning of ‘vocational education and training’ (VET)

Scaddan IM first determined the meaning of VET under the Award. Her Honour noted that common characteristics of VET throughout jurisdictions included:

• skills or work or vocation-based training;
• in a wide range of occupational areas generally outside of secondary and tertiary academic institutions;
• with courses or units of competency referrable to the AQF; and
• where statements of attainment demonstrate satisfactory completion.

Her Honour also added to the above indicia that VET is undertaken by people or organisations that are subject to a regulatory regime or oversight body.

Preliminary issues

Scaddan IM found, on the application of the evidence to the indicia, that the respondent was an employer within the ‘post-secondary educational services industry’ where it provides VET in respect of heavy vehicle truck driver training.

Her Honour also found that the Award covered the employees where they were employed by the respondent in the classification of tutors/instructors under the Award. Scaddan IM determined, as a consequence, that the Award applied to the employees and the respondent.

The decision can be read here.