DISPUTE RE FIXED TERM CONTRACTS OF UNION MEMBERS

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES Liquor, Hospitality and Miscellaneous Union, Western Australian Branch

APPLICANT

-v-

Director General, Department of Education and Training

RESPONDENT

CORAM Commissioner J L Harrison

HEARD Wednesday, 28 January 2009, Thursday, 29 January 2009

DELIVERED thursday, 30 april 2009

FILE NO. CR 34 OF 2007

CITATION NO. 2009 WAIRC 00225

Catchwords Industrial Relations (WA) - Application for declarations - Whether a number of Ethnic Education Assistants are entitled to permanent status under the Education Assistants’ (Government) General Agreement 2007 - Declarations issued  - Industrial Relations Act 1979 s 44

Result Declarations issued

Representation 

Applicant Mr M Aulfrey (of Counsel)

Respondent Ms R Hartley (of Counsel)

Reasons for Decision

1         On 19 December 2007 the Liquor, Hospitality and Miscellaneous Union, Western Australian Branch (“the applicant”) applied to the Commission pursuant to s 44 of the Industrial Relations Act 1979 (“the Act”) seeking the Commission’s assistance with respect to a dispute with the Director General, Department of Education and Training (“the respondent”) over whether a number of Education Assistants should have their fixed term contracts converted to that of a permanent nature in line with Clauses 14.3 and 14.4 of the Education Assistants’ (Government) General Agreement 2007 (“the 2007 Agreement”).

Glossary of Terms

2         The Commission convened several conciliation conferences and after further discussions were held between the parties an agreement was reached with respect to a number of EAs being made permanent pursuant to Clauses 14.3 and 14.4 of the 2007 Agreement.  However the parties remained in dispute about the permanent status of a number of employees employed as EEAs.

3         The schedule of the memorandum of matters referred for hearing and determination is as follows:

“1. The applicant is seeking the following declarations:

(a) THAT the Ethnic Education Assistants listed in Appendix 1 are not the subject of any of the exemptions contained in Clause 15.2 of the Education Assistants General Agreement 2004 or Clause 14.3 of the Education Assistants’ (Government) General Agreement 2007 as applicable.

(b) THAT the Ethnic Education Assistants named in Appendix 1 are entitled to permanent status with the respondent.

2. The respondent denies the claim and opposes the issuance of the declarations sought.

Contentions

Applicant

The applicant claims that the Ethnic Education Assistants (“EEAs”) named in Appendix 1 are entitled to be employed by the respondent on a permanent basis and not on a fixed term contract or fixed term employment (sic) as their employment is not the subject of the exemptions contained in Clause 15.2 of the Education Assistants General Agreement 2004 or Clause 14.3 of the Education Assistants’ (Government) General Agreement 2007.

The applicant argues that EEAs listed in Appendix 1 are not the subject of Special Projects or other exemptions under Clause 15.2 of the Education Assistants General Agreement 2004 or Clause 14.3 of the Education Assistants’ (Government) General Agreement 2007 given:

• the definition of what is a “Special Project”;
• the historical treatment of permanency for EEAs prior to and under the Education Assistants’ (Government) General Agreement 2007;
• the individual employment histories of the EEAs; and
• the role of language in the employment of EEAs and its irrelevance to determination of the existence of a Special Project in any given case.

Respondent

The respondent argues that the Commission has no jurisdiction to enforce Clause 14 of the Education Assistants (Government) General Agreement 2007 and the power to do this lies with the Industrial Magistrate’s Court pursuant to s 81CA of the Industrial Relations Act 1979.

The respondent contends that the EEAs listed in Appendix 1 are subject to the exemptions contained in Clause 14.3(a) of the Education Assistants (Government) General Agreement 2007 and are not entitled to permanent status.

The respondent employs Ethnic Assistants on a fixed term contract in accordance with Clause 14.3(a) of the Education Assistants (Government) General Agreement 2007 on the basis that:

• the majority of English as a second language (“ESL”) students arrive with prior torture and trauma experiences and it is critical that they are supported by a staff member who speaks the same language and understands their culture;
• the demand for a specific language group is usually over a five year cycle;
• the skills required by EEAs with respect to discrete languages in demand varies over time;
• ESL students do not require support for all of their schooling and usually move from intensive English Centres to mainstream school after one or two years;
• all ESL programmes are funded through the Federal Government Special Purpose Payments; and
• employing EEAs on fixed term contracts complies with the Government’s Modes of Employment Policy.

4         During the hearing it became evident that a number of the EEAs listed in Appendix 1 attached to the schedule of the memorandum of matters referred for hearing and determination dated 17 November 2008, had been or were to be granted permanent status by the respondent.  As a result the following revised Appendix 1 was provided to the Commission by the parties after the hearing on 13 February 2009:

Appendix 1

Jurisdiction

5         The respondent argues that the Commission does not have jurisdiction to deal with this application on the basis that what is being sought by the applicant constitutes the enforcement of the terms of Clause 14 of the 2007 Agreement with respect to an EEA being made a permanent employee.  The respondent argues that as the Commission has no power to enforce the terms of an Award or Agreement this dispute should be dealt with pursuant to s 81CA of the Act in the Industrial Magistrate’s Court.  The respondent also argues that as the applicant did not specify that it relies on the dispute settlement procedure contained in the 2007 Agreement when referring this dispute to the Commission this procedure can not apply to this dispute before the Commission.

6         The applicant argues that the issue to be determined by the Commission does not constitute the enforcement of Clause 14 of the 2007 Agreement and the Commission therefore has jurisdiction to deal with this claim.  The applicant also argues that the Commission has jurisdiction to deal with this application given that Clause 14.6 of the 2007 Agreement provides that if a dispute arises about the mode of employment of an employee, which is the case in this instance, it is to be dealt with in accordance with the Dispute Settlement Procedure contained at Clause 53 of the 2007 Agreement and the applicant specifically relies on the terms of Clause 53.8 to bring this dispute to the Commission.  The applicant maintains that Clause 53.8 provides that stages 53.1 through to 53.7 of the procedure are not relevant to this dispute as the applicant raised this dispute directly with the employer in an endeavour to reach agreement and as no agreement was reached between the parties this dispute was referred to the Commission for conciliation and/or arbitration pursuant to the terms contained in Clause 53.8 of the 2007 Agreement.

Consideration

7         Clause 53. Dispute Settlement Procedure of the 2007 Agreement reads as follows:

“53. DISPUTE SETTLEMENT PROCEDURE

53.1 Any questions, disputes or difficulties arising under the General Agreement or in the course of the employment of employees covered by the General Agreement will be dealt with in accordance with this clause.

53.2 The Employee/s and the manager with whom the dispute has arisen will discuss the matter and attempt to find a satisfactory solution, within three (3) working days.  An Employee may be accompanied by a Union representative.

53.3 If the dispute cannot be resolved at this level, the matter will be referred to and be discussed with the relevant manager’s superior and an attempt made to find a satisfactory solution, within a further three (3) working days.  An Employee may be accompanied by a Union representative.

53.4 If the dispute is still not resolved, it may be referred by the Employee/s or Union representative to the Employer or his/her nominee.

53.5 Where the dispute cannot be resolved within five (5) working days of the Union representatives’ (sic) referral of the dispute to the Employer or his/her nominee, either party may refer the matter to the WAIRC.

53.6 The period for resolving a dispute may be extended by agreement between the parties.

53.7 At all stages of the procedure the Employee may be accompanied by a Union representative.

53.8 Notwithstanding the above the Union may raise matters directly with representatives of the Employer. In each case the Union and the Employer will endeavour to reach agreement. If no agreement is reached either party may refer the dispute to the WAIRC for conciliation and/or arbitration.”

8         I find that the Commission has the power to deal with this application.  Clause 14.6 of the 2007 Agreement provides for a dispute about the employment status of an employee to be dealt with in accordance with Clause 53 of the 2007 Agreement.  Clause 53.8 of this agreement provides that the Commission can arbitrate a dispute if the parties cannot reach agreement after the applicant has raised an issue directly with the respondent which is what has happened in this instance.  Even though the applicant did not refer to its reliance on Clause 53.8 in order to bring this dispute to the Commission for determination the schedule lodged by the applicant does refer to the parties meeting with respect to the granting of permanency for EAs and being unable to reach agreement and the dispute was then referred to the Commission under s 44 of the Act by the applicant.  In my view this is in accord with the terms of Clause 53.8 and the Commission therefore has the power to deal with this dispute.

9         It is also my view that the declarations being sought by the applicant do not constitute an enforcement of the 2007 Agreement as the declarations being sought deal with whether or not the 23 EEAs listed in Appendix 1 can apply to be reviewed for permanent status.

10      In the circumstances I find that the Commission has the power to deal with the declarations being sought by the applicant.

Applicant’s Evidence

11      The applicant sought to tender 21 witness statements of EEAs with only two of these statements being able to be tested and cross-examined, those of Ms Maria Tomaz and Ms Angela Toh.  The respondent agreed to allow the statements of the 19 witnesses who did not appear to give evidence to be tendered into the evidence on the basis that it reserved the right to contest some of the general statements made by some of these EEAs and it was on this basis, and by consent, that these witness statement went into the evidence.  It is also the case that one of the applicant’s members who submitted a witness statement is not currently employed as an EEA and some of the applicant’s members who submitted witness statements already hold permanent status with the respondent (see Exhibit A1).

Flaviana Vaz-Filion

12      Ms Vaz-Filion has been employed by the respondent as an EA since July 2001.  In 2007 she worked 0.6 Full Time Equivalent (“FTE”) at North Balga Pre-Primary School as an EA Special Needs and 0.2 FTE at Mirrabooka Primary School IEC as an EEA.  Ms Vaz-Filion stated that as an EEA at Mirrabooka she was employed on term-by-term contracts against a clear vacancy and at the end of 2007 she was informed that there was no longer enough work for her to do in the IEC.  Ms Vaz-Filion gave evidence that in 2008 she worked 0.8 FTE as an EA Special Needs at Yokine Pre-Primary School and she is currently a permanent 0.8 FTE Special Needs EA.

13      Ms Vaz-Filion gave evidence that when she was employed as an EEA she taught approximately 20 students in her class and the languages spoken by the students included Arabic, some local Arabic dialects and Hindustani which meant there were at least four or five languages spoken in the class.  Ms Vaz-Filion gave evidence that English is her first language but she also speaks Swahili and French.

Ljiljana Zonic

14      Ms Zonic finished her Certificate III of Children’s Services, Teacher Assistant Course in December 2004 and she commenced her employment with the respondent as a relief EA.  In August 2005 she started regular relief work at Mirrabooka IEC and on 21 September 2005 the respondent employed her on a fixed term contract as an EEA for 0.5 FTE.

15      Ms Zonic stated that in 2006, 2007 and 2008 she was employed under one year contracts but at the end of Term 1, 2008 her contract became term by term.  In 2009 Ms Zonic has a single term contract.  Ms Zonic understands that her employment at Mirrabooka IEC is ongoing and she stated that she has been given the impression that the renewal of her contract with the respondent will be automatic.

16      Ms Zonic undertakes the following duties in her role as an EEA:

• assisting students with lessons under the direct supervision of the classroom teacher;
• assisting with marking tests and worksheets;
• assisting with classroom inventory;
• assisting in the school library or office and performing other duties assigned to her by the principal;
• assisting teachers in the completion of daily paperwork utilising various computer programs;
• monitoring and reporting to the classroom teacher on student progress;
• monitoring students during breaks;
• accompanying and supervising students during activities within the school, libraries and resource centres and on field trips;
• preparing classroom displays;
• operating or assisting teachers in the operation of projectors, tape recorders and other audio-visual or electronic equipment;
• carrying out behaviour modification, personal development and other therapeutic programs under the supervision of professionals such as special education instructors or psychologists.

17      Ms Zonic stated that she deals with significant behavioural issues relevant to a student’s experiences.

18      Ms Zonic stated that her classes consist of up to 15 students and she stated that EEAs would typically have students speaking several different languages within the one class.  Ms Zonic gave evidence that quite often students speak more than one language and sometimes these languages are not well known.  Ms Zonic stated that she sometimes works with small groups of three to seven students and these students are not always able to speak the same language as her or the other students.  Ms Zonic stated that she can usually pick up a few words from each language which is enough to assist the student to understand what is going on.  Ms Zonic uses the computer to locate basic vocabulary so that she can prepare resources for students and assist them with information like greetings and the use of school facilities.  Ms Zonic stated that she has worked with students having 15 to 20 different languages at her school since she commenced employment in 2004 and she stated that throughout this period she has been able to do her job effectively even though she often works with individual students who do not share any of the languages she speaks.

19      Ms Zonic stated that it is more important that she share a refugee’s experience than share the same language.

20      Ms Zonic speaks Croatian-Serbian, Bosnian, Macedonian, German and Russian.  Ms Zonic stated that quite a few students spoke her languages when she commenced employment with the respondent but not as many do so currently.  Ms Zonic stated that it is not critical for an EEA to have the same language as the students they teach however it is important for an EEA to have knowledge about how these students can be assisted.

21      Ms Zonic stated that translating documents or interpreting for parents constitutes a small part of her duties.

22      Ms Zonic gave evidence that after a student leaves the IEC more students come in so her work is ongoing.

Abuzaid Suria

23      Mr Suria has been employed by the respondent as an EEA since July 2004 and from 2005 onwards he has been employed on one year fixed term contracts.  In 2009 he commenced employment as an EEA at Greenwood Senior High School and he stated that the school applies to the respondent at the end of each year with a view to offering him a new contract.

24      Mr Suria stated that EEAs help new students to read and write English.  Mr Suria stated that EEAs sometime work with a small group of students for a specific purpose, for example, phonetics, they assist teachers with preparing resources for the classroom, they help students to get to know the Australian school system and EEAs sometimes help refer students to different services, for example, the Association for Services to Torture and Trauma Survivors.

25      Mr Suria usually works with 15 students who speak six or seven different languages and he stated that sometimes none of the students speak his language, which is Arabic.  Mr Suria stated that EEAs model the English language for students before they start to write.  Mr Suria stated that students feel more comfortable if an EEA has the same language as them at the beginning because they do not understand the school system and rules however after a settling in period children learn English very quickly so they do not need access to their own language.

26      Mr Suria stated that he speaks mainly English when undertaking his work and he uses Arabic for special events such as parent-teacher interviews.  Mr Suria stated that EEAs sometimes interpret for parents, for example, at parent-teacher interviews when giving out annual reports, but this will depend on whether the EEA speaks the parent’s language.

Adele Riley

27      Ms Riley was employed by the respondent as an EEA at Rawlinson Primary School for 13 terms on a term by term basis and she then accepted a permanent full time position at Girrawheen High School as an EA Special Needs.  Ms Riley gave evidence that it was stressful every term not knowing if she was going to have ongoing employment with the respondent.

28      Ms Riley gave evidence that as an EEA she worked with individual and small groups of students and she taught them what the teacher was teaching to the whole class on a step by step basis. Ms Riley stated that when dealing with ESL students the main focus was language development, with EEAs talking in English.  Ms Riley stated that EEAs teach students basic sounds and phonetics and give students spelling strategies.  They also teach students basic life skills, including teaching about money, budgeting and shopping.  Ms Riley, who only speaks English, stated that within a small group of students they could speak Macedonian, Chinese, Arabic and African languages and the group could also include an Australian English speaking student whose language skills were weak.

Aanna Riak

29      Ms Riak has been employed by the respondent as an EEA since January 2005 on one year fixed term contracts.  Ms Riak has been given a one year contract for 2009.  Ms Riak gave evidence that as an EEA she assists with the breakfast club three mornings per week before school, she and the teacher read with the students during the morning sessions and in the afternoon she assists students with their class work.  Ms Riak also assists teachers with resource preparation such as photocopying and after school she helps children board their buses for home.

30      Ms Riak gave evidence that she moves between classes and assists teachers with all aspects of the delivery of their lesson plans.  Ms Riak works with individual and small groups of students and practises phonetics and sounds with students, especially new arrivals.  Ms Riak also accompanies students to physical education, the library, computer lessons and on excursions and she assists teachers to mark students’ work.

31      At Ms Riak’s school students speak a range of different languages including Dinka, Arabic, Neur, Burmese, Thai, Swahili, Indian, Pakistani, Iraqi, Persian, Liberian, Ethiopian, Eritrean, Burundi and other African languages.  Ms Riak gave evidence that she speaks Dinka, Neur, Arabic and a little bit of Swahili and English but she maintains that she assists all students.

32      Ms Riak gave evidence that if a newly arrived student does not have any English language skills and she cannot speak their language she uses a range of strategies to communicate, such as pictures, and Ms Riak maintains that she is still able to be an effective communicator with these students.  Ms Riak stated that most of her classroom work is undertaken in English and she mostly uses her languages other than English for pastoral care.

33      Ms Riak gave evidence that even after students leave the IEC to go into mainstream classes these students still ask her for assistance and Ms Riak stated that as the school enrols new students each term there is ongoing work for EEAs.  Ms Riak maintained that because EEAs are employed on a temporary basis this is stressful.

Suh-Tyng Phuah

34      Ms Phuah has been employed by the respondent as an EEA on a term by term fixed term contract basis since Term 4, 2006.  Ms Phuah was advised in February 2008 by her school that she would be employed for the whole year even though her contract was only for one term at a time.

35      Ms Phuah gave evidence about her role as an EEA.  Ms Phuah sometimes assists students who are behind, she works with students on a one on one basis or in small groups and she reinforces what students are learning in class.  Ms Phuah stated that she works with students from many different nationalities including Chinese, Malay, South African, Indian, Korean, Cambodian and Burmese.  Ms Phuah stated that at her school students speak at least eight different languages and they often speak dialects, for example, Chinese students might speak Cantonese, Mandarin, Hokkien or Malay.  Ms Phuah stated that within a class of 20 to 22 students, students may speak eight different languages.  Ms Phuah gave evidence that she sometimes works with students in small groups who speak three different languages.

36      Ms Phuah speaks Cantonese, Mandarin, Hokkien and Malay.  Ms Phuah does not always speak the same language as her students but she maintains these students understand her as she speaks to them using simple English or pictures.  Ms Phuah normally speaks English with her students and she will only speak in a student’s language if that student cannot understand something.  Ms Phuah gave evidence that she has not done any formal interpreting or translation for parents but she sometimes speaks to parents in their dialect.  Ms Phuah stated that this is not a formal duty and she stated that interpreting forms a small part of her work.  Ms Phuah gave evidence that she helps students from different languages with their reading and writing or in whichever area they are weak.

Mbolela Ngandu

37      Mr Ngandu has been employed by the respondent as an EEA since September 2005.  Initially he was employed on a term by term basis but he is now employed under a one year fixed term contract.  Mr Ngandu assists students with reading or learning how to write English and he helps students integrate into their new society.  Mr Ngandu works with students both individually and in groups.

38      Mr Ngandu stated that ESL students speak a range of languages and dialects and come from various countries including China, Argentina, Chile, Mexico, Afghanistan, Iran, Iraq, Burma, the Philippines, Thailand, Sierra Leone, Ghana, Rwanda, Burundi and the Democratic Republic of Congo.

39      Mr Ngandu speaks five languages other than English including French, Swahili, Kiluba, Bemba, Lingala and Nyanja.  Mr Ngandu stated that he sometimes interprets what the teacher is saying for students and he works with students who do not speak his language.  Mr Ngandu stated that sometimes EEAs interpret for parents but this is not a large part of an EEA’s role and most of the time the school hires someone to undertake this role.  Mr Ngandu maintains that he could work as a mainstream EA as he sometimes undertakes relief duties in the mainstream section of his school.  Mr Ngandu maintains that as result of the uncertainty about his ongoing employment he cannot make plans and he stated that it is difficult to apply for a mortgage.

Pa Mu Paw Naw

40      Ms Naw has been employed by the respondent as an EEA on rolling one year contracts since February 2007 and she has been given a one year fixed term contract in 2009.  Ms Naw stated that the role of EEAs is to look after students and to help them complete their work.  Ms Naw stated that outside of the classroom EEAs undertake pastoral care with students.  Ms Naw works with students individually, in pairs and in small groups of five or six students and she helps students whose language she does not speak using body language, pictures, facial expressions and other strategies.  Ms Naw maintains that it is not necessary for an EEA to share the same culture as a student.

41      Ms Naw gave evidence that students at her school speak a range of languages including Chinese, Indonesian, Swahili, Iraqi, Burmese as well as some African languages and she stated that she has worked with all of these students.  Ms Naw speaks Karen and Burmese and usually works with these students in English and in their own language.

Susy Kozman

42      Ms Kozman has been employed by the respondent as an EEA since 2005 and prior to this date she worked as a relief EA in a private school for two years.  Ms Kozman was initially employed on term by term fixed term contracts but last year she was given a one year contract for 2008.  Ms Kozman gave evidence that because EEAs are not paid over the school holidays this is financially very difficult for her.  Ms Kozman stated that teachers start back at school on 29 January 2009 but she still does not know whether or not she will be employed in 2009.

43      Ms Kozman assists students who are struggling on a one on one basis or in small groups and she sometimes works with students outside of the classroom so that she can work with them more intensively. Ms Kozman prepares resources, accompanies teachers on excursions, assists students with computing and she undertakes administrative tasks.

44      Ms Kozman stated that a class will have between 15 to 25 students and within one class students speak an average of four to six languages.  Ms Kozman gave evidence that at her school students speak many different languages including Sudanese, Chinese, Croatian, French, African and Arabic and they come from a range of nationalities.  Ms Kozman stated that she speaks French, Italian and Arabic.  Ms Kozman gave evidence that as well as working as an EEA she is qualified to work as an EA as she holds a Certificate 3, which she gained with distinction.

45      Ms Kozman gave evidence that from a pastoral care perspective it is helpful for an EEA to speak a student’s language however, an EEA cannot speak their language all of the time as students have to learn English.  Ms Kozman believes that the more English a student speaks the quicker they learn and Ms Kozman gave evidence that almost all of the classroom work done by EEAs is spoken in English.

Jovanka Ilic

46      Ms Ilic has been employed by the respondent as an EEA since July 2001.  Ms Ilic’s primary role is to help migrant children to make the transition between two languages and she focuses on learning English either with an individual student or in small groups.  Ms Ilic gave evidence that she mostly completes the same activities as the classroom teacher but she explains it in more detail to students.  Ms Ilic sometimes undertakes activities with students which she prepares.

47      Ms Ilic has been an EEA for almost eight years and during that time she has worked with students speaking approximately fifteen different language groups spanning Asia, Europe and Africa.  Ms Ilic speaks Bosnian, Serbian, Croatian, Macedonian, Russian and English.

48      Ms Ilic gave evidence that typically the small groups she works with may have one or two children who speak one of her languages, two to three Australian students who speak English and two to three students from other countries.  Ms Ilic stated that students usually talk in English and she maintained that students do not always work with an EEA who speaks the language the student speaks however these EEAs are able to provide these students with intensive support.

Saajidah Hussayn

49      Ms Hussayn has been employed by the respondent as an EEA for the past three years and she has been employed under one year contracts during this period.  Ms Hussayn stated that she worries about the renewal of her contract and claims that it is stressful not being a permanent employee.

50      Ms Hussayn stated that her primary role and day to day work as an EEA is to help students in all of their subjects including reading, writing, maths and science.  Ms Hussayn also helps the classroom teacher with photocopying and teaching art and she undertakes bus duty, attends the breakfast club three days a week and she does occasional interpreting for parents, the school and staff.  Ms Hussayn assists if families need help with Medicare issues, she helps the school nurse when he or she deals with her students and she accompanies students to sport and assists with assembly activities and performances.  Ms Hussayn works with students both individually and in groups.

51      Ms Hussayn speaks Arabic, Kurdish and Farsi.  Ms Hussayn gave evidence that in her classes students speak a range of different languages including Arabic, Vietnamese, Burmese and Sudanese and she stated that she can explain a range of things to students even though they do not understand English.  Ms Hussayn stated that many EEAs do not speak the languages of their students yet they understand the EEAs.  Ms Hussayn gave evidence that if an EEA needs to speak to a parent an interpreter is used which is organised by the Principal or sometimes the parents bring a relative with them to assist with the translation.

52      Ms Hussayn gave evidence that when translating or interpreting she usually does it in her time outside of the classroom and she stated that she sometimes translates two or three letters each week.

Annie Howells

53      Ms Howells has been employed by the respondent as an EEA for approximately five years.  Ms Howells’ first contract was for six months and subsequent ones were term by term.  Ms Howells was made permanent in January 2009 and she speaks English and no other language.

54      Ms Howells’ role as an EEA is to help teachers during English classes and if students are struggling she takes them out of the classroom, individually and in small groups, and helps them to learn English.  Ms Howells undertakes phonic exercises, reading activities and pronunciation with students and she stated that when students do not understand a word she explains it to them using body language.

55      In the five years she has been at her school Ms Howells has worked with students from at least 11 different language groups as well as a range of dialects.  For example, Ms Howells stated that in one of her classes of up to 15 students, students spoke Sudanese, Vietnamese, Burmese, Korean, Kenyan, Congolese, Swahili and Arabic.  Ms Howells gave evidence that even in a small group of four students four different languages may be spoken.

56      Ms Howells stated that the Deputy Principal at her school has instructed EEAs to only speak English in the classroom.

57      Ms Howells stated that the school usually only gets interpreters twice a year when teachers are reporting to parents.  Ms Howells stated that she does not need to communicate with parents as part of her job as this is a teacher’s role and that of the school Principal.  Ms Howells has a Diploma in Teacher’s Assistant (sic) and certificates in teaching ESL.

Heyfa Heyawee

58      Ms Heyawee has been employed by the respondent as an EEA since June 2005 and during this time she has been employed under one year fixed term or term by term contracts.  Ms Heyawee stated that the renewal of her contract has always been routine.  Ms Heyawee gave evidence that she needs to become a permanent employee so she can obtain a loan to buy a house.

59      Ms Heyawee stated that as an EEA she helps the classroom teacher and she takes individual students aside for lessons in maths, English, reading and story telling.  Ms Heyawee works with individual students and small groups who are behind the rest of the class, she assists with the breakfast club, she helps the classroom teacher prepare lessons and cleans equipment and she also minds students after school and ensures they are transported home.

60      Ms Heyawee speaks English, Arabic and Turkish.  Ms Heyawee stated that she no longer works with Turkish students but she sometimes uses Arabic to help interpret for individual students if they do not understand English.  Ms Heyawee’s classes contain between 11 and 15 students and she maintains that students may speak up to five different languages in each class.  Ms Heyawee stated that EEAs always use English when dealing with students and she stated that when students do not have a language she speaks she uses repetition, pictures and other strategies to teach these students.  Ms Heyawee stated that it is not important for her to have the same language as each student because they are then not encouraged to learn English.

61      Ms Heyawee does not spend much of her time interpreting but she does interpret between parents and teachers.  Ms Heyawee stated that if parents do not speak Arabic or Turkish she uses an interpreter.  Ms Heyawee maintains that as she is from overseas she understands a student’s situation even if she does not speak their language.  Ms Heyawee also stated that when she has a student from a different culture she can ask another EEA from their culture for advice.

Debra Harman

62      Ms Harman has been employed by the respondent as an EEA since February 2006 and was recently made permanent.  Prior to this Ms Harman was employed under term by term contracts.  Ms Harman does not speak any other language apart from English.

63      Ms Harman gave evidence that an EEA’s primary role is to help students assimilate into Australian school life which encompasses learning English and the way in which the school system operates.  EEAs facilitate a cultural awareness of the Australian way of life, they also assist with the student’s learning over a range of subjects, EEAs help students within their care, they make them feel comfortable and welcome and they assist with any issues student have in a nurturing role.  Ms Harman also completes administrative work and provides resource support that a teacher requires and she works across seven or eight classes with individual students or small groups of three or four.

64      Ms Harman stated that students at the IEC where she works speak over 45 languages and during three years as an EEA she has worked with students who speak over half of these languages.  Ms Harman stated that on average a classroom might have students speaking up to 10 different languages and there may be four different languages spoken in a group of four students.  Additionally, students could be speaking half a dozen different dialects within one classroom.

65      Ms Harman stated that there is not an EEA for every different language at her school and if that was the case there would be more EEAs than teachers.  Ms Harman stated that when students come to a school with no English there is normally another student in that school with their language a high percentage of the time so they ‘buddy’ the students for interpreting purposes.  Ms Harman stated that after a couple of weeks a student has a basic grasp of English although they may not speak English at this point in time.  Ms Harman believes that EEAs must understand the student’s culture and the refugee experience but she maintains that an EEA does not need to speak the same language as a student.

Suzan Haddad

66      Ms Haddad was employed by the respondent as an EEA on a fixed term contract basis for about three years and she was employed in an ESL program in a mainstream school.  Ms Haddad started on a six week contract and was then given contracts for one or two terms at a time.  Ms Haddad gave evidence that last year, two weeks before the end of the school year she was advised that the school did not have enough Arabic students next year so they did not need her anymore, even though she was not working with any Arabic students at the time.

67      Ms Haddad stated that as an EEA she did what the teacher required her to do, practicing reading and speaking English in small groups and individually and she assisted students with computing using an English language software program.  Ms Haddad’s main work was helping students to learn English and she explained instructions to students who needed extra help in maths and science.  Ms Haddad also completed recess and lunch time duty.

68      Ms Haddad has worked directly with students who speak at least three different languages and she stated that she could not always speak the same language as the students with whom she worked.  Ms Haddad speaks Arabic and Hebrew but she never used Hebrew in her role as an EEA.  Ms Haddad stated that the small groups she worked with would have students who were English speakers in addition to non-English speaking students.

69      Ms Haddad stated that she did not undertake any interpreting or translating in Arabic at all at her school.

Patricia Dean

70      Ms Dean was initially employed by the respondent as an EEA on a fixed term contract in October 2005 for one school term and the respondent has been continuously rolling her contract over on a term by term basis.  On 12 January 2009 Ms Dean was made permanent by the respondent.  Ms Dean stated that she has always been given the impression by her school that her work was ongoing and that the renewal of her contract was routine.

71      Ms Dean’s primary role as an EEA is to support students to learn English and to assist them to develop literacy and numeracy skills.  Ms Dean generally works in conjunction with a teacher, she assesses which students require the greatest assistance and she sometimes prepares lessons to deliver to a small group of four or five students who she teaches outside of the classroom.

72      Ms Dean does not speak any language other than English.

73      Ms Dean stated that the average class size at her school is 14 students and within one class students could speak between six and eleven or twelve different languages.  When Ms Dean works with small groups, very often students speak more than one language within the group as students are grouped together based on their needs and the subject matter.  For example, Ms Dean works with one group of four students in maths but each student has different language backgrounds.  There are 49 languages spoken at Ms Dean’s school and Ms Dean maintains that the main criterion teachers require of an EEA is a good command of English.

74      Ms Dean stated that interpreting is not done in the classroom and Ms Dean maintains that it is not an EEA’s job to be an interpreter.  However, occasionally an outside interpreter or a senior student from the main campus is used for parent-teacher interviews or when dealing with disciplinary issues.  Ms Dean stated that it is not necessary that EEAs come from the same cultural background as their students or that they share the refugee experience however EEAs must have a level of awareness and training about issues confronting refugees.

Layla Adman

75      Ms Adman has been employed by the respondent at Nollamara and Koondoola Primary Schools as an EEA since January 2005.  Ms Adman was initially employed on term by term contracts but during 2008 and 2009 she was given one year contracts.  Ms Adman stated that the respondent automatically renews her contract and she maintains that as students continue to come and go in and out of the IEC she is confident that she will continue to be employed as an EEA.

76      Ms Adman stated that there are between 14 and 20 students in her class and she works with students individually and in small groups.  Ms Adman stated that sometimes students are divided into two groups and she teaches one group and the teacher teaches the other group.

77      Ms Adman gave evidence that she has worked with students who speak a range of different languages and Ms Adman stated that students from the Sudan speak more than twenty different dialects.  Ms Adman stated that students also come from Africa, Vietnam and Korea and in the last few years many students have come from Korea and the Congo.  Ms Adman stated that some languages such as Arabic and Swahili are constant.

78      Ms Adman stated that a minimum of four languages are spoken in each class and the range of languages spoken by students is greater in bigger classes.  Ms Adman often works with students in small groups of about six or seven students and they will usually speak three or four different languages.  Ms Adman works with individual students who do not always speak her language and she stated that last year she did not work with any students who spoke her language.  Ms Adman maintains that EEAs can be effective if they do not speak a student’s language as they are able to communicate in simple English and by using signs.  Ms Adman stated that it is important for an EEA to speak a student’s language but this was not essential.

79      Ms Adman sometimes does interpreting, for example, during telephone calls to parents and she stated that the amount of time spent each week undertaking this task depends on the work she is doing.  Ms Adman stated that a new enrolment might only take an hour but as there are two parent-teacher interviews every year these take a whole day and she stated that when a new arrival comes to the school and EEAs do not speak their language the on-call interpreting service is used if they need to discuss important issues with parents.  Ms Adman stated that she spends very little time interpreting for students in the classroom because they speak English.

Aimee-Anh Ha

80      Ms Ha has been employed by the respondent as an EEA since February 2006 on fixed term contracts and she has worked in both the IEC and with ESL students in mainstream classes.  Ms Ha’s contracts with the IEC are for three months and her contracts with the ESL program are for six months.  In 2009 she has one three month contract and one six month contract.

81      Ms Ha mostly helps teach students to speak, write and read English when working as an EEA and she works across all the different subjects.  In the IEC Ms Ha provides intensive support and usually works with students individually or in small groups of up to three students.  In mainstream classes Ms Ha works with larger groups and is more involved in classroom activities.  Ms Ha works with both ESL and non-ESL students in mainstream classes containing up to 25 students and she works in IEC classes which have 10 to 15 students.  Ms Ha stated that on average four to six different languages are spoken in a mainstream class and in IEC classes a greater variety of languages are spoken, sometimes up to 10 different languages in one class including many different dialects.

82      Ms Ha speaks Vietnamese and AUSLAN (Australian Sign Language).  Ms Ha does not always speak the same language as the students she works with however she maintains that she can still be effective with these students as she uses a lot of non–verbal communication strategies such as games, role play and pictures and she uses a lot of signing as she has a background in sign language.  Ms Ha stated that most of her classroom work is done in English and she might use Vietnamese for the first four weeks but then the students pick up enough English.  Ms Ha does most of her interpreting at the beginning of the term for enrolments and at the end of the term during parent-teacher interviews and if a parent does not speak English or Vietnamese the school will use the on-call interpreting service.  Ms Ha can relate to the students who do not speak Vietnamese because she went through the IEC system herself and understands how difficult it is for these students.

Roya Ansari

83      Ms Ansari has been employed by respondent as an EEA for the past three years at the same school.  Ms Ansari was given a one year contract for 2009.

84      Ms Ansari stated that she assists students both outside and in the classroom with whatever help they need, she does extra tutoring at lunchtime and recess periods and she interprets for students who speak Dari, Persian and Urdi.  Other roles she undertakes on a day to day basis include assisting students, filing, answering phones, office duties and assisting with graduation ceremonies and preparing for class activities.  Ms Ansari stated that EEAs assist the weak students or assist the teacher when they need help preparing resources and EEAs help students with computer work, they conduct orientation for new students and they assist students with Transperth and Centrelink forms or letters.  Ms Ansari stated that even if an EEA does not speak a student’s language they still help them to sort out problems.

85      Ms Ansari gave evidence that classes contain students speaking at least four languages and these students are grouped by ability.  Ms Ansari stated that she often assists students who do not speak her languages and this is done deliberately so that students do not get too dependent on EEAs.  Ms Ansari stated that she is still able to do her job if she does not speak the student’s language, even though an EEA’s job is made easier if they speak a student’s language.

86      Ms Tomaz and Ms Toh gave evidence by way of witness statements and they both gave evidence during the hearing.

Maria Tomaz

87      After Ms Tomaz commenced employment with the respondent in the Melville Senior High School IEC as an EEA in 1991 she was granted permanency after five years.  In 1996 Ms Tomaz was made permanent as 0.8 FTE and two years ago Ms Tomaz decided to decrease her time at Melville Senior High School to take up a 0.4 FTE EEA position at North Lake Senior Campus (NLSC).  In this role she commenced on a single term contract at NLSC in 2006 but recently she was given yearly contracts and the impression she has from the school is that the work she is doing is ongoing.  Ms Tomaz gave evidence that the renewal of her contract at NLSC is routine.  Ms Tomaz stated that she now only has permanency for 0.4 FTE at Melville Senior High School and the other 0.4 FTE at NLSC is on a fixed term contract.

88      Ms Tomaz said that from time to time students in her class speak up to ten different languages and she stated that sometimes she does not speak any of these languages.  Ms Tomaz stated that it is useful to know a student’s language in their first few weeks at school however, as it was important for students to speak English this language match up became less important after this period.

89      Ms Tomaz has assisted students who do not speak any of her languages and Ms Tomaz stated that if she did not have the language of a student ‘buddies’ are used who spoke that student’s language.  Ms Tomaz said that even though migrants came in waves there was always work available for EEAs and she gave as an example working with children of 457 visa workers.  Ms Tomaz gave evidence that much of the work she completes is similar to the work undertaken by EAs.

90      Under cross-examination Ms Tomaz stated that she sometimes speaks to parents if she spoke their language and she uses interpreters if she did not speak their language.  Ms Tomaz stated that a student may be better off if an EEA speaks a student’s language in the first three to four weeks however after that there was no need for that EEA to speak the student’s language.  Ms Tomaz stated that it was impossible to match all students with an EEA who speaks their own language given the range of languages spoken by IEC students.

91      Ms Tomaz gave the following evidence in her witness statement.

92      Ms Tomaz stated that as an EEA she undertakes the following duties:

• teaching students English according to the teacher’s lesson plan;
• assisting with group supervision;
• assisting with a student’s discipline;
• listening to student’s read;
• familiarising students with the school rules and new classroom tasks;
• assisting students when they attend the main office and visit the nurse;
• helping students in option classes like Art, Home Economics and Computing;
• helping students with library studies and using library resources;
• organising students’ files especially the files of recent arrivals;
• maintaining equipment, material and resources to use in classrooms;
• preparing materials and resources for teachers’ use in the classroom including the operation of computers, laminators, photocopiers and other equipment;
• managing resources by maintaining and updating inventory lists according to new resources bought;
• completing the IEC stocktake for electrical, furniture and book resources;
• pinning up classroom displays;
• assisting in activities outside the classroom, for example, excursions.

93      Ms Tomaz gave evidence that sometimes IECs have limited vacancies and that there are too many students for the number of places available.

94      Ms Tomaz gave evidence that if the IEC was to close down she could become a mainstream EA without any problem as she does similar work to EAs and EEAs can support ESL students in mainstream classrooms.

95      Ms Tomaz gave evidence that in the classroom she mainly helps students who are behind to understand the lesson when the teacher cannot stop and wait for them to catch up and she does this work with students of all different language backgrounds.  Ms Tomaz gave evidence that there are up to 20 students per class with up to 10 different languages spoken in one class.  Ms Tomaz speaks French, Portuguese and Spanish and she gave evidence that she does not always speak the same language as the students she works with, whether individually or in small groups.

96      Ms Tomaz gave evidence that over the course of her 18 year career as an EEA she has taught students from all over the world and she stated that the role of an EEA has been continuous throughout the arrival of waves of students from different countries.  Ms Tomaz gave evidence that even though in recent times she has not worked with many students who speak the languages she speaks there is still plenty of work for her to do and Ms Tomaz believes that the specific languages of EEAs is secondary as EEAs are helpful to a range of students from various linguistic backgrounds.

97      Ms Tomaz gave evidence that she mainly works with students with limited schooling or students beginning to learn English and she uses a range of strategies to communicate with students who do not speak English, for example, she uses body language, bilingual dictionaries and Translating and Interpreting services in cases of extreme need.  Ms Tomaz gave evidence that it is very convenient for the first few weeks at school for students to have someone who speaks a student’s language but after that it is very beneficial for the EEA to speak English under the immersion strategy of teaching ESL students.

98      Ms Tomaz gave evidence that it is important for EEAs to possess skills and have experience in working cross-culturally and she stated that EEAs have extensive training in refugee experience so that they understand and are able to work with students who have experienced torture and trauma.

Angela Toh

99      Ms Toh gave evidence that the main role of an EEA is to raise the standard of English of IEC students.  Ms Toh stated when dealing with small groups of ESL students the teaching required was based on the needs of the students and the tasks to be completed.  Ms Toh stated that students in her classes were not all from one language group and she gave evidence that when undertaking individual tuition an EEA did not always speak the same language as a particular student.

100   Ms Toh maintained that few students in the ESL program have suffered trauma and torture.

101   Ms Toh stated that ESL students come from a variety of countries therefore it was impossible to always match a student’s language with that of an EEA.  Ms Toh gave the example of dealing with a Korean student for approximately one year.  Ms Toh stated that even though she did not speak Korean she worked with this student for approximately twelve months and he improved after he experienced initial difficulties.

102   Under cross-examination Ms Toh stated that it may be better if a student is matched with an EEA who speaks his or her own language if that student has no English at all but interpreters could be used in this situation.  Ms Toh stated that it was not possible to match every student with an EEA speaking that student’s language.

103   Ms Toh also gave the following evidence in her witness statement.

104   Ms Toh has been employed by the respondent as an EEA since June 2006.  Ms Toh was initially employed on term by term fixed term contracts but her contracts are now on a semester basis.  Ms Toh gave evidence that at her school the renewal of her contract has been treated as routine but for 2009 they have only rolled it over for one term because of the argument over permanency for EEAs.

105   Ms Toh stated that as she works with students who speak no English she takes them out of class and does very basic phonic exercises with them and helps them to increase their vocabulary.  At the other extreme some students read and write English so she takes them beyond what they were doing in their home country.

106   Ms Toh works with students individually and in small groups which can be as big as six and if a student speaks no English at all she will work with them on a one on one basis.  If a group of students has the same level she will group them together and she sometimes mixes Australian with ethnic students so that they can learn from each other.

107   Ms Toh has worked with students from Fiji, Korea, China, Singapore, Japan, Malaysia, Indonesia, India and Sri Lanka.  Ms Toh speaks Mandarin, a few Chinese dialects and a little Japanese and Bahasa Malay.  Ms Toh stated that she always speaks English in the classroom because students need to learn English and she only uses a second language if they do not understand her.

108   Ms Toh stated that EEAs find ways to communicate with students whose language they cannot speak.

109   Ms Toh stated that interpreting or translating is only done when necessary and does not constitute a large proportion of her work.  Ms Toh only interprets for the school and parents when parents of Chinese students know little or do not speak any English.  Ms Toh gave evidence that for parents of non–Chinese speaking students who do not speak any or little English the school will engage an interpreter.

110   Ms Toh previously worked as a journalist in Singapore interviewing and translating in English and Chinese.

111   Ms Keryn Anderson is a lead organiser with the applicant and works in the applicant’s private health team.  Ms Anderson stated that she was involved in the negotiations for both the 2004 Agreement and the 2007 Agreement.  Ms Anderson stated that when the issue of the permanency of EAs was discussed during the 2004 negotiations it related to all EAs and she stated that there was no discussion during these negotiations about EEAs being considered as special project employees.  Ms Anderson stated that during the 2007 negotiations there were no discussions about EEAs being classified as undertaking special projects nor did the respondent raise any issue about permanency for EEAs.

Respondent’s Evidence

112   Ms Moya Glasson is the Principal Curriculum Officer of the ESL and English as a Second Dialect (“ESD”) programmes and she has held this position for two years on a contract basis.  Ms Glasson has been employed by the respondent for 31 years.  Ms Glasson stated that her position is subject to Federal funding being provided to the respondent.  Ms Glasson manages the respondent’s ESL and ESD programs and liaises with other relevant agencies at a national level and she oversees the allocation of FTEs to IECs and mainstream schools.  Prior to holding her current position Ms Glasson was an ESL/ESD consultant and prior to that she taught for fifteen years.

113   Ms Glasson stated that students who attended IECs and who fell into the funding category set by the Federal Government were taught by teachers and EEAs whose employment was funded by the Federal Government.  Ms Glasson identified the types of students funded to attend IECs and she stated that this was dependent on a student’s visa status (Exhibit R2 pp 27-35).  Ms Glasson stated that Federal funding was given to the respondent based on a twice yearly census taken of the number of students attending IECs who had the required visa status.  Ms Glasson stated that where possible, other students whose first language is not English were also taught at IECs however there was no Federal Government funding to cover these students.

114   Ms Glasson stated that it was important that students coming from different cultures who speak no English experience an intense initial program learning English.

115   Ms Glasson stated that in recent times a significant number of students from Africa were being taught in IECs and many had suffered torture and trauma.  Ms Glasson stated that students coming to Australia under the refugee and humanitarian programmes came in waves and the language demand cycle usually lasted five years (see Exhibit R3).

116   Ms Glasson stated that EEAs would not be employed if they did not possess relevant language and cultural assistance skills.  Ms Glasson gave evidence that an EEA’s ability to translate was crucial to their work and she stated that if an EEA could not undertake these duties they would be given other duties at the IEC that are not the core business of an EEA.

117   Under cross-examination Ms Glasson confirmed that, in general, the work undertaken by EEAs was ongoing.  Ms Glasson gave evidence that funding to employ EEAs had been in place for some years and the amount of funding to be given to the respondent depended on the number of entrants in the respondent’s programs and was not a set amount paid each year.  Ms Glasson agreed that there is an overlap in the range of ethnic groups arriving in Australia.  Ms Glasson confirmed that IEC students work in small groups and these students speak a range of languages.  Ms Glasson stated that EEAs are employed because of their cultural and linguistic knowledge and she acknowledged that they developed new skills when carrying out their roles and she also stated that some EEAs do duties apart from dealing with the language and culture of students however, Ms Glasson believed that interpreting and translation was integral to the role of an EEA.

118   Ms Glasson is aware that a number of EEAs have been granted permanency since 1999 and she maintained that this had led to an oversupply of EEAs in some language groups.  Ms Glasson stated that EEAs can perform the functions of an EA but they would not be offered EA positions given EAs are paid at a lower level than EEAs.

119   Ms Katharine Johnson is a Labour Relations Adviser with the respondent and she has held this position for three years.  Ms Johnson has been involved in this dispute since this application was lodged.

120   Ms Johnson prepared a summary of EEAs and their employment status with the respondent as at 8 January 2009 (Exhibit R4).  Ms Johnson stated that the respondent complied with the Western Australian public sector Modes of Employment policy document when employing EEAs under fixed term contracts (Exhibit R6) and she relied on the definition that employees can be employed on a fixed term basis where “work on projects with a finite life, where funding is not guaranteed past a certain date or the work is seasonal in nature”.  Additionally, EEAs have “roles where the skills and abilities required to perform a function are expected to vary over time” given specific language skills required of EEAs.

121   Ms Johnson stated that it was important that EEAs be employed on fixed term contracts to ensure that the respondent has the flexibility to match an EEA’s language and culture to the needs of students.  Ms Johnson maintained that it was important for students to access EEAs who speak their language and she stated that the respondent needed the flexibility to employ EEAs on fixed term contracts to meet the language needs of students.

122   Ms Johnson stated that EEAs who did not posses any other language apart from English were made permanent in the past as the requirement for an EEA to speak an additional language was not explicitly contained in the relevant Job Description Form (“JDF”) at the time they were employed by the respondent.  The respondent also decided that they should not lose their Level 3 EEA status so they continued as EEAs however the respondent views them as mainstream EAs who were entitled to permanency.

123   Ms Johnson gave evidence that the current JDF for EEAs that applied from 16 November 2007 confirms that translating and/or interpreting both with students, parents and the school community was now a requirement of this role and she stated that the JDF applying to EEAs prior to this confirms a change to the pay of an EEA from Level 2 to Level 3 (Exhibit R7).  Ms Johnson gave evidence that the reclassification of EEAs to Level 3 was agreed to by the respondent as the role of EEAs was similar to that of a Level 3 Aboriginal Islander Education Officer.  Ms Johnson confirmed the terms of the current JDFs for Level 1 and Level 2 EAs (see Exhibits R8).  Ms Johnson stated that some EEAs would not be able to be deployed into a mainstream EA position as not all EEAs would meet the selection criteria contained in the EA’s JDFs.

124   Ms Johnson prepared a briefing note for the respondent’s Minister in October or November 2008 detailing the ramifications and potential costs to the respondent by removing EEAs from fixed term employment to permanent employment (Exhibit R9).

125   Under cross-examination Ms Johnson agreed that to her knowledge the employment status of EEAs with respect to them undertaking special project work did not arise during discussions between the parties about the terms of the 2007 Agreement.  Ms Johnson agreed that the new JDF for EEAs does not operate retrospectively and she agreed that there is no mention in the old JDF of a requirement for EEAs to have a language other than English but she stated that it was an implied requirement.  Ms Johnson stated that although the work done by EEAs was ongoing there was not ongoing work for some EEAs.  Ms Johnson agreed that EEAs undertake a range of duties over and above translating and interpreting and she acknowledged that ESL students speak a range of languages at any one school.  Ms Johnson also agreed that the specific language needs of a student were not always matched to those of a specific EEA.

Submissions

Applicant

126   The applicant submits that the EEAs named in Appendix 1 are entitled to be permanent employees and should not be employed as fixed term contract employees.  The applicant argues that the employees named in Appendix 1 are not subject to any of the exemptions contained in Clause 14.3 of the 2007 Agreement and in particular the work undertaken by the EEAs named in Appendix 1 does not constitute special project work.  The applicant submits that the definition of a special project, which is not defined in the 2007 Agreement, contemplates unique work completed during a limited duration and which is subject to finite funding and the applicant maintains that if an EEA was employed to undertake a specific project their role would have to pertain to a particular student.  The applicant argues that when EEAs undertake their roles they are not engaged in working on a specific project given the duties they undertake and their employment is not subject to finite funding.  The applicant argues that the work of EEAs is ongoing because EEAs are not required to translate or interpret in order to adequately perform their roles, EEAs can be transferred between IECs and mainstream schools, EEAs can adapt to working with a wide variety of nationalities and cultures and not just students who share their language and/or culture, there is an ongoing demand for the work being undertaken by EEAs and some EEAs have been employed under a number of consecutive fixed term contracts.  Furthermore, EEAs who have permanent status and EEAs on fixed term contracts undertake the same duties and exercise their skills on a continuous basis year after year.

127   The applicant rejects the respondent’s argument that translation duties constitute the main role of EEAs and argues that in practice EEAs adapt to a wide variety of cultures and regularly work with students who speak a range of different languages to the language spoken by an EEA.  In support of this contention the applicant relies on some EEAs being employed by the respondent who do not speak any language other than English.

128   The applicant argues that EEAs have a history of being made permanent by the respondent.  Prior to 2004 all EAs, including EEAs, were eligible to become permanent employees as long as they had been employed for five years and the requirement of all EAs, including EEAs, to have five years service as a pre-requisite to becoming a permanent employee was eliminated in the 2004 Agreement.  The applicant claims that the issue of EEAs being employed under a special project is a new initiative and has not been the common understanding of the parties in the past.  The applicant claims that the proposition that EEAs undertake special project work was never raised with the applicant during the negotiations for the 2004 and 2007 agreements and the issue of putting EEAs on fixed term contracts as opposed to permanent employment was never raised by the respondent or discussed between the parties.

129   As most EEAs are permanent and have not been made redundant in the past this adds weight to the applicant’s argument that the work undertaken by EEAs is ongoing.  The applicant argues that some EEAs work with students in mainstream classes and EEAs also have the skills to work elsewhere within the respondent’s operations if the duties normally undertaken by an EEA were not required to be done by a particular EEA.

130   The applicant maintains that the way in which the employment of EEAs is funded is not relevant to the issue of whether or not EEAs should be made permanent as EEAs work with a range of students, some of whom do not attract Federal Government funding, and the applicant argues that when the respondent continues to employ EEAs under successive fixed term contracts it is breaching the Government’s policy on the employment of fixed term contract employees.

131   In support of its argument that EEAs on fixed term contracts should be eligible to become permanent employees the applicant relies on the Commission being required to act according to equity, good conscience and the substantial merits of the case and to balance fairness to individuals as set out in s 26(1)(d)(vi) of the Act.  The applicant maintains that the placement of EEAs on fixed term contracts has been distressing for a number of EEAs and their uncertain employment status has had a detrimental effect on them.  The applicant also maintains that the uncertainty surrounding an EEA’s employment status negatively impacts on an EEA’s financial position.

132   The applicant argues that the new JDF that the respondent introduced in 2007 is not a relevant consideration given it does not apply to the EEAs the subject of this application.

Respondent

133   The respondent argues that EEAs are employed to undertake special project work pursuant to the terms of Clause 14.3(a) of the 2007 Agreement.  The respondent relies on the dictionary definitions of special and projects and maintains that these definitions reflect the nature of the work undertaken by EEAs.  The respondent argues that the role of EEAs relates to a plan or a scheme with a particular function or purpose and the respondent also argues that even though some EEAs do not speak the language of the students with whom they work it is better for the student if that is the case.

134   The respondent maintains that as the majority of ESL students arrive with prior torture and trauma experiences it is critical that they have access to an EEA who speaks their language.  The respondent also argues that it is appropriate to match an EEA with an ESL student even though this will not always be possible and the respondent maintains that the terms of the current JDF for EEAs identifies interpreting as an important element of an EEA’s duties.  The respondent argues that the language demands arising as a result of refugees coming to Australia over five year cycles requires that EEAs be employed on fixed term contracts in order to meet the language requirements linked with these five year cycles and as the funding of the wages of EEAs is contingent upon EEAs working with students in specific visa categories this ongoing funding is therefore not guaranteed for individual EEAs.  Furthermore if the demand for a discrete language disappears then the respondent should not be expected to employ an EEA if his or her skills were unable to be appropriately utilised.  The respondent also submits that if all EEAs were made permanent then the respondent would have difficulty redeploying EEAs into EA positions given the essential selection criteria in an EA’s JDF and given EEAs are employed as Level 3 employees whereas EAs are Level 2 employees.

135   The respondent submits that the way in which EEAs are employed under the fixed term contract arrangement is in line with the Western Australian Government’s Modes of Employment Policy.

Findings and Conclusions

Credibility

136   I listened carefully to the evidence given by each witness and closely observed each witness.  In my view each witness gave their evidence honestly and to the best of their recollection.  I therefore accept the evidence given by each witness.  I also accept the evidence given by witnesses who did not appear to give their evidence but did so via witness statements.  In reaching this view I take into account that with some minor exceptions this evidence was not contested by the respondent.  Where statements made by witnesses were contested, and when consented to by the applicant or where the Commission deemed appropriate, exclusions were made to some of the evidence contained in the relevant witness statements of these employees.  I should also note that the respondent reserved its right to lead evidence and make submissions about some of the issues raised in the witness statements, which was accepted by the applicant.

137   The issues requiring determination are whether or not the EEAs listed at Appendix 1 attached to the schedule of the memorandum of matters referred for hearing and determination, as amended on 13 February 2009, are employed to undertake special project work pursuant to Clause 14.3(a) of the 2007 Agreement and whether a declaration should issue that they are entitled to access permanent employment with the respondent.

138   It was not in contest and I find that as at 8 January 2009 the respondent employed 134 EEAs and of these approximately 83 percent or 111 EEAs have been appointed as permanent employees.  It is also the case and I find that the EEAs who hold permanent status have been made permanent employees on an ongoing basis since at least 1992, some of these employees have been employed continuously by the respondent for over 17 years and I accept the applicant’s assertion, which was not contested by the respondent, that there is currently no restriction on an EEA applying for permanent employment if he or she is not employed in one of the categories listed in Clause 14.3 of the 2007 Agreement.  It is also not in dispute and I find that the EEAs listed in the amended Appendix 1 were employed on fixed term contracts as at 13 February 2009 of either one term, one semester or one year and at least one has been employed on a continuous basis since 2004 and they have not been appointed as permanent employees because the respondent maintains they are and have been undertaking duties which the respondent maintains constitutes special project work.

139   The relevant clause of the 2007 Agreement with respect to this issue is as follows:

“14. PERMANENCY AND TENURE

14.1 Education Assistants (subject to clause 14.3) are employed on a permanent basis, subject to probation as outlined in Clause 11.

14.2 All appointments are to be made in accordance with the Recruitment Selection and Appointment Standard of the Office of the Public Sector Standards Commission.

14.3 Fixed term and casual employment may only be used in the following circumstances:

(a) special projects; or

(b) to temporarily fill vacancies, where a decision has been made to fill that vacancy, whilst the recruitment process is undertaken; or

(c) to fill vacancies due to:

(i) parental leave;

(ii) long service leave;

(iii) personal leave;

(iv) worker’s compensation;

(v) secondment;

(vi) leave without pay;

(vii) other forms of leave as prescribed in this Agreement and/or the Award; or

(d) any other situations as agreed between the Employer and the Union.

14.4 The parties agree that Education Assistants who are employed on fixed term contracts and who are not employed in the circumstances as provided for in Clause 14.3 are reviewed on request for permanency.

14.5 Education Assistants (Special Needs) employed in Education Support Units or working  with individual students in mainstream schools employed on fixed term contracts in accordance with clause 14.3(a) are deemed permanent after two years continuous service.  Service is deemed continuous where breaks in employment are no longer than 26 weeks.

14.6 If a dispute arises about modes of employment of an Employee it is to be dealt with in accordance with the Dispute Settlement Procedure in this General Agreement.”

140   The applicant argues that the EEAs listed at Appendix 1 who are employed under various fixed term contract arrangements, as well as the other 111 EEAs employed by the respondent, do not undertake duties which can be categorised as special project work.  The respondent argues that the duties undertaken by EEAs constitutes special project work and the respondent can therefore employ EEAs on fixed term contracts.  The issue in dispute therefore is whether or not EEAs undertake duties which constitute special project work.

141   The term special project is not defined in the 2004 and 2007 agreements nor were discussions ever held between the parties about whether or not EEAs undertake special project work.  It is also the case that subsequent to the hearing the parties confirmed that there was no reference to EAs or EEAs being able to be employed on a fixed term or casual basis to undertake special project work in any relevant industrial instrument prior to the insertion of this provision into the 2004 and 2007 agreements.

142   The meaning of a provision in an award is to be obtained by considering the terms of the award as a whole and if the terms are clear and unambiguous it is not permissible to look to extrinsic material to qualify that meaning (see Norwest Beef Industries Limited and Another v West Australian Branch, Australian Meat Industry Employees Union, Industrial Union of Workers (1984) 64 WAIG 2124).

143   In Brown & Root Energy Services Pty Ltd v Construction Industry Long Service Leave Payments Board (2001) 81 WAIG 665 at 671 Smith, C, as she was then, also observed the following:

"In interpreting industrial instruments tribunals usually do not apply a literal approach, as awards and enterprise agreements may have been drafted by industrial rather than skilled draftsmen (Robe River Iron Associates v Amalgamated Metal Workers' and Shipwrights' Union per Kennedy J at 1100).  This approach to interpretation was explained by Street J in Geo A Bond and Co Ltd (in liq) v McKenzie (1929) 28 AR 499 at 503-504—

‘Now, speaking generally, awards are to be interpreted as any other enactment is interpreted.  They lay down the law affecting employers and employees in their relation as such, and they have to be obeyed to the same extent as any other statutory enactment.  But at the same time, it must be remembered that awards are made for the various industries in the light of the customs and working conditions of each industry, and they frequently result, as this award in fact did, from an agreement between parties, couched in terms intelligible to themselves but often framed without that careful attention to form and draughtsmanship which one expects to find in an Act of Parliament. I think, therefore, in construing an award, one must always be careful to avoid a too literal adherence to the strict technical meaning of words, and must view the matter broadly, and after giving consideration and weight to every part of the award, endeavour to give it a meaning consistent with the general intention of the parties to be gathered from the whole award.’”

144   A project is defined as follows in the Australian Concise Oxford Dictionary (1992, 2nd Edition):

“project …… 1 a plan; a scheme. 2 a planned undertaking. 3 a usu. long-term task undertaken by a student to be submitted for assessment. …”

and special is defined as follows:

“special …. 1 a particularly good; exceptional; out of the ordinary (bought them a special present; took special trouble). b peculiar; specific; not general (lacks the special qualities required; the word has a special sense). 2 for a particular purpose (sent on a special assignment). …”

145   The 2007 Agreement, and Clause 14 in particular, contemplates that employees caught by the 2007 Agreement’s scope clause, including EAs and EEAs, will be entitled to be employed on a permanent basis and can apply for permanent employment with the respondent pursuant to Clause 14.4 of the 2007 Agreement.  The exception to an employee being made a permanent employee is when an EA or EEA is employed as a fixed term or casual employee under one of the categories contained in Clause 14.3 and if an EA or EEA is employed in these circumstances they are not eligible to be reviewed for permanency.  These exceptions include, inter alia, the temporary filling of vacancies, replacing an employee on leave, when special projects are undertaken and any situation agreed by the parties to the 2007 Agreement.

146   I am satisfied and I find that the EEAs the subject of this dispute are not employed under categories 14.3(b), (c) or (d) of this clause.

147   When assessing the meaning of work which is classified as being in the nature of a special project in the context of the 2007 Agreement as a whole and Clause 14 of the 2007 Agreement in particular and when taking into account the dictionary definitions of ‘special’ and ‘project’ and the ordinary meaning of these terms it is my view that the meaning of special projects is clear and unambiguous.  I find that the reference to an employee undertaking special project work relates to a situation when EAs and EEAs undertake duties relevant to a specified purpose or a planned undertaking and the tasks required to be done by that employee constitutes work of a one-off nature.  I am also of the view that it is work to be completed in a set period of time as one would normally expect of a project.

148   After reviewing the evidence with respect to the duties undertaken by EEAs I find that their role and the tasks they complete does not constitute special project work.  I find on the evidence about the duties EEAs have been required to and have performed that EEAs assist ESL and other students experiencing difficulties with the English language to learn English by immersing students in the English language from the commencement of a student’s placement in an IEC and that EEAs have undertaken this role for many years on a continuous basis and in some instances over periods up to 17 years.  I find that other duties EEAs undertake involves ensuring that ESL students are acclimatised to the Western Australian education system, undertaking pastoral care and other relevant duties both inside and outside of the classroom and translating as required irrespective of whether or not a student shares the same language or dialect spoken by an EEA.  I find that EEAs perform all of these duties on an ongoing and continuous basis notwithstanding the cyclical nature of the language requirements of the students EEAs teach which varies, typically over periods of approximately five years duration.  I therefore find that the work undertaken by an EEA is not work which is a planned undertaking or has the character of being special or work undertaken for a specified purpose for a finite period.

149   The respondent argues that it needs to employ EEAs on fixed term contracts as it requires the flexibility to employ EEAs for a limited duration so that students can access an EEA who speaks their language on the basis that translation duties form a major duty that an EEA undertakes.  Even though the respondent recently altered the duties an EEA was expected to perform in a new JDF, effective from 16 November 2007, it is clear from this JDF that this is one of a number of duties that an EEA is expected to perform and there was overwhelming evidence given in these proceedings that translating is only one of the many roles an EEA may undertake.  I find that the necessity for an EEA to translate for students and parents is not always required of an EEA nor does it form the prime duty expected of an EEA and the evidence demonstrated that whilst it is useful for an EEA to speak a student’s language in the first few weeks of a student’s arrival in Australia, an EEA works with students to immerse them in the English language and the Australian way of life and schooling and students are taught or immersed in English as soon as possible after their arrival in Australia.  I find on the evidence that where a student has limited or no English language skills and when an EEA does not speak the language or dialect of his or her student, EEAs as well as teachers and schools use a range of strategies and techniques to assist students with their learning programmes and this assistance can take the form of using other students to translate, using the services of professional translators and relying on relevant computer programmes and dictionaries.  It is also the case that some EEAs have remained as employees of the respondent for a number of years undertaking EEA duties yet they do not speak any other language apart from English which in my view undermines the respondent’s claim that the ability to speak a student’s language is fundamental to the role of an EEA (see Exhibit A1).  I accept the claims made by a number of EEAs that it is important for an EEA to have an awareness about how students cope with the demands of a new culture and this is a very important skill that an EEA brings to their relationship with students and it is clear that EEAs have this background and are successful in meeting this requirement of their role.  I am also satisfied on the evidence given by a number of EEAs that having a cultural awareness and an understanding of what a student is experiencing is more important than an EEA speaking the language of a student who has recently arrived in Australia who does not speak English.

150   The respondent confirmed that to date no permanent EEA had been made redundant notwithstanding the changes to the languages and dialects of the students with whom EEAs work.  In my view this supports my conclusion that the work undertaken by EEAs is ongoing and that translation duties do not form a key part of the role of an EEA notwithstanding the changes to the languages and cultures of students taught by EEAs (see Appendix 1 and Exhibit R3).  Additionally the lengthy and ongoing employment of a number of EEAs by the respondent undermines the respondent’s claim that it would need to redeploy EEAs when the languages spoken by students change.

151   I reject the respondent’s claim that the way in which EEAs are funded confirms that EEAs are employed to undertake a set task for a finite period.  The respondent gave evidence that the funding it receives to employ EEAs is provided by the Federal Government on a rolling basis based on the number of students who fall into the relevant visa categories at a particular point in time and the respondent confirmed that this funding has been provided to the respondent on a continuous basis for over at least two decades.  In the circumstances I find that the funding for the employment of EEAs has not been and is currently not for a fixed period.

152   Given the conclusions I have reached it is unnecessary to determine whether or not the respondent is in breach of the Western Australian public sector Modes of Employment policy document.  However, I note that this policy document states that fixed term contract arrangements can be used only when work is of a finite duration such as when ongoing funding is not guaranteed and where skills to perform a function varies over time, circumstances which I have found do not apply to the work undertaken by EEAs.

153   As I have found that EEAs are not employed to undertake special project work under Clause 14.3(a) of the 2007 Agreement I will make the first declaration being sought by the applicant:

That the Ethnic Education Assistants listed in Appendix 1, as amended on 13 February 2009, are not the subject of any of the exemptions contained in Clause 14.3 of the Education Assistants’ (Government) General Agreement 2007.

154   As I have found that the EEAs listed at Appendix 1 do not undertake special project work I find that they should be allowed to apply for and be reviewed for permanent status.  However, I do not intend to issue the second declaration being sought by the applicant that EEAs named in Appendix 1 be made permanent as Clause 14.4 of the 2007 Agreement provides that individuals who are not subject to the exemptions contained in Clause 14.3, which I have found includes the 23 employees named in Appendix 1, can be reviewed for permanency on request.  It is my view therefore that it is appropriate to issue the following declaration:

That the Ethnic Education Assistants named in Appendix 1, as amended on 13 February 2009, who are currently employed in this role by the respondent, be eligible to request to have their employment status reviewed pursuant to Clause 14.4 of the Education Assistants’ (Government) General Agreement 2007 with a view to gaining permanency.