2010 WAIRC 00103
DISPUTE RE EMPLOYMENT STATUS OF UNION MEMBER
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES THE STATE SCHOOL TEACHERS' UNION OF W.A. (INCORPORATED)
APPLICANT
-V-
DIRECTOR GENERAL OF THE DEPARTMENT OF EDUCATION AND TRAINING
RESPONDENT
CORAM COMMISSIONER J L HARRISON
HEARD MONDAY, 2 NOVEMBER 2009, TUESDAY, 3 NOVEMBER 2009, WEDNESDAY, 4 NOVEMBER 2009
DELIVERED FRIDAY, 5 MARCH 2010
FILE NO. CR 40 OF 2008
CITATION NO. 2010 WAIRC 00103

Catchwords Industrial Relations (WA) – Claim that respondent has incorrectly determined an employee’s salary level and wrongly capped employee’s salary – Claim that employee should be paid the rate of a trained teacher - Application for an order that outcome applies to all other employees in similar circumstances - Whether employee is an untrained/unqualified teacher for the purposes of the relevant industrial instruments – Employee classified as an untrained/unqualified teacher - Application dismissed - Industrial Relations Act 1979 s 44(9); School Education Act 1999 s 235; Western Australian College of Teaching Act 2004; Public Sector Management Act 1994; Vocational Education and Training Act 1996
Result Dismissed

Representation
APPLICANT MS E J CARBONE (OF COUNSEL)

RESPONDENT MR J MISSO (OF COUNSEL)


Reasons for Decision
1 On 5 December 2008, the State School Teachers’ Union of W.A. (Incorporated) (“the applicant”) (“the union”) lodged an application in the Commission pursuant to s 44 of the Industrial Relations Act 1979 (“the Act”) with respect to a dispute over the permanent status of one of its members, Mr Stephen Adams who is employed by the Director General of the Department of Education and Training (“the respondent”).
2 As conciliation proceedings did not resolve the dispute the matter was referred for hearing and determination pursuant to s 44(9) of the Act. During conciliation proceedings it became apparent that the parties were also in dispute over Mr Adams’ salary level and the salary paid to other teachers who were employed in similar positions to Mr Adams and this matter was also referred for hearing. The Schedule of the memorandum of matters referred for hearing and determination is as follows:
“1. The applicant claims that the respondent has incorrectly determined Mr Stephen Adams’ salary level and as a result the respondent has wrongly capped his salary. The applicant also claims that the respondent has refused to provide Mr Adams with permanent status. The applicant is seeking the following orders:
(a) That Mr Adams be confirmed as a permanent employee pursuant to Clause 92.1 of the School Education Act Employees’ (Teachers and Administrators) General Agreement 2006 (“the Agreement”).
(b) That Mr Adams has a right to incremental progression with respect to his salary.
(c) That Mr Adams’ salary and entitlements be adjusted accordingly and any payment and entitlements due to Mr Adams be paid to him.
(d) That the respondent provide a letter to Mr Adams advising him that he is a permanent employee and withdrawing previous contrary advice.
(e) That all personnel records pertaining to Mr Adams be adjusted accordingly.
(f) That the abovementioned outcomes apply to all other employees who have been historically paid in accordance with the teacher salary scale in similar circumstances as Mr Adams.
2. The respondent denies the claim and opposes the orders being sought.
Applicant’s contentions
3. The applicant’s contentions are as follows:
(a) the applicant disputes that Mr Adams is not eligible for permanency as there are no exceptions of the nature alleged that exist to granting permanency under Clause 92.1(a) of the Agreement;
(b) it has never been the intention of the applicant, a party to the Agreement, to agree to inferior conditions of employment for Limited Authority to Teach (“LAT”) holders who undertake teaching duties (as defined) in schools, simply because they hold a LAT;
(b) Clause 92.1(a) of the Agreement refers to ‘employees’ who are a broader class of the applicant’s membership encompassing administrators and school psychologists as well as all those who teach;
(c) the applicant disputes that it is lawful to follow a policy that is:
· inconsistent with sound industrial principles of fairness;
· disputed by the applicant union who has not been engaged in any consultation concerning the formulation of an alleged policy concerning an important employment condition;
· a subordinate legal authority to the Agreement which does not provide exceptions to permanency of the nature the respondent is constructing;
· not clear and transparent for current employees and potential employees; and
· appears arbitrary in nature;
(d) the Western Australian College of Teaching Act 2004 operates to protect the standards of the teaching profession by its regulation of LATs, in that the Act confines LATs to those instances where suitably qualified teachers are not available;
(e) in the event that a more suitably qualified teacher is available at a future time and a LAT holder (such as Mr Adams) is unable to have their LAT renewed, the respondent is empowered by virtue of s 236 of the School Education Act 1999 (WA) to transfer the employee.
Respondent’s contentions
4. The respondent’s contentions are as follows:
(a) Mr Adams is an employee of the respondent at the WA College of Agriculture in Morawa;
(b) the payment of Mr Adams’ salary is and has been made in accordance with the terms and conditions provided in the Teachers (Public Sector Primary and Secondary Education) Award 1993, the Agreement and the replacement School Education Act Employees’ (Teachers and Administrators) General Agreement 2008 as applied at the relevant times;
(c) the respondent agreed to grant permanency to Mr Adams on 14 April 2009, therefore there is no need for hearing and determination of this issue.”
3 The following facts were agreed between the parties at the outset of the hearing:
1. The applicant is an organisation of employees registered under the Act.
2. Mr Stephen Adams was initially employed by the respondent under the Government School Teachers’ and School Administrators’ Certified Agreement 2004 (“the 2004 Agreement”) and the Teachers (Public Sector Primary and Secondary Education) Award 1993 (“the Award”).
3. The respondent is the Chief Executive Officer of the Department of Education and Training and with respect to Mr Adams is an “employing authority” for the purposes of Division 3, Part 5 of the Public Sector Management Act 1994.
4 At the outset of the hearing it was put to the parties that as Mr Adams had been offered permanent status by the respondent Order 1(a) being sought by the applicant was therefore redundant. However, the applicant maintained that as this offer was conditional on Mr Adams retaining a Limited Authority to Teach (“LAT”) from the Western Australian College of Teaching (“WACOT”) and was contingent upon the applicant withdrawing his application this offer was rejected. On this basis the applicant continued to pursue Order 1(a). During the respondent’s final submissions it confirmed that the offer of permanency to Mr Adams was still available, subject to Mr Adams retaining a LAT, and the applicant therefore agreed to accept this offer on behalf of Mr Adams. In the circumstances the evidence given during the proceedings with respect to the employment status of Mr Adams has been excluded and Order 1(a) was no longer being sought by the applicant.
Applicant’s evidence
5 Mr Adams gave evidence by way of a witness statement which was updated at the hearing by the inclusion of an additional pay slip (Exhibit A4).
6 Mr Adams is currently employed on a full-time basis as the Design and Technology Automotive Teacher and Program Co-ordinator at the Western Australian College of Agriculture in Morawa (“the College”) and he has been in this position since May 2006. Mr Adams has not been subject to any disciplinary proceedings nor has he been the subject of any performance related issues.
7 Mr Adams is responsible for running the College’s automotive program. In this role he teaches the Certificate II Automotive course to year 11 and 12 students and an Automotive Transport course to year 10 students. He has also taught Vocational Mathematics at the College. Mr Adams reviewed and developed the College’s Certificate II Automotive Program, he redesigned the College’s automotive workshop facilities and he is responsible for the automotive section’s budget and expenditure. Mr Adams has been a member of the College’s finance committee since 2007.
8 Mr Adams gained a Certificate IV in Assessment and Workplace Training in 2004. Mr Adams stated that he is a qualified Automotive Mechanic and he has worked in the automotive industry for over 30 years. Mr Adams holds a Trade Certificate in Automotive Engineering and has the following current automotive certificates and licences:
• Motor Vehicle Industry Board Repairer’s Certificate – No. MR 407;
• Energy Safety Gas fitting Permit – Installing and Servicing – No. GF003564;
• Refrigerant Handling Licence – AUTO – No. L043374; and
• Institute of Automotive Mechanical Engineers (IAME) – No. 00926121.
9 Mr Adams worked on a full-time basis as an Automotive Lecturer within the TAFE system from April 2003 through to April 2006. During this period Mr Adams taught Automotive Certificates II and III as well as a number of high school automotive introductory courses. Prior to becoming a TAFE lecturer Mr Adams was employed as a service technician and between 1983 and 1998 he ran Crown Auto Repairs, an automotive repair and servicing business, which involved managing annual budgets, hiring and training staff, purchasing, sales, customer relations, marketing and overseeing financial processes.
10 Mr Adams undertook the following professional development courses between 2003 and 2006:
Adult and Adolescent Learning Strategies;
Powerpoint – Adding sound and music;
SCDL – Word – Mail Merge;
SCDL – Excel – Foundations;
SCDL – Excel 2 – Formulas and Functions;
SCDL – Excel 3 – Charts and Graphs;
SCDL – Word – Foundations;
Job Application and Interview Skills;
Ethical Behaviour and Corruption Prevention;
ESS – Employee Self Service workshop;
SCDL – Excel 1 – Foundations;
SCDL – Powerpoint – Charts and Graphs;
TAA – Skills Recognition Workshop;
SCDL – Word 2 – Tables, Images and Objects;
SCDL – Powerpoint 1;
Swan TAFE – 50 Lecturers Program;
Professional Development for Lecturers – Midland;
Induction Orientation Program;
Flexible Learning Showcase;
Learning and Assessment Strategies Workshop;
Disability Awareness; and
Delivery Strategies Workshop.
11 Whilst working as an automotive technician, Mr Adams completed the following industry training courses:
CFC Awareness Course for Service Personal (sic) – Motor Trade Association of WA;
NR21 Automotive Air conditioning 86723 – Automotive Training Services, South Metropolitan;
Automotive LP Gas Servicing “A” Pass – Department of Education WA;
Automotive LP Gas Installations “A” Pass – Department of Education WA;
Bosch Electronic Ignition Systems – Petro Ject Training Centre;
Advance EFI Stage One – Petro Ject Training Centre;
Bosch Jectronic Fuel Injection Systems “L” and “LE” - Petro Ject Training Centre;
Electronic Fuel Injection – Repco Auto-tech Clinic;
Engine Management Systems – Repco Auto-tech Clinic;
Braking Systems – Repco Auto-tech Clinic;
Clutch Designs - Repco Auto-tech Clinic; and
Engine Electronic – Department of Education WA.
12 Mr Adams holds a current St John Ambulance Senior First Aid Certificate.
13 Mr Adams gave evidence about how he became employed at the College. Mr Adams stated that in early 2006 the College’s Principal Mr Craig Chadwick asked him to apply for the position of Design and Technology teacher at the College and Mr Chadwick initially offered him a salary significantly less then what he was being paid at TAFE. After Mr Adams decided not to apply for this position Mr Chadwick then offered him a salary of approximately $53,000 per annum which Mr Adams accepted. At the time Mr Adams was not told that he would not be receiving ongoing wage increases and Mr Adams gave evidence that he only found out after he commenced with the respondent that his salary was to be capped.
14 Mr Adams gave evidence that WACOT gave him a LAT on 11 April 2006 which was valid until 31 December 2006 and this was later extended by WACOT to 31 December 2007. Mr Adams has since been given two more LATs, one from 12 February 2008 to 31 December 2009 and another from 17 December 2009 to 31 December 2010.
15 Mr Adams stated that his first payslip from the respondent described his job as that of teacher and his grade was as a “TCH/UT/2” which Mr Adams did not understand (Exhibit A4 attachment SA 14). Mr Adams’ second payslip for the period 5 May 2006 to 18 May 2006 increased his pay rate to be comparable to what he was paid at TAFE and states that his grade was a “TCH/TT/8”. Another payslip for the period 26 January 2007 to 8 February 2007 specifies that his grade is a “TCH/UT/6” and as this rate of pay was less than what he should have been paid Mr Chadwick took steps to rectify this (see Exhibit A4 attachments SA 15 to 17). When Mr Adams was being paid at the salary level of TCH/L1/8 he asked Mr Chadwick to request that the respondent review his salary level to reflect the remuneration package paid to TAFE teachers taking into account his trade qualifications and the teaching duties that he was undertaking at the College. As a result on 30 November 2007 Mr Adams and a colleague at the College, Mr Stuart Wilkinson, who was also a design and technology teacher, both progressed to salary level TCH/L2/1. Mr Adams gave evidence that Mr Chadwick told Mr Adams at the time that his salary would progress through to Level 2.4. In January 2008 Mr Adams found out that his pay grade had been reduced to TCH/L1/8 and this omission was again rectified with his pay returning to TCH/L2/1 in early 2008 (Exhibit A4 attachments SA 20 and 21). On 18 April 2008 Mr Adams progressed to level TCH/L2/2 (Exhibit A4 attachment SA 22). When Mr Adams was due to receive his next salary increment in May 2009, taking his salary to TCH/L2/3 his grade was changed to that of Teacher/UT/8 on his payslips and his payslips also referred to him receiving salary maintenance (Exhibit A4 attachment SA 24). In May 2009 Mr Chadwick told Mr Adams that he would not be receiving an increase to Level 2.3 and his salary was to be capped at Level 2.2. In response Mr Adams told him that he believed that he had an assurance from him that he would proceed through to Level 2.4 and it was on that basis that he had agreed to another two year contract to work at the College. As at the date of the hearing Mr Adams remains being paid at a level TCH/UT/1/8 employee, although he is in receipt of salary maintenance at Level 2.2.
16 Under cross examination Mr Adams stated that all negotiations about what he was to be paid was with his Principal, Mr Chadwick and he confirmed that he had no discussions with Mr Chadwick about progressing up the salary scale. Mr Adams agreed that he had received an email from Mr Iain Dennis, which was sent prior to him commencing employment with the respondent, that refers to him being employed as an unqualified teacher however he could not recall reading the email until recently seeing a copy of it. Mr Adams agreed that he does not hold a teaching qualification but he stated that when he was employed by the respondent he did not understand that he was classified as an untrained teacher. Mr Adams is aware that a LAT lasts for a maximum of two years.
17 Mr Adams stated that when he was advised by the respondent that his salary level was 1.8, even though he was paid at a Level 2.2 at the end of 2008, he contacted the respondent’s head office and in response Mr Chadwick confirmed that even though his salary level was stated as 1.8 he would not be paid any less than a level 2.2 salary. Mr Adams agreed that even though his salary level was 1.8 his salary continued to be paid at Level 2.2 through salary maintenance.
18 Mr Adams stated that the nature of the students he teaches is no different at TAFE or at the College however classroom management is different.
19 Under re-examination Mr Adams again stated that he was unaware that he was employed as an untrained teacher and “didn’t even know the term ‘untrained teacher’” (T51) and Mr Adams could not recall receiving the email from Mr Dennis in April 2006 confirming that this was the case. Mr Adams stated that the issue of him being on salary maintenance did not arise until May 2009. Mr Adams maintained that he was a qualified teacher as he holds a Certificate IV in Training and Assessment and he has the requisite skills and experience to be a teacher. Mr Adams confirmed that he was performance managed by the Deputy Principal at the College.
20 Dr Margaret Henderson gave evidence by way of witness statement (Exhibit A5). As her evidence in the main went to the issue of Mr Adams’ permanent status, it is unnecessary to include her evidence.
21 Ms Anne Gisborne gave evidence by way of a witness statement (Exhibit A7). Ms Gisborne is the union’s President and she has held this position since January 2008. Prior to this she was the applicant’s Senior Vice President from 2002 through to 2007. Ms Gisborne has taught for over 20 years and has been actively involved in the applicant’s activities for over 16 years.
22 Ms Gisborne stated that as the applicant’s President and in her role as Senior Vice President she has been the lead negotiator when finalising successive collective enterprise agreements. Ms Gisborne co­ordinated the applicant’s position in the School Education Act Employees' (Teachers and Administrators) General Agreement 2006 (“the 2006 Agreement”) and the School Education Act Employees’ (Teachers and Administrators) General Agreement 2008 (“the 2008 Agreement”) and she also co-ordinated negotiations on behalf of the applicant in recent award variations to and the consolidation of the Teachers (Public Sector Primary and Secondary Education) Award 1993 (“the Award”), which was registered in December 2008.
23 Ms Gisborne gave evidence that provisions in the 2006 Agreement and the 2008 Agreement provide a forum and mechanism for ongoing consultation about VET issues. Ms Gisborne gave evidence that after the introduction of the Western Australian College of Teaching Act 2004 (“the WACOT Act”), during joint committees and working party discussions between the applicant and the respondent and during consultations at the VET forum, no issue was raised by the respondent with respect to the status of Mr Adams and other teachers in a similar situation with respect to their LAT status and entitlements. Ms Gisborne stated that since the WACOT Act came into effect in 2004 the first time discussions took place about teachers employed holding a LAT were at the most recent meeting of Employee Relations Executive Committee (“EREC”) on 23 September 2009.
24 Ms Gisborne stated that at the EREC meeting held on 20 October 2009 the applicant disputed Mr Adams being described as an untrained teacher and the parties remained in disagreement about this issue. Ms Gisborne stated that the 2006 Agreement and the 2008 Agreement and the recent variation and consolidation of the Award makes no mention of the WACOT Act nor do they provide for differential entitlements for teachers holding a LAT. Furthermore, during negotiations for the 2006 Agreement and the 2008 Agreement no discussion took place with respect to LAT teachers being treated separately to other teachers. Ms Gisborne maintains that WACOT accepts holders of LAT to be teachers who undertake a specific role and they perform the same functions as other teachers, they undertake the same roles and responsibilities and are subject to the same accountability requirements.
25 Ms Gisborne gave evidence that during negotiations for the 2008 Agreement the parties agreed to rename and divide some of the salary scales and she stated that one of the outcomes was that the new teachers scale better reflected the fact that the first time appointment of a graduate teacher was at a Level 1.6 and Ms Gisborne stated that Level 1.6 was to be renamed Level 2.1 in February 2010 under the 2008 Agreement. Ms Gisborne stated that Clause 22(4) of the Award contemplates teachers who may not have graduated being appointed in accordance with the teachers scale and she stated that the applicant’s intention in accepting the salary scales being retitled was that no person appointed as a teacher would be paid below the current Level 1.6 of the teachers scale and the parties also intended to continue to explore a career path for “assistant teachers”. Ms Gisborne gave evidence that during these discussions the respondent did not raise the prospect of employing persons in designated teacher positions on any other scale but the teachers scale nor was there any discussion about restricting the progression of a teacher holding a LAT to a particular salary scale. Ms Gisborne stated that the parties agreed to put a new table titled ‘untrained teachers’ scale in the 2008 Agreement and no mention was made by the respondent at the time of any intention to employ LAT holders in accordance with this scale. The applicant understands that teachers holding a LAT have been progressing in accordance with the teachers salary scale and she was unaware that a teacher in this category had a cap on their salary. Ms Gisborne gave evidence that the applicant did not intend that the untrained teachers scale apply to employees responsible for performing all of the usual functions of a teacher as well as the usual duties of a teacher and that the applicable scale in these circumstances is the teachers scale. Ms Gisborne stated that the increments contained in Table 1 of the untrained teacher scale were taken from Level 1.1 to 1.4 of the previous teachers scale in the 2006 Agreement and they were put into the new untrained teacher scale in the 2008 Agreement to make it clear that teachers who were undertaking the usual functions and duties of a teacher did not start on those incremental scales.
26 Ms Gisborne maintained that the classifications existing in the untrained teacher scale in the 2008 Agreement predate the introduction of WACOT (see Clause 37 of the Government School Teachers’ and School Administrators’ Certified Agreement 2000) and Ms Gisborne stated that the purpose of having the untrained teachers scale, which was discussed during negotiations for the 2006 Agreement and the 2008 Agreement was to develop a position of teacher assistant which could sit below the teachers salaries scale and she stated that Clause 30 of the 2006 Agreement reflects this discussion, specifically Clauses 30.6 and 30.7. Ms Gisborne stated that even though there is no specific reference to “assistant teacher” in the 2008 Agreement, Clauses 47 and 57 considers this issue.
27 Ms Gisborne gave evidence that during negotiations for the 2008 Agreement the respondent never raised its intention that teachers holding a LAT would be provided with inferior conditions with respect to their salary and access to permanency. Ms Gisborne stated that during negotiations for the 2006 Agreement there was some discussion about “unqualified teachers” and the applicant made it clear to the respondent that a person holding a LAT and who undertook the full range of duties and responsibilities as a teacher was entitled to be paid as a trained teacher. Ms Gisborne maintained that the applicant did not consider that a person in this situation who lacks teacher training qualifications should have their entitlement or income as a teacher affected. Furthermore, there is no reference in the 2006 Agreement, the 2008 Agreement and the Award variation and consolidation to the WACOT Act nor is there any provision for differential entitlements for teachers employed who hold a LAT.
28 Ms Gisborne stated that the capping of Mr Adams’ salary was never agreed to by the applicant and it is her view that the respondent’s unilateral action in this regard is arbitrary and not in the public interest as this action results in teachers in this situation being paid an uncompetitive salary.
29 Under cross-examination Ms Gisborne stated that she understood the untrained teacher scale to apply to graduates who were not qualified teachers and was a career path for students prior to fully qualifying as a teacher and she gave evidence that this issue was raised during discussions about alleviating the work load for teachers and administrators. Ms Gisborne stated that she was not aware that anyone was currently employed under this scale.
30 Under re-examination Ms Gisborne stated that she has been directly involved in agreement negotiations with the respondent since 2004 and Ms Gisborne re-iterated that during the negotiations for the 2008 Agreement there were no discussions about the untrained teacher category.
31 Mr Kris Weinert was summonsed to give evidence. Mr Weinert teaches Automotive Mechanical Certificate II courses at the Western Australian College of Agriculture at Denmark (“Denmark College”) and he has undertaken this role since 16 October 2006. Mr Weinert gave evidence that Denmark College is a Registered Training Organisation (“RTO”) and its students are in Year 11 and 12, it is a residential school and the courses are Vocational Education and Training (“VET”) subjects. Mr Weinert said that in total there were five agricultural colleges in Western Australia and courses run at these colleges are accredited under the Australian Quality Training Framework (“AQTF”) training regime. Denmark College also runs School Education Act 1999 (SE Act) courses. Mr Weinert stated that in order to teach a VET course, he is required to hold a Certificate IV in Workplace Training, which he has and he is required to be competent to deliver the courses which he undertakes and to moderate these courses and he assesses student outcomes against AQTF national competencies. Mr Weinert has a LAT which expires in September 2010. Mr Weinert stated that he is required to have a LAT because he is classified as not having a teaching degree and he is required to have a LAT to work in a high school. Mr Weinert stated that he is not required to have a teaching qualification from a tertiary institution to teach and assess students in the VET area. Prior to teaching at Denmark College Mr Weinert taught at TAFE for three and a half years.
32 Mr Weinert gave evidence that the respondent paid for him to upgrade and retain his qualifications.
33 Mr Weinert confirmed that as a teacher he facilitates student learning, he believes that he competently runs classes, he works in accordance with Denmark College’s plan, he assesses students and writes reports with respect to their achievements, he answers to Denmark College’s Principal and the relevant Head of Teaching, he supervises students, maintains order and discipline and he undertakes administrative duties including writing references and photocopying duties. Mr Weinert also undertakes other duties as required such as driving Denmark College’s bus, he takes students on excursions, he undertakes yard duty, he supervises students and is involved in their behaviour management and he also undertakes counselling of students as well as pastoral care.
34 Mr Weinert gave evidence that details about the level contained in his payslips recently changed. Up until mid May 2009 his payslip reflected him as being a Teacher Level 2.2 and from that point onwards his payslip stated that he was an Untrained Teacher Level 8 and salary maintenance at Level 2.2 was then applied to his pay. Mr Weinert stated that in October 2009 his salary maintenance amount was increased to incorporate an increase equivalent to the Teacher Level 2.3 pay rate under salary maintenance (see Exhibits A2 and A3). Mr Weinert gave evidence that he started on the Level 1.8 pay rate when he commenced employment with the respondent and his salary increased on an annual basis and Mr Weinert gave evidence that he understood from discussions with colleagues that Level 2.4 was the highest salary level that he could be paid. Mr Weinert stated that he had no discussions with the respondent about the change in his classification on his payslip in May 2009 nor was any documentation reflecting this changed provided to him at the time.
35 Mr Weinert stated that he has had extensive experience in the automotive industry both as an employee and a business owner and he has also supervised numerous apprentices and Mr Weinert considers himself more than qualified to teach in the automotive area given his qualifications and his experience.
36 Mr Weinert stated that he enjoys teaching, his students were keen to attend his classes and student participation in the courses he taught was growing.
37 Mr Weinert took umbrage at being classified as an untrained teacher on the basis that he is highly trained and skilled in his area of expertise, he has undertaken a four year apprenticeship and has had extensive experience in the automotive area subsequent to completing this qualification. Mr Weinert has also been a TAFE teacher, he has assisted with teacher training at Denmark College, he has undertaken a range of courses outside of his area of expertise and he has also undertaken moderation and assessment with other teachers.
38 Mr Weinert stated that it would be difficult for him to gain formal teaching qualifications as he would be on a reduced salary and once he qualified he could be sent anywhere in the State which would create issues for his family.
39 Under cross examination Mr Weinert stated that he was aware of the classification of untrained teacher when he applied for the position at Denmark College and he agreed that when he commenced employment with the respondent there was no undertaking given to him that he would receive on-going salary increments. When it was put to Mr Weinert that obtaining a Certificate IV qualification was not demanding, he stated that this qualification was not difficult for him to achieve given his relevant skills and experience and he stated that if a person undertaking this course did not have his background then it would be challenging for them. Mr Weinert stated that in order to run his courses he had to determine the competencies to be assessed, design the learning process, work out the assessment instruments and prepare a training package for each competency. These courses were then evaluated and validated through a moderation process.
40 Mr Weinert confirmed that he was assessed under a performance management process at Denmark College by his Head of Teaching and he stated that feedback was given to him that his is going well in his role.
41 Mr Geoffrey Moyle was summonsed to give evidence. Mr Moyle is employed by the respondent as the Director of Agricultural Education and in this role he manages the respondent’s five residential agricultural colleges. Mr Moyle has been in this position since July 2008. Mr Moyle commenced employment with the respondent in 1977 and has had a range of teaching and administrative positions during that period. Mr Moyle confirmed that each of the five residential agricultural colleges has RTO status and he confirmed that he generated a discussion paper which he presented to Principals of the respondent’s agricultural colleges at one of their regular meetings (see Exhibit A7, attachment AG 4).
42 Mr Moyle stated that students at agricultural colleges completed secondary graduation if they successfully completed requirements to do so and Mr Moyle confirmed that the colleges are subject to the AQTF standards with which they must comply or they will lose their registration. Mr Moyle stated that under AQTF standards teachers at the respondent’s agricultural colleges must have a Certificate IV in Workplace Training and Assessment in order to deliver VET courses.
Respondent’s evidence
43 Mr Chadwick gave evidence by way of a witness statement (Exhibit R1). Mr Chadwick has been employed by the respondent as the Principal of the College since 2003. In this role Mr Chadwick oversees the daily operations of the College as well as its farm and residence, he manages the physical and financial operations, its human resources and he oversees and directs the curriculum delivery for the College’s educational and training programs.
44 Mr Chadwick gave evidence that Mr Adams was appointed to the College as an unqualified teacher and he was required to obtain a LAT from WACOT before he could commence employment. Mr Chadwick gave evidence that when Mr Adams started working at the College he was assigned the salary grade of 1.8 and he stated that this level was negotiated by Mr Adams with Mr Dennis and Mr Neil Wilson on behalf of the respondent as Mr Adams was not prepared to work at the College if he was to be paid at the untrained teacher salary of Level 1.6. Mr Chadwick gave evidence that he told Mr Adams at the time that his salary would not progress beyond Level 1.8.
45 Mr Chadwick was told by Mr Adams in December 2007 that the salary level of an unqualified teacher holding a LAT at Denmark College had progressed past Level 1.8 and this teacher was being paid at salary Level 2.1. After Mr Adams informed him of this, Mr Chadwick contacted the respondent’s staffing section to obtain wage parity for his staff at the College. Mr Chadwick confirmed that since that time both Mr Adams and the other unqualified teacher at the College were given salary increments up to Level 2.2 but he was advised in early 2009 by the respondent’s payroll section that Mr Adams and the other teacher had been moved back to Level 1.8 and their salary was being maintained at Level 2.2 by salary maintenance allowance.
46 Under cross-examination Mr Chadwick stated that he was aware that an untrained teacher could be paid up to Level 1.8 and he stated he informed Mr Adams that he would not receive any further increments past this level. Mr Chadwick gave evidence that when he was told in early 2009 that Mr Adams’ salary had been capped at Level 2.2 he was advised by the respondent that it was a mistake to allow Mr Adams to progress past the salary Level of 1.8. Mr Chadwick confirmed that Mr Adams facilitates learning, he delivers competency based assessment modes aligned to the requirements in the Vocational Education and Training Act 1996, he works under the College’s plans, he regularly reports on students within the context of this plan, he is answerable to him, he supervises students and provides discipline to them to the highest standard and he undertakes other duties as directed.
47 Under re-examination Mr Chadwick stated that to the best of his knowledge a Certificate IV qualification is for delivering competency based units from training packages and possibly up to 300 to 400 hours of tuition was involved in completing this qualification and it was his understanding that to obtain a teaching qualification required a much greater number of hours of study. Mr Chadwick confirmed that Mr Adams was subject to the same performance management processes as other teachers at the College.
48 Ms Petra Cameron gave evidence by way of witness statements (Exhibits R2 and R2[2]). Ms Cameron is employed by the respondent as the Acting Senior Labour Relations Advisor in the Labour Relations Directorate. In this role she:
· provides high level advice, support and information on employment and industrial relations issues relevant to the respondent including the interpretation and application of awards, agreements, legislation and policy;
· mentors and provides information and professional advice to the respondent’s managers and members of the labour relations team;
· promotes, protects and negotiates the intentions and interests of the respondent at a senior level in relevant industrial relations forums;
· develops and improves client relations; and
· participates in the business and planning activities of the Directorate and provides significant input into the development, implementation and review of the respondent’s labour relations policy and procedures.
49 Ms Cameron has been employed in industrial relations in the Western Australian Public Sector since March 2005 and she has been in her current position since April 2008. Ms Cameron gave evidence that she has a comprehensive understanding of the respondent’s industrial instruments and she stated that she was involved in the preparation and negotiation of the 2008 Agreement.
50 Ms Cameron stated that a person seeking employment as a teacher must be a member of WACOT before they can teach. Ms Cameron stated that membership of WACOT in the LAT category is granted where the person applying for membership has specialist skills or a completed teaching qualification that does not meet the requirements for registration as a teacher but who has nevertheless been offered employment as a teacher. Ms Cameron stated that all other WACOT membership categories require the person applying for membership to hold a teaching qualification approved by WACOT and the minimum approved qualification requirement is four years of completed higher education study with at least one year of this study consisting of a pre-service teacher education program in early childhood, primary, middle or secondary education.
51 Ms Cameron stated that under s 235 of the SE Act and consistent with the requirements for WACOT membership, teachers employed by the respondent are required to hold an appropriate qualification. These teachers fall into two groups:
a. teachers with teaching qualifications – the minimum qualification being successful completion of four years of tertiary education which includes at least one year of full-time teacher education; or
b. teachers without teaching qualifications who are employed on the basis of their specialist knowledge, training, skills or qualifications in a particular field to teach in specialist programs such as the languages, arts, sports, business, maths, science and technology when suitably qualified teachers cannot be found.
52 Ms Cameron stated that when the WACOT Act came into effect in 2004 teachers without a teaching qualification were required to have a LAT and if a teacher failed to obtain a LAT the WACOT Act prohibited them from teaching in any school. A teacher who is not a member of WACOT therefore cannot perform any teaching duties for the respondent.
53 Ms Cameron stated that the change in terminology from “unqualified teacher” to “untrained teacher” in the 2008 Agreement occurred as a consequence of the Award modernisation process undertaken as part of the last round of bargaining between the applicant and the respondent. Ms Cameron gave evidence that three classifications of teacher were identified by the respondent – “four-year-trained”, “five-year-trained” or “unqualified” teachers and the term “unqualified teacher” was regarded by representatives of the respondent to be incorrect terminology because s 235 of the SE Act states that all teachers are required to have a qualification in order to be employed. Ms Cameron stated that in June 2008 the respondent decided that the term “untrained” was the best terminology to describe unqualified teachers and as a result this was incorporated into the draft replacement 2008 agreement. Ms Cameron stated that in late 2008 the respondent’s Teacher Establishment System, which is an electronic database for the management of teacher placements in Government schools, was upgraded to incorporate the untrained teacher status and this assisted the respondent to ensure that the appropriate documentation was sent to both trained and untrained teachers.
54 Ms Cameron stated that under the Award, the 2006 Agreement and the 2008 Agreement the only provisions where separate entitlements apply based on whether a teacher is trained or untrained is the incremental range for salary, internal relief and casual rates of pay. This distinction is based on the Award provision specifying that untrained teachers cannot progress to a salary level higher than 1.8.
55 Ms Cameron stated that salary rates for teachers are inserted into the respondent’s Human Resource Management Information System (“HRMIS”) using a scale for untrained teachers (“UT”) ranging from salary levels 1.1 to 1.6 and a scale for trained teachers (“TT”) ranging from salary levels 1.6 to 2.4. Incremental progression within each scale is automatic however progression from the UT scale to the TT scale is not. Ms Cameron stated that the salary rates for trained and untrained teachers overlap on Level 1.6 to Level 1.8 and as the UT scale only goes up to Level 1.6, untrained teachers at Level 1.7 or Level 1.8 are therefore placed on the TT scale in HRMIS. As HRMIS cannot distinguish between trained and untrained teachers who are on the TT scale errors occurred enabling some untrained teachers who under the Award cannot progress to salary levels higher than 1.8 being overpaid. Where such overpayments occur the respondent is obliged to recovers these overpaid monies.
56 Ms Cameron stated that Schedule B – Salaries in the 2008 Agreement contains separate salary tables for untrained teachers and teachers. Ms Cameron stated that the applicant and respondent agreed to set out the salaries in Schedule B in this way to take into consideration the limitations of the HRMIS as well as the Award provision which requires progression from Level 1 to Level 2 of the salary scale being subject to the attainment of a four year teaching qualification. Ms Cameron stated that during negotiations for amendments to the Award and the final terms of the 2008 Agreement Ms Gisborne was advised that changing the term “unqualified teacher” to “untrained teacher” was necessary as the respondent can only employ qualified teachers or in certain circumstances people who have a specialist knowledge or skills who hold a LAT including music teachers, language teachers and other specialist or trade based positions. Ms Cameron stated that during these negotiations she explained to the applicant’s representatives that whilst these teachers do not hold a qualification in teaching they are qualified in their trade, language or area of expertise hence the term “unqualified teacher” was deemed inappropriate. Ms Cameron stated that she specifically advised Ms Gisborne that not many teachers were paid on the “untrained teacher” salary scales and these scales are used for teachers who were not qualified as teachers. Ms Cameron stated that these changed provisions were endorsed by the applicant’s executive.
57 Ms Cameron stated that “Industrial Relations Advice No 1 of 2009” confirms that where employees are being paid at rates higher than their applicable salary level these affected employees will have their salary maintained until such time as the correct salary rate exceeds their current rate (see Exhibit R2 attachment PC6). As a result where untrained teachers have a salary level greater than 1.8 due to errors created by the HRMIS system the respondent maintains their salary levels rather than recover any overpayment of these salaries.
58 Ms Cameron stated that before the enactment of the WACOT Act and the registration of the 2006 Agreement the respondent employed teachers without teaching qualifications to be in control of and supervise classes in the same way as a teacher with a teaching qualification. Such teachers were employed in specialist subject areas such as music, drama and languages and they were paid on the “unqualified teachers” salary scales of Level 1.1 to 1.6 and up to 1.8 at the discretion of the respondent. Ms Cameron disagreed that teachers holding a LAT commenced on the same pay scale as a graduate and are paid the same as a fully qualified teacher with a teaching qualification. Ms Cameron stated that the introduction of the WACOT Act from 2004 had no impact on the way the respondent remunerated its teachers.
59 Ms Cameron stated that the respondent has consistently paid teachers without a teaching qualification in accordance with the Award and by 2008 these practices had been in place for almost 14 years without any issues arising. Ms Cameron concedes that there is no difference between the functions, roles and responsibilities and accountabilities of teachers fully registered by WACOT and those holding a LAT. However, LAT teachers do not have a teaching qualification and are only given a LAT when suitably qualified teachers cannot be found and the LAT restricts the teacher so that they can only teach in a specific subject area, location and for a finite period.
60 Ms Cameron stated that during the negotiations for the 2008 Agreement there were no discussions between the parties regarding the need to make it clear that teachers were not paid salaries below Level 1.6 nor was there a discussion about the need to provide a salary scale for “assistant teachers”. Documentation was also provided to Ms Gisborne clearly showing that approximately 700 full time equivalent teachers were paid on salary levels below 1.6 (see Exhibit R2[2] attachment PCR9. Ms Cameron stated that the separation of the salary scales in the 2008 Agreement was at the respondent’s initiative because of the limited capabilities of the HRMIS, the need to provide a single reference point for all rates of pay according to classifications and to implement the new salary structure and present it in a readable format. Ms Cameron concedes that from time to time there have been instances where untrained teachers have progressed beyond the maximum increment as prescribed in the Award through administrative error and when this has occurred employees have had their salary maintained so as not to financially disadvantage them.
61 Ms Cameron maintains that as successive agreements and the Award applied to untrained teachers there was therefore no necessity to hold any discussions with the applicant about this issue and she stated there has been no change in the entitlements of untrained teachers since 1993. Ms Cameron stated that it was the respondent’s intention and obligation to fill all teaching positions by suitably qualified teachers and the employment of LAT teachers was therefore kept to a minimum. However during times of teacher shortage this has resulted in the employment of untrained teachers becoming more prevalent.
62 Under cross examination Ms Cameron conceded that there had been errors in the way in which the respondent had handled Mr Adams’ employment and she stated that she was unaware if Mr Adams had been given written advice that he had been overpaid. Ms Cameron confirmed that during discussions for the 2008 Agreement there was no discussion about LAT teachers specifically being placed on the untrained teachers scale as this was not the terminology used by the respondent as it used the term untrained teachers.
63 Ms Cameron confirmed that untrained teachers were paid pursuant to Clause 22(2) of the Award and she conceded that the duties of an untrained teacher were the same as those of trained teachers who have as a minimum, a four year teaching qualification.
64 Mr Wilson gave evidence by way of a witness statement (Exhibit R3). Mr Wilson is employed by the respondent as the Manager of Teacher Staffing in the Staffing Directorate and in this role he facilitates the staffing of public schools throughout Western Australia and the appointment and transfer of teachers across Western Australia. Mr Wilson has worked with the respondent since 1977. Mr Wilson has been in his current role since January 2005. Mr Wilson is familiar with the appointment processes for both teachers and school administrators.
65 Mr Wilson stated that untrained teachers working for the respondent are paid on a salary scale that, in May 2006, ranged from Level 1.1 to Level 1.6 in accordance with Clause 47.6 of the Government School Teachers’ and School Administrator’s Certified Agreement 2004 (“the 2004 Agreement”) and movement through this salary scale was by annual increment based on a specified number of service days and calculated automatically by the HRMIS. In order to attract and retain teachers in areas of need, such as design and technology, the respondent may increase the salary of untrained teachers up to a maximum of Level 1.8 and the procedure adopted by the Staffing Directorate in a case of this nature was to request substantiating documentation from the teacher who sought to be paid at a higher salary level. This documentation was then considered by staff in the Staffing Directorate and one salary increment was applied to the teacher’s salary for every three years of related work experience. Mr Wilson stated that this was a long standing business rule used by the respondent. Mr Wilson stated that moving an untrained teacher to a higher salary level than 1.6 required the untrained teacher to be placed on the trained teacher salary scale within HRMIS and because increments were automatically applied by HRMIS the salary of untrained teachers placed on the teachers scale had to be monitored manually to ensure that they did not progress above Level 1.8.
66 Mr Wilson stated that given Mr Adams’ work experience Mr Wilson authorised that Mr Adams be paid at commencement at a Level 1.8 and Mr Wilson stated that the respondent’s payroll section were asked to ensure that his salary did not progress above this level however this request was not followed.
67 Mr Wilson stated that under the 2008 Agreement the salary for untrained teachers can progress to Level 1.8 whereas under previous agreements the salary of an untrained teacher could only progress above Level 1.6 upon a consideration of substantiating document and the HRMIS system was altered at the time to reflect this.
68 Mr Wilson stated that the community expects and demands that qualified teachers teach students and this is one of the cornerstones of the national teacher registration requirements. Mr Wilson maintained that to allow untrained teachers to progress to the top of the salary scale would be inappropriate because it would fail to recognise the additional study and higher education fees incurred by teachers who undertake teacher training and appropriately reflect this additional training in the salaries structure and teachers would not undertake such training which may have a significant impact on public confidence in the education system.
69 Mr Salvatore Mastrolembo gave evidence by way of a witness statement (Exhibit R4). Mr Mastrolembo is employed by the respondent as the Payroll Operations Manager within the respondent’s Shared Services Centre. In this role he manages the respondent’s payroll operations. Mr Mastrolembo is familiar with the respondent’s payroll procedures and processes.
70 Mr Mastrolembo stated that Mr Adams was employed as a Level 1.8 employee from 1 May 2006 and this level was approved by Mr Dennis, Mr Wilson and Kim Ward the respondent’s Director of Staffing. Mr Mastrolembo understood that this salary level was to remain at Level 1.8 because the Award precludes untrained teachers from rising about this level. Mr Mastrolembo stated that as HRMIS was programmed so that untrained teachers could not be paid a salary above Level 1.6, Mr Adams’ salary level was recorded on the trained teacher salary level in HRMIS.
71 Mr Mastrolembo stated that in January 2008 Mr Adams’ salary was increased to Level 2.1 at the request of one of the respondent’s staffing consultants and on 1 May 2008 HRMIS automatically increased his salary to Level 2.2 as this was the increment applied to all teachers on salary Level 2.1. This error was corrected on 1 May 2009 when Mr Adams’ status was changed in HRMIS to “untrained teacher Level 1.8” with no increment date inserted. Mr Mastrolembo stated that since that time Mr Adams’ salary has remained at Level 2.2 on a salary maintenance basis until such time as the salary payable at Level 1.8 exceeds his current salary rate, in accordance with advice from the respondent’s Acting Executive Director–Workforce.
72 Mr Mastrolembo stated that he understands that the respondent employs 177 untrained teachers, that is teachers who have not undertaken teacher training and he has ascertained that of these five have progressed above Level 1.8.
73 Mr Dennis gave evidence by way of a witness statement (Exhibit R5). Mr Dennis is currently employed by the respondent as the Manager Operations for the West Coast Education District and between August 2003 and May 2008 he was a staffing consultant for the respondent in the area of art, design and technology and home economics.
74 Mr Dennis gave evidence that he discussed the process for appointing Mr Adams as an untrained teacher in early 2006 with Mr Chadwick and at the time he explained to Mr Chadwick the process of obtaining an ID number and discussed the salary level for untrained teachers. On 10 April 2006, Mr Dennis sent a memo to WACOT requesting that Mr Adams’ application for a LAT be endorsed (Exhibit R5 attachment ID2).
75 Mr Dennis stated that he was aware that under the Award the highest salary level payable to an untrained teacher was Level 1.6 and the respondent had discretion to increase this to Level 1.8. Mr Dennis stated that from 2004 onwards there was pressure on the respondent to staff classes in the design and technology area due to a shortage of trained teachers in this area and there was an increased demand from employers and students in this area. After Mr Adams requested a salary level higher than Level 1.6 and after he supplied documentation with reasons for supporting an increase salary the respondent used its discretion to appoint Mr Adams above Level 1.6 up to a cap of Level 1.8. In doing so Mr Dennis intended that Mr Adams would not receive any annual increments to this salary on the basis of the limitation provided for in the Award (see Exhibit R5 attachment ID4).
Submissions
Applicant’s submissions
76 The applicant submits that as Mr Adams fulfils the same roles and duties of a tertiary trained teacher under the SE Act, then he should be paid the rate of pay of a trained teacher and even though Mr Adams holds a LAT this should not impact on the salary he should be paid.
77 The applicant argues that Mr Adams is not an untrained teacher for the purposes of the WACOT Act and the 2008 Agreement, even though he is regarded by the respondent as being an untrained teacher. Additionally, Mr Adams holds appropriate qualifications to teach in his current role. The applicant concedes that holding a Certificate IV qualification does not equate to that of a tertiary teaching qualification however, the skills held and exercised by Mr Adams as well as the role undertaken by him entitles him to be paid as a Level 2.4 teacher. The applicant also maintains that teachers in a similar situation to Mr Adams should be able to access the teachers salary scale up to Level 2.4 on the basis that they are entitled to equal pay for undertaking equal work and they undertake the full range of duties expected of a teacher.
Respondent’s submissions
78 The respondent maintains that when determining Mr Adams’ salary the provisions of the 2008 Agreement as well as the Award must be taken into account. The respondent argues that when interpreting industrial agreements the ordinary meaning of the text is paramount (see Robe River Iron Associates v Amalgamated Metal Workers and Shipwrights Union of Western Australia [1987] 67 WAIG 1097). When determining the true interpretation of the 2008 Agreement and the meaning of relevant clauses the Commission is to refer to the presumed mutual intentions of the parties and if the terms of the industrial agreement are clear and unambiguous, which the respondent submits they are in this case it is not permissible to look at extrinsic material to qualify the meaning (see Codelfa Construction Pty Ltd v State Rail Authority [NSW] [1982] 149 CLR 337).
79 The respondent does not dispute that Mr Adams fulfils the duties normally undertaken by a teacher however the trained teacher salary scale does not apply to him as he does not have a teaching qualification from a higher education institution and Mr Adams is not a trained teacher under the relevant agreements and the Award, specifically Clause 22(2) of the Award.
80 The respondent submits that the term ‘untrained teacher’, as defined in Clause 7 of the 2008 Agreement, means a teacher who does not have tertiary teacher training. As Mr Adams holds a LAT on the basis that he does not have a tertiary teaching qualification, this also confirms that Mr Adams should not be entitled to be paid the salary level of a trained teacher. Additionally, holding a LAT limits where an employee can teach and that employee is restricted to teaching certain subjects which is different to that which applies to a tertiary trained teacher. The untrained teacher scale must therefore apply to Mr Adams and other teachers who do not hold a relevant tertiary teaching qualification.
81 The respondent argues that there was never any agreement between the parties nor did the parties intend that an untrained teacher would progress beyond salary Level 1.8 and no documentation exists confirming otherwise. It is also a relevant consideration that since 1993 the Award provides that Level 1.8 is the maximum salary that an untrained teacher can be paid. As the teacher salary scale incorporates the placement of three, four and five year trained teachers it follows that an untrained teacher is an employee whose qualifications do not meet those requirements. The respondent also argues that gaining a Certificate IV qualification does not mean that a person is a trained teacher as this certificate is not an equivalent qualification to that of a tertiary trained teacher. The respondent maintains that even though there is a shortage of design and technology teachers and that the salary scales of an untrained teacher may not be competitive with other careers this issue is not the subject of arbitration with respect to this application.
82 The respondent submits that the fact that Mr Adams’ current salary is above Level 1.8 is as a result of administrative errors and Mr Adams has therefore been placed on salary maintenance.
83 The respondent objects to the issuance of the order being sought by the applicant that all employees in a similar category to Mr Adams be paid as a fully trained teacher because the evidence given in the proceedings only related to Mr Adams.
Findings and Conclusions
Credibility
84 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 and I find that the evidence give by each witness was given in a considered and forthright manner. Given my confidence in the evidence of all of the witnesses who gave evidence in these proceedings I have no hesitation in accepting the evidence they gave.
85 The applicant is seeking the issuance of orders contained in points 1 (b) to (f) of the Schedule of the memorandum of matters referred for hearing and determination (see paragraph 2). Order 1(b) being sought by the applicant is that Mr Adams be classified and paid at a salary level higher than Level 1.8 of the Untrained Teacher scale in the 2008 Agreement and that he be entitled to be paid the rates of pay of a trained teacher and progress up the teacher scale in the same manner as a three, four or five year trained teacher. The respondent argues that as Mr Adams is an untrained teacher for the purposes of the relevant industrial instruments and given the salary restrictions placed on an untrained teacher in these instruments the appropriate salary level for Mr Adams can be no higher than Level 1.8 notwithstanding the fact that he is currently being paid as a Level 2.2 employee under a salary maintenance arrangement.
86 What it is necessary to determine is the salary level to which Mr Adams is entitled and whether or not he is an untrained or unqualified teacher for the purposes of the Award and the 2004, 2006 and 2008 agreements. It is also necessary to consider the applicant’s claim that even though Mr Adams does not hold a tertiary teaching qualification, he has teaching qualifications, he fulfils the role of a teacher and as he holds an authority to teach (LAT) this should enable him to progress up the salary scale beyond Level 1.8.
87 As Mr Adams’ terms and conditions of employment since the commencement of his employment with the respondent were and are now regulated by a range of industrial instruments it is appropriate to review and interpret these relevant provisions to determine his correct salary level.
88 The interpretation of an award is a matter of law. When interpreting an award one must read the terms of the award, give the words in the clause or clauses in question their ordinary commonsense meaning and ascertain whether the words used have an unambiguous meaning. If the terms of the award are clear and unambiguous it is not permissible to look at extrinsic material to qualify the meaning of the clause or clauses in issue (see Norwest Beef Industries Limited and Another v West Australian Branch, Australian Meat Industry Employees Union, Industrial Union of Workers [1984] 64 WAIG 2124).
89 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.’”
90 There was no dispute and I find that Mr Adams’ employment was governed by the 2004, 2006 and 2008 agreements and the Award, as varied from time to time. There are a number of clauses in these industrial instruments which are relevant to the salary scale of untrained/unqualified and trained teachers and definitions relevant to these classifications.
91 When Mr Adams commenced employment at the College in May 2006 the Award did not contain a definition for untrained teacher but instead contained a definition of an unqualified teacher. This definition reads as follows:
“"Unqualified teacher" shall mean a teacher who does not hold an approved teacher's qualification.”
At this time the Award also contained the following definition:
“"Teacher" shall mean as defined in the Education Act 1928 and shall include –
(a) any person engaged in teaching in a government school;
(b) any person employed by the Minister and engaged in teaching in a pre-school centre; and
(c) any person holding or acting in a position in the Ministry for which a teaching academic qualification is required,
but does not include any public servant, whether or not he or she holds, or acts in a position in respect of which a teaching academic qualification is required;”
92 As at May 2006, the Award contained the following provisions at Clause 8. – Salaries:
“(1) For the purpose of this clause -
…
“Unqualified teacher” shall mean a teacher who does not hold an approved teacher’s qualification.
…
(3) (a) Teachers who possess an approved qualification shall be placed on the salary scale prescribed in Schedule B, Table I of this award as follows –
(i) Three-year trained teacher - Level 1, Point 4;
(ii) Four-year trained teacher - Level 1, Point 5;
(iii) Five-year trained teacher – Level 1, Point 6;
provided that teachers who possess approved qualifications in excess of those specified above may be placed on the salary scale at the discretion of the employer.
(b) Teachers who do not possess an approved qualification may be placed on salary points lower than those specified in paragraph (a) of this subclause at the discretion of the employer.
(c) On first appointment to the Ministry, other than directly from a teacher training institution, teachers may be placed on the appropriate salary scale in Level 1 or 2 as determined by the employer having regard for their qualifications and experience.
(4) Progression from Level 1 to Level 2 of Schedule B, Table I, will be subject to attainment of a four year trained qualification, except that the employer may allow a three-year trained teacher to progress to Level 2 subject to subclause (10) of this clause.
…
(6) An unqualified teacher may not proceed beyond Level 1, point 6, of Schedule B, Table I, except that the employer may at his/her discretion, and under such terms as he/she thinks fit, allow an unqualified teacher to progress to Level 1, point 8.”
93 Clause 22. – Salaries of the Award, as at 16 December 2008, provides as follows:
“(1) (a) The salaries and pay rates for employees are contained in Schedule B. – Salaries of this Award.
(b) Employees covered by this award are to be paid as per the provisions comprising:
(i) Part 1 – Wages Adjusted by Arbitrated Safety Net Adjustments; or
(ii) Part 2 – Expired Industrial Agreement Wages
whichever are the greater.
(2) Teachers who possess a qualification recognised by the Director General as being an appropriate qualification are placed on the salary scale prescribed in Schedule B. – Salaries of this Award, as follows:
(a) Three-year-trained Teacher - Level 1, Point 5.
(b) Four-year-trained Teacher - Level 1, Point 6.
(c) Five-year-trained Teacher - Level 1, Point 7.
Teachers who possess approved qualifications in excess of those specified above may be placed above Level 1 point 7 at the discretion of the Employer.
Untrained Teachers may be placed on salary points lower than those specified in clause 22(2) at the discretion of the Employer.
An Untrained Teacher can not proceed beyond Level 1, point 8.
(3) Level 1 and 2 Teachers who have added to their qualifications after appointment may be given accelerated progression subject to the following restrictions:
(a) An Untrained Teacher appointed from a teacher training institution who obtains approved teaching qualifications within a period of three (3) years after leaving the teacher training institution is placed on the same salary point as their contemporaries at the time of appointment who were appointed with qualifications.
(b) Untrained Teachers other than those referred to in clause 22(3)(a) advance one increment on gaining a qualification recognised by the Director General as being an appropriate qualification.
(c) A two (2)-year-trained Teacher who obtains the qualifications of a three (3)-year-trained Teacher is to advance one increment but can not proceed beyond the maximum of Level 1.
(d) A three (3)-year trained Teacher who obtains the qualifications of a four (4)-year-trained Teacher is to advance one increment.
(e) A four (4)-year-trained Teacher who completes a course of higher study, approved by the Employer, leading to an award such as Doctoral Degree, Master's Degree or approved Graduate Diploma, must advance one (1) increment but can not proceed beyond the maximum of Level 2, Schedule B – Salaries Table I of this Award. Only one (1) increment can be obtained under clause 22(3)(e).
(4) If a person, immediately before graduating as a qualified Teacher, is employed on a permanent or fixed-term contract basis to fill a teaching vacancy, they are entitled to receive the salary and entitlements as prescribed for Graduate Teachers.”
94 Clause 5. – Definitions of the Award, as at 16 December 2008, provides the following definitions:
“"Untrained Teacher" means a Teacher who does not have teacher training”
“"Teacher" means a person as defined in the Act, and unless otherwise specified in this Award, the term is used to include the classifications identified in Clause 15 – Teacher Career/Classification Structure of this Award”
“"Three-Year-Trained Teacher" means a Teacher who successfully completed an academic qualification requiring a sequence of the equivalent of three (3) years of full time, post-matriculation tertiary education which incorporates an approved course of initial teaching training, or obtained other qualifications approved as of equivalent standard;”
“"Four-Year-Trained Teacher" means a Teacher who has successfully completed an academic qualification requiring a sequence of the equivalent of four (4) years of full time, post-matriculation tertiary education which incorporates an approved course of initial teacher training, or obtained other qualifications approved as of equivalent standard”
“"Five-Year-Trained Teacher" means a Teacher who has successfully completed an academic qualification requiring a sequence of the equivalent of five (5) years of full time, post-matriculation tertiary education which incorporates an approved course of initial teacher training, or obtained other qualifications approved as of equivalent standard”
“"Approved" means approved by the Employer”
95 Clause 46 – Compaction of Teachers Incremental Salary Scale in the 2004 Agreement contained the following table:
“46.5 Effective from 2005 the Teachers Salary Structure shall be as follows:
Current Rate
February 2004
February 2005
February 2006
Teachers




1.1
$30,985
$31,915
$33,872
$33,858
1.2
$32,595
$33,573
$34,580
$35,617
1.3
$34,474
$35,508
$36,573
$37,671
1.4
$35,961
$37,040
$38,151
$39,296
1.5
$38,288
$39,437
$40,620
$41,838
1.6
$40,543
$41,759
$43,012
$44,302
1.7
$43,486
$45,563
$46,930
$48,338





1.8
$48,640
$50,099
$51,602
$53,150





2.1
$50,135
$52,025
$53,586
$55,193
2.2
$52,211
$54,164
$55,789
$57,463
2.3
$56,126
$57,810
$59,544
$61,330





Senior Teacher 1
-
$59,310
$61,089
$62,922
Senior Teacher 2
-
$60,496
$62,311
$64,180





Level 3 Classroom Teacher
$62,972
$65,050
$67,197
$69,414

96 Clause 47 –Teacher Career Structure in the 2004 Agreement provided as follows:
“47 TEACHER CAREER STRUCTURE
47.1 The jointly agreed Teacher Competence and Standards Working Party will continue to monitor and make recommendations to the parties on further development and implementation of the Teacher Career Structure as initiated in the 1996 Teachers Agreement.
Level 1 & 2 Teachers
47.2 Teachers who possess an approved qualification shall be placed on the salary scale prescribed in clause 45 – Teacher Salary Increases of this Agreement as follows:
(a) Four-year trained teacher – Level 1, Point 5;
(b) Five-year trained teacher – Level 1, Point 6;
provided that teachers who possess approved qualifications in excess of those specified above may be placed on the salary scale at the discretion of the employer.
47.3 Teachers who do not possess an approved qualification may be placed on salary points lower than those specified in subclause 47.2 at the discretion of the employer.
47.4 On first appointment to the Department of Education and Training, other than directly from a teacher training institution, teachers may be placed on the appropriate salary scale in Level 1 or 2 as determined by the employer having regard for their qualifications and experience.
47.5 A teacher who has not had a satisfactory report may not advance further than three (3) annual increments from the salary point on appointment.
47.6 An unqualified teacher may not proceed beyond Level 1, point 6, of clause 45 – Teacher Salary Increases, except that the employer may at his/her discretion, and under such terms as he/she thinks fit, allow an unqualified teacher to progress to Level 1, point 8.
47.7 Teachers employed on Level 1 and 2 who have added to their qualifications after appointment may be given accelerated progression subject to the following restrictions –
(a) An unqualified teacher appointed from a teacher training institution who obtain approved teaching qualifications within a period of three (3) years after leaving the teacher training institution shall be placed on the same salary point as his/her contemporaries at the time of appointment who were appointed with qualifications.
(b) Unqualified teachers other than those referred to in paragraph (a) of this subclause shall advance one increment on gaining approved teaching qualifications.
(c) A four-year trained teacher who completed a course of higher study, approved by the employer, leading to an award such as Doctoral Degree, Master’s Degree or approved Graduate Diploma, shall advance one increment but shall not proceed beyond the maximum of Level 2 outlined in clause 45 – Teacher Salary Increases (provided that only one increment can be obtained under this subclause).”
97 An approved qualification in the 2004 Agreement means approved by the employer.
98 Clause 5. - Relationship to Award and Previous Agreements in the 2004 Agreement provided as follows:
“5.1 This Agreement shall replace the Government School Teachers’ and School Administrators’ Certified Agreement 2000, Government School Administrators’ Workplace Agreement 2000 and all previous memoranda and agreements which had application to the parties to this Agreement prior to the registration of this Agreement.
5.2 The conditions prescribed in this Agreement shall, to the extent of any inconsistency, prevail over the terms prescribed in the Award. Otherwise the terms of the Award shall be read wholly in conjunction with this Agreement, and such terms are included in this Agreement.”
99 Clause 50 – Teacher Salary Increases in the 2006 Agreement provided the following table:
“50.2 Salaries shall be paid in accordance with the following table:
Current Rate
August 2006
February 2007
August 2007
February 2008
Teachers





LEVEL 1.1
$33,858
$34,704
$35,399
$36,107
$37,009
LEVEL 1.2
$35,617
$36,507
$37,238
$37,982
$38,932
LEVEL 1.3
$37,671
$38,613
$39,385
$40,173
$41,177
LEVEL 1.4
$39,296
$40,278
$41,084
$41,906
$42,953
LEVEL 1.5
$41,838
$42,885
$43,743
$44,618
$45,733
LEVEL 1.6
$44,302
$45,410
$46,318
$47,244
$48,425
LEVEL 1.7
$48,338
$49,546
$50,537
$51,548
$52,837
LEVEL 1.8
$53,150
$54,479
$55,568
$56,680
$58,097






LEVEL 2.1
$55,193
$56,573
$57,704
$58,858
$60,330
LEVEL 2.2
$57,463
$58,900
$60,078
$61,279
$62,811
LEVEL 2.3
$61,330
$62,863
$64,121
$65,403
$67,038
LEVEL 2.4
-
-
-
$67,446
$69,132






Senior Teacher 1
$62,922
$64,495
$65,785
$69,140
$70,868
Senior Teacher 2
$64,180
$65,785
$67,100
$71,067
$72,844






Level 3.1 Classroom Teacher
$69,414
$71,149
$72,572
$74,275
$76,132
Level 3.2 Classroom Teacher
-
-
-
$75,848
$77,744
100 Clause 34 – Teacher Career Structure in the 2006 Agreement provided as follows:
“34.1 The teacher career structure consists of:
(a) Graduate Teacher, a teacher in his/her first two years of teaching,
(b) Teacher, a teacher who has taught for more than 2 years;
(c) Senior Teacher 1 and  2, a teacher who has successfully completed the Senior Teacher process as per Clause 36.
(d) Level Three Classroom Teacher, a teacher who has attained L3 Classroom Teacher status as per Clause 37.
34.2 In the event an unqualified person, before graduation, is required to fill a teaching vacancy, such an employee who is on fixed term or permanent employee shall be employed at a salary level of no less than 1.5 and will enjoy the entitlements as described for graduate teachers.”
101 Clause 9 – Definitions of the 2006 Agreement contained the following definitions and also contained definitions of a “Four-year-trained teacher” and a “Five-year-trained teacher” in the same terms as the Award:
“"Unqualified teacher" means a teacher who does not hold an approved teacher's qualification”
“"Tertiary Education" means undertaking a course at an approved education institution for which the pre-requisite is a successful Year 12 of schooling or its approved equivalent”
102 Clause 5 – Relationship to Award and Previous Agreements of the 2006 Agreement reads as follows:
“5.1 This Agreement replaces the Government School Teachers’ and School Administrators’ Certified Agreement 2004 which had application to the Parties to this Agreement prior to the registration of this Agreement.
5.2 The conditions prescribed in this Agreement shall, to the extent of any inconsistency, prevail over the terms prescribed in the Award. Otherwise the terms of the Award shall be read in conjunction with this agreement.”
103 Clause 7 – Definitions in the 2008 Agreement provides the following definitions and also contains definitions of a “Three-Year-Trained Teacher”, a “Four-year-trained teacher” and a “Five-year-trained teacher” in the same terms as the Award:
“"Teacher" means a person as defined in the Act, and unless otherwise specified in this Agreement, the term is used to include the classifications identified in Clause 15 – Teacher Career/Classification Structure of the Award”
“"Untrained Teacher" means a Teacher who does not have teacher training”
“"Approved" means approved by the Employer”
104 Schedule B – Salaries of the 2008 Agreement contains, among others, the following relevant tables:
“UNTRAINED TEACHERS
TABLE 1 - Salaries (Annual Rate)
Increment
From Feb-08
Sep-08
Oct-09
Feb-10
Oct-10
1.1
$37,009
$39,230
$41,192
$41,224
$42,873
1.2
$38,932
$41,268
$43,331
$43,504
$45,244
1.3
$41,177
$43,648
$45,830
$45,910
$47,747
1.4
$42,953
$45,530
$47,807
$48,448
$50,386
1.5
$45,733
$48,477
$50,901
$51,127
$53,172
1.6
$48,425
$51,331
$53,898
$53,954
$56,112
1.7
$52,837
$56,007
$58,807
$59,199
$61,567
1.8
$58,097
$61,583
$64,662
$64,788
$67,380
TEACHERS
TABLE 4 - Salaries (Annual Rate)
Increment
From Feb-08
Sep-08
Oct-09
Feb-10
Oct-10
1.6
$48,425
$51,331
$53,898
2.1
$53,954
$56,112
1.7
$52,837
$56,007
$58,807
2.2
$59,199
$61,567
1.8
$58,097
$61,583
$64,662
2.3
$64,788
$67,380
2.1
$60,330
$63,950
$67,148
2.4
$67,328
$70,021
2.2
$62,811
$66,580
$69,909
2.5
$69,967
$72,766




2.6
$72,710
$75,618
2.3
$67,038
$71,060
$74,613
2.7
$75,559
$78,582
2.4
$69,132
$73,280
$76,944
2.8
$78,521
$81,662




2.9
-
$84,863
TRANSITION ARRANGEMENTS FOR SALARY INCREMENTS - FEBRUARY 2010
TABLE 23
The following arrangements are effective from the beginning of the pay period ending 4 February 2010:
(a)
The new Teacher salary scale commences at level 2.1 (2.1 is equivalent to 1.6) with increments up to level 2.8, and a new increment level 2.9 introduced from 4 February 2011.
(b)
Permanent teachers in the employ of the Department at the date of registration of the Agreement and remunerated at levels 1.7, 1.8 and 2.1 respectively on the existing classification structure will transition to and progress up the new structure as follows:

(i)
those on level 2.1 will progress to level 2.2 in accordance with current entitlements in 2009. At the date of transition, Teachers on level 2.2 will convert to the new level 2.5 and progress to level 2.7 on their next anniversary date;

(ii)
those on levels 1.7 and 1.8 respectively will continue to progress up the existing classification structure in accordance with current entitlements and convert to the equivalent incremental point at the date of transition; then as the case may be progress automatically on their anniversary date from Level 2.3 to 2.4 to 2.5 to 2.7.
(c)
Temporary fixed term Teachers in the employ of the Department at the date of registration of this Agreement at levels 1.7, 1.8 and 2.1 respectively and who at the transition date have either attained permanent status or maintained continuous service as a fixed term Teacher as provided for in Clause 38 – Long Service Leave of the Award will convert to and progress up the new classification structure in the manner referred to in subclauses (b)(i) and (ii) above.
(d)
Teachers at level 2.4 (new level 2.8); their new increment date changes to February 2011 at which point they will advance to the next increment, i.e. 2.9.
(e)
Teachers at ST1; their new increment date changes to February 2011 at which point they will advance to the new single ST rate.
(f)
ST2 will convert to the new single ST salary point.
(g)
The transition arrangements referred to above do not apply to casual employees.
105 Clause 2 – Relationship to Award of the 2008 Agreement reads as follows:
“2.1 This Agreement replaces the School Education Act Employees’ (Teachers and Administrators) General Agreement 2006 [AG 63 of 2006].
2.2 The conditions prescribed in this Agreement, to the extent of any inconsistency, prevail over the terms prescribed in the Award. Otherwise the terms of the Award will be read in conjunction with this Agreement.”
106 I find that when determining the salary level to which Mr Adams is entitled the terms of the relevant clauses in 2004, 2006 and 2008 agreements, when read in conjunction with the Award, are clear and unambiguous and confirm that Mr Adams is an untrained/unqualified teacher and his salary therefore cannot progress beyond Level 1.8. Given this conclusion I also reject the applicant’s claim that Mr Adams should be treated in the same manner as a three, four or five year trained teacher and should be able to progress through the teacher salary scales beyond Level 1.8 as he undertakes the full range of duties as a teacher with tertiary teaching qualifications as this would be contrary to the salary level to which Mr Adams is entitled under the relevant industrial instruments.
107 The facts are, to a large extent, not in dispute. There is no dispute and I find that Mr Adams holds a Certificate IV in Assessment and Workplace Training and this is not a tertiary teaching qualification. Notwithstanding this I accept that Mr Adams has sufficient qualifications and experience to adequately undertake his role as a Design and Technology Automotive teacher and Program Co-ordinator at the College. Furthermore, there was no dispute and I find that Mr Adam has successfully carried out his role as a teacher at the College since the commencement of his employment with the respondent in May 2006.
108 A teacher is defined in the Award and the 2004, 2006 and 2008 agreements as being a person who has successfully completed a minimum of three years of full-time, post matriculation tertiary education which incorporates teacher training and an untrained/unqualified teacher is defined as a teacher who does not have an approved teacher’s qualification and an employee who does not have teacher training. When taking into account the definitions of a teacher and the definition of an untrained/unqualified teacher in the relevant industrial instruments and as it was not in dispute that Mr Adams has never completed an approved post secondary teaching qualification of at least three years full-time study I find that Mr Adams is not able to be classified as a teacher and is therefore an untrained/unqualified teacher for the purposes of the Award and the 2004, 2006 and 2008 agreements.
109 I find that the terms of Clause 8(3) and (6) of the Award and Clause 47.6 of the 2004 Agreement, which applied at the time Mr Adams commenced employment at the College and the terms of Clause 22 of the Award which replaced Clause 8 of the Award, make it clear that the respondent only has the discretion to pay Mr Adams no more than the salary attached to Level 1.8 given that he is classified as an untrained/unqualified teacher. Even though Mr Adams claims that he was unaware at the time of his appointment as a teacher at the College that Level 1.8 was the highest level he could be paid under the relevant salary scale, it is clear under the 2004 Agreement and subsequent agreements when read in conjunction with the relevant section of the Award that as an untrained/unqualified teacher he is not entitled to be paid a salary higher than Level 1.8. I find that when Mr Adams commenced employment with the respondent in May 2006, the respondent used the discretion given to it under Clause 8 and later Clause 22 of the Award to place Mr Adams at higher than the untrained/unqualified teacher salary of Level 1.6 to ensure that his salary was competitive with his qualifications and his previous salary as a TAFE teacher. I note that Mr Adams continued to receive salary increments up to Level 2.2 via annual increments however I find that this was as a result of the respondent’s HRMIS system not being able to restrict an untrained teacher’s annual salary progression to Level 1.8.
110 I accept that Mr Adams is currently paid at a higher level than 1.8 however this does not assist the applicant’s claim that Mr Adams has the right to access the trained teacher remuneration scale on an ongoing basis. I find that due to the respondent’s inability to adequately ensure that Mr Adams be paid in accordance with the relevant industrial instrument and due to administrative errors Mr Adams is currently paid a salary level of 2.2 which has now been capped by the respondent under salary maintenance and I accept that Mr Adams will continue to be paid this rate of pay until the Level 1.8 salary rate exceeds this amount.
111 I accept the applicant’s argument that it never intended that teachers in Mr Adams’ position who undertake the same duties as three, four or five year trained teachers and who are regarded as untrained/unqualified teachers for the purposes of the Award and the 2004, 2006 and 2008 agreements should not have their salaries capped at Level 1.8 and I accept Ms Gisborne’s evidence that during negotiations for the 2006 and 2008 Agreements there was no discussion between the parties about the salary rates of LAT teachers who do not have a tertiary teaching qualification being treated differently to other teachers. I also find that there was no discussion between the parties during these negotiations about LAT teachers in Mr Adams’ situation having their salary level capped at Level 1.8. However the relevant terms of the 2004, 2006 and 2008 agreements when read in conjunction with the Award with respect to the salary to be paid to an untrained/unqualified teacher cannot be ignored when determining an employee’s terms and conditions of employment. It is clear that the combined effect of the definitions of a teacher when read in conjunction with Clause 8 and the current Clause 22 of the Award is that teachers in Mr Adams’ situation who do not hold approved tertiary teaching qualifications are regarded as an untrained/unqualified teacher and are precluded from being paid a salary beyond Level 1.8. Whilst Mr Adams’ salary is currently capped at Level 2.2 I have already stated that I accept that this level is under a salary maintenance arrangement which arose as a result of the respondent’s loose administrative practices which unfortunately gave Mr Adams the impression that he may have had an automatic entitlement to progress up the respondent’s teacher salary scale beyond Level 1.8.
112 The regime adopted by WACOT to register teachers who are eligible to teach in Western Australian schools in my view is consistent with the conclusion I have reached that as Mr Adams does not hold teaching qualifications necessary to be registered as a teacher he has a different status to that of a tertiary trained teacher.
113 The Membership Policy of WACOT (“the Policy”) contains the following categories of membership:
“2. Categories of membership
A. Provisional registration as a teacher (PRT)
A Provisionally Registered Teacher is a person who has met all requirements for registration, including the qualification requirements of the College, but who has not been employed as a teacher for at least one year in the past five years. The minimum qualification requirement is four years of completed higher education programs with at least one year being a completed initial teacher education program covering K-12 in early childhood, primary, middle or secondary education. In some circumstances, experienced teachers with three year teaching qualifications may be eligible for PRT.
B. Registration as a teacher (RT)
A Registered Teacher is a person who has met all requirements for registration, including the qualification requirements of the College, and has been employed as a teacher for at least one year in the past five years. The minimum qualification requirement is four years of completed higher education programs with at least one year being a completed initial teacher education program covering K-12 in early childhood, primary, middle or secondary education.
During the transition to professional regulation, people who were teaching in Western Australia prior to September 2004 and who did not meet the qualification requirements above, or who had not taught in the last five years, were eligible to apply for membership under special arrangements provided for in Schedule 4 of the Act.
C. Limited authority to teach (LAT) membership
A person who has suitable specialist skills or holds a completed teaching qualification that does not meet the requirements for registration as a teacher, and who has been offered employment as a teacher where no suitable registered or provisionally registered teacher is available, may be granted in conjunction with a prospective employer, a Limited Authority to Teach (LAT). This does not allow the person to engage in any relief teaching or taking of any classes outside of the conditions of the LAT.
A special category of LAT referred to as a “Relief LAT” may be granted to applicants that can demonstrate that they satisfy all requirements and have been awarded a recognised three year teaching qualification. This may allow them to be employed as a relief teacher in a maximum of six nominated schools.
D. Associate membership
An Associate Member is a teacher or educator who holds a qualification in teaching or who has made a significant contribution to education or teaching recognised by the College. An Associate Member is not eligible to teach in a Western Australian school.”
114 Section 1 – Membership requirements of the Policy reads as follows:
“All persons employed as teachers in Western Australian schools must be members of the Western Australian College of Teaching. To ensure that professional standards are maintained, a person applying for membership must meet the minimum prescribed requirements for membership outlined in the sections 33, 35, 37 and 39 of the Western Australian College of Teaching Act 2004. These requirements are described in this policy.
A person may apply to the College for membership in one of four categories:
1. Provisional Registration as a Teacher;
2. Registration as a Teacher;
3. Limited Authority to Teach; or
4. Associate membership.
1. Provisional registration as a teacher
The requirements for provisional registration as a teacher are that the applicant:
(a) holds a qualification in teaching approved by the College for provisional registration;
(b) has not been convicted of an offence the nature of which renders the person unfit to be a teacher; and
(c) is proficient in the English language, both written and oral.
Provisional registration as a teacher expires after three years and may be renewed.
2. Registration as a teacher
The requirements for registration as a teacher are that the applicant:
(a) holds a qualification in teaching approved by the College for registration;
(b) has not been convicted of an offence the nature of which renders the person unfit to be a teacher;
(c) has successfully completed a prescribed police Criminal Record Check;
(d) has achieved standards of professional practice approved by the College;
(e) is proficient in the English language, both written and oral; and
(f) within the 5 years preceding the application –
i) has been teaching, whether or not on a full-time basis, for at least one year; or
ii) has complied with any requirements as to professional involvement prescribed by regulations. (See Appendix 3).
Registration as a teacher expires after five years and may be renewed.
3. Limited Authority to Teach membership
The requirements for Limited Authority to Teach are that the applicant:
(a) has specialist knowledge, training, skills or qualifications;
(b) has been offered a teaching position at a school for which a suitable registered teacher is not available;
(c) has not been convicted of an offence the nature of which renders the person unfit to be a teacher; and
(d) is proficient in the English language both written and oral.
A Limited Authority to Teach may be issued for up to two years and may be renewed.
The requirements for a Limited Authority to Teach for relief teaching are that the applicant
(a) has been awarded a recognised three year teaching qualification;
(b) has been offered a relief teaching position at no more than six schools;
(c) has not been convicted of an offence the nature of which renders the person unfit to be a teacher; and
(d) is proficient in the English language both written and oral.
4. Associate membership
The requirements for Associate membership of the College are that the applicant:
(a) holds a qualification in teaching approved by the College or has made a contribution to education or teaching recognised by the College; and
(b) has not been convicted of an offence the nature of which renders the person unfit to be a member of the College.
Associate membership expires after one year and may be renewed.”
115 Section 6 – Teaching qualifications of the Policy reads in part as follows:
“An applicant for membership must demonstrate that he/she meets the Board’s minimum teaching qualification requirement for the category of membership sought.
1. The College may grant membership in the category of Registered Teacher, or Provisionally Registered Teacher, to an applicant who possesses a qualification in teaching approved by the College. A College-approved course has a minimum of four years full-time completed higher education incorporating:
(a) at least a one-year initial teacher education program covering K-12 in early childhood, primary, middle or secondary education; and
(b) a minimum of 45 days of satisfactory supervised practice teaching covering K-12 in early childhood, primary, middle or secondary school settings.
2. A person from New South Wales with a three year teaching qualification covering K-12 in early childhood, primary, middle or secondary education and a minimum of two years of recent and relevant teaching experience may be granted Provisional Registration.
3. A person with a three year teaching qualification covering K-12 in early childhood, primary, middle or secondary education who has taught in schools in Western Australia prior to 15 September 2004 for a minimum of 45 days may be granted registration in the category of either Provisional Registration as a Teacher or Registration as a Teacher.
4. The College may grant membership in the category of Associate member to a person who is a teacher or educator who holds a qualification in teaching or who has made a significant contribution to education or teaching recognised by the College who is no longer teaching but wishes to remain connected to the teaching profession.
5. The College may grant membership of the College in the category of Provisionally Registered Teacher, to a person who:
• has a three year teaching qualification awarded in Australia, Canada, Ireland, New Zealand or United Kingdom prior to 2000;
• was employed as a teacher following the awarding of their degree;
• has a minimum of two years recent and relevant teaching experience;
• has obtained a reference from a line manager attesting to their ability to meet the Western Australian Professional Standards for Teaching; and
• meets all other requirements for registration.
6. Teaching qualifications covering K-12 in early childhood, primary, middle or secondary education recognised for registration or accreditation by the Australian State or Territory registration authority in which they are delivered will be recognised as meeting the qualification requirement for membership of the College.
7. Applicants with qualifications gained overseas will be required to have their teaching qualifications recognised by the College as commensurate with College approved teacher education qualifications. Qualification assessments completed by the College override those completed by Teaching Australia.
8. If an applicant has completed four years of higher education studies which include a teaching qualification, but whose qualifications are not equivalent to the minimum qualifications set for registration to teach, they may be granted Provisionally Registered Teacher status with the condition they enrol in an approved program for a Graduate Certificate in Education and complete a minimum of one academic unit per semester. …”
116 There was no dispute that Mr Adams has an authority to teach under a LAT which is issued for a specific teaching position at a school where a suitable registered teacher was not available as Mr Adams does not qualify to be a fully registered teacher by WACOT. This is so because under the requirements contained in the WACOT Act he does not have an approved qualification – that is a minimum of four years full-time higher education study, including at least one year in a teacher education programme.
117 The WACOT Act provides that if a teacher such as Mr Adams lacks a tertiary teaching qualification he cannot be fully accredited by WACOT and can only teach by virtue of a LAT which is subject to restrictions. One of these restrictions relevantly is that if a registered teacher, that is one who holds a qualification approved by WACOT which has a minimum of four years full time completed higher education incorporating a teacher education programme of at least one year is available to undertake the role that Mr Adams currently undertakes then that tertiary trained teacher would be given priority to take up Mr Adams’ teaching position.
118 Given that I have found that Mr Adams is an untrained/unqualified teacher for the purposes of the 2004, 2006 and 2006 agreements and the Award it is therefore not appropriate to issue Order 1(b) being sought by the applicant that Mr Adams has a right to automatic incremental progression beyond Level 1.8 with respect to his salary. It follows that Order 1(c) being sought by the applicant fails.
119 It is unfortunate in my view that people in Mr Adams’ situation who hold qualifications to teach and have significant work and professional experience which is useful and contributes to their successful role as a teacher and teachers such as Mr Adams who successfully undertake the full range of duties expected of a tertiary trained teacher and are performance managed in the same manner as trained teachers, should not have access to the same salary scales as a tertiary trained teacher. However, I accept that the issue of the salary level to be paid to employees in this situation is ultimately a matter for the parties.
120 Order 1(d) has already been dealt with by the respondent confirming that Mr Adams is a permanent employee and it is clear that as a result of this being confirmed in writing this satisfies Order 1(e) being sought by the applicant.
121 The applicant is seeking an order that the right to incremental progression with respect to the salary of an untrained/unqualified teacher as defined in the relevant industrial instruments apply to all other employees in a similar situation to Mr Adams. As I have found that Order 1(b), which relates to Mr Adams should not issue then it is inappropriate to issue this order. Furthermore and in any event even if the Commission found that Mr Adams had a right to incremental progression with respect to his salary in my view it is inappropriate to apply this decision to other employees in a similar situation as the circumstances of each employee would vary.
122 An order will now issue dismissing this application.