TEACHERS (PUBLIC SECTOR PRIMARY AND SECONDARY EDUCATION) AWARD 1993

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES Principals' Federation of Western Australia

FIRST APPLICANT

The State School Teachers' Union of W.A. (Incorporated)

SECOND APPLICANT

-v-

DIRECTOR GENERAL The Department of Education

RESPONDENT

CORAM Commissioner D J Matthews

DATE monday, 25 june 2018

FILE NO/S APPL 80 OF 2017

CITATION NO. 2018 WAIRC 00382

Result Award varied

Representation

First Applicant Mr S Kemp, of counsel

Second Applicant Mr J Theodorsen, as agent

Respondent Ms E McAdam, as agent

Order

HAVING heard Mr S Kemp, of counsel, on behalf of the first applicant and Mr J Theodorsen, as agent, for the second applicant and Ms E McAdam, as agent, for the respondent on Friday, 8 June 2018 and by consent;

NOW THEREFORE I, the undersigned, pursuant to section 40(3)(iii) Industrial Relations Act 1979 hereby order:

THAT the Teachers (Public Sector Primary and Secondary Education) Award 1993 be varied in accordance with the following Schedule and that the variations in the attached Schedule shall have effect from the date of this order. 

Commissioner D J Matthews

SCHEDULE

1.  Clause 2 – Arrangement:

A. Delete “14. – Teachers – Duties Other Than Teaching (Dott) Time” and insert the following in lieu thereof:

14. – Teachers – Duties Other Than Teaching (DOTT) Time

2.  Clause 3.2 – Area of Operation and Scope: Delete this subclause and insert the following in lieu thereof:

(2) This Award shall apply to employees who are employed pursuant to section 235 of the School Education Act 1999 (WA) by the Director General for the Department of Education of Western Australia in the classifications outlined in section 237 of the School Education Act 1999 (WA) and Regulations 127 and 127A of the School Education Regulations 2000 who are members or are eligible to be members of the State School Teachers' Union of WA Inc and/or the Principals’ Federation of Western Australia.

3.  Clause 5 – Definitions – Delete this clause and insert the following in lieu thereof:

In this Award unless otherwise specified:

“Act” means the School Education Act 1999 as amended and any regulations made under the Act or successor legislation;

“Approved” means approved by the Employer;

“Award” means the Teachers (Public Sector Primary and Secondary Education) Award 1993;

“Base Salary” or “Base Rate” means an employee’s annual salary excluding allowances and any other additional payments;

“Casual Employee” means an employee engaged by the hour for a period not exceeding four weeks in any period of engagement, as determined by the Employer;

“De Facto Relationship” means a relationship (other than a legal marriage) between two persons who live together in a marriage-like relationship and includes same sex partners;

“De Facto Partner” means a person who lives in a de facto relationship with the first person;

“Department” means the Department of Education and Training;

“Dependant” means:

(a) for the purposes of Clause 53. – Locality Allowance of this Award, in relation to an employee:

(i) a partner who is resident within the State and is not in receipt of an income exceeding the separate net income (SNI), as set by the Australian Taxation Office for the purposes of the dependent spouse tax offset; and/or

(ii) a student child under the age of eighteen (18) years who is not in receipt of income exceeding the separate net income (SNI), as set by the Australian Taxation Office for the purposes of the dependent spouse tax offset.

(b) for the purpose of the remainder of the Award in relation to an employee:

(i) a partner;

(ii) child/children; and/or

(iii) other dependent family

who reside with the employee and who rely on the employee for support.

"District" means:

District 1: That area within a line commencing on the coast; thence east along latitude 28 to a point north of Tallering Peak; thence southeast to Mt Gibson and Burracoppin; thence to a point southeast at the junction of latitude 32 and longitude 119 to the coast.

District 2: That area within a line commencing on the south coast at longitude 119 thence east along the coast to longitude 123; thence north along longitude 123 to a point on latitude 30; thence west along latitude 30 to the boundary of No. 1 District.

District 3: That area within a line commencing on the coast at latitude 26; thence along latitude 26 to longitude 123; thence south along longitude 123 to the boundary of No. 2 District.

District 4: That area within a line commencing on the coast at latitude 24; thence east to the South Australian border; thence south to the coast; thence along the coast to longitude 123; thence north to the intersection of latitude 26; thence west along latitude 26 to the coast.

District 5: That area of the State situated between the latitude 24 and a line running east from Carnot Bay to the Northern Territory.

District 6: That area of the State north of a line running east from Carnot Bay to the Northern Territory border.

“District Office or District Education Office” means a metropolitan or regional (non metropolitan) office of the Department that has responsibilities including: the provision of support, advice, consultancy and specialist services to schools and their communities within the specified district;

“Employee” means any person employed in a classification contained within this Award and includes full-time, part-time, casual, permanent and fixed-term contract employees;

“Employer” means the Director General of the Department of Education;

“Family” means the definition contained in the Equal Opportunity Act 1984 for “relative”.  That is a person who is related to the employee by blood, marriage, affinity or adoption and includes a person who is wholly or mainly dependent on, or is a member of the household of, the employee;

“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;

“Internal Relief” means the taking of a relief class by a Teacher employed as part of the normal staffing establishment of a school;

“Industrial Relations Commission” means the Western Australian Industrial Relations Commission (WAIRC);

“Locality” means:

(a) for the purpose of Clause 53. – Locality Allowance, a locality specified in Schedule E – Locality Allowance of this Award;

(b) for the purpose of Clause 47. – Allowances Payable on Appointment, Promotion or Transfer and Clause 55. – Property Allowance of this Award, in relation to an employee:

(i) the Metropolitan Schools District; or

(ii) outside the Metropolitan Schools District, that area within a radius of fifty (50) kilometres from an employee’s headquarters.

"Metropolitan Schools Boundary" means the line joining and including the following schools and locations: Becher Point, Byford, Carinyah, Sawyers Valley, Mt Helena, Warbrook and a line due west to the Coast;

"Metropolitan Schools District" means the area bounded by the Metropolitan Schools Boundary and the coast together with Rottnest Island;

“Normal School Day or Normal Operating Hours” means the normal duration of the school day based on the start and finish times as determined by the Principal (as the delegate of the Employer) – the minimum daily attendance requirement for a full-time employee is five hours and thirty-five minutes unless otherwise agreed by the Principal;

“Partner” means a person who is a spouse or de facto partner;

"Pre-School Centre" has the same meaning as it has in the Act;

“Primary Care Giver” is the employee who will assume the principal role for the care and attention of newborn/newborns and/or adopted child/children.  The Employer may require confirmation of primary care giver status;

“Primary” when used in conjunction with a “school” or a “Principal” in this Award relates to, but is not limited by, the delivery of the “primary educational programme” as defined in the Act;

“Replacement Employee” is an employee specifically engaged to replace an employee proceeding on parental leave;

“Residence” includes any accommodation of a kind commonly known as a flat or home unit that is, or is intended to be, a separate tenement;

“Secondary” when used in conjunction with a “school” or a “Principal” in this Award relates to, but is not limited by, the delivery of the “secondary educational programme” as defined in the Act;

“School Administrator” means a person holding a position of School Administrator, as prescribed in the Act;

“School Psychologist” means a person holding a position of School Psychologist, as prescribed in the Act;

“Spouse” means a person’s partner in marriage;

"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;

“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;

"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;

“Union” means The State School Teachers’ Union of W. A. (Incorporated) (SSTUWA) and/or the Principals’ Federation of Western Australia (PFWA); and

“Untrained Teacher” means a Teacher who does not have teacher training.

4.  Clause 7 – Permanency and Tenure – Delete this clause and insert the following in lieu thereof:

(1) The Department is committed to the engagement of Teachers and School Administrators on a permanent basis.  Fixed term and casual contracts will only be used to the extent that the position is unable to be filled on an ongoing basis due to it being:

(a) For a defined and limited program of work; or

(b) A vacancy due to leave of absence.

(2) Fixed term contracts, subject to the above, will be for the maximum possible duration.

(3) (a) The Department will continue to engage Teachers on a permanent basis where a suitable vacancy occurs in accordance with the Department’s policy on permanency for all teaching staff.

(b) Changes to the policy on permanency and tenure are to be negotiated between the Parties.

(4) An employee engaged on a fixed term contract will be notified, in writing, upon commencement of employment of:

(a)                 The details of the work;

(b)                The reason for the contract being fixed term;

(c)                 The applicable conditions of employment; and

(d)                The starting and finishing dates of the contract.

(5) This clause applies to all positions including locally selected positions.

5.  Clause 27 – Annualisation of summer vacation loading – Delete this clause and insert the following in lieu thereof:

The salaries of permanent and fixed-term employees include the annualisation of summer vacation leave loading over a period of four (4) weeks – equivalent to “annual leave”.

6.  Clause 31(1) – Carer’s Leave – Delete this subclause and insert the following in lieu thereof:

(1)    Carer’s Leave

(a)     Employees are entitled to access in any one year up to a maximum of 12.5 days paid leave to care for a sick family member, provided the days used are accrued sick leave entitlements.  Carer’s leave is not cumulative from year to year.

(b)    In exceptional circumstances employees can apply to the Employer to access additional carer’s leave beyond the maximum of the 12.5 days entitlement at clause 31(a) from their accrued sick leave in accordance with clause 41 – Sick Leave.

7.  Clause 38 – Long Service Leave – Delete this clause and insert the following in lieu thereof:

(1) Subject to this clause, a permanent or fixed-term contract employee is entitled to long service leave of 13 weeks on completion of:

(a) 10 years’ continuous service; and

(b) any subsequent period of seven (7) years' continuous service.

(2) A part-time employee accrues an entitlement to long service leave at the same rate as a full-time employee but is paid on a pro rata basis.

(3) For the purposes of this clause the term "continuous service" is defined in accordance with clause 38(4).

(4) (a) An interruption in the service of an employee normally does not count as service and will break continuity of service.

(b) Notwithstanding clause 38(4)(a), the following periods count as continuous service and do not break service:

(i) sick leave with pay; or

(ii) all absences on workers' compensation leave; or

(iii) approved sick leave without pay not exceeding 13 weeks.

(c) Notwithstanding 38(4)(a) the following periods do not break service but do not count for the purpose of calculating entitlements:

(i) long service leave and any period of student vacation within that period; or

(ii) student vacation for which the employee is not entitled to payment; or

(iii) up to six (6) months during which the services of a fixed-term contract employee are not required.

(5) An application for long service leave, using an authorised application form, must be made no later than:

(a) the date specified by the Employer by notice published in School Matters; and

(b) two (2) years after the date on which an entitlement to 13 weeks' long service leave has accrued.

(6) The Employer may, on application by the employee made within two (2) years of the date on which the employee becomes entitled to long service leave for 13 weeks, approve of the employee postponing the taking of that entitlement until the employee becomes entitled to take long service leave over one (1) semester.

(7) Subject to organisational needs the Employer may approve the clearing of any accrued entitlement to long service leave in any form provided that no absence is less than one (1) working day.

(8) The Director General may direct an employee to take accrued long service leave and may determine the date on which such leave commences.

(9) Where an employee takes long service leave over more than one (1) term, any student vacation period that occurs between the terms is not regarded as long service leave.

(10) Any public holiday occurring during an employee's absence on long service leave is deemed to be a portion of the long service leave and extra days in lieu thereof can not be granted.

(11) Payment of Long Service Leave

(a) Full or Half Pay

Subject to the Employer's convenience, the Director General may approve an employee's application to take a complete entitlement of accrued long service leave on full pay or half pay.

(b) Long Service Leave on Double Pay

Employees may by agreement with their Employer, access any portion of an accrued entitlement to long service leave on double pay for half the period accrued. In these circumstances the leave actually taken is 50 percent of the accrued entitlement accessed.

Where employees proceed on long service leave on double pay, the entitlement accessed is excised pursuant to clause 38(4) for the purpose of continuous service.

(12) Early Access to Pro Rata Long Service Leave

(a)                 Subject to clause 38(12) (c), employees within seven years of their preservation age under Western Australian Government superannuation arrangements may, by agreement with their Employer, choose early access to their long service leave at the rate of:

(i)      6.5 days per completed twelve month periods of continuous service for full time employees in their first period of long service leave accrual; or

(ii)    9.28 days per completed twelve month periods of continuous service for full time employees in subsequent periods of long service leave accrual.

(b)    Part time employees have the same entitlement as full time employees, with their entitlement calculated on a pro rata basis according to any variations to their ordinary working hours during the accrual period.

(c)     Early access to pro rata long service leave does not include access to long service leave to which the employee has become entitled, or accumulated prior to being within seven years of their preservation age.

(d)    Under this clause, long service leave can only be taken as paid leave and there is no capacity for payment in lieu of leave.

(e)     Employees may, by agreement with their employer, clear long service leave in minimum periods of one day.

(f)     Where employees access pro rata long service leave early, any period of leave taken will be excised for the purpose of continuous service in accordance with Clause 38(4).

(13) Cash out of Accrued Long Service Leave

(a) An employee may by agreement with their Employer, cash out any portion of an accrued entitlement to long service leave.

(b) Where an employee cashes out any portion of an accrued entitlement to long service leave in accordance with this clause, the entitlement accessed is excised for the purpose of continuous service.

(c) Employees should seek financial advice at their own cost with regard to the effects on taxable income and/or superannuation arrangements prior to making a request for cashing out of accrued long service leave.

(14) Lump Sum Payment

(a) A lump sum payment for the money equivalent of any accrued long service leave entitlement of an employee under the provisions of this clause and/or any pro rata long service leave credit of an employee under the provisions of this clause is due:

(i) as of the date of retirement, to an employee who is retired because of incapacity, provided that at least 12 months continuous service has been completed prior to the date of the retirement;

(ii) as of the date of retirement, to an employee who retires at or over the age of 55 years provided that at least three (3) years of continuous service has been completed prior to the date of retirement;

(iii) as of the date of their death in respect of an employee who dies provided that the employee has completed not less than 12 months of continuous service prior to the date of their death.

(b) A lump sum payment for the money equivalent of any accrued long service leave entitlement of an employee under the provisions of this clause must be made as soon as practicable after the date of the employee’s resignation or dismissal.

(15) Pro-rata long service leave is the proportion of long service leave credit that an employee has accumulated towards a long service leave entitlement.

(16) Except as provided in this clause an employee is not entitled to a lump sum payment in respect of any pro rata long service leave credit.

(17) Portability of Long Service Leave Credits (State and Commonwealth Employment)

For the purpose of this clause:

"Commonwealth Employee" means a person who is employed in a classification contained within this Award and whose appointment is continuous with employment with a Commonwealth instrumentality;

"Commonwealth Instrumentality" means:

(a) any Department of the Australian Public Service; or

(b) any body constituted under an Act of the Parliament of the Commonwealth; or

(c) any body subject to the administration of a Minister of the Crown in the right of the Commonwealth;

as the Minister for Education and Training declares by notice in the Government Gazette to be a Commonwealth instrumentality for the purposes of this clause;

"Period of Accrued Long Service Leave" means a period of long service:

(a) to which an employee in a State instrumentality is entitled as of the date the employee ceases to be employed by that instrumentality; and

(b) for which the employee has received no benefit in lieu of such entitlement;

"State Employee" means a person who is employed in a classification contained within this Award and whose employment is continuous with employment in a State instrumentality;

"State Instrumentality" means any body, which is, or is capable of being declared to be, a Department for the purposes of the Superannuation and Family Benefits Act 1938.

(18) Where an employee was immediately prior to being employed in the Department, employed in the service of:

(a) the Commonwealth of Australia; or

(b) any Western Australian State body or Western Australian statutory authority,

and the period between the date when the employee ceased previous employment and the date commencing employment in the Department does not exceed four (4) weeks, that employee is entitled to long service leave determined in the following manner:

(i) the pro rata portion of long service leave to which the employee would have been entitled up to the date the employee ceases employment with their previous Employer, is calculated in accordance with the provisions that applied to the previous employment referred to, but in calculating that period of pro rata long service leave, any long service leave taken or any benefit granted in lieu of any such long service leave during that employment is deducted from any long service leave to which the employee may become entitled under this clause; and

(ii) the balance of the long service leave entitlement of the employee is calculated upon appointment to the Department in accordance with the provisions of this clause.

(19) A previous Commonwealth employee can not proceed on long service leave until they have completed a period of over three (3) years of continuous service in a classification contained within this Award.

8.  Clause 41– Sick Leave:

1. Delete subclause 41(2)(b) of this clause and insert the following in lieu thereof:

(b) any day taken immediately preceding or immediately following a student vacation, provided it is accompanied by evidence even where the absence does not exceed two (2) consecutive working days; or

B. Delete subclause 41(4)(iv)(aa) of this clause and insert the following in lieu thereof:

(aa) in circumstances where the concerns are such that to leave the employee in the environment may be harmful or injurious to themselves or others the employee can be immediately directed to vacate the premises;

9.  Clause 60 – Notification of Change – Delete this clause and insert the following in lieu thereof:

60. – NOTIFICATION OF CHANGE

(1) Where the Employer has made a definite decision to introduce major changes that are likely to have a significant effect on employees’ conditions of employment, the Employer must notify the employees who may be affected by the proposed changes and the relevant Union/s.

(2) Where the employee is eligible to be a member of the SSTUWA and the PFWA, both Unions must be notified.

(3) For the purpose of this clause, “Significant Effects” includes: termination of employment, major changes in the composition; operation or size of the Employer’s work force or in the skills required; elimination or diminution of the job opportunities; promotion opportunities or job tenure; the need for retraining or transfer of employees to other work or locations and restructuring of jobs.

(4) The Employer must discuss with the employees affected and the relevant Union/s, inter alia, the introduction of the changes referred to in clause 60(1) of this clause; the effects the changes are likely to have on employees; measures to avert or mitigate the adverse effects of such changes on employees and must give prompt consideration to matters raised by the employees and/or the relevant Union/s in relation to the changes.

(5) The discussion must commence as early as practicable after a firm decision has been made by the Employer to make the changes referred to in clause 60(1), unless by prior arrangement, the relevant Union/s is/are represented in formulating recommendations for change to be considered by the Employer.

(6) For the purposes of such discussion the Employer is to provide to the employees concerned and the relevant Union/s all relevant information about the changes; including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees; provided the Employer is not required to disclose confidential information, the disclosure of which would be inimical to the Employer’s interests.

10.  Clause 61 – Union Facilities for Union Representatives – Delete this clause and insert the following in lieu thereof:

61. – UNION FACILITIES FOR UNION REPRESENTATIVES

(1) The Employer recognises the rights of the SSTUWA and PFWA to organise and represent its members.

(2) The Employer will recognise SSTUWA representatives and the members of the PFWA Council as the representatives of the PFWA and will allow them to carry out their roles and functions.

(3) SSTUWA representatives in the Department have a legitimate role and function in assisting the SSTUWA in the tasks of recruitment, organising, communication and representing members' interests in the workplace, Department and SSTUWA branch.

(4) The Employer recognises that, under the SSTUWA’s rules, SSTUWA representatives are members of a branch representing members within a SSTUWA electorate.  A SSTUWA branch may cover more than one workplace.

(5) The SSTUWA will advise the Employer in writing of the names of the SSTUWA representatives in the Department.

(6) The Employer must recognise the authorisation of each the STTUWA and PFWA representatives in the Department and must provide them with the following.

(a) Paid time off from normal duties to perform their functions as a Union representative such as organising, recruiting, individual grievance handling, collective bargaining, involvement in the branch and to attend Union business in accordance with this clause and the Department’s Industrial Relations Advice 6 of 2009. The Department will consult with the Unions regarding any proposed changes to this Industrial Relations Advice.

(b) Access to facilities required for the purpose of carrying out their duties.  Facilities may include but not be limited to, the use of filing cabinets, meeting rooms, telephones, fax, email, internet, photocopiers and stationery.  Such access to facilities must not unreasonably affect the operation of the organisation and is in accordance with normal Departmental protocols.

(c) A noticeboard for the display of Union materials including broadcast email facilities.

(d) Paid access to periods of leave for the purpose of attending Union training courses in accordance with Clause 62. – Leave to Attend Union Business of the Award.  Country representatives will be provided with appropriate travel time.

(e) Notification of the commencement of new employees, and as part of their induction, time to discuss the benefits of Union membership with them.

(f) Access to awards, agreements, policies and procedures.

(g) The names of any Equal Employment Opportunity and Occupational Health, Safety and Welfare representatives.

(7) The Employer recognises that it is paramount that Union representatives in the workplace are not threatened or disadvantaged in any way as a result of their role as a Union representative.

11.  Clause 62 – Leave to Attend Union Business:

 A. Delete subclause 62(1)(c) and insert the following in lieu thereof:

(c) when prior arrangement has been made between the relevant Union and the Employer, for the employee to attend official Union meetings preliminary to negotiations and/or Industrial Tribunal proceedings; and

B. Delete subclause 62(5) and insert the following in lieu thereof:

(5) An employee is not entitled to paid leave to attend to Union business other than as prescribed by this clause.

(a) An employee who successfully gains employment with either Union will be granted leave without pay for the duration of any such appointment up to a period of four (4) years.  Further leave without pay beyond this period is at the discretion of the Employer.

(b) An employee who is elected to the role of President, Senior Vice President or General Secretary of either Union will be granted leave without pay for the duration of that term.

(c) Arrangements prescribed in clause 62(5)(a) and (b) are subject to written notification of the relevant Union.

12.  Clause 63 – Trade Union Training Leave:

A. Delete subclause 63(1)(a) and insert the following in lieu thereof:

(a) The Employer is to grant paid leave of absence to employees who are nominated by the relevant Union to attend short courses relevant to the public sector or the role of Union workplace representative, conducted or approved by the SSTUWA or the PFWA.

13.  Clause 66 – Dispute Settlement Procedures – Add the following new subclauses (8) and (9):

(8) Subject to clause 66 (9), where the dispute affects only a member of one of the Unions, the other Union will not be involved in the procedure.

(9) Where a dispute has the potential to affect members, or persons eligible to be members of both Unions, both Unions will be involved in the procedure.

14.  Schedule A – Parties – Delete this Schedule and insert the following in lieu thereof:

SCHEDULE A – PARTIES