28 March 2017 | View as pdf
TO: QTU MEMBERS IN CENTRAL QUEENSLAND
EB update: Bargaining postponed
Yesterday the QTU/AEUQ postponed our participation in the scheduled two days of bargaining due to an ongoing issue regarding the intricacies of industrial law. We have repeatedly sought to resolve it within the single bargaining unit (SBU), without success.
The issue relates to the way the copied award and the copied agreement interact. Management is under an incorrect belief that, if left unchecked, could lead to the erosion of existing entitlements VET educators enjoy under the copied award.
The rules under the federal Fair Work legislation are clear – under s768AI Note 2: where both a copied state employment agreement (the copied certified agreement) and a copied state award apply, the state’s interaction rules apply. Thus the Fair Work Act directs us to the Queensland Industrial Relations Act, s165. This states that while a certified agreement operates, it prevails to the extent of any inconsistency.
These six little words, to the extent of any inconsistency, are the ones CQU has not paid enough attention to.
The interaction rules are also captured in the Central Queensland University Educational Employees
Copied State Employment Agreement 2014 at 4.1:
4.1 This Copied State Instrument is to be read in conjunction with the Central Queensland University Copied TAFE Teachers’ Award - State 2014. In the event of any inconsistency with the Copied State Award and the Copied State Employment Agreement, the terms of the Copied State Employment Agreement shall take precedence.
To the extent of any inconsistency is understood at law to mean that when there are two provisions that deal with the exact same entitlement and they conflict, the terms of the copied agreement will apply, rather than the terms of the copied award. Importantly though, this works only to the extent of any inconsistency.
Thus, any other provisions that are set out in both the award and the agreement work together, a bit like a patchwork, and together serve to create the full picture of the entitlement.
This is the nuance management does not grasp. They incorrectly stated in their enterprise bargaining update dated 28 March that:
“Where a clause in the Agreement deals with the same subject matter as a clause in the Award but does not include all the detail in the Award, in our view the parties have, by consent, intended for the detail not to apply.”
We vehemently refute such an assertion. Such a statement does not reflect the way awards and agreements interact under Queensland law. One might well ask - why would an award term have been written at all if it was not meant to apply? Awards and agreements are documents developed via negotiation – if it wasn’t agreed, it wouldn’t have been written in.
Management then makes a point about the utility in restating entitlements in both documents. Again, they misunderstand how the two documents work together. Sometimes content is replicated in the interests of simplicity. Sometimes provisions from one document are referred to in another. This is done to aid the user of the two documents, not to negate the need for an award provision entirely.
Thus the devil literally is in the detail on this – because management’s misunderstanding could well result in VET educators losing a number of existing entitlements.
We acknowledge that the way awards and agreements interact under Fair Work is different. Under Fair Work an agreement replaces an award. But those rules don’t apply to VET educators at this point in time. While VET educators remain under the copied instruments, the Queensland rules and the magic six words apply.
We simply cannot allow the reduction of existing entitlements. We certainly cannot stand back and do nothing while CQU management struggles to understand the law.
We are weighing up the options and will likely pursue this matter as a dispute, and end up in the Fair Work Commission. We realise this will delay bargaining and delay you a pay increase. However to allow uncertainties now about the application of binding industrial instruments could have long reaching consequences.
Also, given the paltry offer management has made (1.25 per cent per year for four years) we are in no rush to allow your working conditions to be eroded over a misunderstanding and for such a minor benefit. CQU could once claim the highest paid VET educators in the country. That is no longer the case. We’ve run the numbers – the payrise management is offering will see a teacher at step 4 earn $4,011 per year less than a TAFE teacher doing the exact same work by July 2018 (when the new TAFE agreement expires).
But the extra kicker is that if management has their way it won’t be the same work – it will be more work (an extra two hours per week of teaching time and the removal of your discretionary time) for less money.
We cannot rest idle and accept what is on offer. You deserve better. We are fighting for it.
Authorised by Graham Moloney, General Secretary, Queensland Teachers' Union
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