September 24, 2014

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In late August, the QTU contacted TAFE Queensland about its overtime policy, which provides that, for certain categories of employees (those at or above certain pay levels), compensation for overtime is only to be by TOIL. The certified agreement, however, specifies that teachers and tutors should be able to elect to be compensated by either payment of overtime or TOIL.

The policy is based on the provisions of Public Service Directive 07/13, which as a result of the transfer to a statutory authority no longer applies to TAFE Queensland employees. The QTU noted that while public service directives can over-ride industrial instruments, a policy cannot. Therefore, the QTU requested that TAFE Queensland withdraw the provisions, as they were inconsistent and inferior to those provided in the certified agreement.

A similar situation occurred in relation to Central Queensland University (CQU), which had imported the public service directive provisions into its HR policies for staff transferring over from Central Queensland Institute of TAFE. When CQU was approached by the QTU/AEU, it agreed to withdraw the policy and rely on the certified agreement.

TAFE Queensland, on the other hand, defended the provisions in its policy and indicated that it intended to continue to rely on them (the policy allows for some exemptions based on a “business case” be made to allow payment of overtime).
In early September, the QTU notified a dispute to the Industrial Relations Commission and a conciliation conference was held on 11 September.

The outcome of the conference was that the parties agreed that TAFE Queensland policy cannot over-ride an industrial instrument to the extent that the policy offers inferior conditions. The parties disagreed, however, whether the provisions of the TAFE Queensland policy relating to “hours and overtime” are inconsistent with and inferior to the provisions in the certified agreement. These conflicting positions would have to be tested in relation to a specific case in which an employee has alleged that he/she has been treated less favourably using the dispute resolution procedures set out in the certified agreement and, if necessary, would have to be referred to the Commission.

TAFE Queensland argued that it was reasonable for it to insist on TOIL-only overtime where the overtime work does not generate sufficient income to pay overtime, and unreasonable of the Union or employee to insist otherwise. Further, TAFE Queensland argues that its policy does not offend the provisions of the certified agreement, in that:

  • all employees who undertake overtime on a TOIL-only basis “agree” to accept overtime on this basis
  • employees who refuse to undertake overtime on this basis will not be engaged to undertake overtime, so the issue of compensation does not arise.

Ominously, TAFE Queensland warned that where employees refused to accept overtime on a TOIL-only basis, the employees should consider the potential impact on their continuing employment of the institute withdrawing the course.

TAFE Queensland has acknowledged that its policy cannot over-ride the provisions in the certified agreement. The provisions in its policy are clearly inferior to those in the certified agreement. Yet, it has defended them using spurious arguments and a hint of intimidation.

QTU advice – compensation for overtime

  • QTU members who are asked to undertake overtime, and who wish to be compensated by an overtime payment, should request to be paid overtime and record the response (e.g. the offer of overtime is withdrawn; they are told it is TOIL-only).
  • Members who work or have worked overtime on a TOIL-only basis, but would prefer to receive overtime pay should contact their LCC and the QTU indicating:
    • that this is the case and providing examples of what happened when they requested overtime
    • whether they would be prepared, at some time in the future, to be identified and/or to raise the issue as a grievance.
  • QTU representatives on LCCs should raise the issue of payment for overtime for discussion at the LCC and seek information on the extent to which overtime is being offered on a TOIL-only basis. QTU representatives should draw attention to the provisions of the certified agreement and the obligation of the employer to observe these provisions.

The Queensland Teachers’ Union, Together Union and TAFE Queensland appeared in the Queensland Industrial Relations Commission on 15 August in relation to the QTU’s application to refer the TAFE Teachers’ Certified Agreement to arbitration.

The hearing followed a decision by the Industrial Court earlier this year to uphold an appeal by the state government against an arbitration referral decision made last year by the Commission. The court referred the matter back to the Commission.

Deputy President Bloomfield presided over the hearing and reserved his decision.
The QTU will notify members of the outcome of this case as soon as the Deputy President hands downs a decision.

The unions negotiated an eleven month agreement in 2012 which allowed a 2 per cent pay rise at the beginning of the agreement and a second 2.2 per cent pay rise on 30 June 2013.

Negotiations for a replacement agreement commenced in April of 2013. The Department of Education, Training and Employment produced a draft enterprise agreement which undermined teacher professionalism, extended ordinary hours of work, and removed provisions relating to class sizes and non-attendance time. It also offered a flat pay scale and froze wages for most teachers for a significant period of time.

The parties negotiated in good faith. In mid-2013, DETE released a second offer, which sought to include non-educational TAFE employees in the agreement.

The QTU conducted a ballot of its TAFE members during the week of 8-12 July.
Members were asked to vote on the following questions.

  1. Are you in favour of accepting the Department of Education, Training and Employment proposed certified agreement for TAFE Educational Staff?
  2. Do you support incorporation of educational and non-educational TAFE staff in one certified agreement?

More than 60 per cent of members responded to the ballot.

On question one, 99 per cent of members voted “no”; on question two, 98 per cent of members voted “no”.

On the basis of this outcome and the fact that, on balance, the new offer incorporating educational and administrative TAFE employees was actually worse for our members, the QTU decided to seek the intervention of the Queensland Industrial Relations Commission.

It became evident in the course of the conciliation hearings that the parties remained too far apart to reach agreement, and the QTU made an arbitration application. At the subsequent hearing the Commission determined that the "QTU's claim for a new Educational Employees (only) CA" should be referred to arbitration. The Commission made this decision despite arguments from DETE that the Commission should postpone any decision to refer the negotiations to arbitration until such time that DETE could ballot employees on their offer.

The department appealed the commission’s decision, and following a lengthy delay pending the appointment of a new President of the Industrial Court, a decision was brought down in February of 2014. Justice Martin upheld the department’s appeal on the basis that while the decision to refer the matter to arbitration was open to the Commission, it had erred in ruling that the proposed DETE ballot should not proceed. The matter was referred back to the Commission.

Called back before D.P. Bloomfield, the QTU maintained arbitration was the appropriate course while DETE stated that negotiation was possible. The QTU convened a series of TAFE Council meetings to establish a bargaining position. In the Commission it was again apparent that the parties remained too far apart to reach agreement. On 18 June 2014, the QTU again applied to enter arbitration. The hearing was held on 15 August as described above.

For a full outline and an archive of QTU Newsflashes regarding the TAFE EB, please see the TAFE page on the QTU website.

 Authorised by Graham Moloney, General Secretary, Queensland Teachers' Union