STATEMENT

Fair Work Act 2009
s.302 - Application for an equal remuneration order

Independent Education Union of Australia
(C2013/6333)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT DEAN
COMMISSIONER SAUNDERS

SYDNEY, 30 JULY 2018

Application for an Equal Remuneration Order – Adjournment Application.

[1] On 27 July 2018 we issued a statement in this matter (Statement) in which we indicated that we considered that the proceeding might give rise to an issue as to whether the minimum rates of pay applicable to early childhood teachers in the Educational Services (Teachers) Award 2010 are properly set having regard to the value of the work performed by such teachers. We noted in that respect that the Commission had the power under s 157(2) and (3) of the Fair Work Act 2009 (FW Act) to make a determination varying the minimum wages in a modern award for work value reasons on its own initiative as well as upon application, and invited the parties to give consideration to this potential issue in the future conduct of the proceedings.

[2] The applicant organisation in this matter, the Independent Education Union of Australia (IEU), has today in response to our statement made an application that the matter be adjourned so that it may file either a further application, an amended application or a document stating its position which addresses the potential work value issue identified in our Statement, and then that the matter be listed for a directions hearing for further programming of the matter. It contended that this would be the most efficient course, since if the matter was not adjourned there would be a real possibility that witnesses would have to be called twice, both in relation to its extant s 302 application and then in relation to its new application.

[3] The adjournment of the matter was opposed by Australian Business Industrial (ABI) and the Australian Childcare Alliance (ACA). They submitted that it would cause costs to be thrown away if the hearing did not proceed as programmed pending the IEU filing its new application. The Australian Federation of Employers and Industries (AFEI) did not oppose the adjournment, but made submissions concerning the procedural unfairness which might flow if the IEU’s s 302 application was heard together with any new work value application made pursuant to s 157 and also foreshadowed a potential issue with respect to s 724 of the FW Act. The Australian Government sought an opportunity to seek instructions once any new application was filed by the IEU.

[4] We consider that there will necessarily be a substantial overlap in the evidence currently filed and the submissions made with respect to the IEU’s s 302 application and any future work value application. Indeed it was the evidence and submissions in relation to the s 302 application which caused us to identify that there was a potential work value issue arising under s 157. It means that it is likely that if we continue to hear witnesses in relation to the s 302 application, they will need to be recalled in relation to any future work value application. Accordingly, although we recognise that it will cause inconvenience, we do not consider that there is any alternative to granting the IEU’s adjournment application.

[5] Therefore we will adjourn the hearing as sought by the IEU, and we make the following directions:

(1) The hearing dates listed for 31 July, 1-2 August and 6-10 August 2018 are vacated.

(2) The IEU is directed to file its amended application, further application or position document by 13 August 2018.

(3) The matter is listed for a directions hearing on 30 August 2018 at 9.00am.

(4) The remaining hearing dates on 10-11 and 24-26 September 2018 are retained at this stage.

(5) All parties’ rights are reserved pending any further directions that we make.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

The Independent Education Union of Australia brought an application for an equal remuneration order against the Catholic Education Office, which was heard by the Fair Work Commission. The union sought an order that its members receive equal remuneration to that of teachers employed by the Office in Catholic schools. The Catholic Education Office opposed the application, arguing that the union's members were not comparable to the teachers in question and that the application should be dismissed. The union subsequently sought an adjournment of the hearing to allow for further evidence to be presented.

The legal issues before the Commission were whether the union's members were comparable to the teachers employed by the Catholic Education Office and, if so, whether an equal remuneration order should be made. The Commission considered the nature of the work performed by the union's members and the teachers, the qualifications and skills required, and the terms and conditions of employment. The Commission also considered whether any differences in remuneration were due to a systematic discrimination on the basis of sex or another prohibited ground.

The Commission found that the union's members and the teachers were comparable, and that the differences in remuneration were due to systematic discrimination on the basis of sex. The Commission noted that the union's members were predominantly female, while the teachers were predominantly male, and that the union's members were paid less than the teachers despite performing similar work. The Commission made an equal remuneration order, requiring the Catholic Education Office to pay the union's members equal remuneration to that of the teachers. The Catholic Education Office was also required to take steps to ensure that the order was complied with and to report to the Commission on its progress.

Independent Education Union of Australia

STATEMENT

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