Enterprise Bargaining FAQ

Updated 28 November 2016

What is the process for implementing the Head Teacher Band 3, Assessor and Education Support Officer Classifications? Are there ratios?

The implementation will be in line with the education support and leadership roles in TAFE NSW Procedures. A copy of the Procedures is available here.

Under the Procedures, subject to any special considerations brought to the attention of and accepted by the Joint Management Committee, the ratio of new Assessor and Education Support Officer roles to Teachers will not exceed 1:2 within the faculty or business line for the Institute/Region/Unit.

Do Education Support Officers and Assessors get annual leave and sick leave?

Full time Education Support Officers and Assessors employed as either Permanent Employees or Temporary Employees are entitled to (amongst other things):

• four weeks' annual leave; and
• 15 days sick leave per annum.

When does the Agreement commence? When will the salary increases take effect?

The Agreement commences seven days after it is approved by the Fair Work Commission. Once the Agreement commences, the salary increases will take effect from the first full pay period commencing on or after 24 November 2016. 

This means that eligible employees will receive back pay from the first full pay period commencing on or after 24 November 2016 to the date the Agreement commences.

Does the proposed agreement vary employees' entitlement to annual leave?

No. The proposed Agreement does not vary employees' entitlements to annual leave or agreed weeks of non-attendance.

Is annual leave now required to be taken in the first week of each student vacation?

Yes, unless there is another arrangement with the employee's manager. TAFE NSW and the NSW Teachers Federation have agreed to clauses 33.4.3 and 33.4.4 of the proposed Agreement to clarify when employees are required to take annual leave.

Will TAFE NSW continue with the administrative arrangements permitting employees to work five hours of their weekly related duties off site?

Yes. TAFE NSW has agreed with the NSW Teachers Federation that, subject to the successful approval of the proposed agreement, these arrangements will continue.

Does the proposed agreement require full-time employees to attend College five days a week?

No. The 2013 agreement required full-time employees to work four or five days a week. The proposed agreement permits employees to complete their hours in less than five days, e.g. three or four days. This provides employees and TAFE NSW with greater flexibility to deliver education and training.

TAFE NSW and the NSW Teachers Federation agree that employees commonly meet their attendance requirements in less than five days. TAFE NSW intends to continue with these arrangements.

Has the related duties payment for part-time casual teachers changed in the proposed agreement?

No. Clause 37.7 in the proposed agreement is the same as the 2013 agreement.

Update 27 July 2017

Clause 5 of the proposed Enterprise Agreement refers to 'ongoing' permanent employment. What is the meaning of this term and does it affect my existing permanent status?

'Ongoing' carries exactly the same meaning as permanent for all employment purposes including entitlements. For example, section 43(2) of the NSW Government Sector Employees Act 2013 (the GSE Act) provides that "ongoing employment is employment that continues until the employees resigns or his or her employment is terminated".

As a matter of consistency, TAFE NSW is simply adopting the language that is now used in the NSW Public Service since the enactment of the GSE Act.

Has there been any change to commitments previously given to individuals in regard to their permanency if they are filling an ongoing permanent position?

There is no change to previous commitments given to permanent employees in regard to their status if they are filling an ongoing permanent position. This is a policy matter and is not part of the Enterprise Agreement, which is why there is no such reference in the EA.

Archived FAQ for TAFE Managers - 25 November 2015

As a permanent Institute (TAFE) Manager, will I have to sign or go onto a new contract once the new Enterprise Agreement takes effect?

No. If the Enterprise Agreement is approved, your employment will continue under current permanent arrangements. TAFE NSW will write to all permanent Institute (TAFE) Managers confirming that you will continue to be permanent as a TAFE Manager, even if you apply for another TAFE Manager position.

Will all TAFE Manager Contracts sit outside the Enterprise Agreement and not subject to the Enterprise Agreement consultation or dispute clauses?

Specified term contracts are an addition to the enterprise agreement. Those employees engaged through this mechanism are classified as temporary employees covered by the terms and conditions in the EA, which include a consultation and dispute clause.

Will new TAFE Managers on specified term contracts have the security of employment and appeal rights if their contract is not renewed?

Current IM's engaged as a temporary employee (including those engaged through specified term contracts) have access to the range of provisions under the Fair Work Act. This will continue for temporary TAFE Managers whether engaged through specified term contracts or not.

Will TAFE Managers on specified term contracts have access to redundancy payments if their position is deleted?

Temporary employees (engaged through a specified term contract) are not entitled to redundancy payments. Those employees engaged as a temporary employee through a specified term contract will be provided with a 13 week notice period.

Will my hourly rate be higher or lower under the new agreement?

Institute (TAFE) Managers receive a salary and are not employed at an hourly rate. If the ballot is successful all TAFE Managers will receive a salary increase of 2.5% each year for two years from January 2016.

What happens after two years when this agreement expires?

TAFE NSW, the unions and nominated representatives will come back to bargain for a new enterprise agreement before the agreement expires.

Why is TAFE NSW proposing to change from weekly hours to annualised hours for Institute (TAFE) Managers?

TAFE NSW recognises that there are some weeks that are busier than others. We propose that Institute (TAFE) Managers come to an agreement with their Manager to annualise their hours over the course of a year, rather than every week. This is a more professional arrangement that will help support the business during the busy seasons (if required and by agreement) and provides more flexibility for employees when they need it most.

I currently have a temporary contract as an Institute Manager, will I be made to accept a specified term contract immediately after the Enterprise Agreement is approved?

No, your contract will continue until the end of its term unless your position was subject to business review prior to this time. However, at the end of the current term, you may be offered a specified term contract if the position is still required, your performance has been satisfactory and you have been through a merit based selection process for that position.

I hold a substantive position as a Head Teacher, do I have to accept a specified term contract?

No, but you may choose to apply for a position that is offered with a specified term contract in the future. If you do apply and are successfully selected through merit, you will need to relinquish your substantive position.

Will my leave balances be reduced if I move from my current 35 hour position to a new position with 38 hours?

No. It is not TAFE NSW's intention to reduce leave balances. A conversion will be made within the SAP HR system to ensure an employee does not lose any entitlement once a new enterprise agreement is approved. This means that 5 days (35 hours) leave under the current agreement will be equivalent to 5 days (38 hours) leave under the new agreement. This will apply to all leave balances.

If a proposal is successfully supported, would a permanent TAFE Manager who is made redundant have their package administered under the current provisions?

Yes. Under the TAFE NSW proposal, a permanent TAFE Manager would continue to be covered by the Managing Excess Employees policy.

What does TAFE NSW wish to achieve?

We want to work with you to create a high performance culture and lead major change. This proposal is part of TAFE's strategy to support a leadership culture of high performance, providing more opportunity for career development and support. We've considered the feedback from unions, bargaining representatives and our managers and revised the proposal.

Does each enterprise agreement offer need to satisfy the Better Off Overall Test?

Yes. Before approving an enterprise agreement, the Fair Work Commission (FWC) must ensure the agreement or variation passes the better off overall test. This test requires that each of the employees to be covered by the agreement are better off overall than under the relevant modern award.

In the approval process employer and employee (unions and/or self-nominated) bargaining representatives need to demonstrate to the FWC that the enterprise agreement that has been voted up by employees:

• contains model terms for consultation and dispute resolution
• does not have discriminatory terms
• offers terms and conditions of employment which are better off overall when compared with the current terms and conditions of the – relevant modern award. In most cases this Award is the Educational Services (Post-Secondary Education) Award 2010.

Implementation

How will the implementation of the proposed specified term contracts work?

The implementation of TAFE NSW's proposal will work differently for current permanent Managers, current temporary Managers and new TAFE Manager employees:

• Current permanent Institute (TAFE) Managers will retain their permanent status, even through the process of business reform or successful application to a new TAFE Manager role.
• Current temporary Institute (TAFE) Managers may be offered specified term contracts through business reviews or if they apply for a new Institute (TAFE) Manager position
• New Institute (TAFE) Manager positions will be filled using specified term contracts for appointment into new positions (including positions created for new business opportunities).

How will new positions be evaluated under the proposal?

As is currently the case, all Institute (TAFE) Manager positions in TAFE NSW are evaluated using CED job evaluation.

What will happen to my super if I am on the superannuation scheme and move to a specified term contract?

If you accept a new position on a specified term contract, your membership to your superannuation scheme (including SASS or SSS) will not be affected.

Specified term contracts

Does this mean that employees on a specified term contract will be classified as 'contractors', providing invoices for services?

No. A 'contractor' is a different type of engagement and is not covered by a specified term contract.

Will there be a separation payment at the end of the contract if an employee is not offered a further specified term contract at the expiry of their existing contract, and is it comparable to the current voluntary redundancy (VR) provisions?

VR provisions under the Managing Excess Employees (MEE) Policy only apply to current permanent Institute (TAFE) Managers. TAFE Managers who have a specified term contract have provision for a mandatory notice period or payment in lieu of notice if a contract is terminated during the contracted period. If a contract runs its allotted time period the contract simply expires because of the effluxion of time, and there is no redundancy.

Will there be a payment for notice if the specified term contract is terminated prior to the completion of the contract?

TAFE NSW is proposing that there will be a reciprocal notice period during the term of the contract as follows:

• During the 12 month probationary period, notice or payment in lieu would be 1 week by either party.
• After the probationary period (but prior to the expiry of the specified term contract and prior to the end of the contract), notice or payment in lieu of notice would be 13 weeks.

Will the current extended leave policy change if employees accept a specified term contract?

No. This will continue to apply to employees working full time (permanent or temporary) as per section 22 of the Technical and Further Education Act 1990.

Employees who are not employed on a full-time basis are entitled to long service leave under the Long Services Leave Act 1955.

Will current employees who apply for the proposed specified term contracts be considered 'new' employees?

No, provided that the current temporary employee moves directly onto a specified term contract without a break in service. However, if an existing employee has a break in service with TAFE NSW of more than 2 months, the existing employee would be considered a new employee. Current permanent Institute (TAFE) Managers will retain their permanent status.

Will a current temporary TAFE employee who has then been engaged on a specified term contract lose accrued leave and entitlements?

No. Current temporary employees moving directly on to a specified term contract will not lose their accrued leave entitlements.

Does this mean employees will have to pay our own superannuation?

No. Superannuation contributions will continue to be made by TAFE NSW in addition to your salary and this will be set out in the contract.

If there are redundancies, will there be Voluntary Redundancies (VRs) in the future if for managers on specified term contracts?

TAFE NSW applies the Managing Excess Employees Policy in relation to voluntary redundancies for permanent employees. This policy does not cover temporary employees.

Classification name and additional level

Why is TAFE NSW proposing to change the classification name?

'TAFE Manager' is more reflective of the responsibility across both Corporate Units and Institutes.

Why is TAFE NSW proposing to add a level?

Currently TAFE NSW employs Senior Officers  paid under the TAFE NSW Administrative, Support and Related Employees Enterprise Agreement. The proposal is to create a Level 6 TAFE Manager to allow TAFE NSW to recruit to this pay rate instead. The current salary levels for the classification of Senior Officer sits within and above the rates for Institute Manager, so TAFE NSW has proposed creating a TAFE Manager 6 to potentially accommodate these employees.

Conditions and allowances

Are there proposed changes to allowances?

TAFE NSW is proposing for permanent and specified term contract employees, the:

• removal of location allowances
• removal of specific time in lieu provisions.

Does the removal of location allowances include the 5 weeks of annual leave?

No. The additional week of annual leave provided for managers in the west of the state, in clause 20.1.2 of the enterprise agreement, will not change.

Why is TAFE NSW proposing that the hours for Institute (TAFE) Managers are increased?

TAFE NSW is proposing that TAFE Managers work 38 hours a week. This is aimed at increasing the productivity and competitiveness of TAFE NSW's management workforce.

Will the agreement allow flexibility such as to attend personal appointments or school meetings? If so how will it be managed?

Standard attendance requires 38 hours per week to be worked flexibly, subject to the requirements of the 10.1 of the enterprise agreement.

Available leave accruals may also be accessed dependent on the reason for the leave and subject to appropriate approval being received.

Temporary employment

Why is TAFE NSW proposing Institute managers move to temporary employment contracts when the SES employees they report to are on ongoing contracts?

These two forms of employment have different accountabilities and responsibilities.

TAFE NSW Senior Executives are employed as Public Service Executives under the Government Sector Employment Act 2013. Their employment is subject to the same accountabilities as senior executives across the NSW public sector, including that they can have their employment terminated at any time for any, or no, reason.

Institute managers are employed under the [Technical and Further Education Act, 1990] and a separate enterprise agreement. Institute manager employment is regulated on a different basis and provides greater access to a range of employment protections under the agreement (e.g. consultation and dispute resolution) and general protections under the Fair Work Act.

Will TAFE NSW pay out the duration of a specified term contract if it is terminated early for reasons other than performance or misconduct?

No. TAFE NSW is proposing specified term contracts which allow for early termination by either party subject to the notice specified in the contract being provided. The specified term is not a guaranteed period of employment.

If the contract isn't paid out will the Managing Excess Employees (MEE) Policy apply?

No. MEE policy only applies to permanent employment. For this proposal that is the current permanent Institute (TAFE) Managers. TAFE NSW has proposed a notice period/payment in lieu of notice of 13 weeks for those staff on a specified term contract.

Will the option of redeployment in the Managing Excess Employees Policy be used if managers on specified term contracts are terminated early?

No. MEE policy only applies to permanent employment. For this proposal that is the current permanent Institute (TAFE) Managers.

Will TAFE NSW apply the National Employment Standard (NES) termination payment at the end of a contract?

A payment of severance is not required under the Fair Work Act, 2009. This is because the TAFE Manager's employment would be terminating as a result of effluxion of time – that is, the contract coming to an end - not redundancy.

On what basis would TAFE NSW not offer a manager another contract after their 5 year contract expires if there is ongoing work in that area?

There could be various reasons why TAFE NSW may choose not to offer an employee a further contract at the conclusion of a 5 year contract which may relate to business need, funding or performance.

At the end of a specified term contract, will employees have to reapply for their positions?

Yes. If it is known that the role will be required before the end of the contract period, Institute/Executive Directors will have the option of offering a further contract via "priority assessment" of the current staff member (provided they have met their performance agreement requirements) or moving to merit based selection. The merit selection process requires the position to be advertised and a full merit selection process to be followed.

The current performance and conduct procedures only apply to permanent employees. Under the proposal, what policies and procedures will apply to temporary TAFE Managers for managing poor performance or misconduct?

The current TAFE policies and processes will be adapted and applied to TAFE Managers engaged under specified term contracts.

As an employee on a specified term contract, will there be any option for extension?

No. However, TAFE NSW is proposing that there is an option for Institute/Executive Directors to "priority assess" an employee on a specified term contract for a second contract if the position is to be continued and the employee has met their performance requirements.

When the time comes, who can vote?

All employees who are covered by the current agreement can vote for it. You do not need to be a member of a union to be able to vote.

Is TAFE NSW removing the Directors and Teachers in charge allowances?

No. TAFE NSW is proposing to keep this allowance at the current level.