The Commissioner's reasons for decision

The Commissioner's reasons for decision

60. 
    The Commissioner firstly set out the evidence given by the witnesses. She recorded Ms Spence's evidence as follows:
    

(b) After Ms Owen returned to the swimming teacher's job, Ms Spence went onto the relief list as the swimming teacher and as an education assistant.

(c) In 2005, Ms Owen went on further leave and Ms Spence was approached by the principal at Koondoola Primary School, a satellite class of Burbridge School, to take on the role of swimming teacher commencing in term 2, which she accepted.

(d) In October 2006, Ms Spence was being paid as an untrained swimming teacher under the relevant teachers’ award/agreement. In 2007 she had a performance management review meeting with the deputy principal who provided her with a letter stating that she was an amazing school team member and that she would stay at the school as the swimming teacher until the end of the year.

61. 
    The Commissioner recorded in her reasons for decision evidence given by other witnesses who gave evidence in support of the claim made by United Voice WA on behalf of Ms Spence. Their evidence is not material to this appeal.
    
62. 
    Whilst it is not clear from the reasons for decision, it appears that from 2007 until 2013 Ms Spence continued to work as a swimming teacher at Burbridge School, but was paid as an education assistant.
    
63. 
    In her reasons for decision, the Commissioner recited the relevant closing submissions made by United Voice WA as follows:
    

(b) It is relevant to consider the instruments under which Ms Spence is employed by the Director General as an education assistant (including the level of pay she received) and having regard for the circumstances and practices undertaken by the organisation in which Ms Spence is employed.

(c) Consistent with s 6 - Objects of the Act, in particular s 6(ca), to provide a system of fair wages and conditions of employment, the Director General is required to follow this object. The evidence led on behalf of United Voice WA ought to be sufficient to satisfy the Commission that the Director General has failed to comply with establishing a system of fair wages and conditions of employment as is required under s 6 of the Act.

(d) The Commission is able to exercise its discretion and grant the relief sought and, if necessary, issue any incidental orders that may be required to give proper effect to what is being sought.

64. 
    The Commissioner set out the evidence which United Voice WA says supports the claim made on behalf of Ms Spence. In particular, she referred to the submission that there was uncontradicted evidence that when Ms Owen retired in 2007, she was replaced by Ms Spence as the swimming teacher at Burbridge School and 'picked up' all of the relevant duties that Ms Owen had participated in as a swimming teacher at the school.
    
65. 
    The Commissioner then recited the legal submissions made by United Voice WA as follows:
    

(b) The Commission should have regard to the State Wage Case Principles ([2012] WAIRC 00359; (2012) 92 WAIG 568), in particular to Principle 3.1.4, the relevant consideration being with respect to work value changes. Regard should also be had to Principle 7.1 which states that ‘application may be made for a wage increase under this Principle based in changes in work value'.

(c) It is not the view of United Voice WA that if the Commission were to issue orders it would do so as the enforcer (the submissions of the Director General). The orders sought would provide a fair level of pay on the basis of the work value of the duties performed.

66. 
    The Commissioner then recorded the relief sought for Ms Spence which was as set out in the schedule of the matters referred for hearing and determination and is recorded at [2] of these reasons for decision.
    
67. 
    The Commissioner then set out the evidence and contentions put on behalf of the Director General as follows:
    

(b) Whilst the Director General concedes there is an untrained teacher position it makes it clear it is a teaching position within the Department of Education. There seems to be at times a faint suggestion from Ms Spence that what the witness does is similar to teaching duties. The fact that Ms Spence operates autonomously in the Director General’s view is not close to what is required in the scope of a teacher’s duties.

(c) Ms Spence has made two applications in the past for limited registration as an untrained teacher and was supported by the then principal of Burbridge School. Each of those applications was unsuccessful.

(d) The applicant [sic] is seeking at this stage to make a further application as she did so in 2007 to become an untrained teacher with limited authority to teach from the then Western Australian College of Teaching.

(e) Full-time equivalent teaching positions are highly sought after in public schools and in circumstances where full-time equivalent positions are available they are sought after on behalf of a fully trained teacher who can go in front of a class of students and teach them as well as being available to go into a swimming pool.

(f) The Director General is not seeking to in any way devalue the work of Ms Spence. At all times the Director General was very impressed with the work Ms Spence had undertaken.

68. 
    The Commissioner set out in her reasons for decision the evidence given by each of the witnesses on behalf of the Director General. This evidence is not relevant to the issues raised in this appeal.
    
69. 
    The Commissioner had regard to a number of submissions made on behalf of the Director General in closing submissions. These submissions went to the merit of the claim made by United Voice WA that Ms Spence carried out the duties and functions of an untrained teacher.
    
70. 
    The Commissioner then recorded the following material paragraphs set out in paragraphs 13 and 14 of the Director General's written closing submissions filed in the Commission on 10 December 2013. These submissions were as follows:
    

Additionally, although the evidence in any event would not support such a conclusion, a finding that Ms Spence was in fact performing teaching duties and should have been paid as an untrained teacher would be inappropriate for legal reasons as it would involve a finding that the respondent was in breach of the General Agreement and such a finding is within the exclusive jurisdiction of the industrial magistrate's court pursuant to section 83(3) Industrial Relations Act 1979.

71. 
    The Commissioner then made the following findings:
    

(b) In response to the jurisdictional submission raised by the Director General, United Voice WA submits that the dispute is properly before the Commission for determination pursuant to Principle 7.1: United Voice WA's closing submissions, paragraph 8.

(c) The principles from the decision of the Industrial Appeal Court in Springdale Comfort Pty Ltd v Building Trades Association of Unions of Western Australia (Association of Workers) (1986) 67 WAIG 325, 330 reflect the onus of establishing that the Commission has jurisdiction, lies with the party making an application before the Commission. Once questions or issues of jurisdiction have been raised the jurisdictional issue is to be heard first and failure to do so is in breach of the Act. This decision is no barrier to hearing the issues of jurisdiction and merit at the same time. What the decision does establish is that the jurisdictional aspect must be determined at first instance.

(d) Whenever a point of jurisdiction is raised, albeit late, it is a matter that must be considered prior to any other matter being reflected upon. The work, skills and responsibilities being undertaken by Ms Spence being submitted by United Voice WA as teaching duties in her role as swimming teacher at Burbridge School are:

- between 1998 and 2005; from 2006, after Ms Owen went on prolonged leave, then after she (Ms Owen) retired in 2007 Ms Spence’s duties were the same as those carried out by Ms Owen at the School;

- for a significant period prior to the Commission hearing the application the pool at the School was closed for renovations. During this time Ms Spence undertook standard education assistant duties in the classroom; in large part unrelated to the matter currently before the Commission.

(e) The Commission finds that the pool was closed for renovations mid-2012 and from six weeks into term 4 in that year Ms Spence went back to her classroom duties. The relevant period being considered therefore in the matter before the Commission is the period from 2007 through to term 4 in 2012.

(f) The question the Commission has to consider is whether the Director General is in breach of cl 38 of the 2011 General Agreement. The answer to such a question is not a matter within the jurisdiction of the Commission but is solely contained within the jurisdiction of the Magistrate's Court pursuant to s 83(3) of the Act. Such principles are reflected in the decision of the Full Bench in Crewe and Sons Pty Ltd v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1989) 69 WAIG 2623.

This is not an interpretative matter. In order for the Commission to issue a declaration as required by United Voice WA that the duties and responsibilities of Ms Spence are teaching functions, the Commission would be required to make a finding that during the relevant period being considered Ms Spence had in fact performed teaching duties and therefore should be paid as an untrained teacher. It is the view of the Commission that to do so would be inappropriate as it would involve a conclusion being reached by the Commission that the Director General had, during the relevant period, breached the provisions of the 2011 General Agreement. To do so is outside the arbitral powers of a single Commissioner and within the judicial decision [sic] of the Industrial Magistrate pursuant to s 83(3) of the Act.

(g) The Commission makes no statutory consideration in relation to the evidence submitted. The Commission concludes that it is appropriate in the circumstances to dismiss the application.