Teacher underpayment allegations head to court after employer disputes award classification
One of Victoria’s biggest Chinese community language schools is disputing a compliance notice from the Fair Work Ombudsman that alleges it failed to correctly pay wages and entitlements to a group of 12 employees, mostly language teachers, over five years.
Key points:
- The teachers allege they are owed wages and entitlements not paid due to incorrect employment categorisation
- A lawyer for the school argues the compliance notice was “invalidly issued” and should be cancelled
- The case is listed for a hearing in February 2023
The notice was issued after a group of Chinese language teachers — some who taught VCE Chinese for more than a decade with the Xin Jin Shan Chinese Language and Culture School (XJS) — alleged they were owed unpaid wages and entitlements due to incorrect employment categorisation.
Their allegations appear to be the first time a group of community language school teachers have sought to clarify their employment rights in Victoria.
Government-accredited community language schools operate outside mainstream school hours, teach languages other than English and some are also cultural and community hubs.
These partly taxpayer-funded organisations can offer classes to students from preschool to year 10, and some get further approval to teach the year 11 and 12 Victorian Certificate of Education (VCE) languages curriculum.
Nearly 3,000 people teach at community language schools in Victoria, according to the schools’ peak association, and research suggests a majority of this group are female and from culturally and linguistically diverse backgrounds.
One languages education expert has described these workers as a “hidden and untapped” resource, who should be supported to become fully accredited teachers to help address the national teacher shortage.
The Fair Work Ombudsman (FWO) compliance notice sent to XJS in September named 12 employees — 10 language teachers and two administrative staff — and said the group should have been paid annual leave and wages in accordance with the Social, Community, Home Care and Disability Services Award 2010 (SCHADS), between October 2016 and June 2021.
But in a statement of claim filed in the Federal Circuit and Family Court of Australia last month, a lawyer for XJS argued the compliance notice was “invalidly issued” and should be cancelled.
The claim said the SCHADS award classification was “erroneous” and did not apply to XJS, because XJS was mainly involved in educational work, not “activities that fall within the definition of the social and community services sector”.
XJS provided Chinese language programs, including VCE Chinese, and was engaged in a funding agreement with the Victorian Department of Education and Training that restricted its main activities to teaching language programs, the claim said.
However, a FWO inspector maintained XJS did provide social and community services, was a registered charity, and “funded and delivered services to the broader Chinese community”, according to an email exchange set out in the claim.
These included the establishment of a Chinese culture library, a Chinese multicultural orchestra, yearly language and culture tours to China, and participation in a yearly Chinese culture festival, the inspector said in the document.
But the lawyer for XJS said the school did not establish the Chinese culture library or the Australian New Goldberg Orchestra, arguing they were both separate entities to XJS.
The lawyer also argued that XJS did not fund yearly language and cultural tours to China.
“The yearly language and cultural tours to China were established and facilitated by the relevant province based Overseas Chinese Affairs Office and the Consulate-General of The People’s Republic of China in Melbourne,” the claim said.
“In 2016 and 2017, the Applicant [XJS] would purchase group tickets on behalf of students, who would then fully reimburse the Applicant.”
The XJS lawyer is seeking the FWO inspector pay XJS costs.
The case is listed for a hearing in February 2023.
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