AUSTRALIAN EDUCATION UNION SA BRANCH v DEPARTMENT FOR EDUCATION

A Teacher who is assessed as satisfying the AST 2 criteria is entitled to be paid at that level commencing on and from the first pay period on or after the first duty day in the year following the year in which the Teacher is assessed.

1. The respondent contends that the employees were paid correctly and there is no underpayment. It relies on Clause 5.3 of the Teachers Award (the Award) and clause 6.7.2 of the South Australian School and Preschool Education Staff Enterprise Agreement 2020 (the 2020 Agreement) to support its position that the requirement to pay the AST 2 rate ceases when permanent employment comes to an end. It further contends that the 2020 Agreement merely clarified what was already intended.
2. In the 2020 Agreement, an additional provision was inserted as follows:
   • 6.7.4 No further applications will be accepted for the AST 2 classification level after the end of Week 4, Term 1 in the 2022 school year. Teachers who hold the AST 2 classification as at that time will continue to hold that classification level as their substantive classification level until their resignation/retirement from the teaching service or the Department.
3. In this case, each of the 4 employees "resigned/retired" from full-time teaching before Week 4, Term 1 in the 2022 school year.

1. The applicant submits the principles of construction can be summarised as follows:

(i) The starting point is the ordinary meaning of the words, read as a whole and in context.

(ii) A purposive approach is preferred to a narrow or pedantic approach - the framers of such documents were likely to be of a "practical bent of mind". The interpretation "turns upon the language of the particular agreement, understood in the light of its industrial context and purpose".

(iii) Context is not confined to the words of the instrument surrounding the expression to be construed. It may extend to "... the entire document of which it is a part, or to other documents with which there is an association".

(iv) Context may include "... ideas that gave rise to an expression in a document from which it has been taken".

(v) Recourse may be had to the history of a particular clause "Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form...".

(vi) A generous construction is preferred over a strictly literal approach, but "Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties".

(vii) Words are not to be interpreted in a vacuum divorced from industrial realities but in the light of the customs and working conditions of the particular industry.[1]

1. The applicant concedes the above principles relate to the construction of industrial instruments under the Fair Work Act 2009 (Cth). Whilst it acknowledges that under the FW Act, the Tribunal is also bound to have regard to the common intention of the parties in drafting the instrument,[2] it submits that neither party has sought to adduce any evidence of such a common intention in these proceedings.
2. For its part, the respondent summarises the principles of construction as follows:

In the absence of evidence of a common intention,[3] an industrial instrument must be read as a whole, in context and giving the words their ordinary and natural meaning.[4] It must also be read against the legislative scheme within which such instruments are made. When interpreting an industrial instrument, a pragmatic approach should be applied.[5] In undertaking the interpretational exercise consistent with settled authority, the Court of Appeal has previously rejected the premise that an award is to be interpreted in a beneficial manner in favour of an employee.[6]

1. Although expressed differently, there is no real disagreement between the parties as to the principles to be applied.

1. To gather an understanding of the provisions in question, it is necessary to consider the background to the operative provisions.
2. Traditionally, progression in teachers' salaries were initially made based upon years of service. During the 1990's, the Award provided for 8 such steps.
3. In about 1991, for the first time, the Award was varied to include a further competency based progression to a level Advanced Skills Teacher 1 (AST 1). In about 2000, 2 further competency levels were contemplated - AST 2 and AST 3. AST 2 was implemented in about 2006. AST 3 was never implemented.
4. In the 2010 Agreement, AST 1 was replaced with a step 9. Thus the progression structure became, and has continued to be, steps 1 to 9 and AST 2.
5. In relation to the AST 2 classification, the respondent submits:

AST 2 is a classification that was developed to recognise and reward highly skilled teachers who wished to pursue and maintain their professional career in the classroom rather than pathways in school management or administration.[7]

Teachers were eligible to be paid at the AST 2 level if they have successfully completed an application and assessment process or, alternatively, if they have successfully completed at least 5 years in a leadership role before 'falling back' or reverting to a teacher position.[8]

The AST 2 assessment and appointment process was ceased with effect from Week 4 of Term 1, 2022.[9] Although no new applications for the AST2 classification can be made, when a term leadership role expired those teachers are entitled to fall back to the Key Teacher Fallback level - paid at a salary equivalent to the AST 2 classification.[10]

1. Clause 4.2 of Schedule 3 of the South Australian School and Preschool Education Staff Enterprise Agreement 2024 (the 2024 Agreement) relevantly provides:

Permanent teachers who accumulate five years or 1035 days of service from 1 January 1990 occupying positions of a key teacher, Band A or Band B leader (formerly known as Coordinator, Assistant Principal, Senior Leader, Deputy Principal, Principal and/or Preschool Director), Seconded Teacher (up to 5 years) or a combination of these tenured appointments and who are not reappointed to such positions, shall be classified and paid at the level of Key Teacher Fallback...

From the first full pay period to commence on or after 1 October 2010 the Key Teacher Fallback classification will be the salary equivalent to Advanced Skills Teacher 2.

1. At all relevant times, the Agreements have provided that they are to be read in conjunction with the Award but have, in addition, provided that the Enterprise Agreement prevails to the extent of any inconsistency with the provisions of the Award.
2. At all relevant times, clause 5.3 of the Award provided:

If under the Act a teacher is re-engaged after retirement or resignation, the teacher is entitled to the salary fixed by this award for the position to which the teacher is appointed, subject to the following conditions:

1. A teacher on re-appointment will be given credit for the academic and professional qualifications whether gained before or after retirement or resignation so far as they are relevant in accordance with Schedule 1 of this award.
2. A teacher will, on re-appointment be placed on the same incremental step as the one to which that teacher was entitled immediately prior to leaving the teaching service provided that:

(1) there will be a deduction by one incremental step if the teacher has not gained significant teaching experience for a period of five calendar years or more immediately prior to re-appointment providing that the reduction of one incremental step does not reduce the commencing salary to less than the minimum salary provided in accordance with Schedule 1 of this award.

(2) ...

1. The applicant submits this clause provided a right to retain salary level on re-engagement after retirement or resignation.
2. The respondent disputes this. Rather, the respondent contends, the starting point is that a teacher is entitled to the salary fixed by the Award for the position to which the teacher is appointed, subject to the qualifications expressed.
3. In any event, the critical issue in the application of clause 5.3 is the definition of "incremental step".
4. The applicant contends that it simply means what the teacher was being paid at the cessation of their employment.
5. For its part, the respondent contends

(i) As AST 2 is competency based, it cannot be viewed as an incremental step;

(ii) The choice of the expression "incremental step" rather than classification must have been intentional;

(iii) If the framers had intended the meaning contended for by the applicant, they could simply have said so.

1. Contrary to the submissions of the applicant, the respondent contends the evidence does establish the common intention of the parties. The respondent submits:

In the instant case, the Tribunal has evidence regarding the parties' intention regarding the status of the AST 2 classifications when first introduced in 1990. Submissions were made to the then Teachers' Salaries Board (TSB) on behalf of the South Australian Institute of Teachers (SAIT) (the applicant's predecessor association) on 2 November 1990 regarding introduction of the AST 2 classification as follows (emphasis added):

...There is a concern that putting additional incremental steps on the range, it may be perceived as simply providing further incremental progression for teachers, and whilst it remains our position that there should be criteria accessed, it's not a fundamental issue of importance that they appear as steps 13, 14 and 15.[11]

Discussions so far have led us to the view that it might be appropriate that they be included**, in a separate classification in the award, not listed as either part of the incremental scale**, or under the heading which currently says 'Other Promotional Positions' but listed as a separate category.[12]

...the Institute has no principle disagreement with removing those three categories from the incremental range. We intend to seek some assurances as to what the Minister may do in relation to Regulation 58....[13]

1. "Incremental step" is not defined for the purposes of the Award or Agreement. Accordingly, the ordinary and natural meaning of the term should be applied.[14]
2. "Incremental" means "an increase or addition, especially one of a series on a fixed scale".[15]
3. Steps 1-9 can be seen as a fixed scale. AST 2 cannot be seen as part of that scale.
4. Accordingly, to the extent the evidence discloses a common intention, that common intention is that Clause 5.3 should be understood as referring to steps 1-9 and not to an AST 2 classification - that classification is separate. That interpretation is supported by the ordinary and natural meaning of the term.
5. Such an interpretation is not inconsistent with clause 6.7.4 of the 2020 Agreement, howsoever as cl 6.7.4 may be said to apply.
6. Of the 4 teachers to whom this application relates, Ms Aziz resigned or retired with effect from 2012; Ms Linke resigned from permanent employment effective from January 2019; Ms Warnock resigned from permanent employment in July 2018; Ms Limmer resigned from permanent employment effective from January 2018.
7. It is therefore necessary to determine whether clause 5.3 was inconsistent with the Agreements in place at that time, which did not include the equivalent of cl 6.7.4 of the 2020 Agreement. This requires a determination of whether cl 6.7.4 was introduced so as to clarify the previous position, or to change it. Unless compelled by the evidence to do so, I would be reluctant to interpret the previous Agreements in a way which was inconsistent with what I consider to be the clear meaning of clause 5.3 of the Award. That would offend the "text and context" approach to interpretation.
8. The applicant submits that the introduction of cl 6.7.4 was part of a suite of provisions replacing the AST 2 classification with Highly Accomplished Teacher (HAT) and Lead Teacher levels. As such, the introduction of cl 6.7.4 should be viewed as a sunset clause, bringing a previously open-ended classification to an end.
9. However, I construe clauses such as 6.5.2 of the 2010 Agreement as fixing a commencement date. They are silent as to the end date, leaving that for other provisions to deal with. When viewed in that light, clause 6.5.2 is not inconsistent with the construction I have made of cl 5.3 of the Award.
10. Accordingly, following their resignation/retirement, pursuant to cl 5.3 of the Award, any subsequent re-engagement of the 4 teachers was to be remunerated in accordance with the appropriate level on the step 1-9 incremental scale.

1. The 4 teachers were not entitled to be paid at the AST 2 rate for the work in question. The respondent correctly paid the teachers at the appropriate rate.
2. The application should be dismissed. I will hear the parties as to the terms of any final orders.

[1] James Cook University v Ridd [2020] FCAFC 123 at [65].

[4] Qube Ports v Maritime Union of Australia [2018] FCAFC 72, [64]-[65], Energy Australia Yallourn Pty Ltd v Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union [2018] FCAFC 146, [56]-[58] (Rares and Barker JJ), CE DPC v Wigg & Ors [2019] SAET 23, [26] (Hannon DPJ), St John Ambulance Officers' Award [1992] SAIRC 30, Kimber v Chief Executive, Department of Treasury and Finance (for Chief Executive, Department for Health and Wellbeing (South Australian Ambulance Service) [2021] SASCA 133, [45]-[46], United Workers' Union v Chief Executive, Department of Treasury and Finance [2024] SAET 8, [35] (DPJ Kelly and DPJ Crawley).

[5] Chief Executive, Attorney-General's Department v Smith [2023] SAET 116, [42] (DPJ Calligeros), [50] (Rossi DPJ) citing Kucks v CSR Limited (1996) 66 IR 182,184 (Madgwick J), and Transport Workers' Union of Australia v Linfox Australia Pty Ltd [2014] FCA 829, [29]-[41] (Tracey J).

[6] [2021] SASCA 133, [52] referring to Return to Work Corporation of South Australia v Agnew [2020] SASCFC 79.

[7] Lisa Dwiar Affidavit at [36]. Trial Book at p 946.

[8] Lisa Dwiar Affidavit at [37]. Trial Book at p 946.

[9] Clause 6.7.4 of the 2020 Agreement. Lisa Dwiar Affidavit at [39]. Trial Book at p 946.

[10] Clause 4.2 of Schedule 3 to the 2024 Agreement.

[11] Lisa Dwiar Affidavit at pages 101 - 102. Trial Book at p 1053 - 1054.

[12] Lisa Dwiar Affidavit at page 102. Trial Book at p 1054.

[13] Lisa Dwiar Affidavit at page 102. Trial Book at p 1054.

[15] The Concise Oxford Dictionary (8th ed, 1990) 'incremental'.