Australian Education Union v State of Victoria - [2015] FCA 1196 - FCA 2015 case summary — Zoe

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Australian Education Union v State of Victoria

[2015] FCA 1196

Federal Court of Australia|2015-11-06|Before: Bromberg J

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Court

Federal Court of Australia

Decision date

2015-11-06

Before

Bromberg J

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Judgment (58 paragraphs)

[1]

Introduction 1 Division 2 of Part 2-9 of Chapter 2 (Division 2) of the Fair Work Act 2009 (Cth) (FW Act) contains provisions (ss 323-327) that are newcomers to Federal industrial law but have a provenance that can be traced back through the English "Truck Acts" to 1465. The provisions deal with the payment of wages. So far as is relevant for the disposition of this proceeding, s 323(1) requires an employer to pay to its employee amounts payable to the employee in relation to the performance of work, in full and in money, except where the making of a deduction is permitted by s 324(1). Section 324(1) specifies the limited circumstances in which deductions may be made and permits a deduction authorised by an employee in accordance with an enterprise agreement, or authorised by or under a law of a State. Section 325(1) prohibits an employer from requiring its employee to spend amounts payable to the employee in any particular way, where the requirement is "unreasonable in the circumstances". Section 326(1) invalidates a term of an enterprise agreement or a contract of employment that has the effect of permitting the employer to make a deduction, where the deduction is for the benefit of the employer and is "unreasonable in the circumstances". 2 Between 1 July 2009 and 29 November 2013, the State of Victoria (Department of Education and Early Childhood Development) (DEECD) deducted over $20 million from the salaries of certain employees. The deductions were made in respect of a scheme known prior to March 2012 as the "Notebooks for Teachers and Principals Program" and subsequently as the "eduSTAR.NTP Program" (NTPP). In broad terms, this proceeding concerns whether deductions made by DEECD were or were not permitted by s 324(1). If they were not, the AEU contends that s 323(1)(a) has been contravened as well as applicable enterprise agreements requiring the payment of wages in full. In considering whether the deductions were authorised in accordance with s 324(1), the operation and effect of s 326(1) is engaged and whether the deductions were "unreasonable in the circumstances" needs to be considered. There is also an issue as to whether DEECD's conduct contravened s 325(1) by requiring teachers to spend part of their pay on the NTPP. 3 The simplicity of that statement of the issues is belied by the myriad and complex questions that are necessary to answer in order to resolve the dispute. I will outline the main issues in more detail shortly, but first some more background is required. 4 This proceeding was brought by the Australian Education Union (AEU). The AEU is an organisation of employees registered under the Fair Work (Registered Organisations) Act 2009 (Cth), and is entitled to represent the industrial interests of teachers and principals (teachers) employed by DEECD, under part 2.4 of the Education and Training Reform Act 2006 (Vic) (ETR Act), in the teaching service in Victorian government schools (schools). It was not in contest that the AEU has standing to apply for the relief it seeks. 5 The AEU and DEECD were both parties to the Victorian Government Schools Agreement 2004 (2004 Agreement), the Victorian Government Schools Agreement 2008 (2008 Agreement) and the Victorian Government Schools Agreement 2013 (2013 Agreement) (collectively, the Agreements). There was no issue that contravention of the 2008 Agreement or of the 2013 Agreement would constitute contravention of Schedule 16, item 2(2) of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (Transitional Act) or of s 50 of the FW Act, respectively. 6 In around 1995, the then Premier of Victoria launched a scheme known as the "Navigator Schools Project," the purpose of which was to increase the implementation of technology in Victorian schools. That led some years later (in around 1998) to the commencement of the NTPP. In brief, and relevantly to the issues which arise in this proceeding, the program was designed to provide participating teachers with a laptop computer and associated software for the teacher to use in teaching, preparation, administration and professional development. DEECD entered into arrangements (originally lease arrangements; later purchase arrangements) with third parties to procure large numbers of laptop computers. Those computers were then licensed to teachers pursuant to written agreements called Recipient Agreements. Ordinarily, a teacher retained a laptop for around three to four years, and then returned it to DEECD contemporaneously with the receipt of a new laptop under a new Recipient Agreement. Personal use of the laptop was permitted, on conditions. 7 NTPP laptops were provided to teachers in "Cycles" and "Rounds." Each Cycle comprised a number of Rounds: initially seven, though in times material to this proceeding ordinarily five. Each Round entailed a fresh lease or purchase arrangement by DEECD with a third party, and fresh Recipient Agreements between DEECD and teachers. Teachers that participated in a particular Round of a Cycle participated in the same-numbered Round of the next Cycle. That is, a teacher that received his or her laptop as part of Cycle 3 Round 2 (for example) would receive his or her next laptop some three to four years later as part of Cycle 4 Round 2. The NTPP was rolled out progressively, starting with one Round of teachers in 1998, two Rounds in March and November 1999, and so on until seven Rounds had been completed. The first seven Rounds were Cycle 1. Teachers that were part of Cycle 1 Round 1 returned their laptops in around February 2002 and took up computers as part of Cycle 2 Round 1 (amongst others who had not been part of Cycle 1 Round 1). Cycle 2 Round 1 computers were returned in June 2005 and Cycle 2 Round 1 teachers (again, I assume, amongst others) became part of Cycle 3 Round 1. 8 Teachers made monetary "contributions" to the cost of the NTPP. The Recipient Agreements authorised fortnightly "deductions" from a teacher's salary. The quantum of the deductions differed depending on the kind of computer licensed by the teacher. In most Rounds during times material to this proceeding, two computers were offered: an Apple-branded computer and a computer of some other brand (commonly Lenovo) running the Windows operating system rather than the Mac operating system. In some rounds (for example Cycle 4 Round 2), only a Windows computer was offered. The nature of teachers' contributions is the subject of contest, but in neutral terms the outcome for teachers was that they received in their pockets between $4 and $17 less per fortnight (depending on the Cycle and Round and the nature of computer) than would have been the case had they not entered into Recipient Agreements. The fortnightly amounts deducted in respect of individual teachers were not large, but total contributions were not insignificant. 9 The AEU contended that in deducting the contributions from teachers' wages (and thereby not paying teachers the amounts payable to them in full), DEECD contravened s 323(1)(a) and one or other of the Agreements (and, consequently the Transitional Act or the FW Act). The AEU's pleaded case is that the deductions were made, relevantly, in the period 1 July 2009 (being the date Division 2 commenced) to 29 November 2013 (being the date of the Amended Statement of Claim). That the deductions were made in that period is admitted. However, the AEU's claim for relief seeks an order requiring the repayment of all deductions made to the date of any order for repayment. It may well be that there is no issue that the deductions continued beyond the date of the Amended Statement of Claim and can be the subject of any order which may later be made. For current purposes, however, I will (in accordance with the case as pleaded) proceed on the basis that the deductions alleged to have been made in contravention of s 323(1)(a) and in breach of one or other of the Agreements are those that were made in the period 1 July 2009 to 29 November 2013 (the claim period). 10 DEECD denied it had required any of the teachers to spend their pay on the NTPP in contravention of s 325. As to the alleged contravention of s 323(1), DEECD relied upon each of s 324(1)(b) and s 324(1)(d) to contend that the deductions were permitted deductions. Each of the Agreements contained a clause providing that teachers may enter into "salary packaging arrangements". DEECD contended that the deductions made were authorised by the Recipient Agreements as part of salary packaging arrangements which were authorised by the Agreements. DEECD relied on s 324(1)(b) to contend that, in these circumstances, the deductions made were authorised by the teachers "in accordance with an enterprise agreement" and consequently s 323(1) was not contravened. DEECD also contended that the salary packaging arrangements made in accordance with the Agreements qualified its obligation under those Agreements to pay teachers in full and, consequently, that those Agreements were not breached. Whether the Recipient Agreements were "salary packaging arrangements" within the meaning of the Agreements is the main issue in contention in that part of the case. The AEU contends that they were not and that, consequently, s 324(1)(b) is not applicable. 11 On 19 December 2012, following the commencement of a proceeding against DEECD in which it was alleged that the FW Act and the Agreements had been contravened, Ministerial Order No. 632 (Ministerial Order) was made under the ETR Act. Relevantly, it inserted a new clause 2.9.1 after clause 2.8.1 of the Teaching Service (Employment Conditions, Salaries, Allowances, Selection and Conduct) Order 2009. Clause 2.9.1 included that on and from 1 July 2009 any amount that a person had agreed would be deducted from that person's salary in accordance with a Recipient Agreement was authorised to be deducted from and may lawfully be deducted from the salary of such a person. DEECD contended that the Ministerial Order, on and from 1 July 2009, attracted both the retrospective and prospective operation of s 324(1)(d) of the FW Act, which provided that an employer may deduct an amount from an amount payable to an employee where "authorised by or under a law of a State". 12 The AEU has raised a number of challenges to the operation and effect of the Ministerial Order, including as to whether it can operate retrospectively. In addition, the AEU relies on s 326(1) to contend that, to the extent that the Agreements or the Recipient Agreements permitted or had the effect of permitting the deductions, they were of no effect because the deductions were "for the benefit of the employer" and "unreasonable in the circumstances". If that is so, the AEU contends that the deductions made from teachers' salaries were not permitted by s 324(1)(b) or s 324(1)(d). 13 The number of NTPP laptops in circulation over the claim period varied marginally but was always around 40,000. Given that teachers come and go, the number of affected persons over the claim period may well be 50,000 teachers or more. The matters arising for determination extend to the individual circumstances of each of those affected persons. A potential difficulty arises. If it were necessary to resolve the issues raised including by reference to the individual circumstances of each and every affected teacher the expense for the parties would be prohibitive and the burden placed on the Court would be enormous. Whilst the proceeding is not a representative proceeding under Part IVA of the Federal Court Act of Australia 1976 (Cth), with the agreement of the parties I determined to utilise techniques familiar to class action proceedings to provide an efficient means by which the dispute can be resolved. 14 Accordingly, it was agreed that that part of the claim of unlawful deductions relating to a sample group of teachers, as well as a set of common questions, be determined by an initial trial, with all other issues raised by the proceeding (including any question of penalty or costs) deferred to a further trial. My orders of 26 May 2014 included the following: (1) The trial of the proceeding, in so far as it concerns alleged unlawful deductions in respect of the employees listed in Schedule A (the representative employees) (other than on any question of penalty or costs) be heard and determined at the trial commencing on 21 July 2014 (the first trial). (2) The trial of questions the form of which is agreed between the parties pursuant to orders 4 to 6 hereof or determined by the Court (common questions), be heard at the first trial. (3) All questions or issues raised by the proceeding, which fall beyond the scope of the matters to be dealt with at the first trial, be adjourned for determination by further trial to be conducted on a date to be fixed after the delivery of judgment determining the matters dealt with at the first trial. 15 Eleven sample employees (Group 11 teachers) were chosen by the AEU. They are Ms Seona Aulich, Mr Reginald Farquhar, Ms Debra Jane Fischer, Ms Sally Haddow, Ms Jessie Ann Humphries, Mr Sasha Kober, Mr Andrew Kumar, Ms Donna MacKinnon, Ms Erin O'Grady, Ms Jennifer Renton, and Ms Karen Terry. DEECD accepted that those teachers were generally representative of the various kinds of schools and categories of teachers in schools. It was not accepted that the personal use made by those teachers of their NTPP laptops was typical of the personal use made more generally by teachers. To that end and more generally, DEECD called nine teacher witnesses. They are Ms Natalie Barbara Rose Alpine, Ms Jodie Lynne Bray, Ms Kathryn Susan Davis, Ms Janelle Evans, Ms Amanda Jane Henning, Mr Nathan John Jagoe, Ms Amanda Jane Prosser, Mr Peter David Walsh, and Ms Karen Lea Elizabeth Wheeler (DEECD teacher witnesses). 16 The parties agreed that the witness evidence together with the detailed statements of agreed facts was the evidence upon which the Court can determine both the claims relating to the Group 11 teachers and the common questions. 17 The common questions (common questions) are as follows (incorporating a change in the wording of question 9 agreed during the hearing): In these questions: • the NTPP refers to the program known as the "Notebooks for Teachers and Principals Program" and the eduSTAR.NTP Program which is referred to in paragraph 7 of the Statement of Agreed Facts dated 11 September 2013. • NTPP deductions refers to the contributions in respect of NTPP notebook computers made by participating teachers. • Participating teachers means teachers who were parties to recipient agreements pursuant to which NTPP deductions were made. • Recipient agreement means the agreement pursuant to which participating teachers agreed to make the NTPP deductions. • The Ministerial Order means Ministerial Order 632 made on 19 December 2012 under the Education and Training Reform Act 2006 (Vic). 1. Were the NTPP deductions made between 1 July 2009 to the present a "salary packaging arrangement" within the meaning of any or all of: a. clause 17 of the Victorian Government Schools Agreement 2004; b. clause 18 of the Victorian Government Schools Agreement 2008; c. clause 19 of the Victorian Government Schools Agreement 2013? 2. If yes, were the NTPP deductions, or some of them, authorised by the participating teachers in accordance with an enterprise agreement within the meaning of s 324(1)(b) of the Fair Work Act 2009 (Cth) (FW Act), namely any or all of: a. clause 17 of the Victorian Government Schools Agreement 2004, b. clause 18 of the Victorian Government Schools Agreement 2008, or c. clause 19 of the Victorian Government Schools Agreement 2013? 3. If the NTPP deductions, or some of them, were authorised by all or any of a. clause 17 of the Victorian Government Schools Agreement 2004, b. clause 18 of the Victorian Government Schools Agreement 2008, c. clause 19 of the Victorian Government Schools Agreement 2013, were those deductions (i) directly or indirectly for the benefit of the respondent; and (ii) unreasonable in the circumstances within the meaning of s 326(1) of the FW Act? 4. Is the effect of the Ministerial Order that: a. the NTPP deductions made from 19 December 2012 to the present; and/or b. the NTPP deductions made between 1 July 2009 and 19 December 2012 were authorised by or under a law of a State within the meaning of s 324(1)(d) of the FW Act? 5. Does s 326 of the FW Act have any application where a deduction from an amount payable to an employee is authorised by a law falling within the scope of s 324(1)(d) of the FW Act? 6. Is the recipient agreement a term of the contract of employment of participating teachers within the meaning of s326(1) of the FW Act? 7. If yes, does the recipient agreement: a. permit, or have the effect of permitting, the respondent to deduct an amount from an amount that was payable to participating teachers in relation to the performance of work; or b. require, or have the effect of requiring, participating teachers to make a payment to the respondent, within the meaning [sic] s326(1) of the FW Act? 8. If yes, are the NTPP deductions: a. directly or indirectly for the benefit of the respondent; and b. unreasonable in the circumstances within the meaning of s 326(1) of the FW Act? 9. Does the respondent, as employer, require participating teachers to spend any part of an amount payable to them in relation to the performance of work within the meaning of s325(1) of the FW Act? 10. If so, is that requirement unreasonable in the circumstances, within the meaning of s325(1) of the FW Act? 18 The position, then, is that that by this initial trial the claim relating to the Group 11 teachers (Group 11 claims) is to be determined to completion. Further, I am to answer the common questions. My determination of the common questions will determine the Group 11 claims. It is intended by the parties that the answers to the common questions will enable the parties to resolve the claims made relating to all affected teachers, without further trial. 19 Having set out that context, and before moving on, I note that the relief sought by the AEU in its Amended Originating Application was (in broad terms) as follows: declarations of breach of provisions of Division 2; declarations of contravention of the Agreements, and (consequentially) of the sections of the FW Act and of the Transitional Act that proscribe such contraventions; an injunction prohibiting further deductions from the salaries of teachers; orders requiring DEECD to pay to teachers the amounts deducted from their salaries in respect of NTPP laptop computers; and, penalties, payable to the AEU, in respect of contraventions of the FW Act and of the Transitional Act.

[2]

Relevant Legislation 20 While I have described the effect of Division 2 above, it will assist the reader to set it out, in so far as relevant, in full: Division 2 - Payment of wages 323 Method and frequency of payment (1) An employer must pay an employee amounts payable to the employee in relation to the performance of work: (a) in full (except as provided by section 324); and (b) in money by one, or a combination, of the methods referred to in subsection (2); and (c) at least monthly. … 324 Permitted deductions (1) An employer may deduct an amount from an amount payable to an employee in accordance with subsection 323(1) if: (a) the deduction is authorised in writing by the employee and is principally for the employee's benefit; or (b) the deduction is authorised by the employee in accordance with an enterprise agreement; or (c) the deduction is authorised by or under a modern award or an FWC order; or (d) the deduction is authorised by or under a law of the Commonwealth, a State or a Territory, or an order of a court. Note 1: A deduction in accordance with a salary sacrifice or other arrangement, under which an employee chooses to: (a) forgo an amount payable to the employee in relation to the performance of work; but (b) receive some other form of benefit or remuneration; will be permitted if it is made in accordance with this section and the other provisions of this Division. Note 2: Certain terms of modern awards, enterprise agreements and contracts of employment relating to deductions have no effect (see section 326). A deduction made in accordance with such a term will not be authorised for the purposes of this section. (2) An authorisation for the purposes of paragraph (1)(a): (a) must specify the amount of the deduction; and (b) may be withdrawn in writing by the employee at any time. (3) Any variation in the amount of the deduction must be authorised in writing by the employee. 325 Unreasonable requirements to spend amount (1) An employer must not directly or indirectly require an employee to spend any part of an amount payable to the employee in relation to the performance of work if the requirement is unreasonable in the circumstances. Note: This subsection is a civil remedy provision (see Part 4-1). (2) The regulations may prescribe circumstances in which a requirement referred to in subsection (1) is or is not reasonable. 326 Certain terms have no effect Unreasonable payments and deductions for benefit of employer (1) A term of a modern award, an enterprise agreement or a contract of employment has no effect to the extent that the term: (a) permits, or has the effect of permitting, an employer to deduct an amount from an amount that is payable to an employee in relation to the performance of work; or (b) requires, or has the effect of requiring, an employee to make a payment to an employer or another person; if either of the following apply: (c) the deduction or payment is: (i) directly or indirectly for the benefit of the employer, or a party related to the employer; and (ii) unreasonable in the circumstances; (d) if the employee is under 18 - the deduction or payment is not agreed to in writing by a parent or guardian of the employee. (2) The regulations may prescribe circumstances in which a deduction or payment referred to in subsection (1) is or is not reasonable. Unreasonable requirements to spend an amount (3) A term of a modern award, an enterprise agreement or a contract of employment has no effect to the extent that the term: (a) permits, or has the effect of permitting, an employer to make a requirement that would contravene subsection 325(1); or (b) directly or indirectly requires an employee to spend an amount, if the requirement would contravene subsection 325(1) if it had been made by an employer.

[3]

Were the deductions authorised in accordance with the agreements? 21 The statutory exemption case raised by DEECD that relied upon s 324(1)(b) agitated the following three common questions: 1. Were the NTPP deductions made between 1 July 2009 to the present a "salary packaging arrangement" within the meaning of any or all of: a. clause 17 of the Victorian Government Schools Agreement 2004; b. clause 18 of the Victorian Government Schools Agreement 2008; c. clause 19 of the Victorian Government Schools Agreement 2013? 2. If yes, were the NTPP deductions, or some of them, authorised by the participating teachers in accordance with an enterprise agreement within the meaning of s 324(1)(b) of the Fair Work Act 2009 (Cth) (FW Act), namely any or all of: a. clause 17 of the Victorian Government Schools Agreement 2004, b. clause 18 of the Victorian Government Schools Agreement 2008, or c. clause 19 of the Victorian Government Schools Agreement 2013? 22 Relying on s 324(1)(b), DEECD contended that the NTPP deductions were "authorised by the employee in accordance with an enterprise agreement." DEECD contended that the NTPP deductions made by it from participating teachers' salaries were authorised in accordance with one or another of the Agreements. 23 Clause 18 of the 2008 Agreement provided that: (1) An employee may enter into a salary packaging arrangement in respect of a range of salary packaged benefits including: (a) superannuation; (b) a novated lease on a motor vehicle; (c) payment of medical benefits insurance to a fund nominated by the employee; (d) mobile telephones; (e) note book and lap top computers; (f) membership fees and subscriptions to professional associations; (g) home office expenses; (h) financial counselling fees; (i) disability/income protection insurance premiums; and (j) self education expenses. (2) All costs associated with salary packaging, including administrative costs and any additional tax associated with the employment benefit, are to be met from the salary of the participating employee. 24 The text of clause 17 of the 2004 Agreement is in precisely the same form. Clauses 19(1) and (2) of the 2013 Agreement are also in precisely the same form. Although clause 19 contains additional provisions in relation to the authorisation of deductions, nothing turns on a consideration of those provisions. 25 Each of the Agreements binds DEECD, the AEU and (amongst others) teachers and principals employed in government schools in the State of Victoria. Each requires that principals and teachers be paid the specified remuneration (expressed in monetary terms) set out in a salary schedule included in the Agreement. 26 As the issues in contest relate to the proper interpretation of identical terms found in each Agreement, I will focus my consideration on the proper meaning of clause 18 of the 2008 Agreement (clause 18). It is accepted that if the NTPP deductions are a "salary packaging arrangement" within the meaning of clause 18, then they would also meet that description in clause 17 of the 2004 Agreement and clause 19 of the 2013 Agreement. The same approach may be taken in answering questions 2 and 3, as no point of distinction has been raised by either party and none is apparent. 27 I should say at this point that it is not entirely clear to me why common questions 1, 2 and 3 raised clause 17 of the 2004 Agreement. The 2008 Agreement came into force and replaced the 2004 Agreement on 1 August 2008. The claim period commenced on 1 July 2009 and the AEU made no claim in relation to any earlier period. It was not explained, or at least not clearly explained, why in those circumstances it was necessary for DEECD to rely upon the 2004 Agreement as a foundation for a s 324(1)(b) exception. 28 It may be that DEECD held the precautionary view that reliance on the 2004 Agreement was necessary to support deductions made after 1 July 2009 which had been authorised under a Recipient Agreement made before 1 July 2009 and whilst the 2004 Agreement was in operation. To my mind it is unnecessary for DEECD to adopt such a precautionary position, if that is what it did. I have no difficulty in reading clause 18 of the 2008 Agreement as picking up arrangements entered into prior to that Agreement coming into force (assuming those arrangements met the description "salary packaging arrangement", etc.). I consider that to have been the likely intent of the parties to the 2008 Agreement. 29 I need not, at this juncture, determine that issue, although it may require determination at a later time. There is, as I have said, no relevant distinction between the terms of cl 17 of the 2004 Agreement and cl 18 of the 2008 Agreement and the case was conducted on the basis that, if DEECD's submissions are correct, all NTPP deductions made in the claim period were authorised by one of the 2004, 2008 or 2013 Agreements. I will proceed on that foundation.

[5]

The meaning of the phrase "salary packaging arrangement" 33 The phrase "salary packaging arrangement" is not defined by the 2008 Agreement. Its meaning falls to be determined according to established principles of construction of an industrial instrument. 34 The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes (1989) 30 IR 362 at 378 (French J). The interpretation "… turns on the language of the particular agreement, understood in the light of its industrial context and purpose …": Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378): rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they frequently are couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament: see Holmes at 378-9, citing Geo A Bond & Co Ltd (in liq) v McKenzie [1929] AR(NSW) 498 at 503 (Street J). To similar effect, it has been said that the framers of such documents were likely of a "practical bent of mind" and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced: see Kucks v CSR Limited (1996) 66 IR 182 at 184 (Madgwick J); Shop Distributive and Allied Employees' Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J). 35 It will become apparent in the analysis that follows, that I draw an important distinction between the payment made to an employer out of an employee's entitlement to salary and the substitution for an entitlement to salary of another form of remuneration. It is only the latter which, to my mind, is capable of constituting a "salary packaging arrangement" within the meaning of clause 18(1). It is convenient that I commence the discussion by identifying what is remuneration. 36 Remuneration is the reward paid or provided in return for the performance of a service or for work done. The ordinary meaning of "remuneration" is pay for services rendered: Chalmers v The Commonwealth of Australia (1946) 73 CLR 19 at 37 (Williams J). That connotes a connection between the payment or benefit received and the provision of work or services: Settlement Agents Supervisory Board v L J Hooker Settlements Pty Ltd [2009] WASCA 89 at [22] (Martin CJ, with whom Pullin JA and Newnes AJA agreed). As Blackburn J observed in the Queen on the prosecution of J. B. Saunders v The Postmaster General [1876] 1 QBD 658 at 663, "… I think the word 'remuneration' is a wider term and means a quid pro quo. If a man gives his services, whatever consideration he gets for giving his services seems to me a remuneration for them." A comparable understanding has been applied in Australia: May v Lilyvale Hotel Pty Limited [1995] IRCA 628 at 9-12 (Wilcox CJ). In Rofin Australia Pty Ltd v Newton (1997) 78 IR 78 at 81, a Full Bench of the Australian Industrial Relations Commission defined remuneration as: … the reward payable by an employer to an employee for the work done by that employee in the course of his or her employment with that employer. It is a term that is confined neither to cash payments nor, necessarily, to payments actually made to the employee. It would include non-pecuniary benefits and payments made on behalf of and at the direction of the employee to another person out of moneys otherwise due to that employee as salary or wages. 37 In an employment relationship an employer will ordinarily remunerate its employee for the work provided by paying a monetary salary. However, as the passage just cited illustrates, remuneration can be provided in other ways. Where a mix of remunerative benefits is provided in exchange for work, that will often be collectively referred to as a "remuneration package". 38 The phrase "salary packaging", in the context of an existing employment relationship, describes a situation where an employee's total remuneration paid by way of salary is restructured by the employee sacrificing salary in exchange for a non-salary form of remuneration. To engage in "salary packaging" is to make a salary packaging arrangement. Sometimes this process is referred to as "salary sacrificing". 39 The CCH Macquarie Dictionary of Employment and Industrial Relations describes the practice of salary packaging synonymously with "salary sacrifice" as follows (D Yerbury & M Karlsson, The CCH Macquarie Dictionary of Employment and Industrial Relations (CCH Australia Limited & Macquarie Library Pty Ltd, 1992), at 310): the structuring of the total remuneration to an employee … so as to increase that employee's disposable income and maximise his/her choice as to which elements of a remuneration package would be most personally beneficial, while retaining the same net cost of employment to the employer. Often the package involves less direct salary than hitherto and more fringe benefits. … 40 As that definition makes clear, the subject of a salary packaging arrangement is remuneration earned. A salary packaging arrangement, or salary packaging, is the making of an arrangement that will restructure the remuneration otherwise payable to an employee as salary for a mix of salary and non-salary remuneration. In an existing employment, that restructure will involve the employee sacrificing part of an existing entitlement to receive salary in return for service for other benefits earned by the employee and provided by the employer as remuneration in return for service. A fundamental feature of a salary packaging arrangement is the substitution of one form of remuneration for another. 41 The remuneration provided in substitution for salary may take various forms. It may be the provision of a good or service like a vehicle or access to a gym. It may be the discharge of a debt owed by the employee to another person, such as a membership subscription to a union or to a health fund. What is crucial, to my mind, is that the salary substitute is provided to the employee as remuneration for services rendered. Only if that is so, is remuneration the subject of the arrangement and the arrangement a salary packaging arrangement. 42 Where a good or service is not provided by an employer to an employee as remuneration, it is not provided as part of a salary packaging arrangement. In that case, there is no exchange of salary for a different remunerative benefit, there is simply the provision of a benefit either gratuitously or in exchange for a payment. If such a benefit is paid for, it may be paid for out of the salary due to be paid to the employee, but that would simply be a payment made by the employee, out of salary, for a good or service provided by the employer. It would not be the substitution of salary for another form of remuneration where the good or service was not provided as remuneration. By definition, it would not constitute a salary packaging arrangement. 43 I should add that, in addressing the meaning of "salary packaging arrangement", I have taken into account the views of two accountants called by the parties which, in each case, were contained in expert reports received, pursuant to order, as submissions. I think it fair to say, as DEECD contended, that both experts agreed that the general understanding of the term "salary packaging arrangement" is: An arrangement between an employer and employee whereby the employee agrees to forego an amount of monetary remuneration in return for the provision of non-cash benefits by the employer. Neither expert directly addressed whether a fundamental feature of a salary packaging arrangement is the substitution of one form of remuneration for another, but that seems implicit from their agreed definition. 44 DEECD also contended that the definition of "salary packaging arrangement" in s 136(1) of the Fringe Benefits Tax Assessment Act 1986 (Cth) (FBTAA) could shed light on the intended meaning of "salary packaging arrangement" in clause 18. I accept that the definition there provided is arguably broader than that which I have described as reflecting the ordinary understanding of the phrase. There are, however, two reasons why I consider that the FBTAA definition does not assist. First, while true of all legislation, it is notorious that a definition found in tax legislation is often driven by the imperatives of that kind of legislation and is not necessarily designed to reflect the ordinary usage of the term defined. Second, the definition was only introduced on 28 June 2013. Even if it is the case, as DEEDC contended, that the definition was modelled upon words first introduced into s 41(2) of the FBTAA in May 2008, the introduction of those words pre-dated by many years the making of the 2001 Agreement when, as DEECD accepted, the meaning of the phrase "salary packaging arrangement" as found in the Agreements, was settled. 45 The terms of the 2004 Agreement do not suggest that the phrase "salary packaging arrangement" utilised in clause 18(1) was intended to have a meaning other than the ordinary meaning that I have identified. The words "in respect of a range of salary packaged benefits" do not add very much. Those words simply confirm the nature of the intended arrangement which is already apparent. The "benefits" identified in the non-exhaustive list are recognisable as those for which concessional taxation treatment is available and are reflective of the fact that salary packaging will usually be utilised so as to enable the employee to obtain a financial advantage by restructuring the manner in which remuneration earned is received. 46 That last observation and two other features of clause 18 suggest that the clause contemplates facilitating an employee's desire to obtain an advantage through restructuring his or her remuneration. The opening line of clause 18(1) provides that "an employee may enter into a salary packaging arrangement." That suggests that the arrangement contemplated is an arrangement made for the employee's benefit. The conclusion is reinforced by the terms of clause 18(2) which require the employee to bear all of the costs associated with the arrangement. 47 I accept the AEU's contention that the word "benefit" in clause 18(1) must be understood by reference to its context, namely, a "salary packaged benefit" the subject of a "salary packaging arrangement." In that context, as the AEU correctly contended, the kind of benefit addressed in clause 18(1) is a substitute for wages provided by DEECD in consideration of the teacher's services, or, as the AEU submitted, "earned remuneration standing in the place of monetary compensation". As I have said already, by definition, a fundamental feature of a salary packaging arrangement is the provision by the employer of non-salary remuneration. Accordingly, a benefit provided to an employee for a purpose other than as the quid pro quo for services is not a benefit of the kind that clause 18(1) contemplates. 48 The AEU went on to contend that, as the purpose of the provision of the non-monetary benefit is to remunerate the employee, a benefit that benefits the employer and only incidentally the employee cannot be a benefit within the meaning of clause 18(1). I do not accept that submission. I would accept that the provision to an employee of a non-salary benefit that principally advantages the employer and only incidentally the employee, is a situation that is unlikely to evidence the provision of a benefit for the purpose of remunerating the employee. But, the question is whether or not the benefit was provided as remuneration, not whether provision of the benefit was more beneficial to the employer than it was to the employee. 49 Similarly, I do not accept the AEU's submission that a "benefit" must be a benefit that an employee has control over. Again, lack of employee control over how a benefit can be utilised and the fact that its utilisation is controlled by the employer will likely assist in establishing that the benefit was not provided as remuneration. But, to my mind, an absence of control is not necessarily a disqualifying feature. 50 All of that reflects the fact that an employer and its employee may have a range of reasons for agreeing that a particular good or service be provided in a salary package. The arrangement may be a good or a bad bargain for the employee, or it may reflect some peculiar need of the employee. What matters, in my view, is whether the substituted benefit was provided as remuneration. 51 Whilst DEECD contended (as I accept) that none of the degree to which the employee obtains an advantage, the degree of control the employee has over a benefit, or the degree to which the benefit is utilised for work purposes, is determinative, DEECD's submissions did not really confront the AEU's proposition that a "benefit" must be a form of remuneration. In so far as DEECD contended to the contrary, I reject that contention. For the reasons I have already given, to construe a "salary package benefit" as capable of being any kind of benefit provided for any kind of purpose fails to understand that the subject matter of a salary packaging arrangement (as the phrase is ordinarily understood and as it is used in clause 18) is remuneration.

[7]

Was "salary packaging arrangement" understood by the framers of the clause to exclude the NTPP? 57 Each of the parties led evidence about the surrounding circumstances to the making of clause 18 and its successor provisions. Evidence was also led about the making of the Victorian Government Schools Agreement 2001 (2001 Agreement). That was because a predecessor to clause 18 was clause 14 of the 2001 Agreement and it was on the making of that agreement that a clause like clause 18 was first introduced. The terms of clause 14(2) and (3) of the 2001 Agreement are nearly identical to the terms of clause 18(1) and (2). The sole difference is that, whereas clause 18(2) includes the words "and any additional tax associated with the employment benefit", clause 14(3) does not. It seems to me that nothing turns on this difference. Clause 14(1) imposed upon DEECD an obligation to pay its employees the salary specified by the salary schedules elsewhere set out in the 2001 Agreement. 58 The AEU contended that the evidence of the surrounding circumstances known to the parties at the time of the making of the 2001 Agreements was to the effect that the NTPP deductions were not regarded as, or understood to be, salary packaging arrangements because they were separate to and excluded from the arrangements understood to be the salary packaging arrangements available for teachers to make with DEECD. On that foundation, the AEU contended that an NTPP arrangement was not a "salary packaging arrangement" as contemplated by the 2001 Agreement, and that the intended meaning carried over to each of the 2004, 2008 and 2013 Agreements. 59 The evidence relevant to this issue is largely uncontentious. From the AEU's perspective, the strongest evidentiary support is that, at the time the 2001 Agreement was made, DEECD had in place a comprehensive policy on salary packaging in a Salary Packaging Guide dated March 1999 (1999 SP Guide). The 1999 SP Guide set out a wide range of options for salary packaging which included a capacity for the salary packaging of laptops or notebook computers. The policy prescribed a range of mechanisms and processes by which salary packaging could be arranged and provided for that to be done through external providers. The 1999 SP Guide specifically excluded the NTPP arrangements as capable of being included in any permitted salary packaging arrangements for a laptop or notebook computer. The policy relevantly said: A computer provided as part of the Department's 'notebook computers for teachers' initiative cannot be included as an optional benefit in the salary package. 60 There is a controversy between the parties as to whether or not that exclusion was removed in November 2002 when the 1999 SP Guide was updated. It will be necessary to address that matter for other purposes shortly. For current purposes, that is not necessary. DEECD accepted that whatever meaning was intended for the phrase "salary packaging arrangement" by the framers of clause 14 on the making of the 2001 Agreement carried through to clauses 17, 18 and 19 of the 2004, 2008 and 2013 Agreements respectively. In essence, DEECD accepted that the substance of clause 14 was transposed into the Agreements that followed. 61 The relevant question, then, is whether the evidence of surrounding circumstances, as at the time the 2001 Agreement was made, demonstrated that the terms utilised by the parties in clause 14 were intended to have a meaning that excluded an NTPP arrangement. In my view, the surrounding circumstances do not suggest that the parties intended to restrict the meaning of "salary packaging arrangement" so as to exclude the NTPP. The evidence does not sustain a view that the parties intended the phrase to have anything other than its ordinary meaning. 62 The extent to which DEECD was prepared to allow or not allow any particular item at any particular time to be the subject of salary packaging should not be regarded as of any significance to the meaning of the clause. As I have indicated already, DEECD had a capacity, unaffected by clause 14, to determine whether it would make or would not make a salary package with any particular employee about any particular salary restructure. There is no reason to assume that the framers of clause 14 intended that DEECD's position as to what benefits could or could not be included in a salary packaging arrangement would remain fixed by any policy that DEECD had at any particular time, or that clause 14 was intended to reflect that fixed scope. The policy embodied in the 1999 SP Guide was made pursuant to a discretion conferred upon the Secretary to the Department of Education by Ministerial Order No. 154 (see clauses 2.1.2 and 2.3.2(3)). Within the broad parameters set by that Ministerial Order, the policy was capable of being altered at the discretion of the Secretary. There is no reason to suppose that the framers of clause 14 intended that, over the course of its operation, the salary packaging arrangements available under clause 14 should be restricted by what DEECD regarded at an earlier time to have been an appropriate item for salary packaging. It is more likely that, if the framers of clause 14 had turned their mind to the issue, they would have recognised that the optional benefits that DEECD was prepared to allow to be salary packaged may vary over time. In my view, the terms of clause 14 were broadly drawn and intended to facilitate salary packaging for whatever remunerative benefits an employee sought and DEECD was prepared to allow. 63 It is not, therefore, necessary for me to determine DEECD's contention that a relevant change to the surrounding circumstances was made in August 2000 when deductions of NTPP contributions commenced to be made from "pre-tax salary". Even if the AEU is correct in its contention that no relevant change to the surrounding circumstances was thereby effected, my view as to the meaning of the phrase would be unaltered.

[8]

Was a Recipient Agreement a "salary packaging arrangement"? 64 Although common question 1 was posed by reference to the NTPP deductions, in substance the question asks whether the NTPP arrangements which authorised those deductions were "salary packaging arrangements". The only relevant deductions were the fortnightly deductions made pursuant to the Recipient Agreements between each teacher and DEECD. If a "salary packaging arrangement" was made between a teacher and DEECD it was made by the Recipient Agreement. No party contended to the contrary. The AEU contended that DEECD could only succeed if the whole of the Recipient Agreement could be characterised as a "salary packaging arrangement". On the other hand, DEECD relied on particular features of the Recipient Agreement to contend that the NTPP arrangement was a "salary packaging arrangement". 65 To my mind, if a part of an arrangement with a wider purpose or subject is able to be characterised as a "salary packaging arrangement" then such a part can be regarded as an arrangement of itself. The features of a "salary packaging arrangement" may be embedded in an arrangement of wider compass. If those features are sufficiently connected to be recognisable as an arrangement of themselves, then I can see no reason why their placement within a wider arrangement should deny those features their combined character. Accordingly, I should consider whether, either as a whole or in respect of a part thereof, a Recipient Agreement was a "salary packaging arrangement". 66 That consideration ought not be based upon the evidence led by the AEU from teachers to the effect that, when they made a Recipient Agreement, subjectively they did not believe they were committing their salary to a salary packaging arrangement. The nature of the legal relations created when teachers and DEECD entered into Recipient Agreements is to be assessed objectively by reference to what a reasonable person would have understood to be the common intention of the parties from the text of the Recipient Agreements, the surrounding circumstances known to the parties, and the purpose and object of the transaction: Toll (FGCT) Pty Limited v Alphapharm Pty Limited (2004) 219 CLR 165 at [40] (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ). It is appropriate that I commence the analysis by considering the text.

[9]

The Recipient Agreement 67 A number of different versions of the standard-form Recipient Agreement were in evidence. Each version had application during a different period within the claim period. In so far as terms differed, no party suggested any relevant distinction. 68 The standard form Recipient Agreement commenced with its title: Notebooks for Teachers and Principals Program Licence Agreement (or, in later versions, "Recipient Agreement" rather than "Licence Agreement"). The descriptor "Licence Agreement" is a fair representation of the content that followed. The document set out the terms and conditions of the licence offered by DEECD which the teacher was invited to accept. The document was formal, comprehensive, and readily recognisable as an agreement intended to be legally binding. 69 It commenced by explaining the "Background". The NTPP was described as an initiative of the Government of Victoria administered by DEECD. It referred to the NTPP, or "the Program", as: … designed to support and encourage principals and teachers ("Recipients") to integrate the use of learning technologies into the classroom, and to provide Recipients with a tool for professional planning, classroom practice, assessment and reporting. 70 In further describing the Background, the document stated that DEECD had entered into an operating lease with a finance company (or, in later versions, a "procurement agreement") for the lease of notebook computers and other related items for the purposes of the NTPP. Those items were defined as the "Equipment" set out in Schedule 1. There were non-substantive differences in the scheduled "Equipment" as between the various versions of the Recipient Agreements. The following is the "Equipment" as set out in the earliest of the three versions I was provided: • Notebook Computer and peripherals (battery, adaptor, power cord, Optical Drives (where provided) and carry bag or backpack) with operating system software sufficient for use by the Recipient as a work tool and for self education purposes both at home and at school. • Microsoft Office software, Anti-Virus software and other selected software preloaded on the Notebook Computer, Guides and Manuals. • User manuals as supplied by the notebook manufacturer. 71 The Background continued that, in accordance with the NTPP, DEECD "has agreed to make the Program package as described in Schedule 2 (Notebook Package), available to the Recipient under a non-exclusive licence in accordance with these Terms and Conditions." Later versions of the Recipient Agreement omitted the words, "under a non-exclusive licence". Schedule 2 identified the Notebook Package as the Equipment together with "Equipment warranty support and Help Desk for dealing with product faults and difficulties" as well as "Insurance against loss or damage of the Equipment." Again, there were immaterial differences in Schedule 2 of later Recipient Agreement versions. Finally, the Background stated that the Notebook Package was provided directly to the Recipient and that the agreement was between DEECD and the Recipient personally and not with the Recipient's school. 72 The next part of the document should be set out in full. Again, there were differences in the wordings of these provisions in the various versions of the Recipient Agreement. Most are immaterial, so I will set out below the first version, noting important differences in later versions in square brackets: 2. LICENCE [later versions said "Provisions of Notebook Package"] 2.1 The Department agrees to make the Equipment available to the Recipient for his or her non-exclusive [later versions omitted "non-exclusive"] use in accordance with these Terms and Conditions ("Licence Agreement") [later versions omitted the words "Licence Agreement"]. 2.2 In consideration of receiving the Notebook Package, the Recipient will: (a) contribute to the cost of the Notebook Package at the nominated fortnight rate (referred to as the "Contribution Rate"); (b) authorise the deduction of the Contribution Rate from the Recipient's pre-tax salary by equal fortnightly instalments for the period: (i) commencing on the date of delivery of the Equipment in accordance with this Licence Agreement, or at a date agreed between the Department and the Recipient (with an agreed date taking precedence over the date of delivery); and (ii) ending on the date when the total contribution for the notebook package is paid or the date upon which the Equipment is returned to the Department, whichever is the latter; (c) demonstrate a commitment to ongoing professional development as set out in Schedule 4; [in later versions, "Schedule 3"] and (d) observe and comply with the terms and conditions of this Licence Agreement. 2.3 The Department will give the Recipient reasonable written notice of any proposed or actual change to the Contribution Rate. 2.4 The Department in relation to the collection of information from the Recipient will comply with the Information Privacy Act 2000 and its Privacy Collection Statement referred to in Schedule 3 [in later versions, "Schedule 4"]. 73 The terms of the Schedule referred to in clause 2.2(c) were as follows: Teachers and Principals are expected to commit to: • the use of learning technologies in the school; at least 40 hours of professional development in learning technologies in their professional development plan; Refer to these links for ICT Professional Support: • Information on a range of Professional Learning Opportunities: http://www.education.vic.gov.au/studentlearning/elearning/proflearn.htm • List of events and dates for Professional Learning: http://www.education.vic.gov.au/studentlearning/elearning/calendar.htm • Education Times Professional Learning Opportunities http://www.education.vic.gov.au/about/news/edtimes/onlineeditions.htm • the use of the Equipment as a tool in their curriculum planning, classroom practice and assessment and report [sic]; • sharing with other teachers curriculum materials or teaching strategies that are developed using the Equipment. In the later two versions, the final bullet point was omitted. 74 The next section of the document was headed "Period of Licence." It dealt with how the agreement could be terminated. Various termination events were specified including by notice from DEECD, on the Recipient ceasing employment with the DEECD, and on the Recipient advising DEECD that he or she wished to withdraw from the Program (or, in later versions, on the Recipient permanently returning the Equipment to DEECD). 75 Section 4 of the Recipient Agreement was headed "Recipient Agreement As To Use." Pursuant to clause 4.1(a) the Recipient agreed: (a) to use the Equipment as a work tool and for self-education purposes in accordance with: (i) the objectives of the Program; and (ii) the Department reserves the right to amend the Department's Notebooks for Teachers and Principals Program Policy and Guidelines from time to time and to provide information to the Recipient via the Department's email and other means of communication as outlined in the Department's Policies and Guidelines; 76 There were no differences of substance in later versions. Pursuant to clause 4.1 the Recipient further agreed, inter alia, to: share with other employees of DEECD and its schools any curriculum materials or teaching strategies that are developed using the Notebook Package; care and maintain the Equipment in good working order; report any loss of or damage to the Equipment; utilise the warranty support services provided by the manufacturer; keep the Equipment under his or her personal control at all times; not assign any rights in the Equipment. 77 The matter set out in the first bullet-point above was removed in the two later versions that were in evidence. Clause 4.2 set out financial obligations upon the Recipient to pay for costs incurred in repairing the Equipment or in replacing Equipment as a result of loss, burglary or theft as well as in relation to other costs arising out of breach by the Recipient of the agreement. 78 Clause 6 required the Recipient to acknowledge that he or she did not own the Equipment and may only use the Equipment as provided for in the agreement. Clause 7 stated that the agreement did not confer on the Recipient any proprietary interest (or, later, ownership interest) in or to the Equipment. 79 The terms of clause 4.1(a)(ii) set out above are taken from the earliest version of the Recipient Agreement in evidence. Those terms did not expressly bind the Recipient to observe DEECD's NTPP "Policy and Guidelines". That subclause spoke of DEECD's right to amend the Policy and Guidelines without expressing their binding force on the Recipient. Later versions of the Recipient Agreement did require the Recipient's agreement to abide by the Program's Policy and Guidelines (as amended from time to time). Despite the omission in the earliest version, it was not in contest that throughout the entirety of the claim period, Recipients were obliged to observe the Program's Policy and Guidelines. 80 It was agreed that at all times in the claim period, a document entitled "Notebooks for Teachers and Principals Program Policy" (NTPP Policy) was incorporated by the applicable standard-form Recipient Agreements. This document did not relevantly add anything. It largely repeated the purpose of, and the obligations set out in, the Recipient Agreements. It was also agreed that from (relevantly) the beginning of the claim period to around March 2011, a document entitled "Acceptable Use Policy for Department of Education and Early Childhood Development Information, Communications and Technology (ICT) Systems" was incorporated (first Acceptable Use Policy), and that from March 2011 to the end of the claim period a different document entitled "Acceptable use policy: DEECD Information Communications and Technology (ICT) Resources" (second Acceptable Use Policy) was incorporated. Both of the first and second Acceptable Use Policies were applicable not only to the NTPP but also to all other of DEECD's ICT systems, including intranet, internet, email, computer systems, software services, desktop computers, notebook computers, mobile phones, digital cameras, other handheld devices, and storage devices. Each stated that its purpose was to ensure that use of ICT systems was "legal, ethical and consistent with the aims, values and objectives of DEECD …". Each provided that ICT systems must be properly and efficiently used and not used for "inappropriate activities" therein listed (e.g., access to pornography). 81 It is necessary to refer to some of the terms of the Acceptable Use Policies. Clause 3 in each Acceptable Use Policy stated its "Rationale," and emphasised that the use of ICT resources carried with it responsibilities. Clause 3 in the second Acceptable Use Policy stated, "Users must at all times remember that when using DEECD ICT resources, they are using ICT resources provided to them for business purposes." The first Acceptable Use Policy did not contain these words, but did provide that "[t]he provision of DEECD ICT systems … is to improve and enhance learning and teaching, and conduct of the business and functions of DEECD." Clause 5 in both Acceptable Use Policies included that non-compliance with the Acceptable Use Policy would be regarded as a serious matter and that appropriate action, including termination of employment, could be taken in response. Again in both cases clause 6 included that use of DEECD ICT resources must only be used for DEECD purposes unless otherwise expressly authorized. However, in both cases, clause 6 permitted non-excessive personal use. Below is the form of words used in the second Acceptable Use Policy, with additions as compared with the first Acceptable Use Policy marked by underlining: Notwithstanding clause 6.1(a) ["6.2(a)" in first Acceptable Use Policy], users of DEECD ICT resources ["systems" in first Acceptable Use Policy] may use DEECD ICT resources [ditto] for personal use provided the use is not excessive and does not breach this Policy. Users must not engage in excessive personal use of DEECD ICT resources [ditto] during working hours (refer to Clause 20, Category 4, for guidance). Users must not engage in excessive personal use of DEECD email systems ["electronic communications" in the first Acceptable Use Policy] or the internet using DEECD networks outside working hours. A breach of either of these constitutes a failure to abide by this Policy. In using DEECD ICT resources for personal use, users should be aware that the provisions that apply to access and monitoring of DEECD ICT resources apply to personal use as well. 82 Clause 8 provided for DEECD to have access to and monitor DEECD ICT resources. In the second Acceptable Use Policy, it was expressly stated that this might occur "without notice to the user," but that a valid reason must exist for accessing or monitoring. Neither of those two express statements was made in the first Acceptable Use Policy, but I think each is implicit. Clause 20 in each Acceptable Use Policy provided for categories of breach of the Policy, comprising Illegal (category 1), Extreme (category 2), Critical (category 3), and "Excessive personal use during working hours" (category 4). 83 It is agreed that from March 2012, a further document was incorporated as a policy or guideline. This document was titled "Frequently Asked Questions for all recipients of eduSTAR.NTP notebooks" (FAQ Policy). It began by describing the NTPP (by then called the eduSTAR.NTP) as a DEECD initiative which supported and encouraged principals, teachers and para-professionals (instructors) "to integrate learning technologies into their school classroom and administrative practices." A question was asked - "What do I get for my fortnightly pre-tax eduSTAR.NTP contribution?" The equipment provided under the package was then set out. The next question and answer stated that DEECD subsidised the cost of the laptops. The extent of that subsidy was not specified. The following question asked, "How is the contribution rate worked out?" The answer given was that the contribution rate reflected the overall cost of purchasing, maintaining and supporting each notebook over the term of the agreement, after DEECD's subsidy had been applied. The document included the following question and answer: Why do I have to pay for an eduSTAR.NTP notebook? The program is voluntary and offers the choice of an Apple or Windows notebook for use by participants of the Program. The co-contribution made by recipients and the terms of the program's agreement for the use of notebooks strikes an appropriate balance between the ability of teachers and principals to use the notebook for both professional and personal purposes. On the evidence, this was the first and only occasion where a document explaining the NTPP program suggested that the teacher's contribution had a nexus to personal use of the laptop. 84 Later, the document addressed whether a teacher could bring his or her "personal" computer to use at school. It stated that whether an individual teacher could bring a personal computer into the school was a "local school decision that resides with the Principal and School Council," and that DEECD's eduSTAR software could not be installed on the teacher's personal computer. If a personal computer was permitted to be brought to the school, the principal would require the teacher to have suitable and current anti-virus and other security software installed. 85 The document contained a glossary of terms in which the term "Recipient Contribution" was defined as follows: Pre-tax fortnightly contribution made by recipients. The actual contribution is determined based on the total cost of the notebook after taking into account the Department subsidy. The recipient is advised of the contribution during the nomination process and accepts this when they complete the nomination process formalities. After the recipient has executed their eduSTAR.NTP Recipient Agreement their contribution will be automatically deducted through the Department's payroll system.

[10]

Discussion 86 In evaluating whether a common intention to make a salary packaging arrangement should be imputed to DEECD and each of the teachers with whom it made a Recipient Agreement, it is appropriate to commence with a consideration of the text of the Recipient Agreement and the purpose and object of the transaction as there identified. 87 The Recipient Agreement initially characterised itself as a Licence Agreement. The transaction the subject of the Recipient Agreement was identified by its terms as the provision by DEECD of the "Notebook Package" including a licence to the teacher to use the "Equipment" in exchange for the teacher agreeing to "contribute to the cost of the Notebook Package" and to "demonstrate a commitment to ongoing professional development." The teacher also agreed to "use the Equipment as a work tool and for self-education purposes in accordance with … the objectives of the Program." Those objectives were expressed as supporting and encouraging principals and teachers to "integrate the use of learning technologies into the classroom, and to provide Recipients with a tool for professional planning, classroom practice, assessment and reporting." No party sought to make anything of the fact that the language of licence ceased to be used after the first relevant version of the Recipient, and I cannot see that anything turns on that change. 88 There is no reference in the Recipient Agreement to salary packaging or to a salary packaging arrangement. There is, in the clause providing for deductions, a reference to "pre-tax salary" as the source for the teacher's contribution; there is no reference to a teacher's remuneration beyond the reference to the source of the deduction just referred to. There is no suggestion that the provision of the Notebook Package has a remunerative purpose. 89 The nature or character of the transaction, as it appears on the face of the terms of the Recipient Agreement, was the making of a regular contribution "to the cost of the Notebook Package" in exchange for the Notebook Package which included a licence to use the Equipment. 90 The parties' characterisation of their agreement may not be given effect according to its terms where the characterisation contradicts the nature of the relationship the parties have actually created: Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd (2015) 228 FCR 346 at [148] (North and Bromberg JJ). But here, the characterisation made by the parties of the Recipient Agreement is consonant with its terms. If there was ambiguity it would follow that the parties' characterisation of their own agreement would be relevant. If the nature of an agreement is ambiguous, the parties' characterisation can remove that ambiguity: Australian Mutual Provident Society v Chaplin (1978) 18 ALR 385 at 389 (Lord Fraser of Tullybelton, for the Privy Council), citing Lord Denning MR in Massey v Crown Life Insurance Co [1978] 2 All ER 576 at 580. As Lord Denning MR said in the passage cited: The agreement itself then becomes the best material from which to gather the true legal relationship ... . 91 It may be that the parties characterised the primary nature of the agreement, but not a subsidiary nature (e.g., as a salary packaging arrangement). The parties' failure to acknowledge the subsidiary nature may be inconsequential if it were the case that, in substance, the Recipient Agreement exhibited the features of a salary packaging arrangement. 92 The difficulty for DEECD is that the Recipient Agreement does not contain the requisite features of a salary packaging arrangement. As earlier stated, remuneration is the essential subject matter of a salary packaging arrangement and, in the context of an existing employment relationship, the arrangement must involve the substitution of one form of remuneration for another. 93 Putting to one side (for the moment) the manner in which the Recipient Agreement provided for the teacher's contribution to be effected - the "pre-tax salary" issue to which I will return - there is nothing in either the terms of the Recipient Agreement or the surrounding circumstances that, in my view, supports a conclusion that the Recipient Agreement concerned teacher remuneration. The purpose of the transaction, as is apparent from the terms of the Recipient Agreement, was to provide the teacher with Equipment for use "as a work tool and for self-education purposes" in accordance with the objectives of the NTPP. In consideration of receiving the Notebook Package the teacher agreed to "contribute to the cost of the Notebook Package." Those contributions (as clause 2.2(b) specified) commenced on the date the Equipment was delivered (or at a date agreed) and ended when "the total contribution for the Notebook Package is paid" (though this possibility was not mentioned in later versions) or the date upon which the Equipment was returned. There are other references in the contractual documents to the same effect. The NTPP Policy at clause 4.4 stated that teachers must agree to "contribute towards the cost of participating in the Program." The FAQ Policy referred to the teachers' contribution by reference to the cost of the NTPP and included an explanation as to why a teacher had to pay for a NTPP notebook. Those references tend to confirm that the NTPP Package was provided in exchange for the teacher contributing financially to its cost. Indeed, in a submission about the characterisation of the Recipient Agreement, DEECD said that "[i]t provides for a voluntary arrangement for access to and use of a notebook computer package in exchange for a financial contribution to its cost" (15 August 2014 submission at [17]). The conclusion that the quid pro quo for the NTPP Package was a financial contribution to its cost, and not the provision by the teacher of his or her services, to my mind, seems irresistible. 94 A reasonable person with knowledge of the Recipient Agreement and the surrounding circumstances would not have concluded that teachers were being remunerated in part in money and in part by being provided with a laptop computer. In coming to that view I have considered the nature of the benefits provided to a teacher under the Recipient Agreement. The nature of a benefit provided under an arrangement may, in context, shed light on the purpose for which the benefit was provided. I do not consider that the benefits provided to a teacher by the Recipient Agreement indicate remunerative purpose. 95 DEECD relied upon a number of asserted benefits to teachers. The asserted benefits were: (a) Personal use of the lap top; (b) Capacity to work flexibly both as to time and place of performance of work; (c) Provision of preloaded software suitable for professional and personal use; (d) Availability of IT support and a help desk function; (e) Regular turnover of lap tops; (f) Ability to obtain use of a lap top at a "cost" far below that which could be obtained on the retail market. 96 With the exception of personal use, each of these benefits was said by the AEU to be irrelevant. The "benefits" were said to be benefits to DEECD and not anything that could have been regarded as a "salary packaged benefit" made available to the teacher. As earlier identified, the contest between DEECD and the AEU largely involved competing contentions as to whether a broad or narrow conception of a benefit was appropriate. I have accepted DEECD's contention that a broad range of benefits may be included in a salary package arrangement. However, the fact that a wide range of benefits is capable of being provided as remuneration does not demonstrate that any one out of that range was so provided. The real issue is not whether each benefit was capable of being provided as remuneration but whether it was so provided. 97 In answering that question it is useful to commence by making some broad observations about the nature of benefits which may be provided to an employee. Remuneration is clearly one kind of benefit. However, employees are commonly provided with other facilities that, taking a broad view, are of benefit to them. Some are provided to enhance the accommodation or the environment in which their work is performed. Air-conditioning, furniture, and toilet facilities are illustrative examples of that nature of benefit. Other facilities provided to employees may be more directed to assisting the actual performance of work. Tools and equipment, training, the assistance of other employees, and the like, may benefit an employee performing work. But the provision of facilitative benefits of that kind would not ordinarily be provided as remuneration, because the usual purpose of such benefits is to facilitate the performance of work, rather than remunerate the employee for the work performed. 98 Those general observations do not seek to deny that instances of the forgoing natures of benefit might, in the context of particular employment relationships, be remunerative. They nevertheless provide some context. It is necessary then to turn to the specific benefits upon which DEECD relied. I will address personal use last. 99 It was not in contest that a teacher's capacity to work effectively and efficiently is enhanced by having access to a personal laptop computer. The evidence established that teachers' work is usually performed at school, but that a substantial amount of preparatory and administrative work is also performed at home. Whilst at school, teachers move from class to class. The portability of a laptop suits the nomadic work patterns of the teacher. The teacher can carry with her and have at her immediate disposal the major tool she uses for creating and storing written work and for sending and receiving electronic information including in the direct delivery of teaching to students. That capacity is beneficial because it enables work to be performed more efficiently and also more conveniently. The teacher can carry out work at the most convenient location - often at home and in a way that accommodates conflicting work and personal commitments. 100 The Equipment provided to the teacher pursuant to the NTPP included pre-loaded software. Some of the programs included were of broad application (e.g., Microsoft's Windows Media Player). Other programs were included with the specific intention of accommodating teachers' educational or administrative work (e.g., Wolfram's Mathematica). 101 The evidence supports a finding that teacher access to specially-designed software was an important facilitator of work. Lack of access put teachers at a significant disadvantage. It was not in contest that access to the software was advantageous to the teacher in regard to performance of work. Indeed, the evidence supports a finding that access to (or at least ease of access to) DEECD-provided specialist software was a significant reason for a number of teachers taking up an NTPP laptop instead of purchasing their own portable computer. 102 Software of a general nature (such as Microsoft Office) was available for personal use by teachers. A few teachers (e.g., Ms Bray, Ms Henning, and Ms Prosser) gave evidence that they used their notebooks for personal word processing. Ms Henning referred to the possibility of making personal use of the "extensive range" of eduSTAR software. While that evidence was limited and did not go to extent of any such personal use of eduSTAR software, I think it fair to assume that some personal use would have been made of the software. 103 The availability of technical support including computer maintenance and help desk functions was valued by many of the teachers and, I infer, would have been of some value to all teachers utilising the NTPP. The convenience of access to those services, which were often located at the school, was appreciated. Some teachers appreciated the cost saving involved in comparison to the costs that may have been incurred if they had purchased their own laptops. 104 Since the NTPP commenced in 1998 there had been a pattern of new Rounds and Cycles, which allowed teachers to replace an existing laptop with a new laptop after a period of between three and four years. Some teachers thought it advantageous that, by continuing participation in the NTPP, they could regularly update to a new and improved laptop. 105 DEECD contended that NTPP laptops were far cheaper than the retail market. The evidence supports a finding to that effect, as the cost of NTPP computers was shared between DEECD and the teacher, and because DEECD purchased in bulk and obtained laptops at discounted rates. 106 The evidence of the extent to which the witnesses utilised their NTPP laptops for personal use is dealt with in Annexure 5. All teachers called made some personal use, although, in the main, personal use was not substantial. As Annexure 5 identifies, across all of the teacher witnesses called, personal use was, on average, 14 per cent of total use. However, I agree with DEECD's contention that whether personal use constitutes a benefit is not resolved by ascertaining whether any particular threshold of use is demonstrated. The fact that a laptop is available for personal use can of itself be regarded as a benefit. 107 Some of the evidence to which I have referred and the findings made about each of the benefits listed above relate to facts and matters that occurred after a teacher made a Recipient Agreement. Strictly, those are not findings of the surrounding circumstances that were known to DEECD and each of the teachers with whom a Recipient Agreement was made. However by 2009, some eleven years after the NTPP commenced, many teachers (including all of the Group 11 teachers) had made multiple Recipient Agreements and the benefits of having an NTPP laptop would have been widely understood. The findings I have made would reflect what I would consider to have been a common understanding. I find that in relation to Recipient Agreements made in the claim period, the surrounding circumstances known to the parties were that the proposed transaction would likely result in: (i) the teacher obtaining an enhanced capacity to work in a way that was more convenient to the teacher because of the device's portability; (ii) the teacher's performance of work being facilitated by access to specialised software; (iii) the teacher's utilisation of the NTPP laptop assisting the teacher's access to technical support obtained from a convenient location; (iv) an opportunity to make a new Recipient Agreement and thus to obtain an updated and improved laptop every three or four years; (v) the laptop being provided at a lower cost than that which would have been incurred had the teacher provided a laptop for herself; and (vi) the laptop (including the eduSTAR suite of software) being available for personal use and it being used for that purpose. 108 Each of items (i)-(iii) is a facilitative benefit, directed to assisting the performance of work. Each relates to or arises out of what is identified in the Recipient Agreements as a work tool, which DEECD desired teachers to use in order to enhance teaching. The employer is ordinarily the principal (if not the sole) beneficiary of measures provided to enhance the performance of work. In this proceeding and for the purpose of s 326(1)(c)(i), DEECD admits that the NTPP deductions were directly or indirectly for its benefit. That is consistent with what I would find based on the evidence. 109 As earlier stated, a facilitative benefit is not ordinarily provided to an employee as remuneration earned. There is nothing in the Recipient Agreement or surrounding circumstances that suggests that a remunerative purpose was here intended. To the contrary, the terms of the Recipient Agreements show that the purpose of the transaction was providing DEECD with an improved work product. Any flow-on benefits to teachers in the performance of their work would not, objectively, have been regarded as remuneration. 110 Item (iv) is the opportunity to make further Recipient Agreements and obtain an improved computer every few years. It is not a benefit that arises at all from the making of a Recipient Agreement and says nothing as to the purpose of each Recipient Agreement. Item (v) is the provision of a laptop at a lower cost than that which a teacher may have obtained privately. Again, that is a background matter and not a purpose of the Recipient Agreement. In any event, there is nothing to support a finding that these benefits were remunerative in nature. 111 Item (vi) is the personal use of the NTPP laptop and its software. Tools, equipment, or vehicles used for work are capable of being provided as remuneration, and often the provision of such chattels will have a remunerative purpose where given for private purposes. However, personal use of an employer-provided facility may be gratuitous. The gratuitous provision by employers of the personal use of work tools or other facilities is a common feature of workplace arrangements. One example is the personal use of desktop telephones. Recently, the increasing availability of electronic devices has resulted in an expanded range of personal use of various employer-provided electronic devices, such as printers, computers, and networks for accessing emails and the internet. Personal use of an employer's facilities may also be permitted on condition that the employee reimburse the employer for any cost. Personal calls on a work-provided mobile phone exemplify such arrangements. 112 Since personal use of a work tool may or may not be remunerative, the nature of personal use of a work tool as a benefit is not of itself determinative of whether the purpose of its provision was to provide remuneration. It is necessary to consider the terms of the Recipient Agreements and the context in which personal use of NTPP laptops was provided to teachers. 113 First, it is important to note that personal use is not acknowledged as a purpose of the Recipient Agreement. Nor is it acknowledged as a benefit or dealt with at all in the main body of the agreement. It is only by incorporation of the Acceptable Use Policies that a right to non-excessive personal use of the Equipment is given to the teacher. 114 The Acceptable Use Policies are not specific to the Equipment but apply to use of all DEECD ICT resources. Examples of such use are given at clause 2.5 of the first Acceptable Use Policy and at clause 2.2 of the second Acceptable Use Policy. Those examples include the following: publishing and browsing on the internet; downloading or accessing files from the internet or other electronic sources; email; social networking; file transfer, storage and sharing; videoconferencing; instant messaging; copying, saving or distributing files; viewing material electronically; and, printing material. 115 The main purpose of each Acceptable Use Policy is apparent from its terms: to regulate and control the use by DEECD's employees of DEECD's ICT resources. It is in that context that clause 6.3 of the first Acceptable Use Policy and clause 6.2 of the second Acceptable Use Policy acknowledge that non-excessive personal use is authorised. The ability to make personal use of DEECD ICT resources is not the subject of any charge. In other words, non-excessive personal use of DEECD's ICT resources is gratuitously provided. The permitted uses provided by way of example are the kind of low-cost uses of electronic facilities which it might be expected would, within limits, be provided gratuitously in many workplace settings. 116 That the Recipient Agreements provided personal use of NTPP laptops by the same mechanism as gratuitous personal use was provided of all other DEECD ICT resources suggests that the Recipient Agreements intended that personal use of NTPP laptops should also be gratuitous. That is supported by the evidence that there is no marginal cost to DEECD of providing personal use irrespective of how extensive that use may be. The Recipient Agreement does not negative such a proposition. There is no link in the terms of the Recipient Agreement between the teacher's contribution to the cost of the NTPP Package and personal use. To the contrary, by the terms of the Recipient Agreements, it is only use of the Equipment for work purposes that has a nexus with the contribution required to be made by the teacher. 117 It is only from March 2012, when the FAQ Policy was incorporated into the Recipient Agreement, that a suggestion was first made in the contractual documentation that a link existed between a teacher's contribution and personal use. Personal use was given as a justification for the teacher having to "pay" for the NTPP laptop. Whilst that assists DEECD to establish a nexus between personal use and the contribution, it characterises the contribution as a payment, which (although a minor indication) tends against the proposition that the laptop's personal use was provided as remuneration. 118 I accept that teachers were likely to have regarded personal use as attractive. Although other DEECD ICT resources (such as email) were also accessible from a teacher's home, I accept that a laptop would have been particularly attractive because of the wide range of personal uses to which it could be put at home. Nevertheless, accepting that (to various degrees) personal use of an NTPP laptop was attractive to teachers, there is a distinction between an incentive to make an agreement and the purpose for which the agreement was made. 119 If a purpose of the Recipient Agreement was to provide personal use of the Equipment as remuneration, it is surprising that the purpose was not set out expressly in the Recipient Agreement and that personal use was not dealt with directly in the Recipient Agreement, rather than (as it was) indirectly addressed by incorporation in a policy that deals with the gratuitous provision of personal use of ICT equipment. 120 I am not of the view that a purpose of the Recipient Agreements was to provide teachers with access to personal use of a laptop and associated services. If that was a purpose, there is no basis for the conclusion that personal use was provided as remuneration. If personal use was not provided gratuitously, it must have been provided in exchange for a contribution made by the teacher to the cost of the NTPP Package. A reasonable observer would not have concluded that personal use of NTPP laptops was being provided under the Recipient Agreements to remunerate teachers for their services.

[11]

The "pre-tax salary" issue 121 Clause 2.2(b) of the Recipient Agreement contains the teacher's agreement to authorise the deduction of the "Contribution Rate from the Recipient's pre-tax salary by equal fortnightly instalments." At the foot of the Recipient Agreement under the heading "Acceptance of Licence Agreement," the teacher authorised that the specified sum (being the applicable "Contribution Rate") be deducted each fortnight "from my pre-tax salary." 122 The phrase "pre-tax salary," as utilised in those provisions, is something of a misnomer. Salary is assessable income and cannot itself be pre or post tax. Having said that, I think that the intended meaning is clear, notwithstanding that (as the evidence demonstrated) it was not understood by all teachers. What was intended was that the teacher's salary would be reduced by the authorised sum. That is, that the contribution would come out of salary that would otherwise have been payable to the teacher, rather than from salary payable to the teacher. In that way, the deduction would be made prior to becoming assessable income, and would be "pre-tax". 123 From the NTPP's inception in 1998 until about August 2000, NTPP deductions were made post-tax. Although a pre-August 2000 version of the standard form Recipient Agreement was not in evidence, from the evidence I have, I would infer that at that time, the Recipient Agreement authorised a deduction from "salary" rather than from "pre-tax salary". 124 DEECD's contention that the NTPP arrangement was a salary packaging arrangement was heavily reliant on the fact that, from about August 2000, the Recipient Agreement provided for deductions to be made from "pre-tax salary". It was that change that DEECD contended converted the Recipient Agreement into a salary packaging arrangement. Why that should be so is not apparent. A "pre-tax salary" deduction can involve a salary sacrifice, but so can a post-tax salary deduction. In each case, the entitlement to receive a particular amount of salary is sacrificed. In the first case, the entitlement to salary is reduced. In the second case, the entitlement to receive salary earned is reduced. In either case, whether or not the arrangement is a salary packaging arrangement depends upon whether the salary sacrificed was exchanged for a remunerative benefit. 125 The evidence does not support a conclusion that the change to "pre-tax salary" deductions was associated with a common intention to convert the NTPP arrangement into a salary packaging arrangement, or an unremunerative benefit into a remunerative one. The purpose of the change, as DEECD communicated to teachers, was so that teachers' contributions to the NTPP would not attract GST where GST paid by teachers would not be recoverable by them as an input tax credit. 126 That, post-August 2000, teachers agreed to make a contribution to the cost by way of a reduction in salary, did not effect a change in the intended purpose of the provision of the NTPP Package. Both before and after August 2000, Recipient Agreements required that teachers meet the cost of the NTPP Package by making a financial contribution out of their entitlement to salary. In neither case did the Recipient Agreement contemplate that the teacher's services were the quid pro quo for the NTPP Package. In both cases the quid pro quo for the NTPP Package was the teacher's financial contribution to its cost.

[12]

Further matters 127 In arriving at the conclusions just stated, I have taken into account a range of surrounding facts upon which one or both of DEECD and the AEU relied. But, for reasons I shall now give, they were not of great assistance. 128 There are a number of aspects of the way in which the NTPP arrangements were administered that tended to deny the proposition that, as a matter of common understanding, the NTPP arrangements would have been understood as a salary packaging arrangement. First, the NTPP arrangements were dealt with discretely and separately from other arrangements which were expressly identified as salary packaging arrangements. Ordinarily, salary packaging arrangements available to teachers were administered through identified external providers. Those arrangements incorporated features common to arrangements made for salary packaging, including recommendations to teachers to seek financial advice, and the availability of various reporting processes. The NTPP arrangements were not made through external providers, were not the subject of a recommendation that teachers seek advice, and were not the subject of the reporting processes to which I have referred. Items listed on teacher payslips relating to salary packaging were identified or identifiable as such because of reference therein made to the external provider. That was not the case for the NTPP deductions, although those deductions were, like some others, shown as "Pre Tax Deductions". In conformity with the requirements of clause 17 of the 2004 Agreement and its successors, the administrative costs of arrangements made explicitly as salary packaging arrangements were borne by teachers. That was not the case in relation to the NTPP arrangement. 129 As earlier stated, the 1999 SP Guide specifically excluded NTPP laptops from salary packaging. A November 2002 re-issue of the SP Guide suggested that the prior exclusion was removed. However, when read in context the position is less clear. In December 2001, DEECD notified teachers by circular that new laptop computers supplied by IBM could be purchased. The notification stated that options for salary packaging were being considered and would be announced in the following year. The AEU contended that the updated SP Guide was addressing only the purchase of computers as notified in the circular, and not the licence arrangements made pursuant to Recipient Agreements. In my view, this contention has some force but I need not resolve the issue. 130 All of those facts do no more than point to the likely characterisation held by the parties to Recipient Agreements of their nature. That the parties to a Recipient Agreement did not characterise their agreement as a salary packaging arrangement is plain from the text of the agreement. 131 There are other matters that support my conclusion. The extent of control over equipment that the Recipient Agreement gives to DEECD is odd if it was intended to provide teachers with an alternative form of remuneration. Employees are ordinarily able to spend or otherwise utilise remuneration in whatever manner they desire. Here the Equipment and its use was highly regulated by the employer, and the level of control travelled well beyond what might be imposed in order to protect an employer's property where remuneration is provided by way of use of that property. Here, the Equipment had to be used for work purposes (professional planning, classroom practice, assessment, reporting and professional development) and in furtherance of the employer's specific work objectives (the integration of the use of learning technologies into the classroom). At least in the first relevant version of the Recipient Agreement, the teacher had to commit to share the work product of the Equipment with other staff. Both work and personal use was regulated by the Acceptable Use Policies, which imposed significant restraints on utilisation of the Equipment and permitted DEECD to monitor use. For around 4 years (the likely period in which the earliest version of the Recipient Agreement in evidence was utilised) the licence provided to the teacher was non-exclusive. When the licence was non-exclusive, DEECD could have required the teacher to permit others to use the NTPP computer allocated to the teacher (albeit that there was no evidence this ever occurred). DEECD had the capacity to recall the Equipment at will. 132 Additionally, it would be surprising for a salary packaging arrangement to permit the extent of the salary sacrifice to be varied by the employer. Clauses 2.2 and 2.3 of the Recipient Agreement permit DEECD to change the Contribution Rate on providing reasonable notice to the teacher. 133 Neither of those features necessarily disqualifies an arrangement from being a salary packaging arrangement. But they are out of character with what would ordinarily be found in a salary packaging arrangement. 134 Having considered the detail, and standing back to take stock of its overall effect, I am unpersuaded that any part of the Recipient Agreement constituted an arrangement for remunerating teachers for their work by providing them with a laptop. Consonantly with the text of the Recipient Agreements, the surrounding circumstances known to the parties and the purpose and object of their transaction, a reasonable person would not have concluded that, in making a Recipient Agreement, the common intention of the parties was to restructure the remuneration of the teacher by remunerating the teacher in part by way of salary and in part by way of the provision of a licence to use the "Notebook Package." That denies the characterisation of the arrangement as a "salary packaging arrangement". For those reasons, the answer to common question 1 is, "No".

[13]

Were the NTPP deductions authorised by teachers in accordance with the Agreements? 135 The AEU advanced a further argument in support of its contention that the exemption in s 324(1)(b) was not engaged because none of the Group 11 teachers had authorised the deductions "in accordance with an enterprise agreement." The AEU submitted that, by completing the Recipient Agreement, the teachers did not authorise any action being taken under or in respect of the 2004 Agreement or its successors, because none of the teachers was cognisant that he or she was making a salary packaging arrangement. The AEU also relied upon the fact that, contrary to clause 17(2) (and its successors), the costs associated with salary packaging, including administrative costs, were not met from participating teachers' salaries. 136 The requirement made by s 324(1)(b), that "the deduction is authorised by the employee in accordance with an enterprise agreement", addresses two matters. First, a deduction made must be a deduction that the enterprise agreement permits an employee to authorise. Second, in so far as the enterprise agreement provides for the manner in which the authorisation by the employee is to be made, the authorisation must be made in accordance with that requirement. As to the first aspect, it was not in contest that clause 18 impliedly permitted an employee making a salary packaging arrangement to authorise a deduction to be made from the salary otherwise payable to the employee. The second - the manner in which the authority is to be given - is not addressed by clause 18. In particular, there is no requirement that the employee be cognisant that the deduction being authorised is a deduction for the purposes of a salary packaging arrangement. Contrary to the AEU's contention, the words in the opening line of clause 18(1), that "[a]n employee may enter into a salary packaging arrangement", do not support its contention. 137 Parties to a legally binding agreement may make an agreement recognised by the law to have a particular character despite the fact that the parties (or one of them) subjectively thought the agreement to have a different character. The subjective belief of the parties will not deny such an agreement its true character in law: see, e.g., Quest at [148] and cases there cited, Chaplin at 389, Massey at 580. The same analysis applies here. If an employee has authorised a deduction by means of what one of the Agreements recognises to be a salary packaging arrangement, then the deduction made under that arrangement will be authorised by the employee "in accordance with an enterprise agreement." 138 Nor are the terms of clause 18(2) of any assistance to the AEU. That subclause deals with the employee's obligation to pay the costs associated with salary packaging. It does not deal with whether the authorisation made was made in accordance with clause 18. 139 Given my answer to common question 1, it is unnecessary to decide common question 2. If it had been necessary, I would have answered it "No" for the reasons just given. I should add that the common question as agreed was not confined to the Group 11 teachers. The AEU's contention only pressed the question in relation to the Group 11 teachers. But despite that, in so far as the question raised whether it was necessary for teachers to be cognisant that the teacher had authorised a deduction in relation to a salary packaging arrangement made under the Agreements, the question was capable of being given a common answer. That answer is "No".

[14]

Was each of the NTPP deductions unreasonable in the circumstances? 140 The statutory exemption case raised by DEECD and based on s 324(1)(b) agitated the following common question in relation to s 326(1): 3. If the NTPP deductions, or some of them, were authorised by all or any of a. clause 17 of the Victorian Government Schools Agreement 2004, b. clause 18 of the Victorian Government Schools Agreement 2008, c. clause 19 of the Victorian Government Schools Agreement 2013, were those deductions (i) directly or indirectly for the benefit of the respondent; and (ii) unreasonable in the circumstances within the meaning of s 326(1) of the FW Act? 141 I have answered "No" to question 1. For the purpose of dealing with DEECD's reliance upon s 324(1)(b), it is not strictly necessary that I consider common question 3. But if I am wrong as to common questions 1 or 2, the answer to 3 becomes relevant. I will consider and determine common question 3 for that reason and also because the answer is relevant to two other of the common questions that also raise s 326(1). The first of those two common questions is common question 7, as follows: 7. If yes [to Question 6], does the recipient agreement: a) permit, or have the effect of permitting, the respondent to deduct an amount from an amount that was payable to participating teachers in relation to the performance of work; or b) require, or have the effect of requiring, participating teachers to make a payment to the respondent, within the meaning [sic] s 326(1) of the FW Act? 142 DEECD accepted that if the Court finds that the Recipient Agreements are contracts of employment or include terms of such contracts, and answers "Yes" to question 6, then both limbs of common question 7 should be answered in the affirmative. I have so found for the reasons set out below. In those circumstances the answer to common question 7 is not in contest. Both limbs of that question are answered in the affirmative. 143 It then becomes necessary to consider and address common question 8 which, apart from being focused upon a deduction authorised by a term of a contract of employment rather than an enterprise agreement, raises the same question as that raised by common question 3. Common question 8 is as follows: 8. If yes [to Question 7], are the NTPP deductions: a) directly or indirectly for the benefit of the respondent; and b) unreasonable in the circumstances within the meaning of s 326(1) of the FW Act? 144 DEECD conceded that the NTPP deductions were directly or indirectly for its benefit as the employer. The only issue in contest is whether each of the deductions was "unreasonable in the circumstances." 145 The AEU contended that they were. Its fundamental point was that in, the absence of any or any commensurate benefit to the employee, it is unreasonable that the cost of providing a work tool needed by an employee to perform work for the benefit of the employer should be borne by the employee. The circumstances relied upon by the AEU were that: NTPP notebooks have at all relevant times been work tools needed by teachers to perform their duties in circumstances where no practicable alternative work tool was available; With the exception of incidental personal use, it was DEECD that derived the benefit that the use of NTPP notebooks had upon the performance by teachers of their work for DEECD both at school and at home; Teachers, through the deductions, bore a substantial proportion of the cost to DEECD of providing NTPP notebooks to teachers as a work tool; The cost contribution made by a teacher to the cost of a NTPP notebook was not justified by the personal use made of it by a teacher because: ○ the personal use was incidental to the purpose for which the NTPP notebook was provided and was limited by the terms of the Recipient Agreement; ○ the contribution to the cost made by the teacher was not set by reference to the teacher's personal use; ○ the proportion of cost of the NTPP notebooks borne by the teacher was very substantial and, in itself, unreasonable; ○ DEECD incurred no additional cost as a result of personal use by the teacher. 146 Additionally, the AEU contended that, if the Court found that the NTPP arrangement was a salary packaging arrangement, the deductions made were unreasonable in the circumstances, given that teachers had not been apprised of, and were not aware of, the fact that they were making such an arrangement. 147 DEECD denied that the NTPP deductions were unreasonable in the circumstances. First, DEECD contended (and I accept: see Australian and International Pilots Association v Jetstar Airways Pty Ltd [2014] FCA 14) that the burden of establishing that the deductions were unreasonable fell on the AEU. It then relied upon the following matters in contending that the burden had not been discharged: The NTPP deductions were modest, as a proportion of a teacher's remuneration on a regular fortnightly basis, and also as a total sum across the life of the applicable Recipient Agreement; The retail price or market cost of a teacher obtaining the same or similar laptop on the retail market over the same period was well in excess of the total cost of the deductions made during the life of the applicable Recipient Agreement; The deductions were justified by the benefit derived by the teacher, because of the teacher's capacity to make personal use of the NTPP laptop; The deductions were also justified by the benefits derived by the teacher from the use of the NTPP laptop to facilitate the performance of the teacher's work in a flexible manner; In light of the reality that the purpose of the NTPP scheme was to enable teachers to gain access to individualised portable technology (which could also be used for private purposes), requiring teachers to contribute towards the cost of NTPP laptops was not unreasonable in the circumstances; and That teacher contributions to the cost of the NTPP laptops were not unreasonable in circumstances where the AEU had, in 2003, expressed a view that the NTPP scheme was of value and should be extended to support staff working in schools.

[15]

Legislative History 148 Whether a deduction from an employee's pay that is directly or indirectly for the benefit of the employer is unreasonable in the circumstances calls for an evaluative judgment in which competing considerations need to be assessed. That interpretative task is unassisted by any guiding considerations expressly identified by s 326(1). As always, and particularly when faced with the interpretation of a broadly-expressed standard, the task of statutory construction must give effect to the evident purpose of the legislation and be consistent with its terms: AB v State of Western Australia (2011) 244 CLR 390 at [23] (French CJ, Gummow, Hayne, Kiefel and Bell JJ). 149 Relevantly, the Oxford English Dictionary contains the following definitions of "unreasonable:" 2. Not within the limits of what would be rational or sensible to expect; excessive in amount or degree. 3.a. Of an idea, attitude, action, etc.: not guided by, or based upon, reason, good sense, or sound judgement; illogical. b. Inequitable, unfair; unjustifiable. Obs Of the three senses of the word "unreasonable" there identified, it is the third ("inequitable, unfair; unjustifiable") that best captures the use made by s 326(1)(c) of the word "unreasonable". Beyond that observation, as Stroud's Judicial Dictionary of Words and Phrases (4th ed, Sweet & Maxwell Limited, 1974, at 2258) says in its definition for the word "reasonable" - "it would be unreasonable to expect an exact definition of the word 'reasonable.'" Whilst the word "unreasonable" is used in various provisions of the FW Act, the context is different to that of s 326(1)(c) and no useful guidance can be drawn from cases where the term has been judicially considered. It is the genesis of the scheme established by Division 2 and the origin of s 326(1)(c) itself that shed greater light on the mischief being addressed and the considerations that are likely to be of greatest relevance in an assessment of whether a deduction is "unreasonable in the circumstances". 150 Although relatively new to Federal industrial legislation, provisions of the kind contained in Division 2 are not without precedent. Their provenance is the "Truck Acts," which date from as early as 1465 in England: see George W Hilton, "The Truck Act of 1831" (1958) 10(3) The Economic History Review 470, 470. As the High Court noted in Construction Forestry Mining and Energy Union v Mammoet Australia Pty Ltd (2013) 248 CLR 619 at [45], when addressing the requirement made by s 323(1) that an employee must be paid in money and in full: … s 323(1) addresses the same mischief addressed by "Truck Acts" as they had by then come to exist in each State, that is, that an employee's entitlement to payment for work might be compromised by an employer requiring the employee to accept some form of payment in kind of less value than the payment of money forgone. (citations omitted) 151 Given the genesis of the provisions in Division 2, it is useful to provide an outline of the provisions of the "Truck Acts" and consider the mischief that they were intended to address. The best-known of these are the Truck Act 1831 (UK) (1831 Act), the Truck Act 1887 (UK) (1887 Act), and the Truck Act 1896 (UK) (1896 Act) (collectively, Truck Act). 152 The primary rule imposed by the Truck Act was the prohibition of the payment to an employee of remuneration otherwise than in money. That primary rule was moderated by a limited number of permissible exceptions which effectively permitted deductions to be made in relation to some matters, but with constraints designed to guard against an employer unfairly profiting from the making of a deduction. Thus, s 23 of the 1831 Act permitted deductions to be made in relation to the supply (the sale) by the employer of specified articles (including tools and equipment) to some employees in some trades. A deduction could not "exceed the real and true Value" of the articles supplied. Section 1 of the 1896 Act permitted deductions for fines imposed in respect of acts or omissions that had caused or were likely to cause damage or loss to the employer, or interruption or hindrance to the employer's business. The amount of any fine imposed had to be "fair and reasonable having regard to all of the circumstances of the case." Section 2 of the 1896 Act permitted deductions for damage to property of the employer caused by bad or negligent work, or injury to the materials or other property of the employer. Any such deduction could not "exceed the actual or estimated damage or loss occasioned" and had to be "fair and reasonable, having regard to all the circumstances of the case." Section 3 of the 1896 Act permitted deductions in respect of the use or supply of various things provided by an employer in relation to work, including materials, tools or machinery. In the case of the supply of materials or tools to the employee the deduction could not exceed "the actual or estimated cost thereof to the employer." In the case of the use of machinery or other things the deduction could not exceed "a fair and reasonable rent or charge, having regard to all the circumstances of the case." 153 It is well understood that the Truck Act sought to prohibit exploitative practices typified by employees being paid in kind by over-valued goods from which the employer profited. Thus, Bowen LJ said in Hewlett v Allen & Sons [1892] 2 QB 662 at 664 (for Lord Esher MR and himself, with whom Kay LJ substantially agreed): [t]he clear intention … was to ensure to workmen the payment of the entire amount of their wages in actual current coin of the realm, unfettered by any promise or obligation that it should be spent in any particular manner, or at any particular shop. The legislature endeavoured to secure that the workman might have in his hand the very actual coin representing his wages, in order that he and his family might freely carry it home, or expend it without impediment in the open market. 154 The legislation was remedial and protective of employees, and the mischief with which it was concerned was that employers should not benefit from an employee's remuneration other than where specifically countenanced by the Act. That is encapsulated by what Lord Ackner (with whom Lord Bridge of Harwich, Lord Fraser of Tullybelton, Lord Griffiths, and Lord Oliver of Aylmerton agreed) said in Bristow v City Petroleum Ltd [1987] 1 WLR 529 at 532: The particular evil intended to be remedied was the truck system, or payment by masters of their men's wages wholly or in part with goods - a system open to various abuse - when workmen were forced to take goods at their master's valuation. … They were, in truth, part of a system of legislation regulating the relation of a master and workman, this part of it being in favour of the workman, who, as an individual, was deemed weaker than his master and therefore liable to oppression … 155 The last point there made by his Lordship is one that finds voice in various statements made during the currency of the Truck Act. In Williams v North's Navigation Collieries (1889) Limited [1906] AC 136 at 146, Lord Atkinson said, "The whole principle upon which this legislation is based is that the workman requires protection, that if not protected he may be over-reached … ." That echoed Bowen LJ's earlier statement that the Truck Act provided "tutelary shelter" (Hewlett at 668). It was also reflected in Scott LJ's pronouncement in 1936 - that the statute was intended to be a "charter of liberty to workmen" (Kenyon v Darwen Cotton Manufacturing Company, Limited [1936] 2 KB 193 at 211) - and Lord Wright's in 1940 - that it was a "remedial measure, following a long established policy of the English Legislature to protect workmen against the exactions of avaricious employers …" (Pratt v Cook, Son and Company (St. Paul's), Limited [1940] AC 437 at 451). Lord Wright went on to say in the same case (at 452), as follows: As the statute is remedial and for the benefit of the workman, there is no reason to construe it strictly against him, though it does limit the employers' common law rights. On the contrary the statute should be, if required, that is, if it is ambiguous, construed in favour of the workman. 156 The relevant protection from the employee's employer has in a number of cases been identified as a protection from the employer seeking to benefit twice from the employee's work. Bowen LJ said in Hewlett (at 666) that, "[t]he employer cannot, for the purpose of compliance with the statute, be both payer and payee." On appeal to the House of Lords, Lord Shand similarly and with greater explication identified double benefit as the mischief (Hewlett v Allen (trading as F. Allen & Sons) [1894] AC 383 at 396-397): … [I]t appears plainly enough that the mischief to be remedied was … that goods were given instead of or in part payment of wages to the persons employed, and that the employers, besides getting a benefit from the proper work done by their servants, were obtaining a second benefit by the supply of goods in the sale of which they were presumably interested. There was a double benefit to them. 157 Again in Penman v The Fife Coal Company Limited [1934] SLT 223, Lord Justice-Clerk Aitchison said at 239, "[r]etention by the employer of his workman's wages was the very mischief that the Truck Act was designed to prevent. What was struck out was the double or second benefit which the employer might thereby derive from the labour of the workman." Although the Lord Justice-Clerk was in dissent, an appeal to the House of Lords was unanimously allowed and the Lord Justice-Clerk's dissent specifically endorsed (Penman v The Fife Coal Company, Limited [1936] AC 45 at 64 (Lord Alness)). In the speech of Lord Macmillan (with whom Lord Thankerton, Lord Tomlin, Lord Wright, and Lord Alness agreed), his Lordship said (at 56) that "[i]n the present case the retention was for the employers' own benefit, and it is a cardinal object of the Truck Act to prevent the employer from making deductions from his workmen's wages in his own interest." 158 The object has thus been identified in other jurisdictions with Truck Act-style legislation. In Shipping Association of Georgetown and Bookers Shipping (Demerara) Ltd v Hayden (1975) 22 WIR 135, Crane JA of the Guyana Court of Appeal, in construing ss 18 and 19 of the Guyanese Labour Act, cited Lord Shand in Hewlett (as set out above) and then said as follows (at 158): … the employers have unjustifiably obtained … an "added or double benefit" at the expense of workers' earnings. They have derived thereby another benefit from money they have already paid out as earnings to their workers, ie, an added benefit from money which represents payment for previous services. This is against the spirit of the Labour Act. … The first benefit to the employer was, as I see it, the work for which he had paid his employees. The second advantage or benefit to him was the additional work done on his behalf, the cost of which was defrayed to calling-on attendants out of their own wages that had already been earned by them from those very employers. In principle, this is wrong. Both the letter and spirit of the Labour Act are offended … because an employer cannot be said to have paid his worker the "entire amount" of his wages, nor the worker to have "actually received" it when the employer is shown to have derived an added benefit from a part of it. 159 In the same case, Haynes JA distilled from Truck Act authorities (including those cited above) eight propositions. His eighth and final such proposition was, "[i]f the result or effect of any arrangement for deductions is that the employer pays a part of the wages to the workman and a part to himself, becoming both payer and payee, in the same transaction, then the Act is violated, except, of course, in the case of permissible statutory stoppages" (at 164). 160 There are many statements in the cases to the effect that, in relation to deductions not permitted by the Truck Act, it was no answer to the prohibition that the employee had assented to, or had also benefitted from, the deduction. On the question of benefit, again in the Georgetown Shipping case, Crane JA said at 159 that a principle falling from the British Truck Act cases was that "an employer is not permitted to derive a benefit from the retention of part of his workers' wages, no matter how mutually beneficial such retention and the application of the sum retained is to both of them." He continued, at 160, as follows: Without exception, the authorities are clear on the point that so long as it can be shown that an employer derives an added or "double benefit", [citing Lord Shand in Hewlett] … by the retention of part of the workers' money wherefrom he derives some benefit or other for himself, any a priori agreement to that effect will be declared illegal, null and void, and this, even if the retention is to permit the employer to set-off a judgment debt due him from his employee, as was the case in [Williams] or to discharge a debt due to the employer by some third party as in [Penman]. 161 Haynes JA made a similar point. His Honour's third proposition (at 162), citing Williams, Penman, and Kenyon, was that a workman might recover even where deductions were "part of a scheme intended to benefit, and, in fact, beneficial to him … even after he has enjoyed some of the intended advantages, and where their recovery might give him a double benefit and cause financial loss to the employer." Their Honours could also have cited Pratt for that proposition. Therein, Lord Wright said the following at 451: It is no answer to a claim for breach of the positive prohibition of the Act that in the particular case the employer was generous and was helping his men, or that, as for instance in this case, the man would be getting an undue advantage by first accepting the wages in cash and kind, and then reopening the transaction by claiming a second payment in cash in respect of what he had already received, a reward in kind. 162 On the question of assent, Lord Macmillan said in Penman at 54, "[o]n this part of the case it seems to me quite immaterial that the deductions were assented to by the appellant. The statute is none the less contravened by reason of the fact that the appellant has assented to the contravention." Slesser LJ said in Kenyon (at 204) that the fact of direct or inferential acquiescence to a deduction is not a defence. Citing Penman and Kenyon, Haynes JA's fourth proposition in Georgetown Shipping (at 162) was, "[i]f a deduction otherwise violates the Act and is illegal, the workman's assent or consent, oral or written, tacit or expressed, is no defence." 163 It is not necessary to identify when Truck Act provisions first came to be in force in Australia. Together with all other laws that were in force in England, the various Truck Acts that pre-dated the 1831 Act would have been given force in the colonies of New South Wales and Van Diemen's Land by the enactment of the Australian Courts Act 1828, 9 Geo IV, c 83. The terms of the Truck Act 1899 (WA), the Truck Act 1900 (NSW) and the Truck Act 1900 (ACT) (the final Act being a NSW statute that continued to have force in the ACT after 1 January 1911 by operation of the Seat of Government Acceptance Act 1909 (Cth)) show that those Acts were closely modelled on the 1831 Act. I expect that each other State would, at some time, have had similar provisions in force. But, in order to understand how Division 2 was constructed, it is more relevant to consider the relevant provisions in the laws in force in the States and Territories as at the time of the enactment of the FW Act. Those Acts were the Industrial Relations Act 1996 (NSW), the Victorian Workers' Wages Protection Act 2007 (Vic), the Fair Work Act 1994 (SA), the Industrial Relations Act 1999 (Qld), the Minimum Conditions of Employment Act 1993 (WA), the Industrial Relations Act 1984 (Tas), and the Truck Act 1900 (ACT). 164 Paragraph [1277] of the Explanatory Memorandum to the Fair Work Bill 2008 (Cth) (FW Bill) identified Division 2 as addressing "the frequency and methods of payment of amounts payable to an employee in relation to the performance of work and allowable deductions from such amounts." At [1278] the Explanatory Memorandum said: Currently, these issues are dealt with primarily by State and Territory legislation. This has led to a patchwork of obligations for employers. The payment of wages provisions in this Division draw upon the protections that exist in State and Territory legislation to provide a simple, national scheme. 165 By the time the FW Act was enacted, only the ACT provisions were closely modelled on the 1831 Act. All other States and Territories that had laws the origin of which may be traced back to the Truck Act had adopted their own formulations. All included the primary rule that an employee be paid in money and not in kind. That rule is reflected in s 323 of the FW Act. Beyond that, positions differed. State and Territory laws all permitted deductions authorised by the employee in writing. Some (including South Australia, Queensland and Tasmania) provided no restriction beyond the need for written authorisation. Western Australia prohibited an employee being directly or indirectly compelled to take goods or services instead of money. The subject matter of deductions was limited in the ACT, where the relevant provision was modelled on s 23 of the 1831 Act and included a requirement that the amount of the deduction not exceed the value of the article supplied. In NSW, but not elsewhere, the deduction could only be authorised by an employee if it was "principally for the benefit of an employee." That qualification, which echoes a fundamental concern of the Truck Act, was obviously the source of s 324(1)(a) of the FW Act that likewise limits a deduction authorised by an employee to a deduction "principally for the employee's benefit." Victoria had added constraints in relation to authorisations made by an employee, to which I will return. 166 Most of the State laws had provisions of the kind now found in s 324(1)(b) and (c) of the FW Act, which allowed a deduction authorised by or under an industrial instrument. Some permitted deductions authorised by or under a law or an order of a court, as in s 324(1)(d) of the FW Act. Queensland and New South Wales had provisions restricting employers from directing how wages were to be spent, which, broadly speaking, is the subject matter of s 325 of the FW Act. 167 Subsections 326(1)-(2) of the FW Act are obviously modelled on the Victorian Act. It is necessary, in the circumstances, to pay closer attention to the provisions of that Act. 168 Section 7 of the Victorian Act prohibited the making of a deduction in the absence of a valid written authorisation from the employee. The validity of an authorisation was treated differently by the Victorian Act depending upon whether the deduction was for "the direct or indirect financial benefit of the employer or a related party of the employer." If so, higher concern was evinced, and greater protection of the employee was afforded, by the Victorian Act. First, in relation to deductions of that kind, the employer was required to inform the employee in writing of various matters including the amount of the proposed deduction and the reason for it (s 7(1)(a)(iii) and s 7(2)). Second, in relation to an ongoing authority to make multiple deductions, any variation in the amount required separate authorisation. Third, and most importantly for identifying the source of s 326(1)(c), a written authorisation was deemed by s 9(1)(c) to be of no effect where: the deduction is for the direct or indirect financial benefit of the employer or a related party of the employer and the deduction is unreasonable in all of the circumstances. (emphasis added) 169 The need for "stronger protections where the deduction is for the direct or indirect benefit of the employer or a related party" was mentioned in the Second Reading Speech to the Victorian Bill: Victoria, Parliamentary Debates, Legislative Assembly, 11 October 2007, 3472 (Bob Cameron). 170 That concern shown by the Victorian Act echoes the concern of the Truck Act: that an employer should not be permitted to take the benefit of an employee's remuneration in the absence of proper justification, or, to use the concept utilised by the Victorian Act, unless reasonable in all the circumstances. The use of reasonableness as the protective standard also harks back to Truck Act criteria: each of ss 1, 2 and 3 of the 1896 Act required that the amount of the deduction be "fair and reasonable having regard to all the circumstances of the case." 171 There are, however, some differences in approach. The permitted deductions under the Truck Act were limited by subject matter. That was not the case for s 7(1)(a)(i) of the Victorian Act. However, the reasonableness criteria was not, as it was under the Truck Act, confined to a consideration of the amount of the deduction. Section 9(1)(c) was wider in its application; other circumstances may render the deduction unreasonable. 172 Section 11(1) of the Victorian Act rendered any provision of a contract or any other agreement (other than an industrial instrument) void to the extent that the provision was inconsistent with the Victorian Act. 173 The words utilised in s 326(1)(c) are identical to those employed by s 9(1)(c) other than that s 9(1)(c) included the word "financial," which was apparently inserted into the Bill as originally introduced in order to put beyond doubt that the Bill would not apply to "a mere collateral or intangible benefit" to the employer (Victoria, Parliamentary Debates, Legislative Council, 20 November 2007, 3444 (Theo Theophanous)). Whilst the respective schemes are differently constructed, s 326(1) of the FW Act has essentially the same effect as did s 9(1)(c) in combination with s 11 of the Victorian Act. 174 Apart from what may be drawn from its origin, the terms of Division 2 also make it apparent that s 326(1) was intended to provide "stronger protections" to employees where the deduction concerned was directly or indirectly for the benefit of the employer or a related party of the employer. That is apparent from the fact that only that nature of deduction is subject to the unreasonableness criterion. 175 There is, therefore, an additional concern expressed by s 326(1) in relation to deductions that are directly or indirectly for the benefit of the employer. The legislation evinces a suspicion about deductions that benefit the employer. Terms that provide for deductions of that kind are of no effect, where the deduction is unreasonable in the circumstances.

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Some Relevant Considerations 176 Whether a deduction is unreasonable in the circumstances will, of course, depend upon relevant surrounding circumstances. It will be a question of fact and degree, but the following considerations are likely to be relevant (though not exhaustive). 177 First, consideration must commence from the premise that the ultimate purpose of the scheme is to protect employees from practices that have the effect of denying them the benefit of the remuneration they have earned and are thus entitled to fully enjoy. As Lord Herschell LC said in Hewlett (at 389), the object of the Truck Act was to strike at practices that were "calculated to result in the person employed obtaining something less than the agreed remuneration for services". A central consideration in assessing whether a deduction is unreasonable in the circumstances will be the extent to which the employee has gained the benefit of the deduction made from, or out of, his or her remuneration. 178 Second, the extent to which the employer or its related party has benefited will likely be relevant. It will be relevant to assess whether the employee has been taken advantage of in some way, with the result that part of the benefit of his or her remuneration has been lost to the employer. A benefit to the employer is not, of itself, a reason for finding that a deduction was unreasonable, as the circumstances addressed by reg 2.12 of the Fair Work Regulations 2009 (Cth) (FW Regulations) exemplify. There is nothing wrong in an employer gaining a benefit. But, if that benefit is gained at the expense of the employee, that would tend to indicate unreasonableness. It is the possibility of an unreasonable transfer of the benefit from its intended recipient - the employee - to the employer, which is fastened upon by s 326(1)(c). 179 Third, the quality of the assent given by the employee will need to be considered. The "tutelary shelter" (to use Bowen LJ's expression) that s 326(1) confers upon the employee is not swept away by the employee's assent. Section 326(1) assumes, at least in relation to a deduction made under a term of a contract, that legally-effective assent has been given by the employee. That the deduction is uninfected by coercion or duress is therefore assumed. Despite that, the deduction may nevertheless be unreasonable in the circumstances. The provision manifests an intention that common law rights may be overridden. In that respect, the fifth consideration specified below is also instructive. 180 Fourth, that an employee has obtained the full monetary value of a deduction does not necessarily equate to the employee obtaining the full benefit of the deduction. As Bowen LJ in the Court of Appeal in Hewlett said at 666, the clear intent of the Truck Act was to ensure that wages could be spent without impediment in the open market and unfettered by any promise or obligation to spend in a particular manner or at a particular shop. Part of the benefit of remuneration is the capacity to freely apply it to any cause the employee genuinely chooses. The extent to which an employee has been able to apply his or her remuneration in furtherance of his or her genuine choice, is likely to be a weighty relevant consideration. Where a deduction is induced by direct or indirect employer pressure for the employee to apply his or her remuneration for a particular purpose, the genuine choice, which the provision serves to protect, will likely be negated. 181 Fifth, the terms of s 324(1)(a) should be kept in mind. That exception requires not only the employee's written authority but also that the deduction made pursuant to that authority is "principally for the employee's benefit." For that paragraph, assent of the highest quality will not suffice if the deduction is not "principally for the employee's benefit." A harmonious construction of the scheme established by Division 2 requires that s 326(1)(c) be read in the light of s 324(1)(a). That is particularly so given that both provisions are capable of dealing with a deduction authorised by a term of a contract of employment. A harmonious construction suggests that failure to meet the criterion in s 324(1)(a) is a factor indicating unreasonableness for the purpose of s 326(1)(c). 182 Lastly, a broad approach is to be taken to the extent of the circumstances which are to be considered. An assessment of the unreasonableness of a deduction is not simply an outcomes-based assessment. The phrase "in the circumstances" is of wide import: see, albeit in a different context, Re Media Council of Australia (1996) ATPR ¶41-497 at 42,240 and Re AGL Cooper Basin Natural Gas Supply Arrangements (1997) ATPR ¶41-593 at 44-174, (in each case per Lockhart J, Dr M Brunt and Dr B Aldrich). All relevant surrounding circumstances need to be assessed, including the circumstances in which the deductions were authorised. The quality of the employee's assent will be one circumstance, but other circumstances which relate to the reasonableness of the transaction that authorised the deduction may also need to be examined. In that respect, the assessment will be forward looking. But, it should also examine the reasonableness of the deductions once made and, in that respect, the assessment can take the benefit of hindsight. 183 The need to take all surrounding circumstances into account, including changed circumstances, seems to me to be consistent with the protective purpose of the provision. Changed circumstances have an obvious capacity to render that which was reasonable when agreed not to be so. To illustrate by example - a deduction authorised by an enterprise agreement that permits the employer to deduct from salary a fixed fee for providing child care to the children of its employees, in circumstances where the fixed fee corresponded to the employer's cost of provision as at entrance into the agreement, would seem prima facie reasonable. If, however, circumstances changed and the child care provided by the employer became wholly subsidised by government, further deductions would likely be unreasonable from the time of the change in circumstance. Conversely, assent to deductions seemingly unreasonable when authority was first given, may turn out to confer unexpected advantages which render later deductions entirely reasonable.

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Discussion 184 DEECD accepted that the deductions were "directly or indirectly for the benefit of [DEECD]" within the meaning of s 326(1)(c)(i). The question, then, is whether the deductions were also "unreasonable in the circumstances" within the meaning of s 326(1)(c)(ii). 185 The primary submission of each of the AEU and DEECD propounded a global answer to the question whether deductions were unreasonable. Each pointed to facts common to all affected teachers, which were said to permit a conclusion in relation to the entire claim of unlawful deductions. The AEU contended that all of the deductions were payments made by teachers towards the cost of a work tool and were therefore unreasonable. Conversely, DEECD contended that the deductions made were not unreasonable in circumstances where each affected teacher received the benefit of access to a laptop, at a cost well below that which would have been available on the retail market. 186 For reasons which I think will become apparent, I consider each of those approaches to be overly simplistic. In my view, even if they were accepted, neither of the single factors relied upon by the AEU, or by DEECD, is determinative. A global answer is not possible. The broad nature of the considerations that need to be taken into account by the circumstances here raised inevitably involves some consideration of the individual circumstances of each affected teacher. The question is not properly a common question. In accordance with the approach to be taken in this initial trial, I am only able to determine this question in relation to the Group 11 claims. Whilst that limitation is unfortunate, the means by which I have determined the question in relation to the Group 11 claims may well provide the basis for the parties to resolve the remainder of the claim as it relates to other affected teachers. 187 At the outset, I think it is necessary to consider the quality of assent of each of the Group 11 teachers to the deductions made from their salaries. There are factual findings that are relevant to my ultimate conclusion. First, and on the basis of the findings I have recorded at Annexure 2, in the claim period, a computer was an essential work tool for a teacher in the sense that a teacher could not effectively perform his or her duties to the standard expected by DEECD without frequent and sustained access to a computer in order to perform the teaching and non-teaching tasks required of the teacher. Second¸ and on the basis of the findings recorded at Annexure 3, during the claim period, in order to obtain frequent and sustained access to a computer so as to perform duties to a standard reasonably perceived to be expected of the teacher, none of the Group 11 teachers had a practicable or feasible alternative to participating in the NTPP, other than for the following exceptions (the exceptions): Mr Farquhar whilst he taught at Windermere Primary and Ms O'Grady between 1 June 2009 and 31 December 2011. Third, on the basis of the findings recorded at Annexure 4, during the claim period, each of the Group 11 teachers participated in the NTPP for predominantly or exclusively work-related reasons and none participated predominantly for the purpose of securing the benefit of the personal use of a laptop computer. 188 The first and second factors establish the existence, during the claim period, of direct or indirect employer pressure upon each of the Group 11 teachers, other than for the exceptions, to apply part of his or her remuneration for a particular purpose: in this case, to equip him or her with an NTPP laptop. The third factor negates personal use as being causative of the authorisations provided by the Group 11 teachers for the deductions made from their salary. There being no other basis suggested by the evidence, I am satisfied that in relation to the claim period, and other than for the exceptions, the assent of the Group 11 teachers to the deductions from their salaries was induced by employer pressure and was not the product of a free and genuine choice. For the reasons explained above, the absence of genuine choice is a marker of unreasonableness. In the absence of a strong countervailing consideration, a deduction made in the absence of genuine choice is unreasonable in the circumstances. 189 However, as I consider a broad assessment to be appropriate, the analysis cannot stop there. The next relevant circumstance, in my view, is the reasonableness of the agreement made to make the deductions. This part of the analysis is forward looking. It considers whether unreasonableness existed at the time the deductions were authorised. 190 The analysis calls for a consideration of the AEU's primary submission on this aspect of the case. That submission was that it is unreasonable for an employee's salary to be used to meet, in part or in whole, the cost of providing the employee with a work tool to be used for the employer's purposes. There is no issue that the deductions were made for the purpose of teachers contributing to the cost of the provision of a work tool to be used for DEECD's purposes. So much is apparent from the terms of the Recipient Agreements. 191 Who should pay for the cost of a tool to be used in the performance of an employee's duties is ordinarily not a disputed question. The vast majority of contracts of employment are labour-only contracts in which remuneration is paid in exchange for the employee's labour. Some employment contracts require the employee to provide his or her labour and the tools (or some of them) required to perform the work. In those contracts, remuneration will be paid in exchange for both the labour and the tools provided. Under a labour-only contract, an employee is not required to provide work tools. A failure by the employee to perform the work because of the absence of the necessary work tools would not disentitle the employee to his or her remuneration, so long as the employee stood ready to perform his or her contracted task. In practical terms, where the performance of work is dependent upon the use of work tools, the employer must provide the tools. In labour-only contracts under which an employer is obliged to provide work, it is likely that the employer would be contractually obligated to provide the work tools necessary to carry out the work. 192 But a contractual analysis of that kind was not here relied upon. The AEU contended for a broader proposition. Its proposition was that where a tool is provided for the purpose of facilitating the employee performing work for the employer, the employer and not the employee should pay for the tool. Although I accept DEECD's contention (made by reference to Jetstar Airways at [16] and [1292] of the Explanatory Memorandum to the FW Bill) that the fact that a deduction relates to the provision of a work tool will not of itself render the deduction unreasonable, the AEU's proposition has obvious merit. It is reasonable that the person who takes the benefit of the use of the tool should pay for it and, conversely, unreasonable that the non-beneficiary should do so. 193 The AEU's proposition, however, is founded upon the premise that teachers received no benefit that may be taken into account. The AEU focused upon the purpose of the provision of the NTPP laptops and, in particular, the stated purpose in the Recipient Agreements: that the laptops were provided as a work tool and for work purposes. As any benefit to the teacher, including the benefit of personal use, was incidental to that purpose, the AEU contended that it was inappropriate for such benefit to be taken into account. 194 If there was a benefit conferred upon the teacher that ought to be taken into account, the AEU's proposition breaks down. I accept that, on a contractual analysis, the purpose of the Recipient Agreement was to provide a work tool for work purposes and that any benefit that may have flowed to the teacher was incidental to that purpose. However, on the making of a Recipient Agreement, the provision to a teacher of a laptop computer capable of being used for personal purposes at home and elsewhere must have been appreciated as providing a prospective benefit to the teacher. To my mind, on the broad consideration called for by the criterion here being considered, it is not inappropriate to take into account a prospective personal benefit to the teacher, irrespective of whether that benefit was recognised by the terms of the Recipient Agreement. That prospective benefit cannot be sidelined merely because it was incidental to the Recipient Agreement's stated purposes. 195 The extent to which the prospective personal benefit justified the deductions required by the Recipient Agreements from teacher salaries is relevant to a consideration of unreasonableness. That poses this question: were the deductions required by the Recipient Agreements unreasonable relative to the prospective personal use benefit to the teacher? To my mind, and in the context of the criterion here being applied, that question is best answered by considering, as a first step, having regard to the underlying rationale for the protection conferred by s 326(1), what a reasonable employer and a reasonable employee would have determined to be a reasonable contribution, in the circumstances. 196 An exercise of that kind can sensibly begin by identifying the nature of the prospective benefit and its value. It can be said, as DEECD contended, that access to a laptop is of itself of value irrespective of the actual use made. But the value of access to a facility like a computer has a direct nexus with the extent of the use likely to be made of it. Having access to a computer is of little or no value to the person unlikely to ever use it but, conversely, is of some value, perhaps substantial value, to a likely frequent user. What, then, would be the extent of the likely personal use to be made by the average teacher? I pose the question in that way because, to my mind, the circumstances called for a common contribution rate to be set for each particular model of computer, irrespective of the likely personal use of any particular participating teacher. That is so because there was no feasible means of monitoring personal use and no other reasonable approach was available in the context of a workforce of many tens of thousands of teachers. In setting a contribution rate, it would therefore have been necessary to evaluate the benefit of personal use by reference to the likely personal use of the nominal average teacher. Such an exercise would likely have involved an approximation, but in the circumstances, making an approximation would not have been unreasonable. 197 The evidence available to me of the actual use of NTPP laptops by teachers seems to me to provide an approximation as reliable as that which might have been arrived at if an assessment had been made during the claim period. The witnesses were not randomly chosen, but the AEU chose eleven and DEECD chose nine. The evidence was given under oath or affirmation and it was subject to testing by cross examination. I think it safe to assume that the evidence provides at least as accurate an approximation as might have been reasonably arrived at if my envisaged estimation exercise had been conducted. 198 The extent of personal use made by each of the teacher witnesses and other related findings are set out in Annexure 5. In relation to the Group 11 teachers, personal use as a proportion of total use ranged between 5 and 10 per cent. The average use was 6 per cent. In relation to the DEECD teacher witnesses the range was 5 to 50 per cent and the average was 22 per cent. The overall average of personal use as a proportion of total use was 14 per cent. 199 The next question, then, is - by reference to which price should the personal use contribution be set? This is where a point heavily relied upon by DEECD falls to be considered, at least in part. DEECD contended that personal use ought to be valued by reference to the likely market price of a teacher leasing a laptop computer of the kind provided under the NTPP. That argument was put as to the actual value obtained by teachers rather than in relation to the forward-looking exercise in which I am currently engaged. Nevertheless, it is a point necessary to consider from this perspective. 200 DEECD called evidence of the fortnightly payments that would have been payable under a retail lease for each of the various models of laptop utilised over the various Rounds and Cycles in the claim period. Thus, for example, and taking a point partway through the claim period (Round 1 Cycle 5), a fortnightly retail leasing payment for an Apple MacBook would have been $28.70 and, for a Lenovo Think Pad L420, $26.56. Prices would have varied over the claim period, but DEECD's point was that in each Round of each relevant Cycle, the retail leasing prices or market costs were substantially higher than the contributions required by the Recipient Agreements. On average, the NTPP contribution was about 80 per cent lower than the market cost. If this was a valid comparison, it would be a powerful one. 201 However, to my mind, it would have been entirely unreasonable to have set what the Recipient Agreements characterised as a contribution "to the cost of the Notebook Package" by reference to the retail price of some other leasing package. The agreed contribution to be made under the Recipient Agreement was a contribution to the cost actually incurred by DEECD. The contribution could only be set by reference to that cost. To have done so by reference to the market cost of something else would have changed the agreed basis for the contribution. Further, given the differential between DEECD's cost and market cost (brought about by the bulk discounts available to DEECD), it would also have resulted in an unwarranted windfall to DEECD. Bearing in mind the underlying rationale of the protection conferred by s 326(1) (including the avoidance of a "double benefit" to the employer, see [156]-[159] above), a reasonable process for setting a contribution would have adopted actual cost as the basis for determination of the appropriate price. 202 That conclusion is consonant with reg 2.12(2) of the FW Regulations. As I need also to refer to reg 2.12(1) it is convenient that I set out the entirety of reg 2.12: (1) For subsection 326(2) of the Act, a circumstance in which a deduction mentioned in subsection 326(1) of the Act is reasonable is that: (a) the deduction is made in respect of the provision of goods or services: (i) by an employer, or a party related to the employer; and (ii) to an employee; and (b) the goods or services are provided in the ordinary course of the business of the employer or related party; and (c) the goods or services are provided to members of the general public on: (i) the same terms and conditions as those on which the goods or services were provided to the employee; or (ii) on terms and conditions that are not more favourable to the members of the general public. Example 1: A deduction of health insurance fees made by an employer that is a health fund. Example 2: A deduction for a loan repayment made by an employer that is a financial institution. (2) For subsection 326(2) of the Act, a circumstance in which a deduction mentioned in subsection 326(1) of the Act is reasonable is that the deduction is for the purpose of recovering costs directly incurred by the employer as a result of the voluntary private use of particular property of the employer by an employee (whether authorised or not). Examples of costs 1 The cost of items purchased on a corporate credit card for personal use by the employee. 2 The cost of personal calls on a company mobile phone. 3 The cost of petrol purchased for the private use of a company vehicle by the employee. 203 If the NTPP deductions had done no more than recover the costs directly incurred by DEECD for the private use of the laptop computers by teachers, by reason of reg 2.12(2), there would have been no question that the deductions were reasonable. The fact that the NTPP deductions did not do so does not necessarily lead to the contrary conclusion. However, the focus of reg 2.12(2) on the recovery of the actual cost incurred by the employer, is consistent with my approach. 204 DEECD contended, however, that reg 2.12(1) supported the contrary proposition. That is, DEECD contended that it was relevant, in assessing reasonableness, to compare the amount deducted by an employer for the provision of a good with the cost that a member of the public would incur to access that good. However, it is clear from the terms of reg 2.12(1)(b) that the circumstances addressed by reg 2.12(1) are confined to the provision of goods or services in the ordinary course of the business of the employer or related party. It can readily be understood why reg 2.12(1) is so confined. It is reasonable that an employer may deal with an employee on the same basis as the employer's customer, when the employee is a customer. But for an employer to profit from an employee who is not its customer is, in terms of the reasonableness of the employer's conduct, a different proposition. The fact that reg 2.12(1) has a confined operation tends to support the approach that I prefer. 205 There are other reasons why a comparison between the market cost and the fortnightly contribution made by teachers is not helpful. I will address that later but those reasons are applicable here. They support my conclusion that a reasonable approach would have set the contribution rate by reference to the actual cost to DEECD of purchasing or leasing the laptops. 206 There is then a second issue to consider about the cost to DEECD. DEECD incurred no additional cost in allowing personal use of NTPP laptops. DEECD's desire to equip teachers with laptops was not driven by a desire to provide personal use to teachers. It was driven by the added utility to DEECD of teachers having laptop computers, as the evidence at Annexure 6 demonstrates. In that respect, the contributions made by teachers reduced the costs which would have been incurred by DEECD in any event to provide NTPP laptops for DEECD's purposes (creating what might be called a windfall). Those matters would have been apparent and, in my view, would have been taken into account in any reasonably-based exercise setting the contribution rate. 207 To my mind, a reasonable approach would have shared the windfall to DEECD as between DEECD and the participating teachers. That approach would have been consonant with the underlying rationale of the protection conferred by s 326. For DEECD to have received a contribution from a teacher's salary in exchange for providing something that cost it nothing (i.e., personal use) involved DEECD gaining a benefit (a cost saving) at the expense of the employee. In that circumstance, and to some degree, DEECD would be taking advantage of or profiting from the deductions made. On the other hand, if no contribution was made, the employee would gain an advantage for no cost, in circumstances where the agreed provision of the laptop was based upon some contribution from teachers. Whilst there are competing considerations, on balance (and given that ultimately reasonableness is to be assessed by reference to a scale rather than any specific figure), I consider that a reasonable approach would have been to split the advantage by halving what would otherwise have been the teacher contribution rate of 14 per cent. 208 If the average personal use of the teacher witnesses had been adopted as the likely personal use percentage of the average teacher, the approach just outlined would have resulted in the teachers' contribution rate being set at 7 per cent of the cost incurred by DEECD. 209 That figure, however, should only be seen as the mid-point on a wider scale. If 7 per cent is the optimal figure, it would be wrong to characterise 8 per cent as being an unreasonable contribution rate. A margin between what may be optimal and the point at which the contribution becomes unreasonable needs to be allowed for. Doing the best I can, it seems to me a contribution of more than 10 per cent of the cost would probably be on the wrong side of the line. That allows for a margin of about 50 per cent of the optimal percentage. In arriving at that margin, I have given significant weight to the relatively modest amounts of money involved in the fortnightly contribution rate. 210 The evidence of the extent of the contributions made by teachers to DEECD's overall cost of purchase of the NTPP equipment covers a period sufficiently commensurate with the claim period to enable reliable findings to be made about the claim period. The evidence was not in contest. The cost to DEECD of acquiring the NTPP hardware and software (including warranties and insurances) (acquisition cost) over the period was $46,319,954. The total teacher contribution over the period was $19,409,255. The teacher contributions represent 41.9 per cent of the acquisition cost. 211 Beyond the acquisition cost, the evidence was that DEECD incurred software imaging costs of approximately $2.50 for each computer provided. More-significant costs were likely incurred in providing IT support for NTPP computers. That cost and the administrative cost associated with running the NTPP program were not in evidence and the absence of that evidence was not explained. If those costs had been available, the percentage contribution made by teachers to the total cost of the NTPP program would have been lower. I am unable to say, on the evidence, the extent to which that would have been so with any precision. It may have been expected that, if those unquantified costs would have made a substantial difference to the proportion of the contribution to overall costs made by teachers, it would have been the subject of evidence. 212 The available evidence was also used by the AEU to calculate, by reference to each of the relevant NTPP Rounds and Cycles and each computer model provided, the percentage contribution made by teachers to the acquisition cost. The results were set out in an annexure to the AEU's submission (as modified by a later version), the accuracy of which was not contested. The figures given in the annexure involve some estimation. When the calculations there made are checked, the results reveal only one obvious typographical error (the "proportion of cost met by teacher" for Round 2, Cycle 4 should be 40.3 per cent, not 30.3 per cent). Annexure 7 sets out the AEU's calculations (omitting references to the evidence and other notes), and corrects the typographical error. Summarising, for Lenovo computers (which most of the teachers used), the percentage contribution made by teachers to the cost of acquisition varied between around 35 per cent (Cycle 4 Round 3) and around 59 per cent (Cycle 5 Rounds 2 and 3), averaging around 46 per cent. For Apple computers, the percentage contribution varied between around 38 per cent (Cycle 4 Round 3) and around 100 per cent (Cycle 5 Round 3), averaging around 68 per cent. There was a large increase in the percentage contribution for Apple computers between Cycle 4 Round 4 (including and prior to which the percentage contribution was around 40 per cent), and Cycle 5 Round 1 (including and after which the percentage contribution was greater than 90 per cent). There was no evidence as to why that was the case. 213 To summarise, on average, a substantial proportion of the costs of providing a teacher with a NTPP laptop and associated facilities was borne by the teacher. All teachers bore at least 30 per cent of the cost and the majority of teachers are likely to have made a contribution of over 40 per cent of the total cost. Those teachers with Apple laptops bore substantially more than the majority of the cost and, in some Rounds, almost the entirety of the cost. 214 Each Group 11 teacher had two laptops during the claim period. Referring to Annexure 1 - in which I make findings as to the Rounds and Cycles in which Group 11 teachers received notebooks - and to Annexure 7 - which contains the proportion of the unit cost to DEECD met by teachers that participated in particular Rounds and Cycles - the proportional contribution to cost that applied in relation to each of the two laptops used by each of the Group 11 teachers are as follows: Computer 1 Computer 2 Ms Aulich 37.8% 40.4% Mr Farquhar 40.3% 58.9% Ms Fischer 44.4% 53.2% Ms Haddow 44.4% 53.2% Ms Humphries 40.3% 58.9% Mr Kober 35.1% 38.5% Mr Kumar 42.7% 53.2% Ms MacKinnon 37.8 or 42.7% 97.6% Ms O'Grady 35.1% 38.5% Ms Renton 44.4% 53.2% Ms Terry 44.4% 53.2%

[18]

215 I have indicated with bold type the figures relating to the first NTPP laptops in the claim period for Ms Aulich, Mr Kober, and Ms O'Grady. That is because - as found in Annexure 1 - those laptops were issued as part of Cycle 3 Rounds 4 and 5, and while the Statement of Agreed Facts (SOAF) included some information relating to those Rounds, it did not include the unit cost to DEECD of laptops issued in those Rounds. Calculation of contributions as a proportion of unit cost is therefore not possible. I have instead inserted the lowest percentage available on the evidence for the make of computer that each teacher used. That is, Ms Aulich had a Mac: the lowest percentage contribution from teachers for Mac computers came in Round 3, Cycle 4 and was 37.8 per cent. Mr Kober and Ms O'Grady had Windows computers: the lowest percentage contribution for Windows computers also came in Round 3, Cycle 4 and was 35.1 per cent. In Ms MacKinnon's case, I was unable to find whether her first relevant laptop was issued as part of Cycle 4 Round 1 or Cycle 4 Round 3, so I have included both percentages. 216 As is apparent, in each case, the contribution made exceeded the 10 per cent contribution rate that I consider forms the outer limit for a reasonable contribution rate, set in accordance with a reasonable process. On this basis also, in the absence of a strong countervailing consideration, the deductions made from the salaries of the Group 11 teachers were unreasonable. 217 That analysis also supports the conclusion that the deductions made from teacher salaries were not made principally for the benefit of teachers. I earlier indicated that the terms of s 324(1)(a) should be kept in mind and that a harmonious construction of s 326(1)(c)(ii) needed to take into account the terms of s 324(1)(a). To my mind, s 324(1)(a) speaks to the time at which a deduction is made and is addressing the intended purpose for the making of the deduction. The relevant question is whether the principal purpose of a deduction was to provide a benefit to the employee. If it was not, the employee's assent, no matter how freely given, would be insufficient for the purposes of s 324(1)(a). 218 If the deductions made had been properly calibrated to reflect the likely personal use of teachers, then it would have been open to conclude that the deductions made were principally for the benefit of the teacher, even though DEECD would also have benefited in that the cost to it of providing laptops for work purposes would be reduced. There is, however, no evidence that any calibration of that kind occurred. The analysis just undertaken demonstrates that no calibration was reasonably made. In every case, the proportion of the cost borne by Group 11 teachers in relation to NTPP laptops that they used during the claim period is more than three times what it would have been, based upon a properly-calibrated contribution rate reflecting likely personal use; in most cases more than four times. The conclusion that the deductions made had another more-substantial purpose than the purpose of providing for the personal use of the laptop by the teacher is, in the circumstances, irresistible. That other purpose could only have been the purpose of contributing to the cost of the teacher having a laptop for work purposes. But whether that was so or not, the deductions made were not principally for the teacher's benefit. That provides a further basis for the conclusion that the deductions made over the whole of the claim period from the salaries of the Group 11 teachers were unreasonable in the circumstances. 219 The third matter to which I consider it is appropriate to have regard is the actual value of the deduction that flowed to the employee and employer. This is an outcomes-based assessment which, with the benefit of hindsight, examines the actual flow of the benefit. Given the findings I have already made, a very strong countervailing consideration would need to be identified to overcome an ultimate finding of unreasonableness in relation to the Group 11 claims. However, the possibility that the actual benefit obtained from the deductions made may provide a sufficient countervailing consideration should not be excluded. For instance, despite having been induced by employer pressure and despite the unreasonable setting of the contribution rate, a teacher's personal use may have been so high that, taking into account the actual contribution paid, a conclusion that the deductions made were unreasonable may be intuitively unsound. 220 That is not, however, here the case. We know that all the Group 11 teachers had a low rate of personal use. Their actual rates of personal use as compared to their actual rates of contribution were as follows: Personal Use Computer 1 Computer 2 Ms Aulich 10% 37.8% 40.4% Mr Farquhar 5% 40.3% 58.9% Ms Fischer 5% 44.4% 53.2% Ms Haddow 5% 44.4% 53.2% Ms Humphries 5% 40.3% 58.9% Mr Kober 5% 35.1% 38.5% Mr Kumar 5% 42.7% 53.2% Ms MacKinnon 5% 37.8 or 42.7% 97.6% Ms O'Grady 10% 35.1% 38.5% Ms Renton 5% 44.4% 53.2% Ms Terry 5% 44.4% 53.2%

[19]

221 Beyond the benefit which flowed to teachers from personal use, DEECD also relied upon what I have earlier (at [97] and [108]-[109]) referred to as facilitative benefits, directed to assisting the performance of work. In so far as benefits of that kind are to be counted, I consider their impact to be minimal. The purpose of such benefits was to enhance the performance of work. DEECD will have taken that benefit. Any corresponding benefit to teachers would not, in my view, have significantly tipped the scale in the direction of the teachers. At best, the impact was neutral. 222 To sum up, the deductions made from the salaries of the Group 11 teachers during the claim period (other than for the exceptions) were made in the absence of genuine choice. Over the whole of the claim period, the deductions were made by reference to an unreasonable rate of contribution. Additionally, the principal beneficiary of the deductions made from the salaries of the Group 11 teachers over the whole of the claim period was DEECD and not the teachers. The value of the benefits actually received by the Group 11 teachers was low, and did not provide a countervailing justification. I find that the deductions were unreasonable in the circumstances. 223 Other than for the exceptions, I would have arrived at the same conclusion if I had concluded that the contribution required of teachers by the Recipient Agreements had not been set at an unreasonable rate. The absence of a genuine choice is sufficient, of itself, to warrant a finding of unreasonableness. The exceptions relate to deductions where the evidence has not satisfied me that the teachers concerned lacked a feasible alternative to the NTPP and thus a genuine choice. The existence of genuine choice would ordinarily provide a strong countervailing circumstance supporting the conclusion that deductions were not unreasonable in the circumstances. However, I have found in relation to the whole claim period, including in relation to the exceptions, that the deductions made from the salaries of the Group 11 teachers were not made principally for the benefit of those teachers. The preparedness of Parliament to intervene through the scheme established by Division 2, in the face of genuine choice, is demonstrated by the terms of s 324(1)(a). To my mind, that preparedness extends to s 326(1)(c) where deductions are not made principally for the employee's benefit. If that were not so, the intended coherence between s 324(1)(a) and s 326(1) would be diminished. It would mean that a deduction made pursuant to a term of a contract could fall foul of s 324(1)(a) and thus s 323(1), but there would be no capacity to have the offending term rendered of no effect pursuant to s 326(1). That s 326(1) is supplemental to s 324(1) (just as s 326(3) is supplemental to s 325) is apparent from Note 2 to s 324(1). 224 It is for that reason that, despite the existence of genuine choice, I have concluded that the deductions made in relation to the exceptions were unreasonable in the circumstances. 225 For those reasons, I am satisfied that the NTPP deductions made in the claim period and in respect of each of the Group 11 teachers were: (i) directly or indirectly for the benefit of the employer; and (ii) unreasonable in the circumstances, within the meaning of s 326(1). In relation to the Group 11 teachers, the answer to common question 8 is "Yes". If it had been necessary to decide it, the answer for those teachers, in relation to common question 3, would also have been "Yes". I should add that if I had been satisfied that the Group 11 teachers had made a genuine choice and that the contribution rate had not been unreasonably set, I would have arrived at the opposite conclusion. 226 Before leaving this part of the case, I need to say something more, as I said I would, as to why I came to the view that the retail leasing prices relied upon by DEECD were not an appropriate basis for assessing the value of the benefit of personal use of the NTPP laptops. I consider the comparison relied upon by DEECD was invalid because it failed to compare like with like. If the market price was to be used, the only useful comparison would be with the market price of a leasing arrangement on the same or comparable terms and conditions as those under the NTPP. 227 Here, there were two categories of difference between NTPP computers and computers leased in the market. First, and most significantly, the lessee of a computer on the market is not obliged to use that computer for the purposes of the lessor, either predominantly or at all. Second, NTPP computers are subject to various value-diminishing conditions that are unlikely to apply to computers leased on the market. By clause 3.1(a) of the Recipient Agreement, DEECD could terminate the agreement on notice in writing. By clause 2.3, DEECD was permitted to alter the contribution rate by written notice. By clause 3.1(b), the Recipient Agreement terminated if the employee ceased to be employed by DEECD. By clause 4.1(b) of the first version, but not later versions, employees were obliged to share with other employees any curriculum materials or teaching strategies that they developed using the laptop. By clauses 2.1, 6, and 7, the Recipient Agreement conferred only a non-exclusive licence (later the words "non-exclusive" and "licence" were removed but it did not seem to be disputed that the agreement remained of the nature of a licence). By clauses 6.1-6.3 of the Acceptable Use Policy, the NTPP laptop was permitted to be used only for DEECD purposes, save that non-excessive personal use was allowed. By clause 8.1 of both Acceptable Use Policies, monitoring of teachers' use by DEECD was permitted. By clause 12 of the Acceptable Use Policies, "Offensive and inappropriate" usage of laptops was prohibited, including that it was impermissible to use laptops for pornographic, harassing, hateful, racist, sexist, abusive, obscene, discriminatory, offensive, or threatening uses. The oral and affidavit evidence established two further relevant facts, being that if a teacher purchased an NTPP laptop at the conclusion of the arrangement the laptop was wiped clean of data before it was turned over to the teacher's possession, and that - because of the limitations on personal usage - some teachers felt constrained from allowing family members to use the laptops. I did not have before me the standard terms and conditions of a retail lease for a laptop, but I cannot imagine many of the foregoing terms would be present, if indeed any are. In particular, to my mind, it is foreign to the notion of leasing a laptop privately and through the market that its lessee would be prohibited from using it for whatever lawful purpose he or she wished (personal or otherwise). 228 Furthermore, the value attributed by DEECD to personal use obtained via a laptop computer at market cost fails to account for the fact that many (and probably most) teachers would have gained access to personal use by other means at a lower cost. DEECD's comparison assumed that a teacher that opted against the NTPP package and went to the market to obtain a device that provided personal use of a computer would lease the same model of computer as was used in the NTPP, instead of (for example) a far cheaper laptop, a desktop computer, a tablet computer, or a smart phone. Much may depend on the nature of the personal use that a teacher may want to make. It cannot be assumed, as DEECD's submission did, that teachers would have needed to, or have been willing to, pay for the sophistication of a particular model of a laptop to satisfy a desire to access email, the internet, or to make other personal use of a computer. 229 Finally, in the assessment of whether the deductions were unreasonable, I have not, despite DEECD's encouragement, taken into account the evidence that on an occasion a view was expressed by the AEU, in a 2003 log of claims in negotiations for a new enterprise agreement, that the NTPP was of value. I can see no basis for taking into account such a view in the objective assessment that needs to be made, even if it were the case that the view expressed was directed to the question of unreasonableness which, in the case at hand, it was not. I have taken into account that the fortnightly deductions were modest as a proposition of a teacher's remuneration. I have given that circumstance some weight but I did not regard it as providing a countervailing justification. I have not accepted the AEU's contention that unreasonableness was demonstrated by the fact that teachers were not apprised of the fact they were making a "salary packaging arrangement" if, contrary to my finding, that is what occurred.

[20]

Were the NTPP deductions authorised by a law of a state? 230 The statutory exemption case raised by DEECD that relied upon s 324(1)(d) agitated the following common question: 4. Is the effect of the Ministerial Order that: a. the NTPP deductions made from 19 December 2012 to the present; and/or b. the NTPP deductions made between 1 July 2009 and 19 December 2012 were authorised by or under a law of a State within the meaning of s 324(1)(d) of the FW Act? 231 Relying on s 324(1)(d), DEECD contended that the NTPP deductions were "authorised by or under a law of … a State." The Victorian law upon which DEECD relied is the Ministerial Order made under the ETR Act. Section 5.2.12 of the ETR Act provides that: The Minister may make any Orders that are required, permitted or authorised to be made by the Minister under this Act. 232 Omitting formal parts, the Ministerial Order is as follows: The Minister for Higher Education and Skills and the Minister responsible for the Teaching Profession, under the powers contained in sections 5.2.1, 5.2.12, 5.10.4 and 5.10.5, and clause 8 of Schedule 6 of the Education and Training Reform Act 2006, makes the following Order. 1 The Teaching Service (Employment Conditions, Salaries, Allowance, Selection and Conduct) Order 2009 No 199 is amended by: (a) inserting the following after clause 2.8.1: "Division 9 - Deductions from salary 2.9.1 From 1 July 2009 and at all times after 1 July 2009, the following amounts are authorised to be deducted from and may lawfully be deducted from the salary of all persons employed in the Teaching Service under Part 2.4 of the Act: (a) any amount that a person employed in the Teaching Service has agreed will be deducted from the person's salary in accordance with a Notebooks for Teachers and Principals Licence Agreement entered into by that person; and (b) any amount that a person employed in the Teaching Service has agreed will be deducted from the person's salary in accordance with a Notebooks for Teachers and Principals Program Recipient Agreement entered into by that person; and (c) any amount that a person employed in the Teaching Service has agreed will be deducted from the person's salary in accordance with an eduStar.NTP Recipient Agreement entered into by that person; and (d) any amount that a person employed in the Teaching Service has agreed will be deducted from that person's salary in accordance with an agreement entered into by the person pursuant to any program that has succeeded or succeeds the eduStar.NTP Program for the provision of information and communications technology to persons employed in the Teaching Service; and (e) any amount that a person employed in the teaching Service has agreed will be deducted from that person's salary in accordance with any agreement entered into by that person in relation to the provision of information and communications technology to persons employed in the Teaching Service." This Order operates and takes effect from and inclusive of 1 July 2009. Dated this 19 day of December 2012

[21]

Is the Ministerial Order inconsistent with the Agreements? 233 The AEU contended that the Ministerial Order is invalid because the enabling power does not extend to the making of a Ministerial Order the terms of which are inconsistent with the provisions of the ETR Act. The asserted inconsistency is based on s 2.4.2 of the ETR Act which provides: Employment in the teaching service under this Part is subject to any relevant award or agreement under, or continued in force by, a law of the Commonwealth. 234 The AEU contended that the Ministerial Order purported to provide a mechanism for deductions to be made from the salary of teachers that was not provided for by the 2004 or the 2008 Agreement, and was thus inconsistent with the obligations in those Agreements for the employer to pay the prescribed salaries. The AEU submissions recognised that the Ministerial Order could operate consistently with the Agreements if the NTPP deductions authorised by the Ministerial Order were also authorised by the Agreements as deductions made in accordance with a salary packaging arrangement. The AEU contended that, unless that was so, the Ministerial Order was inconsistent with the Agreements, thus also with s 2.4.2 of the ETR Act, and was therefore an invalid exercise of the regulation-making power conferred by the ETR Act: see, e.g., Plaintiff M47/2012 v Director-General of Security (2012) 251 CLR 1 at [54] (French CJ) and [174] (Hayne J). 235 This aspect of the AEU's invalidity contention should be rejected. The salaries required to be paid to teachers by the Agreements need not be paid in full where s 324 permits a deduction. Thus, if a deduction permitted by s 324(1) was made from an amount payable to a teacher under an Agreement, the amount paid to the teacher would be consistent with the Agreement as given effect to by the FW Act. Section 2.4.2 of the ETR Act provides that employment in the Teaching Service is "subject to any relevant … agreement under, or continued in force by, a law of the Commonwealth." That provision requires employment in the Teaching Service to be in conformity with an agreement made under a Commonwealth law in the manner in which, and in so far as, the agreement is given effect to by that law. 236 Where the deductions authorised by the Ministerial Order are given effect to by s 324(1)(d), there will be no inconsistency between the Ministerial Order and the Agreements as given effect to by the FW Act. There will therefore be no inconsistency between the Ministerial Order and s 2.4.2 of the ETR Act. If, however, the deductions authorised by the Ministerial Order are not given effect to by s 324(1)(d) there would be an inconsistency. It is necessary, then, to consider whether and to what extent s 324(1)(d) gives effect to the authorisations made by the Ministerial Order.

[22]

Does s 324(1)(d) apply in relation to a retrospective authorisation? 237 The AEU contended that s 324(1)(d) does not apply to a deduction that has been retrospectively authorised by a State law. It contended that s 323(1) addresses the amount that must be paid, how it is to be paid, and when it is to be paid. Section 324(1) provides that an employer may deduct an amount "from an amount payable to an employee in accordance with subsection 323(1)." The premise upon which both ss 323 and 324 operate is that the deduction will be made at the time of payment and from the amount payable. Further, the provisions speak in the present tense and, in particular, an employer may only deduct in accordance with s 324(1) if the deduction is authorised. Accordingly, the AEU contended that there is nothing in s 324(1)(d) that indicates that the provision would pick up a law that retrospectively seeks to validate a deduction already made. Any authorisation under State law must, according to the submission, be in place at the time the deduction is made. 238 It was not in issue that the Ministerial Order could validly be made with retrospective effect. So much seems clear from the terms of s 5.10.5 of the ETR Act. Nor was it in issue that the terms of the Ministerial Order provide for retrospective effect in relation to the period 1 July 2009 to 18 December 2012. The contest was as to whether s 324(1)(d) gave effect to a retrospective authorisation of a deduction. The AEU contended that the provision must be construed in the light of the common law presumption that legislation affecting rights or obligations is not to be construed as having retrospective operation unless the legislature has clearly expressed that intention: RS Howard & Sons Limited v Brunton (1916) 21 CLR 366 at 371 (Griffith CJ). 239 In the AEU's submission, the whole of s 324 speaks to the circumstances existing when the deduction is made. The AEU contended that it would be striking if s 324 was intended to pick up a law that alters, after the event, the amount that is payable to the employee. The AEU further relied upon the presumption that in the absence of clear and unambiguous words legislation will not be construed as alienating vested proprietary interests without fair compensation. Further, to reinforce the construction for which it contended, the AEU argued that the contrary construction would result in invalidity, as s 324(1)(d) would constitute a law for the acquisition of property other than on just terms and would be invalid by reason of s 51(xxxi) of the Constitution. 240 DEECD accepted the existence of the presumption against retrospective operation of statutes but, by reference to the following authorities, contended that the presumption is rebuttable: R v Kidman (1915) 20 CLR 425 at 442-3 per Isaacs J, at 451-4 (Higgins J), at 462 (Powers J); Polyukhovich v Commonwealth of Australia (1991) 172 CLR 501 at 538-40 (Mason CJ), at 644-5 (Dawson J), at 718-21 (McHugh J); University of Wollongong v Metwally (1984) 158 CLR 447 at 461 (Mason J), 484 (Dawson J). In any event, DEECD's primary position was that the presumption against retrospectivity only applies to the law which has the retrospective effect and, in this case, that was the State law and not s 324(1)(d). 241 DEECD contended that, in light of the undoubted and notorious power of State legislatures to make legislation with retrospective effect, it would be expected that had the Commonwealth legislature intended to exclude from the scope of the term "a law of … a State" any legislation with retrospective effect, it would have explicitly said so. DEECD further contended that the word "payable" in the chapeau to s 324(1) suggests that the provision contemplates that it would have application to accrued entitlements. Thus, it was said, s 324(1) already contemplates an element of retrospectivity. Further, DEECD contended that when one considers that the statutory right to be paid pursuant to s 323(1)(a) is inherently susceptible to modification because of the exceptions in s 324(1), it is not surprising that such modification might take place by any means available to the State legislature, including the passage of a retrospective law. The present-tense formulation of ss 323(1) and 324(1) was asserted to be of no moment, as it is in the nature of retrospective laws to create legal fictions including as to past facts. 242 The presumption against the retrospective operation of statutes is a rule of statutory interpretation. One meaning of retrospectivity was enunciated by Dixon CJ in Maxwell v Murphy (1957) 96 CLR 261 at 285 and Chang Jeeng v Nuffield (Australia) Proprietary Limited (1959) 101 CLR 629 at 637-8. In the latter case, Dixon CJ said this (emphasis added): The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events. 243 Another meaning of retrospectivity is this: "… a provision of a regulation might be said to have retrospective operation if, and to the extent that, the provision is taken to have had legal operation at or from a past date" (Adco Constructions Pty Ltd v Goudappel (2014) 308 ALR 213 at [45] (Gageler J)). Thus, the principle against retrospectivity, "is not concerned with the case where the enactment under consideration merely takes account of antecedent facts and circumstances as a basis for what it prescribes for the future, and it does no more than that" (Robertson v City of Nunawading [1973] VR 819 at 824 (Winneke CJ, Gowans and Starke JJ); see also La Macchia v Minister for Primary Industry (1986) 72 ALR 23 at 26 (Toohey J), 33 (French J)). 244 There can be no doubt that s 324(1)(d) does not have or purport to have retrospective operation. The effective commencement date of the section was 1 July 2009. The provision does not purport to have operation as and from an earlier date. It does not apply to facts or events that have already occurred so as to impose or affect rights or liabilities with effect prior to its commencement: c.f., La Macchia at 33 (French J). 245 On the other hand, the Ministerial Order is clearly retrospective. It does apply to facts that have already occurred in such a way that different rights or liabilities would accrue, and it does purport to have effect at or from a past date. It purports to treat a past fact - whether or not there was a State law authorising a deduction - as having been different from what it was (c.f., Union Club v Lord Battenberg (2006) 66 NSWLR 1 at [55], per Giles JA). It purports to require one to make a hypothesis different from the actual fact (c.f., Union-Fidelity Trustee Company of Australia Limited v Commissioner of Taxation of the Commonwealth of Australia (1969) 119 CLR 177 at 187, per Kitto J). To apply an often quoted description used by Windeyer J in Hunter Douglas Australia Pty Limited v Perman Blinds (1970) 122 CLR 49 at 65, the Ministerial Order creates a "statutory fiction". 246 Can a State law create a statutory fiction for the purpose of the application of a Commonwealth law? Is that within the power of the State? I was not taken to any authority directly on point, nor has my research identified any, but the answer to the question must be no. The rationale is plain. The power of a legislature to create and give effect to a statutory fiction is only available for the purposes of the law which that legislature controls. 247 Although the point was made in considering the relationship of ordinary statute law to the Constitution, Deane J in University of Wollongong v Metwally (1984) 158 CLR 447 at 478 expressed the applicable rationale as follows (emphasis added): A parliament may legislate that, for the purposes of the law which it controls, past facts or past laws are to be deemed and treated as having been different to what they were. It cannot, however objectively, expunge the past or "alter the facts of history": cf. Akar v. Attorney-General (Sierra Leone) [1970] AC 853, at p 870. If the fact was that its Emperor wore no clothes, it is powerless either to reverse that fact outside the fields in which it is master or objectively to convert into falsehood the truth which a small child saw. That position is, of course, a fortiori in the case of a parliament whose powers are limited even within the territorial area for which they exist. For the purposes of an organic law, such as the Constitution, which lies above the law which such a parliament may make, it may be a relevant fact that that parliament has enacted that some fact or law which in truth existed is to be deemed never to have been. If, however, that organic law is framed so as to act upon the reality, the retrospective fictions of the subordinate law will be unavailing. It is only if the organic law is framed to act upon any fictions that might subsequently be introduced into that subordinate law that the parliament which has power over that subordinate law can control the operation of the organic law by the retrospective introduction of such fictions. 248 A State legislature could clearly legislate for past facts to be treated as different to what they were for one of its own laws. But it cannot do that for the purpose of a law of the Commonwealth absent something in the Commonwealth law that allows that result. The true question, then, is one of construction of the FW Act, and in particular whether the Commonwealth legislature's intent in relation to s 324(1)(d) was that the section would act upon retrospective fictions introduced by a "subordinate" (i.e., State) law. Expressed alternatively, the question is whether the enabling statute (the FW Act) contemplates (i.e., authorises or permits) retrospectivity in a subordinate statute. 249 That question raises a preliminary question. What kind of intention is required to be manifested by the enabling law, and how must it be manifested? Again, I was not taken to, nor have I been able to identify through research, any cases directly on point. But the general concept is one of consistency: is retrospective operation of the subordinate law consistent with the enabling law, properly construed. That is a question that frequently arises, albeit in a different context. Whether an enabling statute contemplates that regulations made thereunder may be made with retrospective effect has been the subject of judicial consideration in Australia, England, Canada and the United States of America. 250 The relevant principle was recently stated by Gageler J in Adco. Having set out the common law presumption against the retrospective operation of statutes by reference to the statement of Dixon CJ in Maxwell, Gageler J said at [51] (citations removed; emphasis added): The common law rule applies to the construction of an empowering statute as much as to the construction of a regulation. Unless the contrary intention appears with reasonable certainty, the empowering statute is construed so as not to confer power to make regulations which alter existing rights or liabilities. The joint reasons in Broadcasting Co of Australia illustrate that proposition. The holding of the majority in Australian Coal and Shale Employees Federation v Aberfield Coal Mining Co Ltd does not contradict it. As explained in Toowoomba Foundry Pty Ltd v Commonwealth, that holding turned on s 48(2) of the Acts Interpretation Act 1901 (Cth) in the form in which it existed between 1937 and 1990. That specific statutory rule of construction did not reflect the common law and has no equivalent in the Interpretation Act. 251 Relying, as Gageler J did, on the judgment of the majority in Broadcasting Company of Australia Proprietary Limited v The Commonwealth (1935) 52 CLR 52, Pearce and Argument, in their text Delegated Legislation in Australia (4th ed, LexisNexis Butterworths, Sydney, 2012), state at [14.14] that "a general regulation-making power would not permit the making of retrospective regulations". Further support for the principle is found in the judgment of Katz J in Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. His Honour there applied Broadcasting Co and also discussed the approach taken in the United States of America and Canada. 252 In Rokobatini, the facts were that the Administrative Appeals Tribunal made a decision on 19 January 1999 unaware that the Minister had signed a general direction that was relevant to the appellant's case, which purported to be effective from 21 December 1998. Whitlam and Gyles JJ held that the Tribunal had been led into error of law by failing to advert to the direction. Their Honours held that, on a proper construction of s 499 of the enabling Act, general directions were given to a person or body in writing when brought into existence, notwithstanding that they were in fact not delivered until some time later. Accordingly, Whitlam and Gyles JJ were of the opinion that the relevant direction did take effect from 21 December 1998. Katz J dissented as to the construction of the Act, and considered that the notice had not in fact been given to the Tribunal before 19 January 1999. It was necessary, therefore, for his Honour to consider a question that Whitlam and Gyles JJ did not consider: whether the direction had retrospective effect from the time of its actual delivery to the time of its signing. His Honour held not, and his reasons for so holding contain a useful discussion of the applicable principles. Katz J summarised the reasons of the majority in Broadcasting Co, and said at [53]-[55] (emphasis added): [53] The inference which I draw from the High Court's approach in the Broadcasting Co of Australia case is of a need for quite specific language supporting the use of a power to make delegated legislation in order to remove existing rights retrospectively before that power will be so construed. … [55] I can find nothing in the precise terms of the implied grant of power in s 499(1) of the Act (or in the subject matter of that implied grant of power either … ) which implies an ability in the Minister to impose duties retrospectively by general directions. In those circumstances, par 34 of the Direction should, it appears to me, meet the same fate as the delegated legislation in the cases which I have discussed in the preceding paragraphs. 253 At [57]-[60], Katz J discussed the North American position, which he described as similar to the approach that he had set out: [57] First, in Bowen v Georgetown University Hospital (1988) 488 US 204, Kennedy J, delivering the opinion of the United States Supreme Court, said (at 208-209): "It is axiomatic that an administrative agency's power to promulgate legislative regulations is limited to the authority delegated by Congress. In determining the validity of the Secretary's [that is, the Secretary of Health and Human Services] retroactive cost-limit rule, the threshold question is whether the Medicare Act authorizes retroactive rulemaking. … [A] statutory grant of legislative rulemaking authority will not, as a general matter, be understood to encompass the power to promulgate retroactive rules unless that power is conveyed by Congress in express terms. ... Even where some substantial justification for retroactive rulemaking is presented, courts should be reluctant to find such authority absent an express statutory grant." [58] Both the Court's use of the words "as a general matter" and its reference to a "reluctan[ce]" on the part of the courts, as opposed to a refusal, imply an attitude on its part that the subject matter of a grant of rulemaking power may sometimes be enough, even in the absence of express words, to justify construing that rule making power as authorising retroactive rulemaking. I agree with such an attitude. [59] Secondly, in Attorney-General (British Columbia) v Parklane Private Hospital (1974) 47 DLR (3d) 57, Dickson J, delivering the reasons for judgment of the Supreme Court of Canada, said (at 66): "If intra vires, OC 4400 [that is, Order in Council 4400, a regulation] would serve to extinguish retrospectively the entire claim of Parklane, but in my view it fails to have that effect. The Lieutenant-Governor in Council is empowered to enact Regulations for the purposes of carrying into effect the provisions of the Act [that is, the British Columbia Residence and Responsibility Act (Can)], but nothing expressly or by necessary implication contained in the Act authorizes the retrospective impairment by Regulation of existing rights and obligations." [60] (That approach appears to me to be very close indeed to that of the High Court in the Broadcasting Co of Australia case.) 254 The approach of Dickson J in Parklane Private Hospital, to which Katz J referred, was followed by the Court of Appeal of the Federal Court of Canada (Mahoney, Robertson and McDonald JJA) in Apotex Inc. v. Canada (C.A.) [1994] 1 FC 742 at 798. The position in England is similar. A power to make subordinate legislation does not confer the power to make provisions having retrospective effect unless it does so expressly (D Greenberg, Craies on Legislation, 10th Ed, Sweet & Maxwell, 2012 at [10.3.18-10.3.19]). In Nicholls v Greenwich London Borough Council [2003] ICR 1020 at [37], Mummery LJ (with whom May LJ and Dame Elizabeth Butler-Sloss P agreed) said (emphasis added): The Superannuation Act 1972 should not, unless the statutory language makes that result unavoidable, be construed as conferring power on the Secretary of State to make regulations prohibiting or disabling local authorities from honouring contracts, which have been validly entered into, and depriving employees of their vested contractual rights. It would be unusual for such a far reaching power to be delegated by Parliament. … See further Secretary of State for Energy and Climate Change v Friends of the Earth [2012] EWCA Civ 28 at [43] (Moses LJ, with whom Lloyd LJ and Richards LJ agreed). 255 It seems to me that the same approach is appropriate to the construction of s 324(1)(d). That is, adapting Gageler J, "the common law rule [against retrospectivity] applies to the construction of [an enabling section of a statute] as much as to the construction of [the subordinate law]. Unless the contrary intention appears with reasonable certainty, the [enabling statute] is construed so as not to confer power to make [State laws] which alter existing rights or liabilities [in the application of the enabling statute]." I am conscious that analogy has its perils: see, Henville v Walker (2001) 206 CLR 459 at [130] (McHugh J); Marks v GIO Australia Holdings Limited (1998) 196 CLR 494 at [103] (Gummow J). But, it is the same principle - a disfavour, in the law, of retroactivity - that underpins the presumption against retroactivity in statute, the presumption against retroactivity in a subordinate law, and the presumption against empowerment of retroactivity in a regulation by the empowering law. That principle seems to me to equally apply to a circumstance where a Commonwealth law permits its operation to depend upon the law of a State. Unless the contrary intention appears with reasonable certainty, I would construe the Commonwealth law (s 324(1)(d)) so as not to confer power upon the State law to retroactively deem facts that alter existing rights or liabilities in the application of the Commonwealth law. 256 With that in mind, I turn now to construe s 324(1)(d) of the FW Act. 257 Subsection 324(1) of the FW Act provides that an employer may deduct an amount from an amount payable to an employee in accordance with s 323(1) if the deduction is authorised in one of these ways: (a) in writing by the employee; (b) by the employee in accordance with an enterprise agreement; (c) by or under a modern award or an FWC order; or (d) by or under: (i) a law of the Commonwealth; (ii) a law of a State or territory; or (iii) an order of a court. 258 Deductions from a person's salary would ordinarily be authorised prospectively. That reflects that, where an authority to do an act is required, the authority usually needs to be in place when the act is done. If that was not so the act, when done, would be unauthorised. If unauthorised, the act may be unlawful. In the case of an unauthorised deduction from an amount payable to an employee in accordance with s 323(1) of the FW Act, there would be a contravention of that law. The contravention would occur at the time the deduction was made and the employer would, as and from that time, be liable for a civil penalty. 259 The only purpose for an authorisation of a deduction, which authorisation is given retrospectively (that is after the deduction was made), is to ratify a deduction made without authority. There is no apparent reason for thinking that the scheme for deductions provided for by s 324(1) intended that such a facility be available. First, there is no discernible reason for supposing that Parliament saw a need for such a facility. Second, there is good reason for thinking that Parliament did not intend to allow an authorised deduction to be later ratified. It may be presumed that the scheme established for the making of deductions was intended to operate regularly - that is, by reference to the rule created by s 323(1) that amounts payable to an employee be paid in full and in a timely manner (within a month). That rule is protective. The extent of its protective purpose is demonstrated by the fact that even authorised deductions are capable of being invalidated. It would be surprising if, in that context, the scheme intended to condone the later ratification of deductions that were not authorised at the time they were made. Third, if Parliament had intended to provide the capacity for unauthorised deductions to be ratified, it could have dealt with that subject directly. It could have stated that an authority for a deduction may be given at any time and, if there was some reason to confine that capacity to a Commonwealth, State, or Territory law, it could have said so in relation to s 324(1)(d) alone. 260 A retrospective authorisation would not be effective under s 324(1)(a). An employee could not alter the operation of statute and excuse a contravention by deeming an authority to have been in place when, in fact, it was not. Nor can it sensibly be suggested in relation to s 324(1)(b) that Parliament intended to give to the parties to an enterprise agreement the capacity to reverse the facts upon which the FW Act operates. Likewise in relation to s 324(1)(c) and the capacity of the Fair Work Commission. That the Commonwealth Parliament may have so intended in relation to a law of a State or Territory is perhaps a more palatable possibility but, nevertheless, such an intent would be surprising. 261 Each of the bases upon which DEECD relied is unconvincing. The word "payable" is not suggestive of an intended retrospectivity and, in any event, that reasoning would apply generally in relation to every exception in s 324(1) and, as I have said, I cannot accept that Parliament intended to empower the ratification of past invalid deductions by individuals. Nor is the fact that the statutory right conferred by s 323(1) is susceptible to modification by s 324(1) a basis for thinking that retrospective modification was intended. Again, if that was so, the reasoning would have to apply generally to all of ss 324(1)(a)-(d), and I cannot accept that it does. 262 Lastly, the submission concerning the notorious power of a State legislature to make legislation with retrospective effect is unpersuasive. First, there is no power for a State legislature to change the facts upon which a Commonwealth Act operates in the absence of the Commonwealth Act enabling such a course. Second, as the authorities dealing with delegated legislation (to which I earlier referred) demonstrate, that an enabling Act confers a power to a subordinate body to make laws does not carry with it the result that those laws may be made with retrospective effect, unless that intention appears with reasonable certainty. 263 For the reasons canvassed above, I am not satisfied that any such intent is demonstrated with reasonable certainty by the terms of s 324(1)(d) or the context in which that provision is to be construed.

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The presumption against the alienation of vested property 264 The common law presumption against the alienation of vested proprietary rights was also relied upon by the AEU to support the conclusion that, in the absence of clear words, s 324(1)(d) should not be construed as providing a capacity for deductions to be retrospectively authorised. The nature of the presumption was expressed by Heydon J in ICM Agriculture Pty Ltd v The Commonwealth of Australia (2009) 240 CLR 140 at [175] as follows (citations omitted): There is a common law rule of statutory interpretation requiring that "clear and unambiguous words be used before there will be imputed to the legislature an intent to expropriate or extinguish valuable rights relating to property without fair compensation." … 265 The right to receive monies deducted without authority will have vested with an employee as at the time that those monies were payable. In that situation, the employee would have a legal claim to the recovery of the underpayment. That claim may be statutory, contractual or both. Section 323(1) operates upon an existing obligation on the employer to pay. But it also imposes a further statutory obligation to pay in full, in money and at least monthly (except as provided for by s 324): Association of Professional Engineers, Scientist and Managers, Australia v Wollongong Coal Limited [2014] FCA 878 at [28]-[33] (Buchanan J); and Murrihy v Betezy.com.au Pty Ltd (2013) 238 IR 307 at [142] (Jessup J). 266 Section 324(1) permits deductions to be made from amounts payable, and its force must extend to amounts payable by an employer under whatever primary obligation the employer has to pay an employee in relation to the performance of work. As I have stated, that obligation may be statutory or it may be contractual. At least in so far as the exceptions provided for by s 324(1) are capable of permitting the affecting of contractual obligations, they are clearly capable of permitting the alienating of vested proprietary rights. Whether a statutory right to recover an underpayment is a proprietary right is a more difficult question and turns, in part, upon considerations such as whether the statute contemplates that the right is assignable: see, e.g., National Provincial Bank Ltd v Ainsworth [1965] AC 1175 at 1247-48 (Lord Wilberforce), The Queen v Toohey; Ex parte Meneling Station Proprietary Limited (1983) 158 CLR 327 at 342-3 (Mason J); Australian Capital Television Pty Limited v The Commonwealth of Australia (1992) 177 CLR 106 at 165-6 (Brennan J). 267 However, the full extent to which s 324(1) permits alienation of property rights need not be further explored. Given that the provision (and in particular paragraph (d) thereof) is capable of alienating at least some property rights, the presumption against the alienation of vested proprietary rights has application. 268 However, that conclusion is of no utility to the AEU because the presumption is rebutted by the terms of s 324(1). In particular, paragraphs s 324(1)(b), (c) and (d), clearly contemplate an interference with vested contractual rights of an employee to be paid in full. Those paragraphs would be largely ineffectual unless it was intended that, by an enterprise bargaining agreement, modern award, FWC order or a law of the Commonwealth, a State or Territory, a contractual obligation to pay in full would be rendered unenforceable by the statutory force of s 324(1).

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Is invalidity severable? 271 My finding that s 324(1)(d) does not extend to deductions which are retrospectively authorised by a State law, as well as my finding that the NTPP deductions were not salary packaging arrangements authorised by the Agreements, means (for the reasons earlier given, but subject to what follows), that there is an inconsistency between the Ministerial Order and the Agreements and thus an inconsistency between the Ministerial Order and s 2.4.2 of the ETR Act, in so far as the Ministerial Order provides for retrospectively-authorised deductions. To that extent, there has been an invalid exercise of the order-making power conferred by s 5.2.12 of the ETR Act. 272 The qualification I make to that conclusion is this: it may be the case that the retrospectively-authorised deductions should be regarded as ineffective because the terms of a Ministerial Order must be read down to deny them any operative effect, rather than ineffective because of the invalid exercise of the order-making power. Although not expressly stated, it is clear from the material referred to at [296]-[298] that the Ministerial Order was directed to taking up the facility provided by s 324(1)(d) for a State law to authorise deductions. If that was the only purpose of the Ministerial Order, that is, if it was intended to have no life beyond the operative effect which s 324(1)(d) gave to the authorisations made, it might be inferred that the Ministerial Order was made with the intention that the authorisations there made would only operate to the extent that s 324(1)(d) gave those authorisations any effect. If that was the case, then the proper course would be to read down the Ministerial Order as operative only in relation to those authorisations given effect to by s 324(1)(d). Then, there would be no inconsistency as between the Ministerial Order and the Agreements and no invalid exercise of the order-making power. 273 Whether the authorities retrospectively made are inoperative because the making of the Ministerial Order involved the invalid exercise of the order-making power, or whether they are inoperative because the Ministerial Order must be read down, the issue which arises is essentially this: was it intended that the Ministerial Order be operative at all if it was not operative in part? If the Ministerial Order is invalid, that question is to be dealt with by reference to the statutory principles dealing with severance. If the Ministerial Order is to be read down, then common law severance principles would be applicable (at least by analogy). 274 For the reasons that follow, I have rejected the AEU's contention that the Ministerial Order cannot be given partial effect. My analysis proceeds on the basis that the Ministerial Order involves an invalid exercise of the order-making power, and that statutory principles dealing with severance are applicable. Common law principles dealing with severance impose "more stringent requirements" (Harrington v Lowe (1996) 190 CLR 311 at 328). It follows that I would have reached the same conclusion if I had determined the issue on the basis that the Ministerial Order must be read down. 275 The relevant question, then, is whether the Ministerial Order is a valid State law, despite the fact that its making involved an invalid exercise of the order-making power conferred by the ETR Act. The starting point for determining whether the Ministerial Order is a valid State law is s 22(1) of the Interpretation of Legislation Act 1984 (Vic). It is accepted that the Ministerial Order is a subordinate instrument. Section 22(1) provides: (1) Every subordinate instrument shall be construed as operating to the full extent of, but so as not to exceed - (a) the legislative power of the State of Victoria; or (b) the power to make the subordinate instrument conferred by the Act under or pursuant to which it is made - to the intent that where a provision of a subordinate instrument, or the application of any such provision to any person, subject-matter or circumstance, would, but for this section, have been construed as being in excess of that power, it shall nevertheless be a valid provision to the extent to which it is not in excess of that power and the remainder of the subordinate instrument and the application of that provision to other persons, subject-matters or circumstances shall not be affected. 276 Section 22(1) reflects the former s 46 of the Acts Interpretation Act 1901 (Cth) (AI Act), which the High Court in Harrington (at 323) referred to as "a reading down provision in relation to rules, regulations and by-laws, which corresponds to the provision, as regard statutes, made in s 15A of the [AI Act]". The effect of a provision like s 22(1) was summarised by Dixon J in Bank of New South Wales v Commonwealth (1948) 76 CLR 1 at 371: The effect of such clauses is to reverse the presumption that a statute is to operate as a whole, so that the intention of the legislature is to be taken prima facie to be that the enactment should be divisible and that any parts found constitutionally unobjectionable should be carried into effect independently of those which fail. To displace the application of this new presumption to any given situation arising under the statute by reason of the invalidation of part, it must sufficiently appear that the invalid provision forms part of an inseparable context. 277 Despite the broad terms of statutory provisions like s 22(1), it is well recognised that the separate and distinct functions of the legislatures and the courts limits the extent to which a court can redraft a statutory provision. In Sportodds Systems Pty Ltd v New South Wales (2003) 133 FCR 63, Branson, Hely and Selway JJ at [19] said this: Put simply the court cannot "construe" the relevant provision, whether by reading down or by expunging invalid provisions, where the effect of doing so is to create a provision which the Parliament did not intend. For this purpose various indicia are referred to such as the extent of the proposed change; the indicia within the statute itself; the legislative purpose and so on. But the essential issue remains - is the court carrying out the permissible function of the interpretation of the statute (read in the context of the relevant Acts Interpretation Act provision), or is the court itself making legislation? 278 At [20]-[21], their Honours noted that some of the indicia they identified had some similarity to those applicable under the common law test for severance, but that the limitations inherent in the statutory provisions are different from those under the common law. The statutory provisions may require courts to construe words and provisions in quite varied ways in order to give effect to the instruction made by statute. Significant changes to the "apparently plain meaning of the text" can be made "when it is clear that the relevant Parliament intended that that should occur". That, their Honours said, was "consistent with the plain words of s 31 of the Interpretation Act [1987 (NSW)] and the equivalent provisions in other jurisdictions". 279 The authorities identify two important conditions to be met, if the Court is to permissibly carry out its interpretative function. Those two conditions were stated by Brennan J in Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 at 339 and were more recently restated by Kenny J in Commonwealth v Anti-Discrimination Tribunal (Tasmania) (2008) 169 FCR 85 at [252]: … In Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 at 339, Brennan J succinctly stated the law with respect to s 15A of the Acts Interpretation Act (Cth), when his Honour said that the provision could save a provision that was literally in excess of power if two conditions were met. The first was that "the law itself indicates a standard or test which may be applied for the purpose of limiting, and thereby preserving the validity of, the law": see Pidoto v Victoria (1943) 68 CLR 87 at 109 (Pidoto) per Latham CJ. The second was that the operation of the law upon the subjects within power was not changed by placing a limited construction upon the law: see Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468 at 493 per Barwick CJ. These propositions remain applicable: see APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322 at 371 per McHugh J, 447 per Kirby J; New South Wales v Commonwealth (2006) 229 CLR 1 at 196, 240-241 per Kirby J; Victoria v Commonwealth (1996) 187 CLR 416 at 502 per Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ; and compare Chu Kheng Lim 176 CLR at 37 per Brennan, Deane and Dawson JJ, 51 per Toohey J, 54 per Gaudron J, 58 per McHugh J; Re Tracey; Ex parte Ryan (1989) 166 CLR 518 at 547-548 per Mason CJ, Wilson and Dawson JJ, 577 per Brennan and Toohey JJ, 589 per Deane J, 604 per Gaudron J; Bank of New South Wales v Commonwealth (1948) 76 CLR 1 at 371 per Dixon J. 280 Although the submissions of the parties were not made by reference to whether or not those two conditions were here satisfied, the difference between the AEU and DEECD was, in essence, a dispute about whether the second condition was met. The AEU's position was to the effect that the Ministerial Order was intended to apply equally to all deductions, both retrospectively or prospectively authorised. The AEU contended that to give the Ministerial Order only prospective effect would have the unintended effect of treating different groups of teachers differently. Teachers who participated in the NTPP between 1 July 2009 and 18 December 2012 would be treated more favourably than those who joined the NTPP at a later time. 281 That contention should be rejected. To my mind, it makes the wrong comparison. What is to be assessed is whether the operation of the Ministerial Order upon the subject within power, in this case the prospectively-authorised deductions, is changed when the Ministerial Order is construed as only having application to that subject. On that comparison, there is no change to how the prospectively-authorised deductions operate under the Ministerial Order. The effect is precisely the same as that which would have prevailed if the Ministerial Order had operated upon both retrospectively and prospectively-authorised deductions. 282 There is then the question of whether the Ministerial Order indicates a standard or test which can be applied to carry into effect that part of it which is unobjectionable. 283 As is apparent from its terms, the subject matter of the Ministerial Order is the "amounts [which] are authorised to be deducted from and may lawfully be deducted from the salary of all persons employed in the Teaching Service under Part 2.4 of the [ETR Act]". The application of the Ministerial Order to that subject matter depends upon two conditions. The first is temporal. It is concerned with the period in which the deduction must fall i.e., "From 1 July 2009 and at all times after 1 July 2009". The second is that the teacher has agreed that the amount be deducted in accordance with a specified or specific kind of agreement, enumerated in paragraphs (a)-(e). The temporal condition provides, in the words of Latham CJ in Pidoto v Victoria (1943) 68 CLR 87 at 110, a "guide to legislative intention" as to how "it might be possible to reconstruct the legislation upon a valid basis by limiting it to a narrower class". In this case, and by reference to its temporal condition, the Ministerial Order can be reconstructed to operate with the same meaning and effect but with respect to a temporal range consistent with its validity. 284 For those reasons, I reject the AEU's contention that the Ministerial Order cannot be given partial effect.

[26]

Was the Ministerial Order inoperative by reason of the effect of s 326(1)? 285 Whether the Ministerial Order is operative, in relation to an agreed deduction made pursuant to a term which s 326(1) has rendered to be of "no effect", is a further issue in dispute. The AEU contended that the Ministerial Order's operation is dependent upon the existence of agreed deductions and no agreed deductions existed where: (i) the term in the Recipient Agreements by which deductions were agreed was a term of a contract of employment; and (ii) the term was rendered of no effect by s 326(1), because the deduction was for the benefit of DEECD and unreasonable in the circumstances. 286 I have accepted (i) for the reasons given in the next section dealing with common question 6 and, in relation to the Group 11 teachers, I have accepted (ii) for reasons already given. DEECD had two answers to the AEU's contention that the Ministerial Order was inoperative by reason of the effect of s 326(1). 287 The first answer raises common question 5. That question is: 5. Does s 326 of the FW Act have any application where a deduction from an amount payable to an employee is authorised by a law falling within the scope of s 324(1)(d) of the FW Act? 288 DEECD contended that where a deduction is authorised by a State law and is given effect by s 324(1)(d), s 326(1) does not apply. It noted that s 326(1) referred specifically and exclusively to terms of awards, enterprise agreements and contracts of employment, making no reference to legislative provisions. On that basis, DEECD contended that if Parliament had intended s 326(1) to apply to all potential circumstances in which deductions were authorised, including by legislative provisions, it would have expressly said so. For that reason, DEECD submitted that question 5 should be answered "No". 289 The AEU's position was that s 326(1) can have operation in relation to a s 324(1)(d), authorisation and does so in this case. It contended that authorisation under s 324(1)(d) and "effect" under s 326(1) are separate statutory criteria. If an authorisation by a State law made under s 324(1)(d) was reliant for its operation upon a term of a contract of employment, enterprise agreement or modern award, then s 326(1) could have application on the question of whether the term had any effect and thus whether the State law had operative effect. 290 I accept the AEU's construction. Section 326(1) does not directly require a provision of a State law that authorises a deduction to meet the criteria there specified. But that does not mean that it was intended that s 326(1) could never impact upon a s 324(1)(d) authorisation. Whether it does so impact depends upon the State law. A State law that authorises a deduction under s 324(1)(d) need not make the operation of the law dependent upon the existence of a term of any modern award, enterprise agreement or contract of employment which permits a deduction. But if it does (and that is a matter for the State law), I can see no reason why s 326(1) can have no application. Indeed, it would be curious if it was intended that a term permitting a deduction which is rendered of "no effect" by s 326(1) could nevertheless be relied upon by a State law as the foundation for a s 324(1)(d) authorisation. That is particularly so when consideration is given to what "no effect" means. 291 To my mind, the phrase "no effect" is emphatic. To the extent that s 326(1) renders a term to be of "no effect", the term is a nullity. It is a term the effect of which has been annulled. It is lifeless to the extent to which it purports to permit or require that which s 326(1) does not countenance: c.f. the observations of Isaacs and Gavan Duffy JJ at 670-671 of Roach v Bickle (1915) 20 CLR 663 in relation to the phrase "shall not be effected, or if effected shall not be valid". 292 For those reasons and those that follow, the answer to question 5 is "Yes, in this case." 293 The second answer given by DEECD directly addressed the AEU's contention that the Ministerial Order, in terms, only operated where an agreed deduction existed. DEECD contended that the terms of the Ministerial Order only referred to the agreement of teachers to the making of deductions to identify the amounts which the Ministerial Order authorised be deducted. In other words, the purpose of those references was merely descriptive and not substantive. 294 Whether the references to agreed deductions in the text of the Ministerial Order had a substantive purpose, as opposed to merely a descriptive purpose, requires a consideration of the text in light of the underlying purpose or object of the Ministerial Order. 295 As to the text, it is necessary to observe that the Ministerial Order commences with the decree that "the following amounts are authorised to be deducted from and may lawfully be deducted from the salary of all persons employed [as teachers]: …" (emphasis added). The "amounts" are then enumerated in subparagraphs (a) to (e). Each subparagraph commenced with "any amount that a person employed in the Teaching Service has agreed will be deducted from the [or in (d) and (e), "that"] person's salary in accordance with …" (emphasis added). At that point, in subparagraphs (a), (b) and (c) an agreement is described by name being one or another iteration of what I have called the Recipient Agreement. At the same point in subparagraph (d) the text foreshadows an agreement made under any successor program to the NTPP. Subparagraph (e) takes a catch-all approach and relates to "any agreement entered into by that person in relation to the provision of information and communications technology to persons employed in the Teaching Service". It is evident that the Ministerial Order was framed to encompass deductions that a teacher had agreed would be deducted in accordance with agreements already in existence and also deductions that will be agreed to in accordance with agreements yet to be made. 296 As to the purpose of the Ministerial Order, I infer from the material to which I am about to refer that the Ministerial Order was made because a challenge was raised about the validity of NTPP deductions by a precursor proceeding to this proceeding: Kumar v State of Victoria (VID658 of 2012). The Kumar proceeding was instituted on 11 September 2012. A Statement of Claim was filed that day. DEECD's Defence was filed on 31 October 2012 and a Reply was filed on 14 November 2012. At the time the Ministerial Order was made (19 December 2012) there were no other pleadings in the Kumar proceeding. This proceeding had not commenced. It was later brought in respect of the claims of all teachers (including Mr Kumar). It was consolidated with, but effectively subsumed, the Kumar proceeding, which was discontinued on 13 September 2013. To the extent that the pleadings in the Kumar proceeding throw light upon the nature of the challenge raised against the legality of the NTPP deductions, and thus what it was that the Ministerial Order was responsive to, those pleadings are relevant and will be referred to later. 297 As to purpose, I have also had regard to extrinsic material. On the same day as the Ministerial Order was made, the Minister who made that Order executed a "Certificate of Exemption under section 12F" (Certificate). On 22 October 2015, I invited submissions from the parties as to the import (if any) of the Certificate. DEECD submitted that the Certificate was "extrinsic material" within the meaning of s 35 of the Interpretation of Legislation Act 1984 (Vic) and that it was therefore permissible to take it into account. I agree. DEECD went on to make substantive submissions as to the import of the Certificate, the substance of which is dealt with in paragraphs that follow. On the other hand, while the AEU did not (as it seems to me) go so far as to submit that the Certificate could not be taken into account, it did submit (in essence) that the Certificate shed no light on any relevant issue. As will become apparent below, I take a different view. 298 The Certificate provided the Minister's reasons for forming the opinion that the Ministerial Order was exempted from any requirement to prepare a Regulatory Impact Statement under s 12E of the Subordinate Legislation Act 1994 (Vic). Those reasons were as follows (emphasis added): The reasons for forming this opinion are as follows: (a) the Order No. 632 ("Order"): (i) authorises certain deductions from the salaries of persons employed in the Teaching Service under Part 2.4 of the Education and Training Reform Act 2006 ("teaching service employees"); (ii) applies only to teaching service employees who have agreed to participate in programs for the provision of information and communication technology and have accordingly entered into an agreement to have agreed amounts deducted from their pre-tax salary, reflecting a portion of the cost to them of the provision of information and communication technology (of which they may make personal use) ("Notebook Agreements"); and (iii) operates and takes effect from and inclusive of 1 July 2009, the date the relevant provisions of the Fair Work Act 2009 (Cth) commenced; (b) prior to 1 July 2009, there was no question as to whether the deductions agreed to by teaching service employees and made pursuant to the Notebook Agreements were lawful; (c) as a result of the commencement of the Fair Work Act 2009 (Cth), it is no longer clear whether all deductions made in respect of teaching service employees who have entered into the Notebook Agreements are lawful; (d) the purpose of the Order is to restore the legal position as it was immediately prior to the commencement of the Fair Work Act 2009 (Cth) in a manner permitted by that Act and the Education and Training Reform Act 2006; (e) the Order does not impose a significant economic or social burden on a sector of the public because the Order does not change the regulatory situation in place immediately prior to the date from which the Order has effect; and (f) in the event that the Order is considered to have changed the prevailing regulatory situation, the Order does not impose a significant economic or social burden on a sector of the public because: (i) it is likely that not all Teachers and Principals are affected; (ii) it is likely that not all deductions of all the affected Teachers and Principals are affected; and (iii) the quantum of affected deductions is likely to be small in each case. Accordingly, a Regulatory Impact Statement is not required for this legislative instrument. 299 The resolution of this issue, like many that have preceded it, is not without difficulty. There are arguments both ways, but, on balance, I have reached a clear view. 300 The structure of the text of the Ministerial Order supports the contention that references later made, including as to agreed deductions, were intended to have a descriptive purpose. The text commences with its subject matter, the "amounts … authorised to be deducted", and then enumerates various classes of "amounts". But the structure utilised does not foreclose the force of the countervailing considerations. 301 First, the references made to agreed deductions were given a prominence suggestive of a substantive purpose, in circumstances where those references were unnecessary to achieve the descriptive purpose. For instance, the Ministerial Order could have achieved the descriptive purpose by authorising "any amount that has been or is deducted from a teacher's salary in relation to the teacher's participation in the NTPP or any successor program". The emphasis placed by the text upon the "amount" being a deduction "agreed" to by the teacher "in accordance with" a particular "agreement" suggests that the existence of the teacher's consent was of importance, as a foundational fact, to the authorisation made by the Ministerial Order. In particular, the words "has agreed will be deducted" need to be given some work to do. They support the existence of a substantive purpose. 302 If the words had a substantive purpose, that purpose was to impose a condition which, whilst self-imposed, may well have been regarded as appropriate by the Minister. A deduction made by an employer, part of the benefit of which flows to the employer, would be highly contentious if done without the employee's consent. That would be so even where the deduction was permitted by law. There would be good reason, including the maintenance of good relations with employees, for employee consent to condition such an authorisation. In the historical context in which the Ministerial Order was made, it would have perceived that employee consent had already been obtained and could be expected to be obtained in relation to future deductions. From the Minister's perspective, employee consent would have been seen as a reflection of the justifiable status quo. 303 There is support in the reasons given in the Certificate for the proposition that the agreement of participating teachers was to remain the foundation for the deductions made or to be made in relation to the NTPP or any successor program. At (a)(ii) of the Certificate, the Minister stated that the authorisation of deductions "applies only to teaching service employees who have agreed to participate in programs … and have accordingly entered into an agreement to have agreed amounts deducted from their pre-tax salary …". Having stated that there had been no question prior to 1 July 2009 that "deductions agreed to … were lawful", at (d), the Minister identified the purpose of the Ministerial Order as being to restore the prior legal position, and at (e) as involving no change to the regulatory situation. 304 Those observations are consistent with an intent that the authorised deductions contemplated by the Ministerial Order were deductions that had been or would be agreed to by teachers. There is nothing in the extrinsic material to suggest that the Minister intended to impose (including retrospectively) a regime for deductions made in the absence of effective assent from the employee making the contribution. To the contrary, the extrinsic material suggests that what was sought to be done was to put the existing consensual regime beyond the challenge to it which was then apprehended. 305 It is notable, in that respect, that the challenge that had been raised in the Kumar proceeding at the time the Ministerial Order was made did not include any challenge to the validity of the agreements made with teachers. There was, at that time, no reference to s 326(1) in the pleadings. A s 326 challenge post-dated the Ministerial Order and was first raised in an Amended Reply in the Kumar proceeding, which followed an Amended Defence that pleaded the Ministerial Order as an answer to Mr Kumar's claim. Further, I would infer that, if it was the case that, at the time the Ministerial Order was made, the Minister was aware of a potential challenge to the validity of the agreed deductions with teachers and was seeking to overcome that challenge, the Ministerial Order would have been differently drawn. It is difficult to conceive that a parliamentary draftsperson conscious of the actuality or possibility of such a challenge and armed with instructions to rectify the position so as to remove any doubt, would have chosen the words used in the Ministerial Order. In those circumstances, if any reference at all had been made to agreements with teachers, the reference would have made it abundantly clear that the deductions authorised by the Ministerial Order were authorised irrespective of whether any agreement existed and whether or not any agreement made had any legal effect. 306 Second, the proposition that the enumeration in (a) to (e) was wholly intended as a cross-referencing exercise to identify the "amounts", is doubtful in circumstances where the cross-referencing includes references to agreements not yet made. It is understandable that past facts may be adopted as the basis for a cross-referencing exercise, but less so where the exercise involves both past and future facts. 307 Third, in the context already discussed, I would not read the references made to the agreement of teachers as a reference merely to a document which embodied the teacher's consent, whether effective as an agreement or not. That is not the likely intended meaning of "agreed … in accordance with [an agreement]" in a provision that identifies (for the most part) a version of the Recipient Agreement, which is, as earlier stated, formal, comprehensive and readily recognisable as an agreement intended to be legally binding. It is particularly unlikely, even if it was the case that the Minister had apprehended that a challenge had been raised as to the validity of agreements made with teachers, that references to future agreements were intended to include any purported future agreements. I would not construe references to "agreed" or "agreement" as intended to encompass purported agreements unless the context, including the Minister's purpose, made such an intention clear. To my mind, the context points to the contrary conclusion. 308 For those reasons, I accept the AEU's submission that the Ministerial Order is inoperative in relation to any deduction made pursuant to a term of a contract of employment that was rendered of no effect by s 326(1). That conclusion has application to the prospective authorisations made by the Ministerial Order and, if, contrary to my earlier conclusion, the retrospective authorisations are given effect by s 324(1)(d), that conclusion would equally apply to those authorisations.

[27]

Do the Recipient Agreements contain terms forming part of teachers' contracts of employment? 309 In the last section, I indicated that common question 6 is to be answered in the affirmative. What follows are my reasons for that conclusion. 310 Common question 6 is as follows: 6. Is the recipient agreement a term of the contract of employment of participating teachers within the meaning of s 326(1) of the FW Act? 311 By the operation of s 326(1) a term of a contract of employment that permits or has the effect of permitting the employer to make a deduction from the salary of the employee may be rendered of no effect. It is not in contest that the terms of the Recipient Agreement include terms that permit or have the effect of permitting DEECD to make a deduction from salary. Those terms are set out at [72] above. Despite the wording of the question, what is in contest is whether those terms are terms of the teachers' contracts of employment. 312 There is no dispute between the parties as to the existence of an employment relationship and an employment contract between the Secretary of DEECD (on behalf of the Crown) and teachers employed in Victorian government schools. DEECD's submission expressly acknowledged the correctness of the AEU's submission to that effect. It did so because, relevantly, the ETR Act provides: 2.4.2 Application of Federal awards and agreements Employment in the teaching service under this Part is subject to any relevant award or agreement under, or continued in force by, a law of the Commonwealth. 2.4.3 Employment of teachers, principals and other staff (1) For the purposes of this Act, there shall be employed by the Secretary on behalf of the Crown in the teaching service - (a) teachers; and (b) principals and assistant principals; and (ba) executives to perform duties in or outside a school; and (c) persons engaged or employed as teacher aides, assistant teachers or to perform professional, administrative, clerical or computing or technical duties in schools; and (d) any person in any other category of staff declared by Ministerial Order to be staff in schools who may be employed by the Secretary; and (e) any other persons who are necessary for the purposes of this Act. (2) The Secretary, on behalf of the Crown, has all the rights, powers, authorities and duties of an employer in respect of employees in the teaching service. 313 As DEECD also submitted, pursuant to s 2.4.14 of the ETR Act, the employment of a member of the "Principal Class" must be governed by a contract of employment between the member and the Secretary. "Contract of employment" in that respect is defined by s 2.4.12 as meaning "a contract of employment … between a member of the Principal Class and the Secretary." 314 The AEU's primary contention was that the Recipient Agreement forms part of the contract of employment of each participating teacher. On that contention, the Recipient Agreement was characterised as an agreement to vary, and add additional terms to, the existing contract of employment of the teacher. Rejecting that characterisation, DEECD contended that the Recipient Agreement was an agreement that provided for access to and use of a notebook computer package in exchange for a financial contribution to its cost. Whilst DEECD accepted that the Recipient Agreement was made by an employee and an employer and related to their employment relationship, it characterised the Recipient Agreement as a side agreement, which did not form part of the teacher's contract of employment. It contended that the Recipient Agreement did not purport to vary any underlying contractual obligation to pay salary nor effect any variation to the contract of employment. 315 DEECD contended that the Recipient Agreement did not provide for the exchange of work for remuneration or the mutual obligations required for a contract of employment. It relied upon the following observations of Stephenson LJ in Nethermere (St Neots) Ltd v Gardiner [1984] ICR 612 at 623: The obligation required of an employee was concisely stated by Stable J. in a sentence in Chadwick v. Pioneer Private Telephone Co. Ltd. [1941] 1 All E.R. 522, 523D: "A contract of service implies an obligation to serve, and it comprises some degree of control by the master." That was expanded by MacKenna J. in Ready Mixed Concrete (South East) Ltd. v. Minister of Pensions and National Insurance [1968] 2 Q.B. 497, 515: "A contract of service exists if these three conditions are fulfilled. (i) The servant agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master. (ii) He agrees, expressly or impliedly, that in the performance of that service he will be subject to the other's control in a sufficient degree to make that other master. (iii) The other provisions of the contract are consistent with its being a contract of service." Of (iii) MacKenna J. proceeded to give some valuable examples, none on all fours with this case. I do not quote what he says of (i) and (ii) except as to mutual obligations: "There must be a wage or other remuneration. Otherwise there will be no consideration, and without consideration no contract of any kind. The servant must be obliged to provide his own work and skill." There must, in my judgment, be an irreducible minimum of obligation on each side to create a contract of service. I doubt if it can be reduced any lower than in the sentences I have just quoted … " 316 The observations DEECD relied upon were made in the course of an appeal from a determination as to whether a relationship of employer and employee existed between a person providing personal services and the recipient of those services. They have been adopted (with some modification) in Australia but for the same purpose - the issue being whether the person performing work is an employee or, alternatively, an independent contractor: Forstaff Pty Ltd v Chief Commissioner of State Revenue (2004) 144 IR 1 at [90]-[91] (McDougall J) and see further Wilton v Coal & Allied Operations Pty Ltd (2007) 161 FCR 300 at [110], [114]-[115], [128] and [184] (Conti J). They are observations about the nature of the essential obligations necessary to establish a relationship of employment, as manifested by the agreement that has created that relationship. Those observations were used by DEECD to counter a contention put by the AEU, but not really pressed, that the Recipient Agreement was of itself a contract of employment. 317 The issue pressed by the AEU was that the Recipient Agreement formed part of the contract of employment of each participating teacher. I will commence my consideration with some general observations. 318 A contract of employment will commonly deal with at least these three broad subject matters: the act of employing the employee, the terms upon which the employee is employed, and the termination of the employment. Because one of the meanings of the word "employment" is the act of employing, the descriptor, "the contract of employment," is often used to refer to the contract by which the employment was created. Yet there are many agreements made in the ordinary course of an employment that are distinct in time, place and subject from the agreement made to create the employment. Those agreements may be oral or in writing and are sometimes evidenced by conduct. Because of the ongoing nature of the relationship and the dynamic needs of both employer and employee, it is common for matters relating to the employment relationship but not contemplated at the time the employment was created to be addressed in the course of the employment by further agreements. Other than where a new or further employment is created, each such agreement will ordinarily not be regarded as another freestanding contract. Despite the making of multiple agreements in the course of an employment, an employer and an employee will ordinarily regard themselves as being subject to only one contract, and, when they speak of it, they will ordinarily speak of it as their contract of employment. In terms of legal analysis, that characterisation will often be correct and reflects an intent that subsequent agreements add to or otherwise vary the terms of the contract that created the employment. 319 Whether or not the Recipient Agreement varied or added to a teacher's underlying contract of employment, and thus became part of it, is to be determined by the intention of the parties to the Recipient Agreement. It is open to the parties to a contract to vary it by a further agreement. The agreement to vary may be express or implied from conduct: Commonwealth of Australia v Crothall Hospital Services (Aust) Ltd (1981) 36 ALR 567 at 576-577 (Ellicott J, with whom Blackburn and Deane JJ agreed on that aspect of the case). A contract may be varied by way of partial rescission without the substitution of new terms, by way of partial rescission with the substitution of new terms, or by way of the addition of new terms without any partial rescission at all. But whether or how parties by a subsequent agreement have varied their earlier agreement will always be determined by reference to the intention of the parties: Tallerman and Company Proprietary Limited v Nathan's Merchandise (Victoria) Proprietary Limited (1957) 98 CLR 93 at 144 (Taylor J). 320 The AEU contended that the Recipient Agreement was a part of the contract of employment of participating teachers and therefore subject to s 326, because: (i) it is contractual in nature; (ii) it is made between an employer and an employee; (iii) it relates to the performance of work; (iv) it concerns the salary paid by the employer and received by the employee; (v) it contains specific instructions to the employee about the use of a work tool in the performance of duties; (vi) provision of the laptop computer to the teacher under the Recipient Agreement is contingent on the teacher's continued employment and attendance at work; and (vii) breach of the terms of the Recipient Agreement, and the policies referred to in it, could result in disciplinary action up to and including dismissal from the teaching service. 321 The fact that the Recipient Agreement is made between an employer and an employee, who have an underlying agreement made between them, is an essential starting point. That the substantive provisions of the subsequent agreement deal with employment-related matters, as I accept, and as DEECD largely accepted, the Recipient Agreement did, tends to support the existence of the requisite intent. I recognise, however, that despite commonality of subject matter, there may be reasons why parties may intend that their subsequent agreement should stand alone. However, no such reason was identified and none is apparent from the nature of the transaction dealt with by the Recipient Agreement. 322 That a subsequent agreement was intended to form part of an earlier agreement may be demonstrated by the extent to which the terms of the later agreement engage with the terms of the earlier agreement. For instance, if the later agreement added to or varied terms specifically dealt with by the earlier agreement, the extent of interaction between the two agreements may well suggest that one was intended to form part of the other. 323 DEECD asserted that, in the main, the terms and conditions of employment of a teacher are dealt with outside of the teacher's contract of employment and are either statutory or regulated by the relevant industrial instrument. Its submission that the teachers' contracts have "few express terms" was accepted by the AEU. If there are few terms in the underlying contract, the extent of the likely interaction may well be limited. But the significance of any interaction for the question of intent can also be determined by the significance of the terms in relation to which there is an interaction. 324 It does not appear to be the case that teachers are employed on a standard-term contract. The evidence before me about the contracts of participating teachers was very limited and not particularly enlightening. The only findings I am able to make about the terms of those contracts are that they are likely to be limited to a few express terms and that, expressly or impliedly, they will at least provide for a salary to be paid and for the teacher to provide his or her service. I say that because inherent in the concession made by DEECD that a contract of employment exists for each teacher is the implied concession (made consistently with DEECD's submission about the law) that, as "an irreducible minimum", those contracts provide for a salary in exchange for service. 325 That being so, it is then relevant to consider the extent to which the terms of the Recipient Agreement deal with those two terms of the teacher's contract of employment. As to service, or the performance of work, the terms of the Recipient Agreement specify how some of the teacher's work is to be performed and impose additional obligations for work to be performed. Under the Recipient Agreement, the teacher agreed to use the Equipment as a work tool and for self-education purposes in accordance with the objectives of the NTPP. As earlier outlined, the purpose of that requirement was to integrate the use of learning technologies into the classroom and to provide teachers with a tool for professional planning, classroom practice, assessment and reporting. By the commitment given to professional development in clause 2.2(c), the teacher also undertook to use learning technologies in the school and to use the Equipment as a tool in curriculum planning, classroom practice, assessment and reporting. There was a further commitment made to undertake at least 40 hours of professional development in learning technologies as part of the teacher's professional development plan. 326 As to salary, the Recipient Agreement contained an agreement that the teacher's salary be reduced by the amount of the deduction. 327 There are two other matters upon which the AEU relied. Neither has been shown to be concerned with a subject directly dealt with by teachers' contracts, but both are relevant to the degree of connection that the Recipient Agreement has with teachers' employment. The Recipient Agreement is contingent upon teachers' continued employment and attendance at work. Further, a breach of the Acceptable Use Policy, which the Recipient Agreement incorporates, could result in disciplinary action against teachers. 328 In assessing the presumed intent of the parties, it is also relevant to look at what else the Recipient Agreement dealt with. Those matters can be placed in two categories. The first concerns obligations imposed upon the teacher to care for and keep the laptop safe and secure, and addresses damage to the laptop and its replacement. The second category includes what I would broadly describe as a range of formalities, including these: those that expressly confer a licence or, in later agreements, delimit the teacher's interest in the laptops; those that place restrictions and limitations upon the Recipient's interest; those that deal with notice and other processes; and, those that guard against the waiver of DEECD's rights and preclude any proprietary interest being conferred upon the teacher. 329 The essential subject matter dealt with by the Recipient Agreement is the use, by way of a licence, of equipment provided by an employer to an employee for work purposes. Terms and conditions regulating use of employer-owned or employer-provided equipment are common features of contracts of employment. Although more likely to be done informally, the provision by an employer of equipment for use by an employee will usually involve the employee being conferred with a licence to use the equipment. Many of the terms and conditions associated with such a licence would be oral or implied, rather than formally set out in writing. To some extent, that will depend upon the nature of the equipment, its value, and perhaps the risks involved with its use. The extent of formality may also depend upon the size and sophistication of the employer. However, the manner in which an employee is obligated to use and care for employer equipment provided to perform work would ordinarily be regarded as part of the terms and conditions of the employee's contract of employment because the terms and conditions of use pertain to the employment. 330 What makes the Recipient Agreement an unusual example of agreements made between employers and employees for the use of equipment is that the employees were required to contribute to the cost of providing the equipment. That required a level of formality that is not ordinarily found in an informal licence arrangement by which equipment is provided for an employee to use to perform work. The nature and extent of the employee's contribution needed to be spelt out. Formalities were required, including so as to ensure that employee contributions did not confer any proprietary interest in, or right to ownership of, the equipment. However, stripped of those features, there is not much left in the Recipient Agreement that would not, at least by way of implication, ordinarily apply to an informal licence regulating an employee's use of equipment provided by his or her employer. 331 So understood, the Recipient Agreement can be seen to be dealing with three important subject matters all of which are closely tied to the employment of the teacher. First, the use and care of an important work tool. Second, the performance of additional work. Third, the amount to be paid to the employee by the employer. Further, the operation of the Recipient Agreement is contingent upon the teacher's continued employment. 332 Arrangements for the use of employer-provided equipment are common features of an employment, and would ordinarily be recognised as dealing with terms and conditions pertaining to the employment. So too would arrangements for performance of additional work and changes to pay. The unusual features of the NTPP arrangement do not deny it its substance as an agreement dealing with conditions that pertain to the teacher's employment. Given that the Recipient Agreement addressed important terms and conditions pertaining to the employment and recognisable as such, the better view is that the parties to a Recipient Agreement intended that its terms form part of their contract of employment. 333 The answer to common question 6 is "Yes". 334 The answer to common question 4(a) is dependent upon the answers to common questions 5, 6, 7 and 8. The answers given to common questions 5, 6 and 7 are "Yes". Question 8 is not able to be answered as a common question, but in relation to the Group 11 claims, the answer to that question is "Yes". It follows that question 4(a) cannot be answered as a common question, but that in relation to the Group 11 claims the answer to question 4(a) is "No".

[28]

Did DEECD unreasonably require teachers to spend their salary? 335 The AEU relied on s 325 of the FW Act, in relation to which the following common questions arise: 9. Does the respondent, as employer, require participating teachers to spend any part of an amount payable to them in relation to the performance of work within the meaning of s 325(1) of the FW Act? 10. If so, is that requirement unreasonable in the circumstances, within the meaning of s 325(1) of the FW Act? 336 The genesis of s 325(1) can also be traced back to the Truck Acts. Section 2 of the 1831 Act declared any provision in a contract null and void if it directly or indirectly provided for the place where, or the manner in which, an employee's "wages due or to become due" were to be "laid out or expended". A similar, but arguably broader, provision was s 6 of the 1887 Act. 337 Those provisions were reflected in many of the State Acts in force at the time Division 2 was enacted. The provisions closest in form to s 325(1) were s 119 of the NSW Act and s 17B(2) of the WA Act. Those sections provided as follows: 119 Employer not to stipulate how remuneration to be spent An employer must not, directly or indirectly, impose as a condition of the employment of an employee any terms as to the place where or the manner in which or the person with whom any remuneration paid to the employee is to be spent. 17B Employee not to be compelled to accept other than money for pay etc. (2) An employee is not to be directly or indirectly compelled by an employer to spend any part of his or her pay in a particular way. 338 Provisions dealing with this subject have sometimes prohibited employer conduct requiring wages to be spent in a particular way and sometimes nullified contractual provisions with that consequence. Division 2 does both. Section 325 prohibits the conduct. Section 326(3) provides that a term of a modern award, an enterprise agreement or a contract of employment has no effect to the extent that the term either: (a) permits, or has the effect of permitting, an employer to make a requirement that would contravene s 325(1); or (b) directly or indirectly requires an employee to spend an amount, if the requirement would contravene s 325(1) if it had been made by an employer. 339 Under s 325(1) a requirement is only prohibited if the requirement is "unreasonable in the circumstances". That qualifier is new and not found in predecessor legislation. It does, however, reflect the approach taken to deductions by the combination of s 324(1) and s 326(1)(c)(ii). Indeed, there is a high degree of symmetry in the approach taken by Division 2 to deductions made from salary and an employer's requirement that salary be spent in a particular way. 340 If a requirement to spend is capable of consisting in the making of a deduction from salary, then an overlap exists. The same conduct can be the subject of a contravention of each of ss 323(1) and 325(1). That may suggest that s 325(1) may only have been intended to deal with the spending of wages which are to be, or have been, remitted to the employee, and not to deal with a deduction from salary (which, by its nature, is not remitted to the employee). There is, however, at least one indication to the contrary. The prohibition is directed at the spending of "any part of an amount payable to the employee". Further, the imposition of a requirement that salary be spent in a particular way may have been intended to warrant a sanction, even where the making of a deduction to effectuate that spending also results in a sanction. Neither party suggested that the terms of s 325(1) are to be construed as limited to amounts which have been or are to be remitted to the employee. Nevertheless, I prefer to have that issue addressed before I come to a conclusion that s 325(1) has been contravened. 341 Rather than seek submissions from the parties on that issue at this time, it is convenient that I proceed, without deciding, on the basis that "spend" includes wages expended by the employee by way of deduction from salary. That is so because, as will become apparent from what follows, if the issue was resolved in the AEU's favour, it would not result in any additional relief for the AEU to that which would otherwise flow from its s 323(1) case, apart from the imposition of penalties for contraventions of s 325(1). If, in the light of those circumstances, the AEU wishes to pursue its s 325(1) case, I will provide the parties with an opportunity to further address the Court on the outstanding issue before determining to finality common questions 9 and 10. 342 As to common question 9, there are two matters in dispute on the contentions of the parties. The first is whether or not I should be satisfied that DEECD directly or indirectly required teachers to spend parts of their salaries on the NTPP. It was not contested that the Recipient Agreements had the effect of requiring that spending. However, DEECD contended that it did not require teachers to enter into the Recipient Agreements. That was demonstrated, DEECD said, by the evidence that not all teachers had participated in the NTPP, and that teachers who had participated had not done so at all times throughout their employment. In substance, DEECD relied upon the voluntariness of a teacher's participation in the NTPP, as demonstrated by the teacher's assent to the Recipient Agreement. 343 The AEU contended that the NTPP involved DEECD requiring teachers to spend parts of the amounts payable to the teacher in relation to the performance of work on leasing an NTPP laptop. The AEU contended that, despite the assent given under the Recipient Agreements, teachers were nevertheless directly or indirectly required to spend parts of their salaries on NTPP laptop computers given that they were expected to perform their duties utilising a laptop. 344 The word "require" can mean, to ask or request that something be done by another. It usually connotes a demand, order or instruction. The manner in which it is used in s 325(1) connotes a demand. But, that the demand can be made "directly or indirectly" (considered in the context of the remedial nature of the provision), suggests a broad meaning was intended as to what may constitute a requirement made by an employer. The word "indirectly" is not used simply to encompass a demand conveyed through an agent of the employer. If that had been the intent, it would have been sufficient for the provision to have said "An employer must not require … ". 345 To my mind, that indication supports the conclusion that a requirement need not be express, and may be conveyed or imposed by circumstances created by the employer which exhort the employee to spend in a particular way. A requirement can be imposed by obligation or need. If the circumstances created by the employer can be said to have necessitated the spending by the employee, then the employer will have required it. Spending necessitated by employer pressure is capable of constituting a requirement. What constitutes sufficient pressure will be a question of fact and degree. 346 Given the underlying basis for the protection conferred by Division 2, to which I have earlier referred, to my mind, the degree of pressure necessary to constitute a requirement is to be assessed in a practical way including by reference to whether the spending is a result of the free and genuine choice of the employee. 347 For the reasons given above, other than for the exceptions, the Group 11 teachers had no practicable or feasible alternative to participating in the NTPP. The absence of such an alternative was a circumstance created by DEECD which, in the absence of a free and genuine choice, made it necessary for those teachers to spend parts of their salaries in acquiring the use of NTPP laptops. It follows that, in relation to those teachers and for the entirety of the claim period (other than for the exceptions), DEECD required the Group 11 teachers to spend parts of the amounts payable to them in relation to the performance of work. 348 Another basis for arriving at the same conclusion, but with application to all teachers, is that a requirement that teachers spend parts of their salaries on the NTPP was made by DEECD through the Recipient Agreements. To my mind, a requirement of the kind which would contravene s 325(1) may be embodied in a contract assented to by an employee. First, s 326(3)(a) expressly contemplates that a term of a contract may permit or have the effect of permitting "an employer to make a requirement that would contravene subsection 325(1)". Second, the purpose of s 326(3)(b) includes the invalidation of such a requirement when made and when embodied in a contract of employment. 349 There is no reason to suppose that, where employee assent is not necessarily exculpatory for s 326(3), it was intended that it would be for s 325(1). To my mind, it must have been intended that circumstances that made an employer's requirement of no effect for the purposes of s 326(3)(b) would be equally capable of establishing a contravention of s 325(1). That is particularly likely to be so given that s 326(3) adopts the s 325(1) criterion as its own. 350 DEECD's contention that a Recipient Agreement did not impose a requirement within the meaning of s 325(1) because it was the subject of employee assent would have the effect of making employee assent necessarily exculpatory for s 325(1) purposes, in circumstances where it would not necessarily be so for s 326(3) purposes. To my mind, that result was not intended. To the contrary, in relation to a requirement made by an employer, s 325(1) and s 326(3) were intended to operate in tandem and with consistency. 351 It may be thought, contrary to the conclusion I have just reached, that the purpose of the phrase "if it had been made by an employer" found in s 326(3)(b) was to draw a distinction between a direct employer requirement and one made through a contract. To my mind, the phrase has a different purpose. Its purpose was to incorporate by reference into s 326(3)(b) the test specified by s 325(1). If the operation of s 326(3)(b) had been limited to a term of a contract of employment, the phrase may have been superfluous and thus a search for a different purpose may have been warranted. However, s 326(3)(b) also operates in relation to a term of a modern award and an enterprise agreement. The use of a phrase was therefore essential if the s 325(1) criteria was to be comprehensively incorporated into s 326(3)(b) including in relation to those kinds of instruments. 352 Lastly, I should emphasise that the analysis just made only supports the conclusion that a requirement made by an employer of the kind contemplated by s 325(1) can be made through a contract assented to by the employee. That analysis is not intended to suggest that the assent of the employee is not relevant to whether the requirement made is in contravention of s 325(1) because the requirement is "unreasonable in the circumstances". 353 As to common question 10, both the AEU and DEECD accepted that the phrase "unreasonable in the circumstances" should be interpreted in the same way in s 325(1) as for s 326(1)(c)(ii). Neither party suggested any contextual reason to differentiate between the two uses, and each party relied upon the contentions it made in relation to s 326(1)(c)(ii). 354 Despite the content of s 325(2), there are no regulations that prescribe the circumstances in which a requirement referred to in s 325(1) is or is not reasonable. 355 The Explanatory Memorandum to the FW Bill provided the following examples of requirements which may be reasonable or unreasonable: 1292. For example, it is likely to be unreasonable for an employer to require an employee to donate a proportion of his or her pay to a charitable or religious organisation nominated by the employer. It may be reasonable, however, for an employer to require an employee who is a tradesperson to purchase tools required to perform his or her duties (unless the employer is otherwise required to provide those tools). 356 I agree with the approach taken by both the AEU and DEECD, that "unreasonable in the circumstances" was likely to have been intended to have the same meaning in s 325(1) as in s 326(1)(c)(ii). For the same reasons that I found the deductions were "unreasonable in the circumstances" when determining the s 326(1)(c)(ii) question, I would find that the requirements made by DEECD of the Group 11 teachers to spend parts of the amounts payable to them in relation to their performance of work were "unreasonable in the circumstances". In summary: (i) the spending required occurred in the absence of genuine choice; (ii) the rate of spending was set at an excessive rate of contribution; (iii) the deductions made were not principally for the benefit of the Group 11 teachers; and (iv) the value of the benefits actually received by them did not provide a countervailing justification. 357 For those reasons, if I were satisfied that "spend" includes wages expended by an employee by way of deduction from salary, I would find that DEECD contravened s 325(1) in relation to those NTPP deductions made during the claim period from the salaries of the Group 11 teachers.

[29]

The additional questions raised by the Court 358 After I first reserved my judgment, I raised with the parties a number of additional questions. Those questions were responded to by further written submissions. Amongst other questions, I raised the question of whether an authorised reduction in the salary of an employee could be a "deduction" within the meaning of s 324(1). 359 The issues arose because, as earlier noted, the Recipient Agreements "authorise the deduction of the Contribution Rate from the Recipient's pre-tax salary" (emphasis added). 360 The phrase "pre-tax salary" is sometimes used to describe an employee's full entitlement to salary prior to any deduction for tax. In other words, it is sometimes used to describe gross salary and not salary net of tax. But, as earlier stated, there is also another meaning for the phrase, which appears to me to be the relevant meaning when the phrase is used to identify the subject matter from which a deduction is to be made. To authorise a deduction from "pre-tax salary" connotes a deduction made prior to the amount being deducted becoming assessable income for tax purposes. In that sense, the deduction is "pre-tax" or from "pre-tax salary". 361 That is the sense in which DEECD contended, at the hearing, that the reference to deductions from "pre-tax salary" in the Recipient Agreements was to be understood. DEECD's position was that "pre-tax salary" meant what was set out in the report of Mr Ben Travers (an accountant called by DEECD), as follows: The NTPP deductions are made from the recipient's pre-tax earnings and will have the effect of reducing the recipient's assessable income. They do not represent a deduction from assessable income (or taxable income) as the teacher does not derive the income under section 6-5(4) of the ITAA 1997. 362 To my mind, an agreed diminishment of an amount that has not yet been derived as assessable income is really an agreement to reduce the amount to be derived by the employee as salary. To refer to a deduction from "pre-tax salary" is really to refer to a reduction in salary. 363 It was in that context that I raised with the parties the following questions: 1. Does a 'deduction' that has the effect of reducing an employee's remuneration have the effect of reducing the "amounts payable to the employee in relation to the performance of work" within the meaning of s 323(1) of the Fair Work Act 2009 (Cth) (FW Act)?; 2. If so, is such a reduction in the "amount payable to the employee": (a) capable of being a "deduction" "from an amount payable to the employee in accordance with subsection 323(1)" within the meaning of s 324(1) of the FW Act?; (b) capable of constituting the "spend[ing] of any part of an amount payable to the employee in relation to the performance of work" within the meaning of s 325 of the FW Act?; or (c) capable of being the subject of a term which permits or has the effect of permitting "an employer to deduct an amount from an amount that is payable to the employee in relation to the performance of work" within the meaning of s 326(1)(a)? 364 The answers to those questions are fundamental. If the NTPP deductions were not capable of being a "deduction" within the meaning of s 324(1), the exceptions there provided and upon which DEECD relied would be unavailable. Likewise, the proper construction of the phrase "amount payable to an employee" had the capacity to impact upon the AEU's reliance upon ss 323, 325 and s 326(1)(a). 365 Although their reasons differed, both the AEU and DEECD contended for the same result. Each answered "No" to question 1 and said that, consequently, questions 2(a), (b) and (c) did not arise. 366 Other than for question 2(b), I accept the conclusions contended for by the parties. However, I do so for different reasons. 367 The AEU's submission, in essence, was that the "amount payable to the employee" in s 323(1) is the amount of salary an employee was legally entitled to receive. The AEU contended that the answer to question 1 had to be "No" because, as the entitlements to salary were sourced in the Agreements, the NTPP deductions could not reduce the salary payable to the teacher. Plainly, that approach was unhelpful. It avoided the presumption that question 1 was based upon and begged the question. If the NTPP deductions were deductions within the meaning of s 324(1)(b) then the salary payable under the Agreements could be reduced. Or, if a reduction in salary changed the "amount payable to the employee" within the meaning of s 323(1), then s 324 might not have applied at all. 368 Consistently with the AEU's submission, DEECD also submitted that "amounts payable to the employee" in s 323(1) means the salary the employee is legally entitled to be paid (whether pursuant to a modern award, enterprise agreement or contract of employment). Also, consistently with the AEU's submission, DEECD contended that the manner in which that entitlement is treated for tax purposes was irrelevant to the proper construction of the phrase "amounts payable to the employee". In that respect, DEECD relevantly said that the question whether a reduction also reduces an employee's assessable income is a separate question, and that the proper tax treatment of deductions would not alter the position in relation to what constitutes "amounts payable to the employee" for the purposes of s 323(1). There is nothing controversial in any of that. 369 More pertinently, DEECD also submitted that a deduction that has the effect of reducing an employee's remuneration does not have the effect of reducing the "amounts payable to the employee in relation to the performance of work" within the meaning of s 323 of the FW Act. In support of that submission DEECD placed some reliance upon Note 1 to s 324(1), although it is not clear to me that the reliance DEECD placed is the same as the reliance I place on the Note. 370 In my view, a reduction in the salary to which an employee is legally entitled is capable of being a "deduction" for the purposes of s 324(1) where it is made in furtherance of a "salary sacrifice or other arrangement" of the kind specified by Note 1 to s 324(1), and does not alter the "amounts payable to the employee" within the meaning of s 323(1). The proper construction of s 323(1) and 324(1) which leads to that result is as follows. 371 First, the parenthetical phrase "except as provided by section 324" in section 323(1)(a) makes it clear that the expression "amounts payable to the employee" in the opening line of s 323(1) is referring to amounts unaffected by anything that is a permissible deduction under s 324(1). In other words, the "amount payable to the employee" is the employee's legal entitlement to salary prior to the impact or effect upon that entitlement of any permitted deduction. 372 Second, Note 1 to s 324(1) establishes an intent to encapsulate within the meaning of "deduction" as used in s 324(1): A deduction in accordance with a salary sacrifice or other arrangement, under which an employee chooses to: (a) forgo an amount payable to the employee in relation to the performance of work; but (b) receive some other form of benefit or remuneration; … made in accordance with [s 324(1)] and the other provisions of [Division 2]. 373 Therefore, the expression "amounts payable to the employee" in s 323(1) is referring to amounts unaffected by a "deduction" made in accordance with a "salary sacrifice or other arrangement" of the kind specified by Note 1, where it is made in accordance with s 324 and the other provisions of Division 2. 374 To my mind, a deduction "in accordance with a salary sacrifice … arrangement", to which Note 1 refers, was intended to include a "pre-tax" deduction, or, in other words, an agreed foregoing or sacrifice of, or reduction, in the amount of salary to be derived by the employee. I take that view because it must have been appreciated that salary sacrifice arrangements involving a reduction in salary are able to take advantage of favourable tax treatment available for such arrangements, and that such arrangements are commonly made. 375 The Australian Taxation Office has promulgated a taxation ruling, TR 2001/10, that deals with "effective" and "ineffective" salary sacrificing arrangements. The ATO defines a "salary sacrificing arrangement" as being "an arrangement under which an employee agrees to forego part of his or her total remuneration, that he or she would otherwise expect to receive as salary or wages," in return for the employer or someone associated with the employer providing benefits of a similar value. The distinction, according to the ATO, between an "effective" and an "ineffective" arrangement is that the former is an agreement to forego remuneration before the employee has earned the entitlement to receive the amount as salary or wages (i.e., a reduction in salary), whereas the latter is a direction that an entitlement to receive salary or wages that has been earned be provided in a form other than as salary or wages. 376 It is unlikely that "salary sacrifice … arrangements" in Note 1 to s 324(1) was intended to exclude tax-effective arrangements of the kind commonly made between an employer and its employee. 377 For those reasons, I find that a reduction in an employee's salary does not have the effect of reducing the "amounts payable to the employee in relation to the performance of work" within the meaning of s 323(1), where the reduction is a "deduction" within the meaning of s 324(1). That will be so where the reduction is made in accordance with a salary sacrifice or other arrangement of the kind specified by Note 1 to s 324. 378 If I had come to the view that the NTPP deductions had been made in accordance with s 324(1) and the other provisions of Division 2, I would have been satisfied that the NTPP deductions were deductions of the kind described by Note 1 to s 324(1) and thus deductions within the meaning of s 324(1). On the same analysis, the NTPP deductions were capable of being the subject of a term which permitted or had the effect of permitting "an employer to deduct an amount from an amount that is payable to [the] employee in relation to the performance of work" within the meaning of s 326(1)(a). 379 Finally, question 2(b) addresses what the expression "amount payable to the employee in relation to the performance of work" means in s 325(1). As the answer to that question may have a bearing upon the outstanding issue in relation to s 325(1), to which I have referred at [340]-[341], I will not further address it at this time.

[30]

Conclusion 380 I have answered the common questions, to the extent possible, as follows: Question 1: "No"; Question 2: Not necessary to answer, but if it was, "Yes"; Question 3: Not able to be answered as a common question, but in relation to the Group 11 claims, "Yes"; Question 4(a): Not able to be answered as a common question, but in relation to the Group 11 claims, "No"; Question 4(b): "No"; Question 5: "Yes, in this case"; Question 6: "Yes"; Question 7: "Yes"; Question 8: Not able to be answered as a common question, but in relation to the Group 11 claims, "Yes"; Question 9: Not answered; Question 10: Not answered. 381 In this initial trial, only the claims of the sample Group 11 teachers are to be determined to completion. In relation to the Group 11 claims, my answer to question 1 means that s 324(1)(b) does not except the obligation imposed upon DEECD by s 323(1) to have paid, in full and in money, the amounts payable to the Group 11 teachers in relation to their performance of work. My answers to questions 4(a) and (b) mean that s 324(1)(d) does not except that obligation. It follows that I am satisfied that by making deductions from the pay of the Group 11 teachers in the claim period, DEECD contravened s 323(1) of the FW Act by failing to pay to the Group 11 teachers, in full and in money, those amounts that were deducted from their salaries as contributions to the cost of the NTPP Package. 382 A declaration of contravention of s 323(1) should be made in relation to the Group 11 claims. As to whether the conduct in contravention of s 323(1) has also resulted in a breach of the Agreements and consequent contraventions of the Transitional Act and s 50 of the FW Act, DEECD sought an opportunity to make further submissions in the light of these reasons. I will provide that opportunity. If an opportunity is sought, I will also receive submissions in relation to the outstanding issue relating to questions 9 and 10. Consideration needs also to be given to the following matters: (i) the terms of any order to be made under s 545(2)(b) of the FW Act awarding compensation for loss resulting from the contraventions; (ii) the terms of any declaratory relief; (iii) in so far as the AEU still presses for injunctive relief, whether and in what form any such relief should be granted; and (iv) the steps, if any, that need now be taken to prepare for and program any further trial dealing with the remainder of the AEU's claim. 383 I will provide the parties with an opportunity to consider these reasons and consult. The matter will be listed for directions at 9:30 am on 25 November 2015.

[31]

Annexure 1: Introduction to annexures 384 In the main body of my reasons I set out certain findings and indicated that evidence relevant to those findings, and underpinning or subsidiary findings, were contained in annexures to the main body of reasons. Below is a list of those matters, as well as a denotation of the annexure in which the underpinning material is to be found. 385 At [187] in the main body of my reasons, I set out the following findings: (a) a computer was an essential work tool for a teacher in the sense that a teacher could not effectively perform his or her duties to the standard expected by DEECD without frequent and sustained access to a computer (see Annexure 2); (b) in order to obtain frequent and sustained access to a computer so as to perform the duties to the standard reasonably perceived to be expected of the teacher, none of the Group 11 teachers had a practicable or feasible alternative to participating in the NTPP, other than for the exceptions (see Annexure 3); (c) each of the Group 11 teachers participated in the NTPP for predominantly or exclusively work-related reasons and none participated predominantly for the purpose of securing the benefit of the personal use of a laptop computer (see Annexure 4). 386 Also in the main body of my reasons I referred to two additional findings, the underpinnings for which are found in annexures: (a) evidence concerning actual extent of personal use (see Annexure 5); and (b) evidence going to DEECD's aim in introducing the NTPP (see Annexure 6). 387 Finally, at [212] of the main body of reasons I referred to a table that was annexed to the AEU's submissions, dealing with the percentage of cost to DEECD that was met by teacher contributions. A replication of that table is in Annexure 7. 388 Before proceeding, it is necessary to say something more about the teachers that gave evidence, including the Group 11 teachers. 389 Twenty-one witnesses gave evidence as to their involvement with the NTPP. The Group 11 teachers are of especial significance in that I am to determine their claims to completion. They are named at [15] of the main reasons. The nine teachers called by DEECD are also named at [15] of the main reasons. Ms Davie was also called by DEECD, but her evidence was predominantly about the circumstances and history of, and the rationale for, the NTPP and its predecessors, rather than about her personal use of NTPP computers and the surrounding circumstances of that use. 390 Of the Group 11 teachers, five gave evidence by affidavit only: Mr Farquhar, Mr Kober, Ms MacKinnon, Ms Renton, and Ms Terry. Six gave both affidavit and oral evidence: Ms Aulich, Ms Fischer, Ms Haddow, Ms Humphries, Mr Kumar, and Ms O'Grady. Of persons called by DEECD, four gave evidence by affidavit only: Ms Alpine, Ms Bray, Mr Jagoe, and Ms Wheeler. The other six gave evidence by affidavit and orally: Ms Davie, Ms Davis, Ms Evans, Ms Henning, Ms Prosser, and Mr Walsh. 391 Many of the Group 11 had worked for DEECD for some time, and all had received multiple NTPP laptops pursuant to multiple Recipient Agreements. Often, their affidavits did not identify the earlier Rounds in which they had participated, but based on the cyclical nature of Rounds and Cycles it is possible to infer when Group 11 teachers were likely to have received laptops prior to those current at the time of their affidavits. 392 Ms Aulich was a classroom teacher at Rosanna Golf Links Primary School. She first received an NTPP laptop shortly after she commenced teaching, which was no later than around 2003. She received the laptop that was current at the time of making her affidavit in Cycle 4 Round 4, in around May 2010. Her previous laptop was received in around 2007, which I infer was part of Cycle 3 Round 4. Her current and previous laptops were both MacBooks. In both Cycle 3 Round 4, and Cycle 4 Round 4, I find that Ms Aulich contributed $7 per fortnight. 393 Mr Farquhar was the principal of Smeaton Primary School. He had had an NTPP laptop for over 10 years, i.e., from 2004 or earlier. Before he was principal of Smeaton Primary School, he was principal of Windermere Primary School, and he held that role from around 2003. He received the laptop that was current at the time of making his affidavit in term 2 of 2012, which, it appears from the current recipient agreement that was annexed to his affidavit, was likely part of Cycle 5 Round 2. It is therefore likely that his previous laptop was issued in Cycle 4 Round 2 (commencing February 2009). His current laptop was a Lenovo ThinkPad L420, for which he contributed $5 per fortnight. His previous laptop was also a Lenovo, for which he contributed $4 per fortnight, as is apparent from the Recipient Agreement dated 10 October 2008 that was annexed to his affidavit. 394 Ms Fischer was an expert teacher at Rosebud Secondary College. She had been employed by DEECD for around 28 years, and joined the NTPP around the time of its commencement. She had continued to participate in the NTPP to the time of giving her evidence, excepting a period of around two years in 2000-01 during which time she was employed in the private education system. She received the laptop that was current at the time of making her affidavit in term 4 of 2011, which I infer was part of Cycle 5 Round 1 commencing October 2011. It is likely that her previous laptop was part of Cycle 4 Round 1, commencing August 2008. Her current laptop was a Lenovo ThinkPad L420, for which she contributed $4 per fortnight. Ms Fischer did not identify whether her previous computer was an Apple or a PC. However, I infer from her current laptop being a PC and from her evidence not containing reference to ever having paid a contribution rate higher than $4 that her previous laptop was also a PC, and that her contribution rate then was also $4 per fortnight. 395 Ms Haddow was a teacher at Malvern Central School. She received the laptop that was current at the time of making her affidavit in term 2 of 2012, and she contributed $4 per fortnight. That laptop was a Lenovo ThinkPad L420. I infer from the model of laptop and contribution rate that her current laptop was issued as part of Cycle 5 Round 1. She first got an NTPP laptop in 2009, and I infer it was part of Cycle 4 Round 1 and was a Lenovo ThinkPad R61. During that Cycle, she contributed $4 per fortnight. 396 Ms Humphries was a teacher at Warragul Regional College. She had been employed by DEECD for around 26 years. She had participated in the NTPP since its inception. She received the laptop that was current at the time of making her affidavit in June 2012, which I infer was part of Cycle 5 Round 2. Her previous laptop was issued as part of Cycle 4 Round 2. I find that she contributed $5 per fortnight for her current laptop (a Lenovo ThinkPad L420), and $4 per fortnight for her previous laptop (a Lenovo ThinkPad R61). 397 Mr Kober was a classroom teacher at Princes Hill Secondary College. He had been employed by DEECD for around 13 years. He could not recall when he first obtained an NTPP laptop, but thought that his current laptop was his third or maybe his fourth. He received the laptop that was current at the time of making his affidavit in Semester 1, 2011. I infer that his current laptop was part of Cycle 4 Round 5, and was a Lenovo ThinkPad L412. He contributed $4 per fortnight. I infer that his previous laptop was issued as part of Cycle 3 Round 5, and that it was an IBM ThinkPad for which he contributed $4 per fortnight. 398 Mr Kumar was a classroom teacher at Parkdale Secondary College. He had participated in the NTPP since shortly after he commenced teaching, in around 2006. The laptop that was current at the date of his affidavit was his third, and his recollection was that he received it in around August or September 2011. It seems to me more likely that, in fact, he received it later than that - probably in or around October 2011. I say that because Mr Kumar identified his computer as a Lenovo ThinkPad L420, which was not offered before Cycle 5 Round 1, and that Round commenced in or around October 2011 (according to the SOAF). In any case, his contributions for that computer were $4 per fortnight. I infer that Mr Kumar's previous laptop (a MacBook) was issued as part of Cycle 4 Round 1 (commencing August 2008), and that he contributed $7 per fortnight for that laptop. 399 Ms MacKinnon was a teacher at Ringwood Secondary College. She had worked for 27 years for DEECD, most recently commencing in 2005 after a stint at a Catholic secondary school. She first received an NTPP laptop shortly after recommencing with DEECD in 2005. The laptop that was current at the date of her affidavit was issued in March 2013. She paid $15 per fortnight for that laptop, upon which basis I infer that it was issued as part of Cycle 5 Round 2 (that being the only Round for which a $15 contribution was payable). Her previous laptop (a MacBook) could not have been issued as part of Cycle 4 Round 2, because no Macs were issued as part of that Round. I infer that it was issued either as part of Cycle 4 Round 1 or Cycle 4 Round 3. In either case, she contributed $7 per fortnight. 400 Ms O'Grady was a teacher at Hume Valley School. She received the laptop that was current at the date of her affidavit in October 2011. It was a Lenovo ThinkPad L412. That suggests it was issued as part of Cycle 4 Round 5, which was the only Round offering such computers. Her previous notebook was an Apple MacBook, and I infer it was issued as part of Cycle 3 Round 5. Her contributions were $4 per fortnight in regard to the Lenovo, and $7 per fortnight for the MacBook. She first received an NTPP laptop in August 2008. 401 Ms Renton was a classroom teacher at Kilmore Primary School. Her current laptop, as at the date of her affidavit, was a Lenovo ThinkPad L420, for which she contributed $4. Only Cycle 5 Round 1 had that combination of contribution rate and make of laptop, and I infer that that is the Round in which her laptop was issued. I infer that her previous laptop was issued as part of Cycle 4 Round 1. Ms Renton did not say whether her previous laptop was an Apple or a PC, but I infer that it was a PC on the basis that, had she changed from an Apple in Cycle 4 to a PC in Cycle 5, she probably would have said so in her evidence. I find that her contribution was $4 per fortnight in respect of both her Cycle 4 and Cycle 5 laptops. She first received an NTPP computer in 2006. 402 Finally, Ms Terry was the principal of St Helena Secondary College. She had been employed by DEECD for 27 years and had participated in the NTPP for "many years." She had had an NTPP laptop since they first became available. The computer that was current at the time of her affidavit - a Lenovo ThinkPad - was issued in term 2 in 2012. As her evidence was that her contribution was $4 per fortnight, I find that her current laptop was issued as part of Cycle 5 Round 1 rather than Cycle 5 Round 2, the latter of which inhered a $5 contribution per fortnight. I find that her previous laptop was issued as part of Cycle 4 Round 1 and that her contribution was $4 per fortnight in respect of that laptop.

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Classroom teaching 405 I start with Ms Davie. Ms Davie commenced at DEECD in 1983 and, since that time, had had various roles. As at the dates of her affidavit and oral evidence she was the Director of Digital Learning within the Learning and Teaching Division. Earlier, in around 1996, she had commenced to work at Essendon North Primary School as a teacher. Sometime thereafter, she assumed a position that was divided 50 per cent as a school-based project officer for the Navigator School Project (NSP), and 50 per cent as a project officer with State-wide responsibilities, focused on sharing experiences relating to the use of technology with other teachers across the State. She was involved in the project for 10 years, until 2006. In light of her long experience in DEECD, Ms Davie was well placed to give evidence about the NSP and the NTPP. 406 Ms Davie said that at the commencement of the NTPP (i.e., in 1998) it was far from essential (but was highly desirable) to have access to computers or the internet, but that over time access to technology became essential. She stated that, given the increasing prevalence of student use of mobile devices, it was important for teachers to have access to online and computer-based materials and resources. Ms Davie said that that kind of access could be achieved using classroom-based computers, but that it was undoubtedly more advantageous to be able to use a laptop because of its portability and the ability to prepare away from school. Ms Davie also agreed that implementation of the findings of the July 1998 report relating to the NSP and entitled, "Rethinking Learning & Teaching: The Navigators School Experience" (Navigator Report), required routine access to computers and software at school and at home, that the most effective way to provide that access was for teachers to have access to a laptop, that computers were essential for core non-teaching functions, and that schools were reliant on teachers having access to computers. Ms Davie also agreed that DEECD's intention was that widespread access to laptops would help to replicate the result of the NSP, and that the need was particularly for laptops at the NTPP's commencement because of their portability, versatility, and the ability to use them in a range of settings. I refer here also to the material set out in Annexure 6, which deals with DEECD's aim in introducing the NTPP but also contains evidence relating to the particular utility, as it was perceived by DEECD, of portable laptop computers. 407 I move now to the evidence of some of the teachers called by the AEU and by DEECD. Ms Alpine said that she used her laptop during classroom teaching because desktops were not linked with interactive whiteboards. She said that, separately from use of interactive whiteboards, she would not really need her laptop for class and said also that there was a desktop in every classroom and that iPads could be borrowed from the library by teachers. 408 Ms Aulich stated that the ICT curriculum was specified in AusVELS as an interdisciplinary learning strand that students used in their discipline-based learning. She set out the "learning focus" for Level 5 and Level 6 ICT, and the organisation of ICT standards into "ICT for visualising thinking," "ICT for creating," and "ICT for communicating." Ms Aulich said that Rosanna Golf Links Primary School had a 1:1 laptop program for grades 5 and 6, that there were various other computers available to students, that the school had a wireless network and shared server, and that students had their own email accounts from which they could send and receive files. "One to one," as is revealed by the evidence of Ms Fischer and others, is a reference to the ratio of laptops (or other ICT devices) to students, and is another way of saying that every student had his or her own personal ICT device. Not surprisingly, in that context, Ms Aulich used her laptop "extensively" in her classroom teaching including through use of an interactive whiteboard, and to model and teach ICT skills. Other witnesses that referred to "modelling" ICT skills to students included Ms Davie, Mr Kumar, and Ms Terry. Ms Aulich referred to a particular utility of the laptop, being that, in modelling and teaching ICT skills to students, she could move around the classroom with her laptop and engage with small groups or individual students. 409 Ms Bray said that, when she worked primarily as a classroom teacher, she used her laptop to make PowerPoint presentations, and for connecting to the interactive whiteboard (so as to present work in real time and give immediate feedback). Ms Henning also referred to use of an NTPP laptop with an interactive whiteboard for teaching purposes, as did Mr Kumar, Ms Wheeler, Ms Humphries, and Ms Fischer. 410 Ms Davis had participated in the NTPP since around the time of its commencement. She initially used her notebook mainly for non-teaching aspects of work, but in later years she used it for classroom teaching, connecting to interactive whiteboards, and for reporting. In her capacity as principal, her laptop use mostly related to staff meetings, preparing presentations, professional development, and use away from school (such as at Leadership Team meetings and conferences). She tended to use her office computer when at school. 411 Ms Evans said that it would be very hard to operate without a laptop, that it was really convenient having a laptop so as not to be stuck in one location, that she could not get through a day of work without her laptop, that she used her laptop pretty much constantly during a work day, and that she could not really operate in her role without it. She identified various uses to which she put her laptop. 412 Mr Farquhar said that ICT was used extensively in the primary curriculum in all areas of the curriculum, that over time (and especially over the previous 4-5 years) teaching at primary school level had changed radically so that everything had an ICT aspect, and that his computer was an essential work tool without which he could not teach. 413 Ms Fischer stated that she used her laptop constantly, that ICT had revolutionised teaching and learning over the previous 7-10 years, and that she could not deliver the curriculum without use of a laptop. She described particular uses including that as part of the reading program she taught to year 7 and year 8 students she directed them to online articles, and that students kept a blog about what they were reading. The senior history program was very much ICT based, including incorporation of electronic worksheets and assessment tasks. Ms Fischer, in teaching history, taught research skills requiring use of the internet. She accessed databases online and connected her laptop to an electronic whiteboard or other large screen to display a document to students. She stored teaching resources on the laptop; she used it to show films and documentaries; laptops had replaced DVD players at her school; she used her laptop to connect to classes' online forums and to receive and correct student work. She used her laptop in every aspect of her work except yard duty and, possibly, student mentoring. 414 Ms Haddow said that ICT was no longer a specialist subject and that it was integrated with the rest of the curriculum. There was a student drive upon which students' files were saved, which Ms Haddow was able to look at using her notebook. She used her notebook extensively for lesson planning, accessing curriculum documents, and finding resources and activities for teaching. She did not, however, use it much in the classroom: there was an interactive whiteboard with a dedicated connected computer, which she used instead. 415 Ms Humphries said that the school's entire curriculum was designed to be delivered using a computer. There was a 1:1 laptop policy for students which meant that "teaching staff must be familiar with the computers and the EduSTAR software and must teach students in a way that uses these resources." Ms Humphries said that all classes that she taught required ICT for her students and for her, including for delivery of lesson plans, work requirements, and "inquiry cycle tasks". 416 Mr Kober similarly said that as the school moved to a 1:1 student to computer ratio, the entire curriculum was going online, and in some subjects the textbook was only available electronically. Other non-textbook resources would be uploaded to the school's "Wiki". Mr Kober's students submitted answers to questions using the Oxford Digital "Assess" tool, and he used his laptop to see responses and comment upon them. Mr Kober made a real effort to teach using programs that were available through the eduSTAR software package, which he could only do because his laptop had installed upon it the same suite of software as was installed on his students' laptops. 417 Mr Kumar said that he used his laptop extensively in classroom teaching, and that use of ICT enabled students to access material in a way that they were familiar with and that meant something to them. He said that, in order to deliver meaningful curricula, teachers had to be able to communicate with students "on their level," which involved communication and access of information through digital devices. Mr Kumar said that ICT was integral to the maths curriculum. 418 Ms MacKinnon said that her school made extensive use of technology in teaching and learning. The school had 1:1 laptop and iPad programs. The use of ICT was embedded across the curriculum. For example, some subjects had materials (including textbooks) that were accessed using "Dropbox," "Compass," or the students' section of the school server. Ms MacKinnon used her laptop to mark and provide feedback in regard to work that had been submitted to her electronically. Students used laptops to access a whole range of electronic resources, and Ms MacKinnon used her laptop "constantly" in her teaching including by connection to a data projector, use of PowerPoint, and making information available to students using "Dropbox". She used the "Mathletics" and "Edmodo" programs on her laptop. She used her laptop to manage a web blog and to publish work to Twitter. 419 Ms O'Grady did not think she could teach the VCAL curriculum without a laptop and said that access to a computer was essential. Students used computers to do their work, and a lot of learning content was delivered to them in that way. Ms O'Grady used her laptop "constantly" in the classroom, including for projection of information to smart televisions, and accessing of students' files. 420 Ms Prosser agreed that her school had ubiquitous use of technology and used "flexible learning spaces," that technology was used in all aspects of the curriculum, that that involved students and teachers using technology for every aspect of the core curriculum, and that technology was embedded in all curriculum areas. She said that her school had iPads, DSs, RT surface tablets, Acer tablets, Windows devices, netbook, and desktops, and that a 1:1 program was being implemented for grade 3 and 4 students. She agreed that teachers needed to be able to teach using the same technology that students were using, that that required ready access to a computer or some other device, and that for all of the teachers at Silverton Primary School that involved use of an NTPP device. Ms Prosser was entitled to a dedicated desktop, but she preferred to use a laptop because of its portability and versatility, and because it was more convenient to have all of her work on one computer. She agreed that benefits she identified as coming out of the NTPP program were about her ability and that of her colleagues to teach effectively and creatively to children who were growing up in the twenty-first century. 421 Ms Renton said that the ICT curriculum was specified in AusVELS as an interdisciplinary learning strand, which students used in their discipline-based learning. There were various computers that students used at the school, including that there was a 1:1 netbook program for grades 5 and 6, which was funded by parents. Ms Renton shared an interactive television with another teacher, and she operated it by connecting her laptop. 422 Ms Terry said that St Helena Secondary College was an "ICT school," and that ICT was regarded as an essential component of all teaching and learning at the school. There was a 1:1 program for all students, from year 7 to year 12: parents ordered a device from a third party's website and made instalment payments as against the purchase price. The tablets were loaded with the eduSTAR software image. ICT was "central to the delivery of curriculum," and there was a strong emphasis on collaboration through use of ICT. Teachers were required to use a program called "OneNote" to prepare curriculum outlines and for unit and lesson plans, which students could access from their tablet devices. Each classroom had a data projector, but teachers had to bring a computer to the classroom to connect to the projector. 423 Mr Walsh said that he used his laptop for ICT presentations including PowerPoint presentations and displaying practice exam questions, and for setting learning tasks. He used his laptop regularly throughout the day. He thought that for teachers to have laptops benefitted students, in that it allowed staff to create an e-learning environment. He agreed that there was a major emphasis at Manor Lakes College on integrating ICT across the curriculum. There was a BYOD ("Bring Your Own Device") scheme for every student from years 7 to 12. He said that his laptop was an essential work tool for him to complete the tasks that were required by the school in the environment that had been set up and in the context of the curriculum. 424 On the above evidence, I think it is clear that it was necessary for teachers to have access to a computer of some kind in the classroom to properly perform classroom teaching duties, and I so find.

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Non-teaching tasks 425 There were a number of similarities in the evidence concerning use of computers for non-teaching tasks. Ms Alpine identified many uses, so I will describe her evidence and then identify teachers who also used computers for tasks she mentioned. Ms Alpine said that she thought she needed to have a laptop to print at work, to mark classroom rolls, and to write school reports. She used her laptop to check the daily bulletin at home before she went to work, to share information and other resources for classroom activities with teachers, to communicate by email, to download music for the classroom, to mark the roll, to write reports, to write meeting agendas and upload them to the shared hard drive, to check students' progress in the Mathletics program, to complete mandatory reporting modules including regarding occupational health and safety, and to utilise the internal "messenger" program to communicate with other teachers. 426 Other teachers who identified marking the roll as a task performed using a computer included Ms Aulich, who said that she was "required" to mark the roll electronically (and who identified that the usefulness of a laptop in particular was that she could mark the roll outside or in the library), Ms Evans, Ms Fischer, Ms Haddow, Ms Humphries, Mr Kober (who said that the roll had to be marked on a device connected to the school's network), Mr Kumar, Ms MacKinnon, Ms Renton (though Ms Renton identified also that casual relief teachers were given hard-copy rolls instead), Ms Terry, Mr Walsh, and Ms Wheeler. 427 Other teachers who identified lesson planning and work programming as a task performed using a computer included Ms Aulich, Ms Bray (who said that it was "expected" of primary staff that they do this), Ms Davie, Ms Davis, Ms Evans, Mr Farquhar, Ms Haddow, Ms Henning, Mr Jagoe, Ms O'Grady, Ms Prosser, Mr Walsh, and Ms Wheeler. Ms Terry also used her laptop to access "Edugate," a resource for principals that could only be accessed through a DEECD computer and when on the school network. 428 Other teachers who identified taking minutes of, or preparing agendas for, meetings as a task that they performed using a computer were Ms Aulich, Ms Bray, Ms Evans, Ms Henning, Ms MacKinnon, and Mr Walsh. 429 Other teachers who identified communicating including by email as a task performed using a computer included Ms Aulich, Ms Davis, Ms Evans, Mr Farquhar, Ms Fischer, Ms Haddow, Ms Humphries, Mr Jagoe, Mr Kober, Mr Kumar, Ms MacKinnon, Ms O'Grady, Ms Prosser, Ms Renton, Ms Terry, and Mr Walsh. 430 Other teachers who identified assessment and reporting as a task that they performed using a computer included Ms Aulich, Ms Bray, Ms Davis, Ms Evans, Mr Farquhar, Ms Fischer, Ms Haddow, Ms Henning, Ms Humphries, Mr Jagoe, Mr Kober, Mr Kumar, Ms MacKinnon, Ms O'Grady, Ms Prosser, Ms Renton, Ms Terry, Mr Walsh, and Ms Wheeler. 431 Other teachers who identified professional development as a task completed using a computer included Ms Aulich, Ms Davie, Ms Davis, Mr Farquhar, Ms Humphries, Mr Kumar, Ms MacKinnon, Ms Prosser, and Ms Wheeler. 432 A number of non-teaching uses were identified beyond those given by Ms Alpine. Mr Farquhar stated that whereas formerly curricula were provided to teachers in hard copy, they were not so provided at the time of his affidavit and were only available online. Ms Fischer's evidence was to similar effect. Ms Haddow referred to the electronic accessing of curriculum documents without saying that there were no other means of access. Mr Kumar said that curriculum material was stored on the school's intranet, as were other resources that Mr Kumar used when teaching and accessed using his laptop. Ms MacKinnon also said that that nature of material was stored on the school's intranet, and said further that there was a section of the intranet that was accessible only to teachers and included assessment and lesson planning material. Mr Walsh said that his team submitted plans to him through submission to "andbox.com," which was a central internet-based server and contained all relevant school documents. 433 Ms O'Grady referred to preparation of a new model for career action planning for young people, which she used in her school, and which she developed using her notebook over Easter holidays. 434 A number of teachers gave evidence of submission of work by students to a network-connected drive or drop box, which required a computer to access. Ms Fischer said that work was submitted by a drop box on the school server. Ms Haddow said that on the school network, there was a drive to which students saved their files by way of submitting work. Ms Haddow used her network-connected laptop to view these files. Ms Humphries received files to mark using a web interface, the school's intranet, and email. She provided feedback electronically. Mr Kober said that students often submitted work electronically by email. Mr Kumar said that students submitted work to him through a drop box, and that he was aware of other teachers that received work by email. Ms MacKinnon said that students submitted work to her by email, "Dropbox," or an app such as "Edmodo". 435 Ms Henning stated that "Techie Brekkies," which were seminars given by teachers to other teachers about the use of technology, were facilitated by the use of laptops, and that a lot of teachers used laptops for participation in those sessions. Ms Henning also agreed that it was essential for teachers to have access to computers for the purpose of performing their duties. 436 As earlier stated, Ms Davie said that computers were essential for teachers to perform core non-teaching functions. It is not surprising that (as Ms Davie said) the use of technology enormously streamlined administration. It seems to me clear that it was necessary for teachers to have access to computers in order to perform the non-teaching tasks identified above, especially to perform them in the manner in which DEECD wanted them to be performed.

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Annexure 3: Whether the Group 11 teachers had a practicable alternative to participation in the NTPP 437 Whether there was a practicable alternative to participation in the NTPP is relevant in assessing whether teachers participated in the NTPP freely or, alternatively, whether they were subject to relevant pressure to participate in it. I will explain what I mean by "practicable alternative." If a teacher could have declined to enter into, or terminated, a Recipient Agreement without materially and relevantly disadvantaging himself or herself, then the teacher had a practicable alternative. Inability to perform duties to a satisfactory standard would be a relevant disadvantage. Given that this part of the reasonableness assessment is concerned with the level of pressure that a teacher experienced, a "satisfactory standard" is the standard that the teacher reasonably apprehended that DEECD expected of him or her. 438 As I found above, access to a computer was essential for performing duties. That comprises two elements, each of which has essentiality in its own right: first, it was essential that teachers have access to computers for the purpose of classroom teaching; second, it was essential that they have access to computers for the purpose of performing non-teaching tasks (e.g., administration, professional development, preparation). Access that satisfied one only of those elements would not be sufficient. If a teacher could not access computers sufficiently to enable both of the above-mentioned aspects of duties to be performed to a satisfactory standard, I would be satisfied that that teacher had no practicable alternative to the NTPP. Presence or absence of alternatives, and accordingly presence or absence of relevant pressure, are addressed in this Annexure. 439 As Recipient Agreements were terminable at will, it is not sufficient to consider circumstances at the time of entrance into each Recipient Agreement. If a teacher entered into a Recipient Agreement in (say) 2010 and there were then no practicable alternatives, but in 2011 laptops were purchased for every teacher, then there may in 2011 have been a practicable alternative. The entire claim period must be assessed. 440 Each of the Group 11 teachers gave evidence as to the availability of alternative computers, but that evidence suffered a shortcoming: it was mostly limited to the time at and proximate to the date of affidavit or oral evidence. So, while there is evidence from teachers as to availability of alternative devices in around 2013-14, there is very little relating to earlier times in the claim period. Some teachers changed schools during the claim period, and did not give any evidence about previous schools. The only other evidence I have that might address the shortcomings in the affidavit and oral evidence is in the SOAF and attached documents. In particular, the attachments included a census of department computers. The usefulness of that is explained below. 441 But, before getting to that, I note that, because of the matters raised in the previous two paragraphs - the relevance of the entire claim period and the lacunae in the evidence - it has been necessary to draw inferences, especially as to the period between February 2012 (the last date for which census data exists) and the dates of affidavits or oral evidence, which ranged between December 2013 (the earliest affidavits) and July 2014 (oral evidence). An inference that I draw on a number of occasions is this: where the census reveals that, as at February 2012, a teacher had no practicable alternative to the NTPP, and where that teacher's evidence reveals that as at the time of his or her evidence there was no practicable alternative, then I infer that there was a continuity of the lack of practicable alternative as between the two times - i.e., between 2012 and 2013/2014. Where drawn below, I will refer to that inference as the usual inference as to the period between census and teacher evidence. This nature of inference is sometimes called the presumption of continuance or of continuity (see, e.g., C Tapper, Cross & Tapper on Evidence (Oxford University Press, 11th ed, 2007) 33; Government of the State of Penang v Beng Hong Oon [1972] AC 425 at 434G (Lord Cross); Cameron v Cameron [2009] SASC 27 at [39] (Lunn J)). 442 DEECD did not put to the Group 11 teachers that the facts relating to practicable alternatives earlier in the claim period were different to those outlined in their affidavit and oral evidence. Nor did DEECD make any submission to the effect that teachers' evidence should not be relied upon or was not probative in relation to such earlier times. It may well be that the parties intended me to proceed on the basis that the evidence given by teachers in and in relation to 2013 and 2014 was representative of the facts relating to practicable alternatives for the duration of the claim period. On the other hand, the census data was in evidence and I assume that the parties intended me to make use of it. I cannot see that that data goes squarely to any fact in issue other than whether teachers had practicable alternative computers available to them. And, if the parties had arrived at a common understanding that the 2013 and 2014 evidence would be treated as relating to the entirety of the claim period, that common understanding was not relayed to me. In the circumstances, I do not think that I can safely conclude that there was such a common understanding and I consider that it is both necessary and appropriate to go to the census data with a view to establishing the facts at times in the claim period earlier than those expressly covered by affidavit and oral evidence.

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Documentary Evidence 443 The table at [100] of the SOAF includes, as at February of 2009-2012, numbers of staff-use desktops, netbooks, and notebooks, and student-use desktops, netbooks, and notebooks. I was also given census data for the number of computers in every Victorian school between 2009 and 2012. The census included the 15 schools at which the Group 11 teachers taught during the claim period, being Birmingham Primary School (Ms Aulich 2009/10), Gladysdale Primary School (Ms Aulich 2011), Hume Valley School (Ms O'Grady), Kilmore Primary School (Ms Renton), Malvern Central School (Ms Haddow), Mornington Secondary College (Ms Fischer 2009), Parkdale Secondary College (Mr Kumar), Princes Hill Secondary College (Mr Kober), Ringwood Secondary College (Ms MacKinnon), Rosanna Golf Links Primary School (Ms Aulich 2012 and following), Rosebud Secondary College (Ms Fischer 2010 and following), Smeaton Primary School (Mr Farquhar 2013 and following), St Helena Secondary College (Ms Terry), Warragul Regional College (Ms Humphries), and Windermere Primary School (Mr Farquhar 2009-12). 444 The census included, for each year 2009-2012, the number of student-use and staff-use desktop, notebook, netbook, and tablet computers, and the number of students, in each school. Other calculations were then possible. The table underneath SOAF [100] gives figures for CASES and non-CASES desktops. CASES desktops were largely for use by administrative staff; non-CASES desktops by teaching staff. More will be said about CASES desktops later. The system-wide division into CASES and non-CASES desktops enables calculation of each as a percentage of total staff-use desktops, as at February 2009-2012. For example, in 2009 there were 6,474 CASES and 7,445 non-CASES desktops, so that CASES desktops made up 46.51 per cent of non-student-use desktops, system wide. The percentages in 2010-2012 were 47.59, 50.08, and 50.90 per cent respectively. The census did not distinguish between CASES and non-CASES staff-use desktops, but by applying percentages derived from SOAF [100] to the number of non-student-use desktops in a school, an estimate for non-CASES staff-use desktops can be made. That enabled calculation of total non-CASES staff-use computers per school. As the census gave separate figures for staff-use notebooks and netbooks, it was also possible to calculate total staff-use portable computers per school. 445 The tables underneath SOAF [5] and [6] gave system-wide student numbers as at February 2009-2012, and full-time equivalent teaching staff numbers as at June 2009-2012. This is useful because, while the census contains student numbers, it does not contain teacher numbers. The SOAF enables calculation of the system-wide ratio of students to teachers in each of the years 2009-2012: 13.30:1, 13.24:1, 13.27:1, and 13.40:1, respectively. That can be applied to the number of students at a given school to estimate the number of teachers at that school in a given year. 446 I will illustrate by reference to Ringwood Secondary College, where Ms MacKinnon taught. The census shows that in 2011 there were 50 staff-use desktops, 3 staff-use notebooks, and 1396.6 students. Applying the 50.08 percentage of CASES computers to the 50 staff-use desktops suggests that there were 25 non-CASES staff-use desktops. Applying the 13:27:1 ratio of students to teachers to the number of students suggests that there were 105.2 teachers. It is then possible to calculate that there were 28 non-CASES staff-use computers including 3 portable staff-use computers, that the ratio of the former to teachers was 0.27:1, and that the ratio of the latter to teachers was 0.03:1. This nature of calculation assists in filling evidential gaps left by the witness evidence. That is, it is used in determining whether practicable alternatives existed at times, or in schools, in relation to which there was no witness evidence. 447 It is necessary to say something about the use to which I put the census information. The question is whether a particular teacher had, at a particular school and at particular times, a practicable alternative to the NTPP. The most-useful items of information derived from the documentary evidence are the numbers of non-CASES desktops, staff-use portable computers, and teachers. It is the ratio of staff-use computers to teachers that provides the surest guide to whether a particular teacher had a practicable alternative. What use is to be made of that ratio, however, is not straightforward. One approach is that if there was even one staff-use computer available at a given school then - in the absence of countervailing evidence - it might be found that that computer was available to any teacher that chose to take advantage of it. On that approach, each of the Group 11 teachers had available a practicable alternative if one staff-use computer was shown on the census. Another approach is that, unless every teacher had available a staff-use computer, it could not be said that any particular teacher would have had such a computer available to him or her. On that approach, a one-to-one ratio of staff-use computers to teachers was required for a finding of practicable alternative. A third approach is a probabilistic analysis, so that if there were (say) 49 staff-use computers between 100 teachers then each teacher had a 49 per cent chance of having staff-use computer allocated to him or her - in which case no teacher passes a balance of probabilities threshold. Conversely, if there were 51 computers between 100 teachers then each teacher had a 51 per cent chance of having a staff-use computer allocated to him or her - in which case every teacher passes a balance of probabilities threshold. 448 I considered but rejected each of those approaches: the first because a finding that one computer would provide a practicable alternative to a particular teacher, potentially out of many, is illogical when context is taken into account; the second because, similarly, it would yield the illogical result that if there were 99 computers between 100 teachers none would have a practicable alternative when, in reality, most would; the third because it leads to capricious results. 449 Where it has been necessary for me to rely upon the census information, in all but a few cases concerning the Group 11 teachers, I have had no difficulty in finding that the teacher had no practical alternative to participating in the NTPP. That is so because the disparity between the number of staff-use computers and the number of teachers was so large that the result was obvious. For the more difficult cases, a closer analysis is required. I will say more about the approach I have taken as I deal with the cases concerned. But some of the main elements of my approach should be explained now, not only because it will assist in an understanding of my approach to the hard cases, but also because it will make it easier to understand why I regarded the results in other cases as obvious. 450 I have elsewhere made findings about the nature of teacher work and the essential nature of access to a computer for a teacher. Access is required during school hours for both teaching and non-teaching duties. Access is also required to perform work outside of school, given that the evidence indicated that most teachers also work at home. But, for this analysis, it has not been necessary for me to have considered whether a practical alternative existed to the NTPP laptop for home use. In all but two cases, no practicable alternative existed for school hours, which is dispositive. In two cases - Mr Farquhar while he was at Windermere Primary, and Ms O'Grady between 1 July 2009 and 31 December 2011 - I have found that a practicable alternative to the NTPP existed, during school hours. In the absence of evidence to suggest the contrary, I would (and do) find that there was a practicable alternative also for after-hours use. Thus, it has been necessary only to consider work performed at school, and this analysis is confined to whether a practical alternative existed for that work. 451 In order to determine whether a given number of staff-use computers constituted a practicable alternative, I needed to know, (i) the number of teachers, (ii) the number of staff-use computers, and (iii) a breakdown of the number of desktop as opposed to portable staff-use computers. 452 The significance of (iii) needs to be explained. The portability of a computer adds greatly to its availability as an alternative, because the usefulness of a computer to a particular teacher at a particular time depends upon the location of the computer matching the location at which the teacher requires it. A bank of staff-use desktops in a staff room is useless to a teacher requiring a computer in a particular classroom. Similarly, a spare desktop located in a particular classroom is of no use to a teacher who needs to perform non-teaching work but cannot access that classroom because it is otherwise occupied. The difference in utility of a desktop computer as an alternative computer as compared to that of a portable computer will have been very substantial. 453 It follows that it will be easier to establish the existence of a practical alternative where spare computers are portable rather than desktop computers. The analysis that follows presumes that the available alternative computers are portable computers. If, on the application of the approach that follows to any particular case, the number of available computers would not have provided a practical alternative if those computers were portables, it would necessarily follow that desktop computers of the same number would have been insufficient. 454 Beyond information dealing with the supply of computers, it is necessary to assess likely demand. This is an important contextual element, which must be taken into account. There would inevitably have been competing demands for the use of a computer available as an alternative to an NTPP computer. It is illogical to presume that only one teacher, the particular Group 11 teacher being considered, would have opted out of the NTPP in order to take up an available alternative computer. Other teachers would likely have taken the same approach. Thus, the demand for the spare computer and its availability to any particular teacher needs to be evaluated by reference to the extent to which it was likely that teachers would remain in the NTPP notwithstanding the availability of an alternative computer. 455 It is reasonable to assume that most teachers would have opted out of the NTPP if a practicable alternative had been made available at no cost to the teacher. If such an alternative had been provided for work purposes, it is likely that the only teachers that would have continued to participate in the NTPP would have been those that wanted to obtain personal use of the NTPP computer. No witness called participated in the NTPP predominantly for that purpose, as the evidence at Annexure 4 demonstrates. I have found that four of the twenty called were motivated to continue their participation partly for work and partly for the personal use benefit of an NTPP laptop. As a matter of impression, of all of the witnesses called, I think only Ms Henning would likely have remained in the NTPP despite the existence of a practical alternative computer. But that evidence is an insufficient basis upon which anything other than a broad and generalised assessment could be made. If that nature of assessment is to be made, I should take a very conservative approach. On such an approach, I think it is safe to infer that at least 50 per cent of teachers on the NTPP would not have continued if an alternative computer had been made available for work purposes. 456 Accordingly, I start from the proposition, contained in the evidence, that around 90 per cent of teachers had NTPP computers, and assume that the other 10 per cent did not require computers to perform their work to a satisfactory standard, or already had computers available to them (having no evidence as to the actual reasons for non-participation). Second, I assume that around 50 per cent of teachers would have continued to participate in the NTPP notwithstanding the availability of an alternative. 457 Next, I assume that the requirement for a practicable alternative entailed that a teacher required access to a staff-use computer for the entirety, or effectively the entirety, of the time that the teacher spent working at the school. There are two justifications for that assumption. First, if a teacher was making active use of a computer (say) 15 per cent of the time, that would not mean that having a computer available 15 per cent of the time would be sufficient to provide a practicable alternative. The nature of classroom teaching in particular, as the evidence disclosed it, was that a computer was required to be available throughout, even if it was not actively used throughout. Second, even where a single teacher required less than full access to a computer, the extensive but at times sporadic and spontaneous use required to be made of a computer would have meant that the sharing of a single computer across a number of teachers would have presented logistical difficulties sufficient to make sharing generally impractical. 458 I will illustrate the foregoing analysis by reference to a hypothetical school with 100 teachers. Around 90 have NTPP computers. Of those, 45 (or half) would take up an alternative computer were it made available. Forty-five computers would be required in order that every such teacher had available a staff-use computer all of the time. Thus, if the hypothetical school had 45 or more portable staff-use computers, I would likely find that a teacher had a practicable alternative. If there were fewer than 45 portable staff-use computers, I would likely find that a teacher did not. So, as a rule of thumb, a staff-use portable computer to teacher ratio of 0.45 to 1 or greater would suffice to establish the existence of a practical alternative (the guideline ratio). I stress that this approach is conservative. It may well be that, if I had fuller evidence as to the factors I set out above, I would have found that a higher ratio of staff-use portable computers to teachers was required. But, in the absence of fuller evidence on relevant questions, and where it was for the AEU to demonstrate lack of alternatives if it wished to rely on that as a factor in the unreasonableness analysis, a conservative approach is appropriate. I stress also that, for the reasons earlier stated, because of the far lower utility of a desktop computer as a spare computer, it would require a far higher ratio of desktop computers to teachers to establish a practical alternative. 459 I have excluded student-use computers, servers, tablets, and CASES computers in assessing the census data, and I shall explain why. There was no evidence that computers designated as servers were available in the ordinary course for staff use and I interpret their designation as meaning that they were not. Similarly, I consider designation of a computer as a "student-use" computer to be prima facie evidence that it was not, at least during hours of student attendance (school hours), available to teachers. I say during school hours because there was evidence in relation to many schools the subject of teacher evidence that student-use computers were available after hours. Where a teacher gave evidence as to whether student-use computers were available, I prefer that evidence to any prima facie position resulting from the computers' designation. However, where a teacher was silent as to whether student-use computers were available, I assume, on the basis of their designation, that student-use computers were not available to teachers during school hours. In relation to tablets, DEECD's pleadings did not rely upon tablet-style computers as being a practicable substitute for an NTPP laptop (see 10.2 of the Second Further Amended Defence). In any event, by reference to the evidence set out at Annexures 6, including DEECD's FAQ Policy, I would have found that tablets were not substitutable for, and were not capable of constituting a practicable alternative to, an NTPP laptop. 460 CASES stands for "Computerised Administrative Systems Environment in Schools". Two questions arise: first, whether CASES computers were actually available to teachers; and, second, if so, whether that availability was useful. The first is to be assessed on a teacher-by-teacher basis, but the second seems to be a general question. Mr Jagoe said of certain desktops at his school that they were "loaded with the software used in the school … such as CASES … so this would enable school related work which requires these programs". Mr Farquhar said that CASES computers did not connect to the curriculum server and did not have necessary software like "QuickVic". Mr Kober said that CASES computers were connected to a separate administration network, as did Ms Terry. Mr Kumar described desktop computers for administrative purposes (which I consider is a reference to CASES computers) as being unsuitable for teaching. It appears that CASES computers did not have access to the "curriculum" server, and did not have access to at least some software loaded onto NTPP laptops (including the "QuickVic" assessment and reporting software). Those matters would have limited their usefulness to teachers, if available. Accordingly, except where a teacher's evidence identifies that CASES computers did provide a practicable alternative, I will proceed on the basis that they did not. 461 The AEU submits that Ms Humphries, Ms Renton, and Ms O'Grady also gave evidence that the CASES computers were insufficient and inconvenient. But Ms Humphries' evidence really went to unavailability, rather than unsuitability. Any unsuitability arose out of her school's circumstances rather than general matters. The same is true of Ms O'Grady's evidence and Ms Renton's. I will consider matters of that kind in considering the individual circumstances of particular teachers, but not more generally. 462 Finally by way of preliminary matters, I proceed here on the basis that neither the purchase and use of a private laptop, nor the use of a private laptop that is already owned by a teacher, constitutes a practicable alternative to participation in the NTPP. The rationale is quite straightforward. It is uncontroversial that computers are essential work tools, and there is no suggestion made in the evidence or otherwise that teachers were under any legally-binding obligation to provide, at their own expense, essential work tools. Those being the circumstances, I cannot accept (in the context of the statutory regime under consideration) a proposition that a practicable alternative to participation in the NTPP is for the teacher, who bears no obligation to do so, to make a significant outlay of money or to divert an existing asset to a purpose for which it was not intended. The analysis and the outcome would very likely be different if the employee was under an obligation to provide work tools. Where a Group 11 teacher raises private laptop use as an alternative (as some did) and discounts that as practicable for other reasons, I will discuss any such reasons. But, as a general proposition, purchase and use of a private laptop, or use of a previously-purchased laptop, will not be treated as constituting a practicable alternative to the NTPP.

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Ms Aulich 463 Ms Aulich was at Birmingham Primary School in 2009 and 2010, Gladysdale Primary School in 2011, and Rosanna Golf Links Primary School in 2012 and thereafter. I refer to what I said at [426]-[431] concerning use of her laptop for non-teaching tasks, and at [408] concerning use of her laptop in the classroom. Her own characterisation of "extensive" classroom use seems from her evidence to be apt, and I would add that her non-teaching use was also extensive. Her evidence of use included tasks that could only be performed using a portable computer, or particular advantages appurtenant to that nature of computer. Ms Aulich also said that she used her laptop for assessment and reporting, requiring many hours each semester, almost all at home in the evenings and on weekends. 464 Ms Aulich saw the choice of whether or not to participate in the NTPP as being an "incredibly loaded choice," as she was a compliant and hardworking teacher who wanted to do what was best for herself and her school. At one point, Ms Aulich contemplated not re-entering the NTPP, but when she discussed with her principal the prospect of bringing her own laptop her principal said, "[p]lease don't, it's a nightmare". Ms Aulich said that she had been told that for a teacher to bring her own laptop would be "too hard", and she understood it would create a "can of worms," a "headache," or "exasperation". Ms Aulich was aware that she was not forbidden from bringing her own laptop, but in light of what she had been told by her principal, with whom she had a good working relationship, she decided to re-enter the NTPP. On the basis of her use of the NTPP laptop and the evidence of the expectation of her principal, I find that, whilst at Rosanna Golf Links, Ms Aulich had a particular need for a laptop and, specifically, that she had a need for an NTPP laptop. This finding would be sufficient for me to conclude that Ms Aulich had no practicable alternative to the NTPP. But, as it turns out, that conclusion is also available for the separate reason that there were no computers available to Ms Aulich sufficient to provide a practicable alternative, even if she did not have a specific need for an NTPP laptop. 465 After setting out her use of the NTPP laptop, Ms Aulich identified available alternative computers at Rosanna Golf Links. Her evidence identified three possible alternatives: first, a desktop in the staff room, but that had been removed because all teachers had laptops. It was not a practicable alternative. Second, a desktop in her classroom, but that was not set up for marking the roll electronically, and it was generally used by the integration aide and by students. It would not have been available to Ms Aulich as and when required, and so was not a practicable alternative. Third, the purchase of her own computer, but she was discouraged from that course, as set out above. For that reason, and because as a general matter I do not consider purchasing a laptop to be a practicable alternative, that was not a practicable alternative. No other alternatives to an NTPP laptop were suggested to Ms Aulich in cross-examination and DEECD did not call any evidence as to available alternatives at Rosanna Golf Links. 466 I find that, as at and in the period proximate to the time of Ms Aulich's affidavit and oral evidence (March and July 2014), she did not have a practicable alternative to the NTPP. Rosanna Golf Links had, in 2012, one portable computer and three non-CASES desktops between around 27 teachers. That is well below the guideline ratio. That number of computers would not have provided Ms Aulich access to a computer as and when she required, for the purpose of carrying out her duties whilst at school. I find that she had no practicable alternative to the NTPP in 2012. I draw the usual inference as to the period between census and teacher evidence. It follows that Ms Aulich did not have a practicable alternative to the NTPP while at Rosanna Golf Links during the claim period. 467 In 2011 Ms Aulich was at Gladysdale Primary School. The documentary evidence shows that there were 2 non-CASES desktops, and no other computers, between a staff of 7. I have no basis for finding that Ms Aulich had a particular need for a portable computer at Gladysdale, but even absent that finding the ratio of staff-use computers to teachers was well below the guideline ratio, and so I find that the number of staff-use computers was insufficient to provide Ms Aulich with a practicable alternative to the NTPP. 468 As to Birmingham Primary, the census showed that in 2010 there were four non-CASES desktops and one staff-use laptop between around 46 teachers. The ratio of non-CASES staff-use computers to teachers was 0.11:1 (or 1 between around 10). The ratio of portable staff-use computers to teachers was 0.02:1 (i.e., 1 between the approximately 46 staff). I do not have evidence as to whether Birmingham Primary was as ICT intensive as Rosanna Golf Links, nor as to whether Ms Aulich's duties were comparable. Accordingly, I do not find that, at Birmingham Primary, Ms Aulich had a particular need for a portable computer. But, whether a portable computer was essential or not, the ratio of staff-use computers to staff was well below the guideline ratio, and so I find that Ms Aulich had no practicable alternative to participation in the NTPP at Birmingham Primary in 2010. There is no significant difference in the census figures between 2009 and 2010. I therefore find that Ms Aulich had no practicable alternative to the NTPP in 2009. 469 On that basis, I find that Ms Aulich had no practicable alternative to participation in the NTPP, throughout the claim period.

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Mr Farquhar 470 Mr Farquhar was, at the time of his affidavit, principal of Smeaton Primary School. I refer to what I said at [427] and [429]-[432] above concerning Mr Farquhar's use of his laptop for non-teaching tasks, and to what I said at [412] above concerning his use of his laptop in the classroom. Of particular relevance, he said "I now regard my notebook as an essential work tool. … I do not think it would be feasible to teach without ready access to a computer." He said that the main advantage of his laptop was portability, and that he could take it with him into the classroom, to meetings away from school, and home. He usually did 5-10 hours of work per week at home. 471 Mr Farquhar said that there were two CASES computers at Smeaton Primary for administrative use, including one on his desk, but he preferred to use his laptop because the CASES computers were not connected to the curriculum server and were not loaded with necessary software such as "QuickVic." Mr Farquhar identified that Smeaton Primary was well provided with computers for students: between 14 students there were 18-20 desktop computers, two interactive whiteboards, a video-conferencing unit, and 10 iPads. But, he said that using a surplus student computer would not be feasible, because of the way that they were set up: he would have to go into the classroom to use them, and students might then see the screen as he was working. He did not have a computer at home. 472 Mr Farquhar was not cross-examined. In the absence of challenge to, and on the basis of, his evidence that he could not use a surplus student-use computer, that his notebook was an essential work tool, and that CASES computers lacked "necessary" software, I find that Mr Farquhar had no practicable alternative to the NTPP while at Smeaton Primary. 473 Mr Farquhar had been at Smeaton Primary since the beginning of 2013. At all earlier times in the claim period, he was at Windermere Primary School. His evidence included very little about Windermere Primary. From the census, it appears that it was a small school: it had 18, 22, 13, and 17 students respectively from 2009-2012. Based on student to teacher ratios, I think the likelihood is that Mr Farquhar was the only teacher, or that at most there was one other. The census discloses that there was one staff-use desktop, and that there were no other staff-use computers. 474 A question arises as to whether that staff-use desktop was a CASES desktop, or not. From the evidence I set out above (at [460]-[461]), I understand that CASES computers generally were connected to an administration server, whereas other, non-CASES, staff-use computers were connected to a curriculum server. I was given no evidence on this question, but it may well be the case that every school required a connection to the administration server and also to the curriculum server. The only evidence I have on the question, albeit that it is slight, indicates that CASES computers could not be connected to both the administration server and the curriculum server: Mr Farquhar said, "The CASES computers do not connect to the curriculum server," though he may have been speaking only about two particular CASES computers to which he was then referring; Ms Terry said, "CASES computers can only be connected to the admin side of the server," which seems a more general statement; Ms Terry also said, "My notebook is connected to the curriculum side of the network, on advice from the ICT technicians," which suggests that it is possible to connect to one or other of the networks, but not both. There was no evidence of CASES computers connecting to both the administration server and the curriculum server. 475 If it was necessary that a school have at least one computer connected to the administration server, then the more likely inference is that the staff-use desktop at Windermere Primary was a CASES desktop. It is possible, perhaps likely, that it therefore connected to the administration server, but not the curriculum server. Then, if Mr Farquhar required access to the curriculum server (and I think it likely that he did), some other computer would have been necessary. I think that any such computer may well have been Mr Farquhar's NTPP laptop, and that no other staff-use computer provided such access. If all of that is correct, Mr Farquhar's NTPP laptop was indispensable and there was no practicable alternative. 476 But, this seems to me to involve the drawing of inferences not sufficiently supported by the evidence, in circumstances where the AEU bore the onus of proof. I am not satisfied that the AEU discharged its onus on this issue. I therefore do not find that, whilst he was at Windermere Primary, Mr Farquhar had no practicable alternative to an NTPP laptop.

[39]

Ms Fischer 477 Ms Fischer was at Rosebud Secondary College from 2010, prior to which she was at Mornington Secondary College. I refer to what I said at [426], [429], [430], [432], and [434] above concerning Ms Fischer's use of her laptop for non-teaching tasks, and to what I said at [413] above concerning her use of her laptop in the classroom. Specifically, I note that Ms Fischer said that she used her laptop constantly in her teaching, that it would be impossible for her to deliver the curriculum without the use of a laptop, and that she relied heavily on her laptop for report writing and used it extensively at home during report-writing times. She used her laptop for more than 45 hours per week, including many hours on weekday evenings and on weekends. 478 She said that all VCE students were issued laptops by the school, which I note is in the nature of a "one-to-one" program. I consider it likely that this added to pressure Ms Fischer felt to incorporate use of a computer generally, and a laptop computer specifically, in her teaching. 479 Ms Fischer accepted that she gave her agreement to a deduction from pay in exchange for the provision of a laptop, but she said that there was really no choice in that, that she regarded it as "automatic," that she needed a laptop in order to do her job, and that entrance into the scheme was an "automatic assumption," and not something she set up for herself. Ms Fischer deposed that when she asked the school's technicians whether she could bring her own laptop she was asked why she would want to do that. She gave evidence that any private laptop would not have the eduSTAR software, or other necessary software (such as Accelerus and Xtreme Software). 480 On the basis of the foregoing evidence, I find that, whilst at Rosebud Secondary, Ms Fischer had a particular need for a laptop, and in particular the NTPP laptop. As with Ms Aulich, this disposes of the issue of practicable alternatives. But, again as with Ms Aulich, a finding of no practicable alternatives is separately sustainable on the basis that no suitable alternative computers were available. 481 Ms Fischer's evidence as to the availability of alternative computers went to the position at Rosebud Secondary. She identified four possibilities, none of which was practicable. First, there was one desktop between ten teachers in the staff room, but that desktop was old, slow, and only useful for basic administrative tasks. She would have to have shared it with nine other staff and that would provide insufficient access. She could not teach with it. I find that it was not a practicable alternative. Second, there were student desktop computers, but they were in constant use between around 8:30 am and 4:30 pm on school days and, again, could not have been used for teaching. They were not a practicable alternative. Ms Fischer estimated that at any given time there were one or two teachers that did not have laptops, and they sometimes brought their own or relied heavily on the desktops. That was usually a stopgap until they were provided with an NTPP laptop. It was not suggested to Ms Fischer that this would have been a practicable alternative, and I find that it was not, for the reasons that (first) as a general proposition I do not consider use of a private computer to have been a practicable alternative to the NTPP, and (second) Ms Fischer had been specifically dissuaded from using her own laptop. No other alternatives to an NTPP laptop were suggested to Ms Fischer in cross-examination and DEECD did not call evidence as to available alternatives at Rosebud Secondary. 482 I find that Ms Fischer had no practicable alternative to the NTPP at Rosebud Secondary, as at and in the period proximate to the date of her evidence. In 2012, Rosebud Secondary had six portable computers, and around 24 non-CASES desktop computers, between around 109 teachers. Whether or not Ms Fischer had a particular need for a laptop computer, but especially if she did, I am persuaded by the low ratio of staff-use computers to teachers that Ms Fischer had no practicable alternative to the NTPP in 2012, and I so find. The ratio of staff-use computers to teachers was well below the guideline ratio. I draw the usual inference as to the period between census and teacher evidence. The census discloses that the position as to staff-use computers and the number of teachers was substantially the same in 2011, and that there were fewer staff-use computers (between roughly the same number of teachers) at Rosebud Secondary in 2010. It follows, and I find, that Ms Fischer had no practicable alternative to the NTPP for the duration of her time at Rosebud Secondary. 483 The census evidence as to Mornington Secondary College is that, in 2009, there were around 12 non-CASES desktops and no portable computers between around 75 teachers. That ratio of staff-use computers to teachers (less than 2 between 10) is well below the guideline ratio and I consider that Ms Fischer could not have accessed a staff-use computer as much as, or as and when, she required. I find that Ms Fischer had no practicable alternative to the NTPP while at Mornington Secondary.

[40]

Ms Haddow 484 Ms Haddow was at Malvern Central School throughout the claim period. I refer to what I said at [426], [427], [429], [430], [432], and [434] above concerning Ms Haddow's use of her laptop for non-teaching tasks, and to what I said at [414] above concerning her use of her laptop in the classroom. Ms Haddow rarely used her laptop while teaching (she used the dedicated interactive whiteboard computer instead). She did not usually take her laptop home, otherwise than during report-writing time. Ms Haddow referred to extensive use of her NTPP laptop in lesson planning. 485 Ms Haddow was told on commencing her employment that she needed a computer and did not understand she had a choice to decline. In cross-examination, she said that she did not regard the NTPP as a salary packaging arrangement because that was not as it had been presented to her: "[she] just signed the agreement as in [she] was entering into an agreement to have a work tool for [her] job that [she] needed to have". 486 Ms Haddow identified three possible alternatives to the NTPP. There had been a staff desktop computer in the staff room, but that had been removed three years previously. It did not constitute a practicable alternative after around late 2010 or early 2011. While I do not have evidence as to the number of teachers that shared the staff room, it seems to me unlikely that one staff-use desktop would have sufficed as between anything more than a very small number of teachers, and then only for non-teaching tasks. It was not suggested to Ms Haddow that that computer constituted, in 2009 and 2010, a practicable alternative. I find that it did not. The second possibility was student-use computers, but the school's policy was that such computers were for student use only. Teacher use was exceptional, and Ms Haddow required the principal's permission to use a student computer for around a week when her NTPP laptop was stolen. I do not consider that use of a student-use computer was a practicable alternative, especially as it was not put to Ms Haddow that it was. 487 The third possibility was use of a private laptop. But, Ms Haddow said, when she was a casual relief teacher she had used her own laptop and it could not be connected to the school network. That meant she could do less with students. When she was a casual relief teacher, that did not much matter. The implication is that, as a full-time teacher, it would have mattered. Ms Haddow went on to say that she was not aware of anyone that used a private laptop. It was not put to Ms Haddow that a private notebook would have been a practicable alternative. I find that it would not have been. Also, and as I have said elsewhere, as a general proposition I do not regard use of a private laptop as being a practicable alternative to the NTPP. 488 I find that Ms Haddow had no practicable alternative to the NTPP at Malvern Central as at and in the period proximate to the date of her evidence. The census shows that, in 2012, Malvern Central had one staff-use portable computer and six non-CASES desktop computers between around 40 teachers. I have not found that Ms Haddow had a particular need for a laptop computer, but I am not persuaded that seven staff-use computers between around 40 teachers would have provided Ms Haddow with access to a computer as and when she required for the purpose of teaching and non-teaching duties, even though she said that she rarely used her laptop when teaching. The ratio of staff-use computers to teachers is well below the guideline ratio. As I have said above, rarity of required use is not the same thing as rarity of required access, and - even if Ms Haddow only needed to use a computer one or two times per lesson - the small number of staff-use computers persuades me that she would not have had access to a computer for teaching as and when she required it, without her NTPP laptop. Further, Ms Haddow made extensive use of her laptop for lesson planning, and the small number of staff-use computers would not, I consider, have provided to her a practicable alternative in relation to that aspect of her duties. I therefore find that Ms Haddow had no practicable alternative to the NTPP in 2012. I draw the usual inference as to the period between census and teacher evidence. The census discloses that the staff-use computer to teacher ratio did not substantially change between 2009 and 2012. It follows, and I find, that Ms Haddow had no practicable alternative to the NTPP throughout the claim period.

[41]

Ms Humphries 489 Ms Humphries was at Warragul Regional College throughout the claim period. I refer to what I said at [426], [429]-[431], and [434] above concerning Ms Humphries's use of her laptop for non-teaching tasks, and to what I said at [415] above concerning her use of her laptop in the classroom. In particular, I note that Ms Humphries said that Warragul's entire curriculum was designed to be delivered using a computer, that every class she taught had an ICT aspect, and that it was not possible to teach without using a computer. There was a 1:1 laptop policy for students, which meant that "teaching staff must be familiar with the computers and the EduSTAR software and must teach students in a way that uses these resources." Ms Humphries said that it was an "expectation" that classes be taught using ICT, "now that we require students' families to invest in the 1:1 laptop program." That perception of expectation was reasonable on Ms Humphries's part. 490 Ms Humphries said that she tended to leave her notebook at school, except during report-writing times and during school holidays. Ms Humphries also said that, while it could not be said that there was an expectation that work would be done out of hours, there was an expectation that a certain amount of work would be done and that that amount of work could not, as a matter of fact, be done within work hours. Ms Humphries said that report-writing software could not be loaded onto a private computer. 491 Ms Humphries identified three possible alternatives to the NTPP: first, student-use computers in labs, but those were for student use and the timetabling of the labs did not permit teachers to access them. They would not, in any event, have assisted Ms Humphries in teaching if her class was not in one of the labs. They did not constitute a practicable alternative. Second, Ms Humphries identified computers in the general office, but they were used by education support staff for their own work, were not available for teaching staff, and (again) would not have assisted Ms Humphries in teaching. They were not a practicable alternative. Third, Ms Humphries identified use of a private computer. But, Ms Humphries was not aware of that being done, said that the school would not load the eduSTAR software onto the private notebook, and said that the laptop could not be connected to the school server. She was implying, it seems to me, that use of a private laptop was not practicable, and it was not suggested to her that it was. In any event, as a general proposition, I do not regard use of a private laptop as constituting a practicable alternative to the NTPP. 492 A number of additional potential alternatives arose in Ms Humphries's oral evidence. First, it was put to her that it was advantageous to her to have a notebook computer because she therefore avoided spending hours after school during report-writing time in the year level office using a desktop, as one of her colleagues had done. That was not put to her in the context of establishing an alternative, but it was treated in that way in re-examination, wherein Ms Humphries was asked whether staying after school would have been feasible for all of the school's 70-80 teachers, had they opted out of the NTPP. Her evidence was that there would not have been enough computers. Ultimately, whether or not this evidence was useful in terms of establishing an alternative for after-hours use is not necessary to decide. That is because it did not establish a practicable alternative for the purpose of teaching or non-teaching duties during school hours, and it is apparent from what is said in the paragraphs above and below that Ms Humphries had no practicable alternatives for those duties. 493 Next, Ms Humphries said in cross-examination that spare laptops were becoming available as a result of students leaving the school and returning their laptops. She also accepted that a bank of computers was made available to temporary teachers, and that they were available to "both temporary teachers or teachers who don't for some reason … have a notebook, as well as students". As to the timing of those devices becoming available, Ms Humphries was asked whether there was such a bank and she answered, "there is now." She said that, while the policy had historically been that casual relief teachers were not provided with laptops, that policy had "changed." That suggests that the bank of laptops and change in policy were recent developments, and probably did not apply during the claim period. That is reinforced by the absence of reference to the bank of laptops in Ms Humphries's affidavit, made around 6 months earlier. 494 More importantly, there was no evidence as to the number of laptops in the "bank," or the number used by casual relief teachers. There was no evidence of any policy as to provision to teachers that had simply opted not to participate in the NTPP. Ms Humphries's evidence tended to suggest that the "bank" laptops were available temporarily rather than as a longer-term measure. I am not satisfied that the "bank" provided a practicable alternative to participation in the NTPP. It was not suggested to Ms Humphries that it did. I find that, as at and in the period proximate to the date of Ms Humphries' evidence, she did not have a practicable alternative to the NTPP. 495 Warragul Regional had, in 2012, 12 non-CASES desktops and no portable staff-use computers between around 53 staff. In circumstances where Warragul Regional had a 1:1 laptop policy for students, I find that Ms Humphries had a particular requirement for a laptop computer or, failing that, near-constant access to a desktop computer. Whether desktop computers are included or not, the ratio of staff-use computers to teachers is well below the guideline ratio. I find that in 2012 Ms Humphries did not have a practicable alternative to the NTPP. I draw the usual inference as to the period between census and teacher evidence. The census reveals that there were fewer non-CASES staff-use computers in all of 2009, 2010, and 2011 than there were in 2012, between roughly the same number of teachers. If Ms Humphries had no practicable alternative to the NTPP in 2012, nor, therefore, did she in 2009 or at any intervening time. I find that she did not at any time during the claim period have a practicable alternative to the NTPP.

[42]

Mr Kober 496 Mr Kober had been at Princes Hill Secondary College throughout the claim period. I refer to what I said at [426], [429], [430], and [434] above concerning Mr Kober's use of his laptop for non-teaching tasks, and to what I said at [416] above concerning his use of his laptop in the classroom. 497 Princes Hill had a 1:1 program. Mr Kober's evidence was that, as the school was requiring parents to invest in laptops for their children, parents expected teachers to make good use of the devices and so he had made a real effort to use EduSTAR software as a teaching tool. As students submitted work to Mr Kober electronically, he was able to read and correct work in the evenings at home without the need to carry piles of work as he used to do. He worked at home on his notebook for around 1.5 hours each evening, including reading and correcting students' work, doing assessment, and writing reports. 498 Mr Kober identified four possible alternatives to participation in the NTPP. First, there were two desktops between eight staff (including Mr Kober) in his office (though one was not working) and four between twenty staff in another office. The low ratio of such desktops to teachers persuades me that these computers would not have been sufficient to provide Mr Kober with access as and when required. And, they would not have been useful for classroom teaching. Second, there were 30 netbooks that were mainly for student use, but which could be used by teachers without their own notebooks (for example casual relief teachers) to mark the roll. But they were not suitable for "substantial work" and could not be taken home. I think it is implicit in Mr Kober's evidence that for substantial work - which I consider would include access and use in a classroom - the netbooks would not constitute a practicable alternative. Third, there were desktops in classrooms for student use, but Mr Kober expressly said that they were not suitable for teaching. Finally, there were three CASES computers in the main office, but these connected to a separate administration network and were not available for use by teachers. 499 Mr Kober was not cross-examined, and DEECD did not advance any evidence of available alternatives at Princes Hill. Mr Kober's evidence establishes that he had no practicable alternatives to participation in the NTPP as at and in the period proximate to the time of his evidence, and I so find. Princes Hill had, in 2012, 13 non-CASES desktops and no portable computers between around 61 teachers. In circumstances where Princes Hill had a 1:1 laptop policy for students, I find that Mr Kober had a particular requirement for a laptop computer or, failing that, near-constant access to a desktop computer. Clearly, if a laptop computer was required, there was no practicable alternative to the NTPP. Further, I am persuaded by the low ratio of staff-use computer to teachers that Mr Kober would not have sufficient access to a non-CASES desktop computer so as to enable him to carry out his duties to the standard that he would reasonably have perceived as having been expected of him. Accordingly, I find that Mr Kober did not, in 2012, have a practicable alternative to the NTPP. I draw the usual inference as to the period between census and teacher evidence. 500 The census showed that Princes Hill had no staff-use portable computers, and had 26, 32, 0, and 13 non-CASES desktops in 2009-2012 respectively. The numbers of teachers across the 2009-2012 period were 62, 61, 64, and 62 respectively. At its height - 32 non-CASES desktop computers in 2010 - there was slightly more than one non-CASES staff-use desktop for every two teachers. The absence of staff-use portable computers necessarily entails a finding that the ratio of staff-use portable computers to teachers falls below the guideline ratio of 0.45 to 1. The ratio of staff-use computers to teachers falls below the guideline ratio in 2009, 2011, and 2012. In 2010, if staff-use desktops are taken into account, the ratio of staff-use computers to teachers is in excess of the guideline ratio: it was 0.52 to 1. But, as I said above at [458], the guideline ratio of 0.45 to 1 is predicated upon that ratio of portable computers. I explained that, for desktop computers, a much-higher ratio would be required for me to be satisfied that a practicable alternative existed. A ratio of 0.52 desktop computers to one teacher is insufficient to justify a finding that a practicable alternative existed. Accordingly, I find that Mr Kober did not have a practicable alternative to entrance into the NTPP at any time during the claim period.

[43]

Mr Kumar 501 Mr Kumar taught at Parkdale Secondary College throughout the claim period. I refer to what I said at [426], [429]-[432], and [434] above concerning Mr Kumar's use of his laptop for non-teaching tasks, and to what I said at [417] above concerning his use of his laptop in the classroom. In particular, I note that Mr Kumar used his laptop extensively in classroom teaching. Mr Kumar said that ICT use enabled students to access material in a way that they were familiar with, which was necessary for effective delivery of the curriculum, and that ICT was integral to the maths curriculum. 502 Mr Kumar identified four possible alternatives to the NTPP. First, there were desktop computers at various locations around the school, but they were not suitable for use in teaching. Second, there were desktop computers in the library and in science labs, which could be used by teachers without notebooks. But, because of their fixed nature, I think it is likely that they could not be taken into classrooms. Again, therefore, they were not suitable for use in teaching. Third, there were 60 older laptops and netbooks, predominantly for student use. Mr Kumar said that they could be loaned to graduate teachers who had not yet received an NTPP laptop. In the context in which this evidence was given, I take his statement that those computers were available in certain circumstances to entail an implicit denial that they were otherwise available. It follows, and I find, that use of those computers was not a practicable alternative to participation in the NTPP. Finally, Mr Kumar said that it may be possible to bring a private laptop to school, and that 2 or 3 of his colleagues did so. He did not know whether they had the EduSTAR or other required software on their laptops. Even if the required software was permitted to be installed on private laptops, as I have said, as a general proposition, I do not consider that use of a private laptop constitutes a practicable alternative to the NTPP. 503 Mr Kumar referred to a colleague that did not have an NTPP computer and spent hours at school in the evenings writing reports during report-writing time. Mr Kumar agreed that his NTPP computer enabled him to work at home at night rather than at school, which provided greater flexibility. It is not necessary for me to determine whether staying back at school would have provided Mr Kumar with a practicable alternative to the NTPP in regard to his non-teaching duties. That is because, even if it would have, it would not answer the point that Mr Kumar had no alternative to the NTPP in relation to his teaching and other duties during school hours. Absent such an alternative, he did not have a practicable alternative to the NTPP. 504 No other alternatives were suggested to Mr Kumar in cross-examination. DEECD did not lead any evidence demonstrating that there were other alternative at Parkdale. I find that, as at and in the period proximate to the time of his evidence, Mr Kumar did not have a practicable alternative to the NTPP. In 2012, Parkdale had six non-CASES desktops and four staff-use portable computers between around 92 teachers. I have not found that Mr Kumar had a particular need for a laptop computer, but even on the hypothesis that he did not there was around one staff-use computer for every nine teachers. That falls well below the guideline ratio. I am persuaded that Mr Kumar would not have had access to a computer as and when required for the purpose of teaching and non-teaching duties. I find that he had no practicable alternative to the NTPP in 2012. I draw the usual inference as to the period between census and teacher evidence. The census in relation to Parkdale showed that there was no material change to the number or kinds of staff-use computers between 2009 and 2012, and while the number of teachers was lower in each of 2009, 2010, and 2011 than it was in 2012, the ratio of staff-use computer to teachers was in all cases well below the guideline ratio (it was never higher than 0.12:1). Accordingly, I find that there was no practicable alternative available to Mr Kumar during that period, and therefore that he had no practicable alternative to the NTPP at any time during the claim period.

[44]

Ms MacKinnon 505 Ms MacKinnon taught at Ringwood Secondary College throughout the claim period. I refer to what I said at [426], [428]-[431], and [434] above concerning Ms MacKinnon's use of her laptop for non-teaching tasks, and to what I said at [418] above concerning her use of her laptop in the classroom. Ms MacKinnon also said that all of her assessment and reporting was done using her notebook, a lot of it at home. 506 Ms MacKinnon said that Ringwood Secondary made extensive use of ICT in teaching and learning, that the use of ICT was embedded across the curriculum, and that year 7 and 8 students no longer used textbooks but instead used iPads. Ringwood Secondary had a number of 1:1 laptop and iPad programs. Given the focus on ICT, and the ubiquity of computers, I consider that anything less than full-time access by Ms MacKinnon to a computer for teaching purposes would have been insufficient. She would not have seen it as having been reasonably open to her to attempt to teach, without a computer, a class where every student had a computer. Consistently, Ms MacKinnon said that she chose to receive an Apple NTPP laptop rather than a PC, because that was what students were using, even though her preference would have been to receive a PC. She said that she used her laptop "constantly" in her teaching. 507 Ms MacKinnon identified three possible alternatives to the NTPP. First, there were four desktops in a staffroom, which were used by casual relief teachers, support staff, and people whose laptops were broken. But, Ms MacKinnon did not fall into any of those categories and in any event those computers, being in a staffroom, could not have been used for teaching. Second, there was a bank of ten former student-use laptops that likewise were available to CRTs and short-term staff, and to people waiting for an NTPP notebook. Again, Ms MacKinnon was not in any of those categories. Third, Ms MacKinnon said that private laptop use had not historically been encouraged by the school, though that had changed somewhat in the year prior to her affidavit. The technical support staff now made allowances for teachers that did not have an NTPP laptop. That implies that before around mid-2013, the technical staff did not make allowances for non-NTPP laptops. In any event, Ms MacKinnon did not give evidence that she had a private laptop that she could bring to school. She did give evidence that the school offered MacBook Pro computers for purchase, but, as explained above, I do not consider purchase or use of a private computer to be a practicable alternative to participation in the NTPP. 508 DEECD did not lead evidence that tended to show the existence of any other alternatives at Ringwood Secondary. I find that, as at and in the period proximate to the time of her evidence, Ms MacKinnon did not have a practicable alternative to the NTPP. Ringwood had, in 2012, around 20 non-CASES desktop computers and two notebooks. There were around 105 teachers at the school at that time. The ratio of staff-use portable computers to teachers was less than 0.02:1 and is well below the guideline ratio. Taking into account the 20 non-CASES staff-use desktop computers does not raise the ratio of staff-use computers to teachers to, or indeed even near, the guideline ratio. I find that Ms MacKinnon lacked a practicable alternative to the NTPP in 2012, and I draw the usual inference as to the period between census and teacher evidence. 509 In all of 2011, 2010, and 2009, the ratio of staff-use computers (including non-CASES desktops) to teachers was below 0.3:1, and thus was well below the guideline ratio. There were, in those years, 3, 3, and 1 laptop computers respectively, between around 100 teachers. In all cases, I am satisfied that Ms MacKinnon lacked a practicable alternative to the NTPP, and I so find. I therefore find that Ms MacKinnon lacked a practicable alternative throughout the claim period. 510 The final point arises out of there having been 42 tablet computers at Ringwood Secondary in 2011 and 2012. As I found earlier, tablet-style computers did not constitute a practicable alternative to the NTPP, and the fact of their existence at Ringwood Secondary does not cause me to alter the finding made in the previous paragraph.

[45]

Ms O'Grady 511 Ms O'Grady was a teacher at Hume Valley School at all times material to this proceeding. I refer to what I said at [427], [429], [430], and [433] above concerning Ms O'Grady's use of her laptop for non-teaching tasks, and to what I said at [419] above concerning her use of her laptop in the classroom. In particular, I note that Ms O'Grady did not think she could teach the VCAL curriculum without a laptop, that she needed a laptop to do her job, and that she used a laptop constantly in the classroom. Further, Ms O'Grady did not think it was possible to bring one's own laptop instead of using an NTPP computer. She was not aware of anyone that did so. 512 There is a slight tension between that last point and Ms O'Grady's evidence that she used her own MacBook laptop before receiving an NTPP laptop. But, I think that is reconcilable on the basis that Ms O'Grady was, when using her own laptop, waiting to receive her first NTPP notebook. There is a difference between waiting for a notebook as a new teacher, and expressly declining to participate in the NTPP. 513 I find, on the basis of the foregoing, that Ms O'Grady had a particular need for a laptop computer, especially for the purpose of classroom teaching. 514 Ms O'Grady identified three possible alternatives to the NTPP. First, she said that there were two desktop computers in the office area. But, one was exclusively used by the office administrator, and the other was used three days per week by the sub-school manager. I consider that those computers would not have been available as and when Ms O'Grady required, and in any event that they would not have assisted in classroom teaching. Ms O'Grady had been appointed sub-school manager by the time of her oral evidence. That might mean that the second of the two desktops was available to her. That would not, however, render that desktop suitable for classroom teaching. I find that the desktop computers did not constitute a practicable alternative. Second, desktops in classrooms were available for use by teachers before and after school hours. But, that does not assist in classroom teaching or performance of other duties during school hours. I find that those desktops did not provide a practicable alternative to the NTPP. Third, Ms O'Grady said that she did not believe it was possible to bring one's own laptop. She was not challenged as to that evidence, and I accept it. It follows that bringing her own laptop was not a practicable alternative. 515 By the time that Ms O'Grady gave her oral evidence, she had been given an iPad by DEECD as part of its "Bastow Leadership Course." But, Ms O'Grady's evidence was specifically that she could not teach the VCAL curriculum without a laptop, and it was not put to her in cross-examination that the iPad was a practicable alternative. I find that the iPad was not a practicable alternative to the NTPP. I find that, as at and in the period proximate to the time of her affidavit and oral evidence, Ms O'Grady did not have a practicable alternative to the NTPP. 516 Though Ms O'Grady taught at Hume Valley School throughout the claim period, from 2011 she was at that school's VCAL campus, which was co-located with Hume Central Secondary College in Broadmeadows. She had been at the main campus of Hume Valley School in 2009 and 2010. This creates two difficulties: first, I do not know whether it is the census data for Hume Valley or Hume Central that is relevant to Ms O'Grady's time at the VCAL campus; and, second, Ms O'Grady did not give any evidence concerning available alternatives at the main campus. 517 I will take the second issue first. Hume Valley is recorded in the census as having 19 staff-use laptop computers in both 2009 and 2010. Application of student to teacher ratios yields estimates of between around 15 to 18 teachers in those years. That suggests that there was slightly more than one staff-use laptop per teacher. In those circumstances, I am not persuaded that Ms O'Grady lacked a practicable alternative during that period. 518 The answer in relation to the first issue - whether it is the Hume Valley or Hume Central census data that includes staff-use computers for the VCAL campus - does not matter in 2012. In that year, there were zero staff-use portable computer at both Hume Valley and Hume Central. In either case, Ms O'Grady would not have had access to a staff-use portable computer. At Hume Central there were around six non-CASES desktops between around 83 teachers. At Hume Valley there were around 3 non-CASES desktops between around 18 teachers. In either case, the ratio is well below the guideline ratio and I find that, in 2012, Ms O'Grady had no practicable alternative to the NTPP. I draw the usual inference as to the period between census and teacher evidence. 519 2011 is more difficult. At Hume Central, the position was much the same as in 2012, and so if the figures for that school applied I would find that there was no practicable alternative. At Hume Valley there were 19 staff-use laptops between around 18 teachers, so if the figures for that school applied I would find that there was a practicable alternative. I consider it appropriate to use the Hume Valley numbers. Ms O'Grady taught at Hume Valley, and I would need a stronger reason than the fact of co-location of that school's second campus with Hume Central to find that computers at Hume Valley's second campus were counted in the census not as Hume Valley computers but as Hume Central computers. I do not have any such reason. 520 I am aware that Ms O'Grady referred to there being around 40-50 teachers at "the school." An argument might be constructed that, as the application of the student to teacher ratio to the Hume Valley census data results in an estimate of only around 18 teachers at February 2011, Hume Valley's second campus must have been dealt with as part of Hume Central, because the estimate of teachers for Hume Valley and Ms O'Grady's evidence do not align. Or, the argument might be made that the 19 staff-use laptops in the 2011 Hume Valley census would not have sufficed between the around 40-50 teachers Ms O'Grady identified. But, both arguments rely on speculation and on the inference that Ms O'Grady's December 2013 evidence can be transposed to 2011. I am not prepared to speculate, nor to draw that inference, which I would have to draw to accept either argument. I am unpersuaded that Ms O'Grady lacked a practical alternative to the NTPP in 2011. 521 On the basis that the Hume Valley census figures are applicable throughout, the final issue is that there were 19 staff-use laptops as at 1 February 2011, but zero staff-use laptops as at 1 February 2012. I do not know when, between those dates, the laptops were disposed of. In keeping with the conservative approach I have adopted in this analysis, I find that the laptops were disposed of nearer to 1 February 2012 than to 1 February 2011: on 31 December 2011. 522 I therefore find as follows: between 1 June 2009 and 31 December 2011, Ms O'Grady had a practicable alternative to the NTPP, namely, use of one of the staff-use laptops that were shown in the census for Hume Valley. Between 1 January 2012 and 29 November 2013, I find that Ms O'Grady had no practicable alternative to the NTPP.

[46]

Ms Renton 523 Ms Renton taught at Kilmore Primary School throughout the claim period. I refer to what I said at [426], [429], and [430] above concerning Ms Renton's use of her laptop for non-teaching tasks, and to what I said at [421] above concerning her use of her laptop in the classroom. In particular, I note that Ms Renton's reference to a 1:1 program raises considerations discussed elsewhere, namely, that frequent use of ICT by students would likely have resulted in Ms Renton understanding that she, too, was expected to use ICT in her teaching. Ms Renton's evidence included statements that she used her laptop "extensively" for planning curriculum documents and lesson planning, and that the laptop was "essential" for assessment and reporting. 524 Ms Renton said that a lot of her assessment and reporting was done "on the move" at school and at home. She took her notebook home with her each night and always during report-writing time. Ms Renton did not recall being given a choice as to whether she would enter the NTPP. She was given a form to sign. She had had inadequate access to computers and the NTPP seemed like the only way to solve that problem. 525 Ms Renton gave the following evidence concerning alternatives to the NTPP. She said that there was one desktop computer in the staff room, which was mostly used by education support staff, was unreliable, and did not always connect to the server. Ms Renton said, and I accept, that it would not be feasible to use that desktop instead of a laptop computer. Second, she referred to CASES computers used by office staff, but said that they were not available to teachers. They did not provide a practicable alternative. Third, she was not aware of any teacher bringing a private laptop. Further, her evidence was that she had a desktop computer at home, and she made no reference to having a personal laptop. Also, as I have said, as a general proposition I do not consider that purchase or use of a private laptop is a practicable alternative to the NTPP. Finally, Ms Renton said that, occasionally, a short-term contract teacher was given an old student laptop with "QuickVic" software for assessment and reporting. She said, however, that the laptop was then not available to students, from which I infer that teacher use of old student laptops was not encouraged. Further, she did not say that old student laptops were ever given to persons other than short-term contract teachers. I find that old student laptops did not constitute a practicable alternative for Ms Renton. 526 I find that Ms Renton had no practicable alternative to the NTPP at Kilmore Primary, as at and in the period proximate to the date of her evidence. The census shows that Kilmore Primary had, in 2012, four non-CASES desktop computers and no staff-use portable computers between around 35 staff. I have not made a finding that Ms Renton had a particular need for a laptop computer, but even on the hypothesis that she did not, the ratio of staff-use computer to teachers was far below the guideline ratio and I am persuaded Ms Renton would not have had access to a computer as and when required. I find that she had no practicable alternative to the NTPP in 2012. I draw the usual inference as to the period between census and teacher evidence. The census shows that the staff-use computer position was unchanged between 2009 and 2012, and that the ratio of such computers to teachers was effectively unchanged. It follows, and I find, that Ms Renton had no practicable alternative to the NTPP throughout the claim period.

[47]

Ms Terry 527 Ms Terry was at St Helena Secondary College throughout the claim period. I refer to what I said at [426]-[431] above concerning Ms Terry's use of her laptop for non-teaching tasks, and to what I said at [422] above concerning her use of her laptop in the classroom. In particular, Ms Terry said that St Helena was an ICT school and that ICT was an essential component of all teaching and learning. There was a 1:1 program whereby all students had tablet devices loaded with the EduSTAR programs. 528 Ms Terry said that she used her notebook to work from home and other off-site locations. She said that she preferred a laptop to a desktop because a laptop was portable and she could take it with her on the many occasions that she needed to work away from the office. She said that she did a lot of work at home, in the evenings and on weekends, which she could only do using her laptop. 529 Ms Terry identified a number of possible alternatives to the NTPP. First, she referred to desktop computers that were available to the principal class at St Helena. But, she said that use of a desktop would not be feasible because desktops were not portable. The same conclusion applies in relation to the CASES computer that she referred to as being on her desk. Second, she stated that no student-use computers were available for use by staff. Third, there was a bank of around six laptops available for casual relief teachers. Those did not constitute a practicable alternative for Ms Terry, as she was not a casual relief teacher. Finally, Ms Terry said some teachers purchased the same tablets as used by students rather than NTPP computers. As I have said elsewhere, I do not consider that purchase by a teacher of his or her own device for use at work (as in the case of teachers that purchased their own tablet devices) is relevantly an alternative to the NTPP. 530 I find that Ms Terry had no practicable alternative to the NTPP, as at and in the period proximate to the date of her evidence. Ms Terry's evidence as to alternatives related to her current capacity, i.e., that of the school's principal. That did not involve any teaching duties. In relation to when she had teaching duties, her evidence was that she used her laptop extensively. Because of its portability, she could set it up in the classroom to show a presentation or video, and she was able to use it for differentiated learning by setting it up for use by a smaller group to work on a specific learning task. It seems to me that if a desktop computer did not provide a practicable alternative to Ms Terry when she was a principal, still less did it provide a practicable alternative when she was a teacher. 531 The census shows that, in 2012, St Helena had 35 non-CASES desktop computers and no portable computers between around 112 staff. I have not found that Ms Terry had a particular need for a laptop computer, although the evidence probably does bear that finding. Whether or not Ms Terry had a particular need for a laptop, the ratio of staff-use computers to teachers is well below the guideline ratio, and I am persuaded that Ms Terry would not have had access to a staff-use computer as and when she required it. That is especially so in the context of St Helena being an ICT school where ICT was an essential component of all teaching and learning. I find that Ms Terry did not have a practicable alternative to the NTPP in 2012. I draw the usual inference as to the period between census and teacher evidence. The census revealed that the position as to staff-use computers and teachers was comparable to 2012 in all of 2009, 2010, and 2011. On the same basis as in relation to 2012, I find that Ms Terry had no practicable alternative to the NTPP between 2009 and 2011, and therefore that she had no practicable alternatives throughout the claim period

[49]

Evidence of Group 11 teachers 535 The NTPP teachers did not, for the most part, give direct evidence as to their reasons for entrance into the NTPP. However, it is possible, on the basis of their evidence as to use of the computer for work and personal purposes, to draw inferences in each case that their reasons were predominantly work-related. 536 Ms Aulich described the choice whether to have a laptop as a "loaded choice" and said that she had to have a laptop to do her job. Ms Aulich also said that her personal use was "secondary". I infer that her reasons for participating in the scheme were work-related. 537 Mr Farquhar did not address his reasons for participation, but I infer from his evidence that he saw the laptop as an "essential work tool," and his evidence that his personal use was "not extensive," that his reasons were predominantly work-related rather than personal. 538 Ms Fischer's evidence was that it would be impossible for her to deliver the curriculum without her laptop and that she used her laptop for personal use only because to do so was more convenient than to use her own computer. Ms Fischer also said that she did not perceive herself as having a genuine choice whether or not to enter into the NTPP scheme as it was accepted that one must have a laptop in order to do one's job. On that basis, I find that her reasons for participation were work-related. 539 Ms Haddow had been told that she needed a laptop in order to do her job, and so she did not understand that she had a choice not to have one. Similarly, she characterised the Recipient Agreement as "an agreement to have a work tool for my job that I needed to have". I infer that her reasons for participating in the NTPP were predominantly work-related 540 Ms Humphries said that it was not possible to teach without a computer and gave evidence of extensive use of her laptop for work purposes, whereas she had a personal computer at home for private use and only made a small quantity of private use of her laptop. Indeed, for the most part she did not take her laptop home with her. The inference is available that her reasons for participation in the scheme were work-related rather than personal, and I so find. 541 Mr Kober's evidence was likewise of extensive work use of his laptop. He said that it was essential for certain work-related tasks, whereas his personal use was incidental and he tended to use his home computer for personal use. I infer that his reasons for participation in the scheme were predominantly work-related rather than personal. 542 Mr Kumar similarly gave evidence that his work-related use was extensive, whereas he made very little private use of his laptop and indeed sought to minimise private use. Again, the inference is available that his reasons for participating in the NTPP were predominantly work-related. 543 Ms MacKinnon's evidence was in the same category. She described Ringwood Secondary's use of ICT for teaching and learning as "extensive," said that she used her laptop "constantly in [her] teaching" and said that "ICT [was] embedded across the curriculum." Her personal use was no more than 5 per cent of overall use. Ms MacKinnon further said that, though she would have preferred to have a PC to an Apple computer, she opted for an Apple computer (the more expensive option) "because it was what the students were using". All of the foregoing is consistent with Ms MacKinnon's reasons for participation in the scheme being work-related, and I so find. 544 Ms O'Grady stated that she used her laptop constantly in the classroom. Her personal use was around 10 per cent of her overall use. She described personal use as being "incidental" to the primary purpose of the laptop, being work purposes, and when it was put to her that she benefitted from having personal use of the computer she replied, "[i]t allows me to do my job in that sense. I'm able to follow up on work that I couldn't complete during school hours". She said that personal use was not the reason she agreed to a deduction from her salary. She agreed that she did not have another computer at home that was readily available to her, and that her smartphone did not enable all of the personal uses to which she put the computer. However, using the laptop for particular personal uses that would have been otherwise unavailable does not necessitate that she participated in the scheme for personal use. I accept Ms O'Grady's evidence that that was not why she agreed to the deductions, and I find that Ms O'Grady's reasons for participating in the NTPP scheme were predominantly work related. 545 Ms Renton did not recall being offered a choice about leasing a laptop. She recalled having inadequate access to computers at school and especially in the classroom, and she viewed the NTPP as being the only way to solve that problem. She made little if any personal use of her laptop. The inference is available that her reasons for participating in the NTPP were work-related, and I so find. 546 Ms Terry's evidence was that she used her laptop "extensively in [her] classroom teaching", and that ICT was "central to the delivery of curriculum" and used "extensively in the administration of the school". She used her laptop to access essential information on "Edugate," and understood that a department computer was the only way to access "Edugate". Conversely, her private use was only 1 to 2 hours a week and was less than 5 per cent of her overall use. In those circumstances, the inference is available that Ms Terry's reasons for participation in the program were predominantly work related, and I so find.

[50]

Evidence of DEECD teachers 547 Like the Group 11 teachers, many teachers called by DEECD did not directly address their reasons for NTPP participation. Though, some did, and there was also a gradation in the reasons of teachers called by DEECD, so I have separated the evidence into four categories. 548 First, two teachers expressly contradicted personal use as a reason for participation in the NTPP, at least in relation to some of the time of their participation. Ms Prosser said that she signed up to the NTPP "because [she] saw the benefits of using a laptop in the workplace". While she subsequently came to use her laptop more extensively for personal use, she agreed that her reason for participation in the NTPP was not that she needed a personal computer. But, that evidence related only to her initial entrance into the NTPP. Her circumstances changed during the claim period, as will be discussed below. Ms Wheeler's evidence reveals that for some time after commencing in 2007 she, too, was in this category but that that changed later in her involvement in the NTPP. This, too is discussed below. 549 Second, there were a number of teachers who nominated work use as their reason for participation in the NTPP. Ms Alpine said that she did not recall that the NTPP was optional and thought it was part and parcel of the job and necessary for doing work. Ms Bray said that she understood the NTPP was voluntary but thought it would be useful because she had seen how much other teachers used them during her teaching rounds. She thought she would definitely need one. In the context of her evidence of extensive work use, of diminishing personal use, and of available alternatives for personal use, I understand that statement as being one of requirement for work-related rather than personal reasons. 550 Ms Davis said that the NTPP "seemed like a good opportunity, because [she] would be able to take the laptop home and use it for work there, and not have to share [her] home desktop computer with [her] children". While she also gave evidence of fairly substantial personal use, she said that her personal use was diminishing, that the greatest benefit of the program was "the flexibility the program offers, and the maintenance provided," and that she liked being able to start work on a task at work and then finish it at home. Taken together, I consider her statement as set out in the first sentence of this paragraph to be a statement of her reason for participation in the NTPP and that it was a predominantly work-related reason. 551 Third, there were teachers who did not directly address their reasons for participation in the NTPP, but from whose evidence an inference is available that their reasons were work-related. Ms Evans said that teachers had the choice whether to participate in the NTPP or not, and that they wanted NTPP computers and chose to participate. As to work-related uses, she said that it would be "very hard to operate without a laptop," that if she left her laptop at home she "couldn't get through a day of work without it," and she detailed substantial use of her laptop in classroom teaching, planning, and working from home. Conversely, while her personal use of the laptop was not insubstantial, it was 25 per cent compared with 75 per cent work-related use. She had an iPad and smartphone that she used for personal use, and a desktop at home that she could have used for personal use but found inconvenient. In summarising her evidence, she said, "I really need the laptop, and I can't really operate in my role without it". She agreed in cross-examination that the reason she had chosen the substantially-more-expensive Apple computer over the Lenovo computer is that the former was easier to integrate as a work tool within the work environment. She agreed that her personal use when at home was largely undertaken in the context of an interval during a period of undertaking a work-related task, because if she intended to use a computer for purely personal reasons she would sometimes use her iPad. She did not gainsay the characterisation of her laptop as a "work tool". In those circumstances, I infer that her reasons for participation in the scheme were work-related rather than personal. 552 Mr Walsh said that he used his laptop for most of his work tasks, did so regularly throughout the day, and worked at home. He said, "[i]f I didn't have my Department laptop then I would have to purchase my own laptop to do this work." He identified his laptop as being "essential" for a particular work-related task, and said that that task was one example of many he might give of use of a laptop in teaching. He viewed the laptop as being an essential tool for doing his job. Conversely, he did not use his laptop much for personal use, and he had another computer at home, a smartphone, and an iPad. He agreed that his personal use of his laptop was incidental to the fact that he used it a lot as a work tool. I think the inference is readily available that Mr Walsh participated in the NTPP scheme for work-related reasons. 553 Fourth, there were teachers whose evidence did not enable ascertainment of whether their reasons for participation were, to any significantly-greater degree, work-related or personal. Ms Henning understood that participation in the scheme was voluntary. Her evidence as to early-adopter teachers was, "[w]e really wanted to see what we could do in teaching with having access to laptops." She also said that the program was "exciting," that she recalled being encouraged to use the laptop for personal things, and that participation in the NTPP benefitted teachers professionally and personally. Her laptop was her main computer at home. She used it extensively for personal activities (50 per cent of her overall laptop use), and she said that because she had access to the personal use of the laptop she had disposed of her home desktop. On the other hand, Ms Henning agreed that a reference in her affidavit to the enthusiasm of new teachers to get into the NTPP was in part so that they could perform their duties as a teacher, and that that was the purpose of the program. In my opinion, especially after Ms Henning disposed of her personal home computer, her evidence is consistent with her reason for participation being in part work-related, and in part to have the benefit of the permitted personal use. 554 Mr Jagoe said, "[a]fter I got the laptop, I could start to do work at home", and he identified a number of work-related benefits to the NTPP. He identified the ability to work from home as being beneficial. He said that, though he had another desktop at home, it was not of great benefit to him compared to the "work tasks at home that the laptop enabled me to do straight away, such as report writing." When he entered the NTPP he did not have much need for personal use. That is all consistent with his initially having entered into the scheme, in 2001, for work reasons. However, thereafter, his personal use increased and he put his laptop to many and various personal uses. When he joined the NTPP he had a "pretty archaic" desktop at home, but by the time of his affidavit he had no other computers at home. He said, "I don't have another computer or tablet at home, so my work laptop is also my personal computer". Especially after Mr Jagoe disposed of his home computer, his evidence is consistent with his reason for participation in the NTPP being in part work-related and in part to secure personal use of the laptop. 555 Ms Prosser had a desktop when she first entered the scheme but largely ceased to use it upon procuring the NTPP computer. She ultimately disposed of it without replacement. While Ms Prosser's evidence revealed that she put her NTPP computer to substantial work-related use, she also made various personal uses of her NTPP laptop, which formerly she had done with her personal desktop. Her evidence in re-examination was that "if [she had not signed] up for the program [she] would have to purchase a device of [her] own choice. That would have to be regularly updated. [She] would also have to pay for technical support if [she did] buy a computer at home." That answer contemplates that if she did not have an NTPP laptop she may have purchased another computer for personal use. I consider that Ms Prosser's evidence as to her entrance into the NTPP, after disposal of her home computer, is consistent with her reasons for participation being in part work related and in part to secure personal use. 556 Ms Wheeler said as follows: I could do my job without a laptop, by using a computer at home and another computer at work, but it is more convenient to have a laptop. While there are other computers and devices that I can use to do my work, I couldn't do my job as easily without a laptop now. If I didn't have a laptop through the program, I would probably have bought my own laptop as it is more convenient than carrying USBs back and forth. 557 Especially the word "now" in the second sentence seems to suggest that a laptop was inessential when Ms Wheeler first entered the program, but grew more essential as time went on. She said that "personal use didn't really come into the equation when considering whether I would sign up for a laptop. I felt I needed my laptop to do my teaching and planning," and she said, "[w]hen I first obtained the laptop, I also had my own personal computer. This meant I didn't use the laptop much for personal use. I didn't enrol in the program simply for that benefit." Ms Wheeler made fairly extensive personal use of her computer. She, as with other teachers, no longer had a personal computer because she used her NTPP laptop for personal use instead. I think that, read in total, Ms Wheeler's evidence was that she first entered into the NTPP scheme mainly for work-related reasons (principally the convenience of being able to work from home), and in small part for personal reasons. I read her denials of motivation by personal use as relating to when she first entered into the NTPP - i.e., in 2007 - and to a lesser extent to the claim period and especially the later parts thereof. I consider that on the first occasion she entered into the NTPP she was motivated predominantly by work-related reasons, but thereafter her reasons included also personal use. On balance, I think that personal use was likely still secondary to Ms Wheeler's motivation by work-related considerations.

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Evidence of Group 11 teachers 560 Ms Aulich's evidence was that her personal use of her laptop was not more than 10 per cent of her overall usage. She used her laptop for personal emails, browsing the internet, internet banking, listening to music, storing of photographs, and occasionally for watching a video or DVD. She tended, however, to use her iPhone for personal use more than her laptop. She said that personal use was secondary, and that there were certain things she would not look up using her NTPP laptop. As an example, she cited research she had conducted concerning a medical procedure. 561 Mr Farquhar's evidence was that his personal laptop use was not extensive. He used his NTPP computer for internet banking, private emails, and for researching private interests. 562 Ms Fischer's evidence was that she used her laptop for work purposes for more than 45 hours per week, and for personal purposes for no more than two hours per week. She had a personal computer and an iPhone that she used for personal matters. She used her laptop for private emails, internet banking, social media, and storage of photographs and tax records. She could have used her personal computer for those things, but found it more convenient to use her laptop. She said that she conducted those activities on her laptop at home, on her laptop at school, and also on her home computer. 563 Ms Haddow's evidence was that she had her own computer at home for personal use, and an iPhone. She made little if any personal use of her laptop. She only took it home when writing reports, as she otherwise preferred to put documents on a USB and work from her home computer. She made incidental personal use of her laptop before and after school - to look at emails, do banking, and perhaps look up something on the internet. Her evidence was that she would be surprised if that time added up to one hour per week. Ms Haddow gave evidence that when she emailed colleagues and parents from home she used her personal computer, and that, though she used her laptop at home more in report-writing times, that was all work use. 564 Ms Humphries's evidence was that she used her laptop for a small amount of personal use before school. She tended to arrive at school reasonably early and to use her laptop for 10-15 minutes to check private email, surf the internet, or for internet banking. She did not use her laptop for personal use during school hours, and used her own desktop at home for private use. Ms Humphries agreed that she knew she was permitted to take the laptop home, and she said that she did take the laptop home during report-writing time for the purpose of writing reports. 565 Mr Kober's evidence was that personal use of his laptop was less than 5 per cent of overall use. He took his laptop home each night and set it up in his study. He used his laptop in the evening for working, and for incidental personal use such as personal emails and paying bills. He used his wife's iMac for personal things in preference to his work laptop. 566 Mr Kumar's evidence was that he had a computer at home for private use, and a smartphone which he used to access his private email accounts when not at home. He made very little personal use of his NTPP laptop. He stored some photos and music as a backup to personal hard drives, and engaged in some personal internet browsing, but preferred to do his personal computing on his own computer. He agreed that he used his computer for personal purposes, but said he tried to minimise such usage, including because he did not want his employer to be able to see what he did in his personal time. 567 Ms MacKinnon's evidence was that her personal use of her laptop was no more than 5 per cent of overall use. She and her husband had a PC at home and a Google Nexus device that they used when travelling. She said that she did a lot of work from home and that it was convenient to send and receive personal emails from the NTPP laptop. She sometimes read the newspaper or browsed the internet. She stored photographs on the laptop. 568 Ms O'Grady's evidence was that personal use of her laptop was around 10 per cent of overall use. While she had a personal computer at home, it was used mainly by her partner for his PhD. She used her laptop for personal emails, internet banking, online shopping, reading the news, browsing the internet, and for watching a DVD or "iView." She characterised any benefit that flowed from personal use as incidental to the primary purpose, being work use. She agreed that the extent of her personal use varied from week to week and month to month. She said that if her computer was on when at home she might interpose into work use some personal use, that she also used her smartphone for personal use, but that if and when she watched DVDs or "iView," that was done using her laptop rather than her smartphone. 569 Ms Renton's evidence was that she had a desktop at home which she used for private email and other personal use, and that she had an iPhone that she tended to use for personal use when not at home. She made little if any personal use of her laptop. She stored some photographs on it. 570 Ms Terry's evidence was that her personal use of her laptop was less than 5 per cent of overall use. Ms Terry's evidence was that she did not have a private computer at home, but did have a smartphone which she used to access work emails. She made personal use of her laptop for between one and two hours per week, including sending and receiving personal emails, internet banking and bill paying, uploading photographs to the Dropbox website, and sometimes for downloading and organising music on her iPod.

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Evidence of DEECD teachers 571 Ms Davie's perception was that, at the beginning of the NTPP scheme, teachers made significant personal use of laptops, because that was often teachers' only means of accessing the internet at home. However, that changed over time as teachers more regularly had private computers or other devices. She observed that, in 1999 over the Christmas and New Year period, teachers returned to school to collect laptops upon which new software had been installed by technicians. She understood their motivation to be so that laptops could be used both for personal and work-related reasons over school holidays. In cross-examination, Ms Davie agreed that personal use was, as at the time of her evidence, an incidental benefit, but reiterated that in the early days of the NTPP that would not have been the case, as laptops were then more novel and rarer in homes. 572 Ms Alpine's evidence was that her personal use of her laptop was 20 per cent of overall use, and that that figure would have been more like 30 per cent a few years prior to her evidence. She used her laptop for looking up things on the internet, watching TV programs, internet banking, personal emails, and Googling things. But since, at the time of her affidavit, she also had an iPhone and an iPad, her personal use was less than it once had been, and she tended to use her laptop for personal use if it was up and running. If it was not, she would use another device instead. 573 Ms Bray's evidence was that, as at the time of entrance into the program (in around 2002) she used her NTPP laptop for personal use for about 30 minutes each evening. As at the date of her affidavit, the extent of personal use was that amount or less. Initially her laptop was her only personal computer. As at the date of her affidavit she used it for photos, iTunes, personal email, Google searches, transferring music to her iPhone, and personal word processing. She used her iPad for personal use with increasing frequency, and her laptop with decreasing frequency, since her laptop was becoming more unreliable as it got older. 574 Ms Davis's evidence was that personal use was around 25 per cent of overall use of her laptop. Ms Davis did not recall a particular discussion about personal use when she first signed up to the NTPP, but most of her laptop use initially was for work and so she did not turn her mind to personal use. Over time, however, her personal use increased. As at the time of her evidence, she used her laptop to call her family using Skype, to order books from Amazon, and for personal emails and research. She engaged in more personal use around Christmas (for shopping), at tax time (for doing her tax), and during school holidays. Her personal use decreased somewhat after she got an iPad, but she still used the NTPP laptop for personal word processing and printing things at home. Ms Davis agreed that 90 per cent of her work-related computing, when physically at school, was done on her desktop rather than her laptop, and that use of the laptop for classroom teaching and at home for work purposes comprised 75 per cent of her use of her laptop. 575 Ms Evans's evidence was that her personal use was around 25 per cent of overall use of her laptop. Her evidence was that she used her notebook pretty much constantly while at school. She was part-time and did not work Wednesdays. It is likely that with a higher number of work hours, as that of a full-time teacher, Ms Evans's personal use percentage would be lower. She did not recall, when first signing up to the NTPP, anyone explaining what the laptop was to be used for, but she mainly used it for school-related work rather than personal things. As at the time of her affidavit, she used it for social media, to store music and photos, for internet banking, eBay, general research, searching using Google, booking holidays, personal emailing, paying bills and other day-to-day tasks, online shopping, and sending text messages. She also had an iPad and sometimes used that for reading newspaper articles and looking up recipes, but found her laptop more convenient. She used her smartphone for social media and emails. She had a PC at home, but did not find it convenient to use. Ms Evans said that she did not use her laptop for personal use at school. Her evidence was that, when at home, her personal use sometimes came in the form of a diversion in the course of work use, and sometimes in the form of taking out the computer purely for personal use. The former was more common, because if she was not already working on her computer she sometimes used her iPad for personal use. 576 Ms Henning's evidence was that personal use was around 50 per cent of overall use of her laptop. She thought that that was around 10 hours per week. As an assistant principal, she had a desktop at school, which she used for work purposes. Ms Henning's evidence was that personal use of laptops was discussed at an information session she attended in around 1998, that is, in the infancy of the NTPP program. Teachers were told that if they used the laptop more they would be more confident, and were therefore encouraged to use laptops for personal things. At that time, Ms Henning also had a home computer, but she later disposed of it and her NTPP laptop became and remained her main home computer. She used it for word processing initially, and for research concerning genealogy. She continued, as at the date of her affidavit, to use it for those purposes, and also for emails, banking, internet shopping, general surfing of the internet, social media, reading newspapers, looking up recipes, Google Maps, and printing. Occasionally she played games so as to familiarise herself with them before using them in a school context - but mainly used her tablet computer for that purpose. She agreed that DEECD's personal use policy affected what she could do on her laptop, including that she would not consider it to be open to her to make her laptop available to other persons for private use. She said that her personal use percentage varied and that in holiday periods there would be a higher proportion of personal use than in non-holiday periods. 577 Mr Jagoe's evidence was that he was never informed of restrictions on personal use and did not initially think there were any such restrictions, but that he did not have a great need for personal use. Initially he did not use his laptop much for personal use, but as technology improved so too did his personal use and, as at the time of his affidavit, he used his laptop for personal emails, banking, sports updates, viewing, and replays, fantasy sports, downloading TV shows, reading newspapers, and occasionally online betting. That personal use was generally limited to nights and weekends. He estimated that his personal use was around 20 to 30 minutes per night. His weekend usage varied: sometimes a few hours per day; sometimes no use at all. His daughters used his laptop for homework or use of educational software, especially on the weekend. 578 Ms Prosser gave evidence that she did not need a NTPP computer for home use when she first signed up because she had a personal computer. She recalled being told by her principal that personal use would not be monitored, but should be appropriate for the school environment. When she first enrolled, she did not make much personal use of the laptop. However, over time, she came to use her laptop more, and did not any longer have a desktop at home. As at the time of her affidavit, she used her laptop for nearly all of her personal internet use. She estimated her personal use at one hour per day, including on weekends. Her personal use included internet searching, social networking, downloading music, buying tickets, internet banking, internet shopping, Skype calls to overseas friends, and occasionally personal word processing. She also used her phone for internet browsing, but when at home more often used the NTPP laptop. 579 Mr Walsh's evidence was that when he first signed up to the NTPP he did not recall anything in particular being said about the difference between personal and professional use and that he thought he could use the laptop for personal use if he wanted. However, he stated that he did not use his laptop much for personal use notwithstanding he was permitted to. He had, at the time of his evidence, a personal computer at home, but did not make much personal use of that either. He had a smartphone and an iPad which he occasionally used for checking football scores or other things on the internet. Mr Walsh agreed that any personal use was incidental to the fact that he used his laptop as a work tool. He agreed that there were limitations in policy documents on permissible use, but said that the infrequency of his personal use was caused not by those limitations but instead by the availability of his other personal devices, which he preferred to use for personal use. 580 Ms Wheeler's evidence was that her personal use of her laptop was around five to ten hours per week. She said that, when she first received a laptop, she already had a personal computer, but that as her home computer got older she did not bother to replace it because she could use her laptop for personal use. As at the date of her affidavit, she used her laptop for storage of photos, checking emails and social media, as a DVD player for watching movies, and for personal banking and shopping. She had an iPhone that she used to check email or social media, and for internet banking. She had also been given an iPad by her school, and occasionally used that for personal use at home.

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Discussion 581 As a preliminary matter, I note two shortcomings in the evidence. First, much of the evidence related to personal use as at the time of the affidavit or oral evidence. There was very little evidence as to personal use earlier in the claim period, though some evidence of trends. The two such trends were, at least on their faces, contradictory. Some teachers said that personal use had declined in recent years (e.g., Ms Alpine, Ms Bray); a larger number said that personal use had increased (e.g., Ms Davis, Ms Henning, Mr Jagoe, Ms Prosser, and Ms Wheeler). As to the latter, the explanation for increased use was in some cases that, as technology improved, more uses became available (e.g., Ms Davis, Mr Jagoe), and in other cases that the teacher had a home computer at the time of entrance into the NTPP but did not replace it as it became obsolete, because the NTPP laptop could be used for personal use (e.g., Ms Henning, Ms Prosser, Ms Wheeler). In the case of teachers whose use had declined over time, the explanation was increasing availability of alternative devices. That was also an explanation given for low personal use by other teachers, including Ms Aulich, Ms Fischer, Ms Haddow, Mr Kober, Mr Kumar, Ms MacKinnon, and Ms Renton. 582 I think it most likely that, when the NTPP was introduced in 1998, classroom and non-teaching (including administrative) use was not as pervasive as it would later become, so personal use made up a reasonably high percentage of overall use (though probably not a majority), but was not especially diverse. As technology improved, and the diversity of available uses increased, so too did extent of personal use. Equally, use in the classroom and for non-teaching duties (including administration) became increasingly pervasive. Probably, personal use increased in quantum but decreased as a percentage of overall use. Finally, as competing devices proliferated (e.g., tablet computers, smartphones), personal usage likely decreased both in quantum and as a percentage of overall use. But, I do not know when any of these inflection points occurred, and I proceed on the assumption that the extent of personal use was generally static throughout the claim period. No party sought to suggest that the evidence of personal use was not representative of the claim period. 583 Second, often teachers gave figures for personal use in terms of time (e.g., 30 minutes a day). The more useful figure is personal use as a percentage of total use. But, most teachers did not give evidence as to total hours of use, making transformation from absolute to percentage terms difficult. It has been necessary to rely on other evidence to make findings as to likely total use. 584 The first source is the enterprise agreements. Clause 22(1) of the 2008 Agreement stipulated ordinary hours as 76 per fortnight, with not less than 30 minutes for lunch (clause 22(4)). A teacher could not be required to undertake face-to-face teaching in excess of 20 hours per week for secondary teachers (clause 21(4)(b)(i)), or 22.5 hours per week for primary teachers (clause 21(4)(b)(ii)). The 2013 Agreement contained terms to the same effect for ordinary hours (clause 24(1)), lunch (clause 24(4)), face-to-face teaching hours for secondary teachers (clause 22(4)(b)(i)), and face-to-face teaching hours for primary teachers (clause 22(4)(b)(ii)). 585 The second source is teacher evidence. Many teachers gave evidence that they worked at home after school attendance hours, and some estimated how long: Mr Kober estimated 1.5 hours per night; Mr Farquhar 5-10 hours per week; Ms Evans 1-2 hours per night; Ms Wheeler at least 2 hours a night; Mr Walsh 2-3 hours per night; Ms Henning around 1-2 hours per night; Ms Prosser one hour per night and two hours over the weekend. 586 Further, a number gave evidence as to hours worked: Ms Fischer used her laptop for work use for more than 45 hours per week, including time spent in the evenings and on weekends. Mr Walsh arrived at around 8:00 or 8:15, and left at 5:00, and then (as noted above) spent 2-3 hours working from home in the evening. That is around 10-11 hours per day, or around 50-55 hours per week. Ms Davis said that most staff at Glengarry Primary School (of which she was principal) arrived just after 8:00 am and left between 4:00 and 5:00 pm, and that some did further work at home. Assuming 8:00 to 4:30 pm with 30 minutes for lunch, such teachers would work 40-hour weeks plus some time at home. Ms Davis herself worked from around 8:00 am to around 5:30 pm, or (assuming 30 minutes for lunch), around 45 hours per week. Ms Evans, who worked four days per week, worked from 8:00 am to 5:00 pm on Mondays, to 4:30 pm on Tuesdays, and to 4:00 on Thursdays and Fridays, or (with 30-minute lunches) 31.5 hours per week total (plus 1-2 hours per night). 587 Ms Henning worked from around 7:00 or 7:30 am to 5:30 or 6:00 pm, which she accepted (perhaps conservatively) was around 45 hours working at school per week. She worked one or two hours per night away from school. Though, of that time, she used her laptop for only around 10 hours of work use, it being the case that she had a desktop computer dedicated to her use. Ms Humphries arrived at around 7:30 or 8:00 am and left at around 4:30 or 5:00 pm, or 6:30 pm if she had a subcommittee meeting. Assuming one subcommittee meeting per week, and 30 minutes for lunch, that is around 44 hours per week. She did not ordinarily take her laptop home because she used her private computer for working at home instead. Ms Prosser arrived at 7:30 am and left at 5:30 pm, which she accepted was a nine-hour day or 45-hour week. 588 There is one further difficulty: it is not clear whether the teachers' evidence related to the hours during which they required access to their laptops, or whether instead it related to the amount of time that they physically used their laptops. That is, if a teacher said that she used her laptop around 15 per cent of the time for personal use, does that imply that the other 85 per cent was actual work use, or that the other 85 per cent was time during which the laptop was required to be available for work use, so that it could be used if needed? I think the latter. I think it more likely that a teacher in a one-hour class during which there was 10 minutes of actual physical manipulation of the laptop computer throughout the class would say that she had used her laptop for one hour, not for ten minutes. Ms Fischer is illustrative. She said that she used her laptop for work purposes for 45 hours per week. It seems unlikely that she was actually physically manipulating the laptop for that amount of time per week. Rather, it is more likely that intermittent use in class over the course of an hour had been treated by Ms Fischer as one hour's use, and reasonably so. 589 The matters set out in the foregoing paragraphs lead me to think as follows. First, many teachers worked more than the 38 hours per week required by the Agreements. Indeed, many were at work for around 45 hours per week, and in some cases (especially in the case of principals), more. Second, many teachers worked from home for around 1-2 hours per night, or between 5-10 hours per week. Overall, then, many teachers would have worked between 50 and 55 hours per week. Many teachers would have required that a computer be available for the entirety of that period, even if it was not being physically manipulated the entire time. On those bases, one hour of personal use would constitute around 2 per cent of total use. 590 But, the evidence is somewhat sparse, piecemeal, and reliant upon inference. In that circumstance, and where it was for the AEU to prove facts if it wanted to rely upon them in the unreasonableness analysis, I think it is appropriate to adopt a conservative approach. Thus, I will proceed instead on the basis that 30 hours of work use is to be regarded as typical for those witnesses who did not give direct evidence of their work use or total use, but instead only their personal use. I think the supposition that those teachers used NTPP laptops for at least 30 hours per week is well open on the evidence, and is quite conservative. Then, one hour of personal use would be one hour in thirty-one total, or around 3.2 per cent; five hours would be five hours in thirty-five total, or around 14.3 per cent. 591 I turn to evaluating the percentages of personal use. Where that involves translation of a figure given in terms of time rather than percentage, I will use the method described above. For the Group 11 teachers, the evidence was, and the personal-use percentages that I have ascribed are, as follows: (i) Ms Aulich: not more than 10 per cent (10 per cent); (ii) Mr Farquhar: not extensive (5 per cent); (iii) Ms Fischer: two hours per week as compared with 45 hours of work use (5 per cent); (iv) Ms Haddow: probably less than one hour per week (i.e., around 3.2 per cent) (5 per cent); (v) Ms Humphries: 10-15 minutes per day on school days (i.e., around one hour, or 3.2 per cent, per week) (5 per cent); (vi) Mr Kober: 5 per cent (5 per cent); (vii) Mr Kumar: very little (5 per cent); (viii) Ms MacKinnon: less than 5 per cent (5 per cent); (ix) Ms O'Grady: 10 per cent (10 per cent); (x) Ms Renton: little if any (5 per cent); (xi) Ms Terry: less than 5 per cent (5 per cent). 592 On average, that rounds to 6 per cent personal use. 593 For teachers called by DEECD, the evidence was, and the personal-use percentages I have ascribed are, as follows: (i) Ms Alpine: 20 per cent of overall usage as at the time of her affidavit, down from 30 per cent a few years earlier (25 per cent), (ii) Ms Bray: 30 minutes in the evenings (i.e., around 3.5 hours per week, out of 33.5 hours total or 10.4 per cent) (10 per cent); (iii) Ms Davis: 25 per cent (25 per cent); (iv) Ms Evans: 25 per cent (25 per cent); (v) Ms Henning: 50 per cent (50 per cent); (vi) Mr Jagoe: 20 to 30 minutes per night (i.e., around 3.5 hours) and sometimes a few hours per day on weekends, but other times no weekend use at all (say, 2 hours for an average weekend), being 5.5 hours personal use per week out of 35.5 total hours, or 15.49 per cent (15 per cent); (vii) Ms Prosser: one hour per day including on weekends (i.e., around 7 hours per week out of 37 hours total, or 18.9 per cent) (19 per cent); (viii) Mr Walsh: little personal use (5 per cent); (ix) Ms Wheeler: 5 to 10 hours per week (say 7.5 hours on average, out of 37.5 hours total, or 20 per cent) (20 per cent). 594 On average, that rounds to 22 per cent. It should be noted that Ms Davis's and Ms Henning's high percentages of personal use occurred in the context of each having a desktop devoted to her use at school. That meant that much work-related activity was done on the desktop, overall usage of the laptop was less, and personal use as a percentage was necessarily higher. The large number of principals in the DEECD sample of teachers (four principals or assistant principals as against five teachers) may well have the result that the average percentage of personal use for the DEECD sample is higher than it would have been for a more representative ratio of principals to teachers. Nevertheless, I do not adjust for this, in keeping with the conservative approach I have taken. 595 The average of all teachers is 12.95 per cent. If two additional teachers were added at the DEECD average of 22 per cent (to take account of the AEU having called two more teachers than DEECD), the average would be 13.77 per cent. As accuracy to four significant figures is not justifiable on the quality of the available data, I will round the latter figure to 14 per cent and proceed on the basis that the average teacher called as a witness (adjusting for DEECD having called two fewer teachers) used his or her NTPP laptop for personal use at a rate of 14 per cent of total use.

[56]

Annexure 6: DEECD's aim in introducing the NTPP 596 At [206] above, I referred to DEECD's purpose in introducing the NTPP scheme. This annexure sets out the factual basis for that finding. While the NTPP's background was discussed in the main body of reasons, DEECD's purpose in introducing the NTPP can be divined, in some measure, from an understanding of that background. Thus, it is set out below, avoiding duplication where possible. 597 In October 1995, the NSP was launched. Its objectives included the creation of a network of "exemplar" schools with accessible models of new learning environments with access to technology in every classroom. The NSP was thereafter commenced in seven schools, including Essendon North Primary School. Participating schools "investigated and developed new ways to use technology in teaching, and in learning opportunities for students". It resulted in the July 1998 Navigator Report. 598 In around 1996, Ms Davie commenced to work at Essendon North as a teacher. Later, she commenced to work in a position which was divided 50 per cent as a school-based project officer for the NSP, and 50 per cent as a project officer with State-wide responsibilities, focused on sharing experiences relating to use of technology in teaching and learning with other teachers across the State. She was involved in the project until 2006. 599 Ms Davie said that the NSP informed the development of the NTPP, "in particular through the outcomes observed in relation to the benefits to teachers of providing individual notebook computers". An understanding of the findings of the NSP, set out in the Navigator Report, assists in understanding the purpose of the NTPP. It is apparent from page 2 of the Navigator Report that one of the Navigator Schools, Bendigo Senior Secondary College, had by 1994 - i.e., before the NSP's launch - developed a learning technology plan. That plan was "based around computers in all learning areas, with rooms connected by a fast network, and a commitment to providing notebook computers for all teachers" (emphasis added). It was identified at page 7 that Bendigo Senior Secondary College's technology plan was used as a planning model for all schools to follow. 600 Key finding 8 on page 16 of the Navigator Report identified that "Teachers need[ed] emotional, technical and pedagogical support in the integration of learning technologies. Support should include routine access to computers and appropriate software at school and at home, and ongoing professional development programs". Evidently by way of explanation or in support of key finding 8, there was a statement that teachers' access to their own laptops had been a pivotal agent of change. Ms Davie agreed that that meant that the possession by participant teachers of their own laptops was key to the success of the project. The importance of the teachers' access to laptops was identified, under key finding 8, as consisting in these matters: • they feel they have been treated as professionals by being given a tool of their trade • they can learn technical skills with people they feel comfortable with, eg family, friends and colleagues, when it suits them • with remote access into the school, they can maximise the use of the laptop as an efficient tool, able to access their own files, students' work and administrative documents • giving teachers a laptop puts many of them in the position of learner and gives a great base to discuss teaching and learning issues. 601 Thereunder, it was stated that dial-in access to the school's network enabled access to electronic facilities and programs on the network and thus to "effectively operate from home where a major proportion of planning has traditionally occurred." It was further stated that professional development was most effective where, inter alia, "teachers have hands-on guided time, and then have access to the technology to experiment in their own time". Ms Davie agreed that by far the most effective way to provide the support referred to in key finding 8 was through provision of a laptop to, or access to a laptop by, teachers. 602 Ms Davie's evidence was that the findings from the NSP informed the NTPP. Key finding 8, along with others, guided the expansion of use of technology in Victorian Government schools. A focus of the NSP, from its inception in the learning technology plan of Bendigo Senior Secondary College, was widespread access by teachers to laptops. Ms Davie agreed that it was DEECD's intention that widespread access to laptops would help replicate the results of the NSP across government schools. She agreed that the need was particularly for laptops, because of their portability, versatility, the ability to use them in a range of settings, and the fact that teachers could do everything they needed to do (including planning, teaching, assessment, reporting, and administration) on one computer. Ms Davie also said in her affidavit that an important motivator for the NTPP was the flexibility of laptops. At the NTPP's commencement, computers were not as portable as presently, and were not as common in private homes. Accordingly, access to an NTPP laptop would enable teachers to prepare materials away from class for utilisation while teaching, record assessment of students in real time, and assist in the preparation of curriculum and assessment planning. It enabled work away from school, especially after the advent of Wi-Fi. That was significantly more efficient than the previously-available method of making handwritten plans, assessments, or reports at home. 603 Ms Davie identified that one of the most important features of a laptop was that it was portable and enabled work to be completed at home (or elsewhere) as well as school. Ms Davie said that she had found in her teaching and preparatory work that having a laptop was a "significant advantage". She also said that her observation was that the use of laptops facilitated the work of her colleagues and generally enhanced the conduct of any group-related work. For instance, planning days were held off-site every term, so teachers would bring laptops to record activities before breaking into smaller groups for further planning. Off-site planning would have been considerably more difficult without access to portable computers. 604 I draw from the foregoing that portability was an important consideration in the design of the scheme coming out of the NSP. The NTPP scheme pre-dated widespread use of portable technology, including smartphones and Wi-Fi-enabled tablets, and so, at that time, a requirement for portability largely inhered a requirement for a laptop. Ms Davie stated in her affidavit that while access to technology was an essential part of Victorian teaching, that need not necessarily be in the form of a laptop. She said that access to a school-based desktop or a home-based computer would be sufficient to access necessary resources, and that Cloud technology permitted accessing of documentation in various ways, from various devices, and in various places. But, she agreed that Cloud technology did not exist in 1998 or in 2009, and had really only become generally available in the one or two years prior to her oral evidence. And, she said that it was "undoubtedly more advantageous to be able to use a notebook computer because of the portability of the device and the ability to prepare outside of a classroom for the proposed classroom usage on the same device". 605 Ms Davie agreed that significant to the success of the NTPP was that teachers felt that they were being treated as professionals by being given a tool of their trade. She agreed that, amongst other factors, widespread adoption of the NTPP had been a key component in the achievement of the vision of the NSP, and that technology in schools, including the NTPP, enabled teachers to work in the way that DEECD wanted them to work in the twenty-first century. The integration of technology allowed greater collaboration between teachers and greatly enhanced the productivity of teachers that used it. It allowed a different approach to work and created efficiencies. 606 Ms Henning, whose experience with the NTPP went back to its beginning, said similar things: that the NTPP had real benefits for student learning outcomes; that Victorian schools were far ahead of other schools in technology use (though in the previous 3-4 years other States had caught up), and that teachers' access to laptops was important to that outcome; that in the early stages of the NTPP Victorian teachers had a "real acceleration of use of computers in classrooms," and that "[t]he use of technology in our classrooms [was] seamless"; that giving teachers access to "a tool they can use at home" was important; and, that the student engagement that is enabled by use of computers was crucial. 607 At every stage of the evolution into and of the NTPP, portability was a focus. From its conception, the means of providing portability had been through laptops. Initially, that was of necessity in that smartphones and tablets did not yet exist. While those devices did later exist, it seemed that they were not yet seen as a like-for-like substitute for laptops. Ms Henning said, "For children to be engaged at school, it is necessary to have the tools at hand that they will use to interact. At the moment, it is computers. This may change over time, to tablets or smartphones, but computers are vital at the moment." 608 While Ms Henning was there speaking of student rather than teacher use, her sentiment is echoed in FAQ Policy, which was annexed to the SOAF. At page 5 of the FAQ Policy the question is asked, "Why can't I get a touch screen computer (iPad, Android or Windows Tablet) from this Program?" The answer that follows is this: The Department's teaching and learning group constantly evaluates reviews and recommends a range of technologies for inclusion on the Department's ICT Products and Services panels and for use in its various programs across schools. At this time these devices don't provide the full range of features or applications that are provided on the notebooks offered to eduSTAR.NTP participants. 609 The FAQ Policy is dated March 2012. There is some evidence that, more recently and in some cases, tablets have become more-closely interchangeable with laptops. Ms Terry said that at her school there was a one-to-one tablet program for students, and that certain teachers had opted to purchase the same tablets as those used by students rather than get NTPP laptops. That was in February 2014. Ms Henning's evidence in re-examination was to similar effect. She said that it was no longer vital to have access to laptops because a wide range of other technologies was available, including that in her school there were desktops and netbooks, and that at the beginning of that year all staff had been given eight-inch Android tablets. The force of her evidence was that the combination of available non-laptop devices was substitutable for a laptop. But, tablet and laptop interchangeability did not seem yet to be generally applicable across the system. The evidence from other teachers that touched on the use of tablets - including that of Ms Humphries, Ms Prosser, Ms O'Grady, and Ms Henning - contemplated that iPads or tablets supplemented rather than replaced laptops. 610 Ms Davie's evidence included that teaching was still fundamentally a personal relationship with students, and that, in so far as computers were required, it would be possible to fulfil job requirements using desktop or home-based computers, especially given the advent of Cloud technologies. I accept that evidence. But, that is not inconsistent with Ms Davie's other evidence that a portable laptop is "undoubtedly more advantageous." Whilst I accept that DEECD could have adopted another means of bringing technology to classrooms, in the event DEECD's focus was on providing laptops to teachers.

[57]

Annexure 7: Percentage contributions by teachers to acquisition cost 611 As set out above at [212], the AEU provided a table showing, in each Round and Cycle and in relation to the unit price to DEECD of NTPP laptops, the proportion of the unit price that would have been met by a teacher who made contributions for the whole round. That is replicated below. Round/Cycle Computer model Unit price to Department Fortnightly NTPP contributions Total NTPP contributions Difference between unit price and NTPP contributions Proportion of cost met by teacher Round 1, Cycle 4 Lenovo ThinkPad R61 $720.50 $4.00 $320.00 $400.50 44.4% Apple MacBook MB13.3 $1,311.00 $7.00 $560.00 $751.00 42.7% Round 2, Cycle 4 Lenovo ThinkPad R61 $795.00 $4.00 $320.00 $475.00 40.3% Round 3, Cycle 4 Lenovo ThinkPad R500 $889.75 $4.00 $312.00 $577.75 35.1% Apple MacBook White - 2.13GHz $1,444.00 $7.00 $546.00 $898.00 37.8% Round 4, Cycle 4 Lenovo ThinkPad L510 $986.40 $4.00 $392.00 $594.40 39.7% Apple MacBook MC207X/A White $1,698.00 $7.00 $686.00 $1,012.00 40.4% Round 5, Cycle 4 Lenovo ThinkPad L412 $945.80 $4.00 $364.00 $581.80 38.5% Round 1, Cycle 5 Lenovo ThinkPad L420 $684.00 $4.00 $364.00 $320.00 53.2% Apple MacBook White $1,149.00 $11.50 $1,046.50 $102.50 91.1% Round 2, Cycle 5 Lenovo ThinkPad L420 $772.00 $5.00 $455.00 $317.00 58.9% Apple MacBook Pro C-i5 $1,399.00 $15.00 $1,365.00 $34.00 97.6% Round 3, Cycle 5 Lenovo ThinkPad L430 $772.00 $5.00 $455.00 $317.00 58.9% Apple MacBook Pro C-i5 $1,549.00 $17.00 $1,547.00 $2.00 99.9%

Parties

Applicant/Plaintiff:

Australian Education Union

Respondent/Defendant:

State of Victoria

Legislation Cited (28)

(UK) Education and Training Reform Act 2006(Vic)

(Cth), Pt IVA Fringe Benefits Tax Assessment Act 1986(Cth)s 136(1)

Industrial Relations Act 1999(Qld)

Truck Act 1899(WA)

Truck Act 1900(ACT)

Truck Act 1900(NSW)

Victorian Workers' Wages Protection Act 2007(Vic)

(WA), the Truck Act 1900(NSW)

(NSW), the Victorian Workers' Wages Protection Act 2007(Vic)

(Vic), the Fair Work Act 1994(SA)

(SA), the Industrial Relations Act 1999(Qld)

(Qld), the Minimum Conditions of Employment Act 1993(WA)

(WA), the Industrial Relations Act 1984(Tas)

Fair Work Act 2009(Cth)

Acts Interpretation Act 1901(Cth)

Fair Work (Registered Organisations) Act 2009(Cth)

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009(Cth)

Fair Work Act 1994(SA)

Fair Work Regulations 2009(Cth)

Federal Court of Australia Act 1976(Cth)

Industrial Relations Act 1984(Tas)

Industrial Relations Act 1996(NSW)

Interpretation of Legislation Act 1984(Vic)

Minimum Conditions of Employment Act 1993(WA)

Seat of Government Acceptance Act 1909(Cth)

Subordinate Legislation Act 1994(Vic)

Education and Training Reform Act 2006(Vic)

Fringe Benefits Tax Assessment Act 1986(Cth)

Cases Cited (53)

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