Australian Journalists Association v Advertiser Newspapers Ltd

THE COURT 1 This appeal raises a narrow point of interpretation of the TAFE Teachers' Conditions of Employment (Victoria) Interim Award 1994 ("the Award"). Ms Gabriella Pretto was employed under the terms of the Award by the appellant, the Victoria University of Technology, formerly the Council of the Western Melbourne Institute of TAFE ("Western Melbourne") from 26 February 1996 to 31 December 1996, a period of 44.4 weeks. Part 1 Division 1 of the Award contained these definitions: "(2) 'casual teacher' means a person employed to teach 0.4 time fraction or less and paid on an hourly basis; ... (7) 'contract teacher' means a teacher employed for a fixed or limited term by the College Council; ... (9) 'EFT' means equivalent full-time; ... (12) 'full-time teacher' means a person employed for 1.0 time fraction; ... (15) 'part-time teacher' means a person employed for 0.4 time fraction or greater but less than full time;" 2 Division 2 of Part 3 of the Award prescribed employment conditions for teachers by stipulating: "3.2.1Teachers may be employed either: (1) on a full-time basis or (2) on a part-time basis or (3) on a casual basis. 3.2.2 Teaching staff employed on a casual basis shall not be employed beyond a maximum of 0.4 the maximum teaching duty hours prescribed for full-time teachers." 3 Division 3 of Part 3 of the Award provided under the heading "TEACHER ATTENDANCE AND HOURS OF DUTY": "3.3.1Teachers carry out professional duties for a minimum of 38 hours per week. The actual hours of attendance at the work location are determined within the provisions of this award. 3.3.2 Teachers are required to attend their work location for 30 hours per week. Core attendance time is within the ordinary hours of duty. 3.3.3 Teachers shall not be required to work for more than five (5) hours without being allowed a meal break of at least 30 minutes. Teachers shall not be required to take meal breaks of more than one hour. Teachers shall not be required to attend during meal breaks. Teachers shall be entitled to take their lunch break between the hours of 12 midday and 2.00pm and shall be entitled to take an evening meal break between the hours of 5.00pm and 7.00pm. 3.3.4 When duties are allocated on the same day the time between duties shall be deemed to be attendance time except for meal breaks specified in clause 3.3.3 above. 3.3.5 Teachers are not required to attend on days where duties are not scheduled provided the 30 hours attendance requirement is met." 4 Division 4 of Part 3, in which the clause which is the subject of this appeal occurs, provided, under the heading "TEACHERS' PROFESSIONAL DUTIES": "3.4.1Scheduled Duties (1) Maximum Scheduled Duties The maximum scheduled duties shall be 960 hours per year (pro-rata for part-time or employment for less than the full teaching year). Scheduled duties shall include a minimum of 30 hours of professional development. (2) The following allowances shall be counted as scheduled duties: (a) Union branch allowances, (b) Occupational Health and Safety representatives allowances, and (c) travel allowances. 3.4.2 Teaching Duty Hours (Student Contact Hours) (1) Teaching duties shall include practical placement field teaching visits where practical placement is required by the accredited course. (2) Maximum Teaching Duty Hours The maximum teaching duty hours shall be 800 hours per year (pro-rata for part-time or employment for less than the full teaching year). (3) The following allowances shall be counted as teaching duty hours: (a) curriculum allowances, (b) program co-ordinator and head of department allowances, (c) large department allowances, and (d) administrative and program allowances. (4) Teaching duty hours shall be further reduced when scheduled duties other than teaching duty hours exceeds 160 hours per year." 5 Although cl 3.4.1 prescribed "maximum scheduled duties" and "maximum teaching duty hours" to be worked "per year", the Award did not contemplate that scheduled duties or teaching duty hours up to those maxima should be allocated once and for all at the beginning of a particular year. Rather, Division 5 of Part 3 provided under the heading "ALLOCATION OF DUTIES": "3.5.1 Allocation of Scheduled Duties (1) Unless otherwise specified in this award total duty hours scheduled shall be the total hours required for the activity. (2) Duties shall be scheduled for periods of not less than 4 weeks ("Roster Period"). A teacher's attendance pattern within the Roster Period may only be varied with the agreement of the teacher concerned. Allocations shall be made no less than 2 weeks prior to the commencement of each Roster Period. The provisions of this sub clause shall not apply to the first four weeks of a teaching program in the first semester. 3.5.2 Allocation of Teaching Duties - Weekly (1) The teaching duties for each teacher will be allocated, from the annual load, on a weekly basis. (2) Consultation and agreement of the teacher concerned is required for any allocation of: - more than 21 hours of teaching duties in any one week - more than 26 hours of scheduled duties in any one week 3.5.3 Cancellation of Classes Where classes are cancelled by the college, two weeks notice of cancellation shall be provided to the teacher. Where two weeks notice is not given, hours allocated for classes cancelled by the college will be deemed to have been taught. 3.5.4 Scheduled Duties Outside the Ordinary Hours of Duty (1) Teachers may be requested to perform scheduled duties as part of their ordinary hours of work outside the ordinary hours of duty and between the hours of 9.00 am and 5.00 pm on Saturdays and Sundays pursuant to the terms of this clause. (2) The allocation of duties at such times shall only be determined following consultation with, and the agreement of, the teacher concerned. (3) (a) For each scheduled hour worked: (i) outside the ordinary hours of duty, or (ii) between 9.00 am and 5.00 pm on a Saturday, a loading of 25% of the ordinary hourly rate shall be paid. (b) For each scheduled hour worked between 9.00 am and 5.00 pm on a Sunday, a loading of 50% of the ordinary hourly rate shall be paid." 6 Forms of leave other than sick leave or annual leave were accommodated by cl 3.5.5 which provided: "Teachers on Approved Leave (1) Subject to sub-clause (2) teachers on approved leave other than sick leave, non-attendance time or annual leave shall be deemed to have performed four hours of teaching duty and 0.8 hours of other scheduled duties for each day of leave. (2) Sub-clause (1) shall not apply where the total hours of teaching duty and/or scheduled duties (actually performed or deemed to have been performed pursuant to sub-clause [1]) equal or exceed the maximum teaching duty hours and/or maximum scheduled duty hours prescribed for the teacher under Division 4 of this award. (3) Teaching duty hours and other scheduled duties allocated on days approved as sick leave shall be deemed to have been performed." 7 The consequences of a teacher's having been allocated teaching hours in excess of the maximum prescribed by cl 3.4.2 were prescribed in these terms by Division 6 of the Award: "3.6.1A teacher shall be paid for excess hours in accordance with clause 3.6.2 where: (1) The allocation of teaching duties is determined following consultation with, and agreement of, the teacher concerned and (2) The teacher is allocated and performs additional teaching duties in excess of: (a) those scheduled for the week; or (b) the maximum teaching duties referred to in clause 3.4.2. (3) Where a teacher agrees to the allocation of teaching duties other than substitution duties in excess of the maxima referred to in clause 3.5.2(2) he/she shall be paid for excess hours in accordance with clause 3.6.2 only to the extent that his/her teaching duties exceed 84 hours in the teacher's 4 week roster period or his/her scheduled duties exceed 104 hours in the 4 week roster period 3.6.2 The following rates for excess hours shall be paid: (1) Monday to Saturday inclusive except for Public Holidays: At the rate of time and a half of the ordinary hourly rate for the first two excess hours on each day and double time thereafter. (2) Sunday: In all cases except Public Holidays at the rate of double time of the ordinary hourly rate. [3.6.2(3) substituted by V001 from 23 Dec 94] (3) A rate of double time and a half of the ordinary hourly rate, for work performed on a public holiday. 3.6.3 Payment for excess hours shall be made no later than in the fortnight following the roster period in which it was worked. [3.6.4 inserted by V001 from 23 Dec 94] 3.6.4 All work performed on a public holiday shall be paid at the rate of double time and a half of the ordinary rate of pay." 8 Part 8 of the Award prescribed employee entitlements to public holidays by stipulating: "8.1.1Except as hereinafter provided, employees shall be entitled to the following holidays without loss of pay: (1) New Year's Day, Good Friday, Easter Saturday, Easter Monday, Christmas Day and Boxing Day; and (2) the following days, as prescribed throughout the state of Victoria: Australia Day, Anzac Day, Queen's Birthday and Labour Day and Melbourne Cup Day; (3) if [sic] any other day or days as may be gazetted in addition to or in substitution of any of these days by proclamation or Act of Parliament. 8.1.2 Provided that: (1) When Christmas Day is a Saturday or a Sunday, a holiday in lieu thereof shall be observed on 27 December. (2) When Boxing Day is a Saturday or Sunday, a holiday in lieu thereof shall be observed on 28 December. (3) When New Year's Day or Australia Day is a Saturday or Sunday, a holiday in lieu thereof shall be observed on the next Monday." 9 Annual leave for employees other than "casual teachers" as defined was regulated by Part 9 of the Award which was introduced by cl 9.1.1 in these terms: "For the purposes of determining an employee's entitlements to leave, the following shall apply: (1) An 'employee' under this Part shall not include a person engaged as a casual teacher as defined in clause 1.1.1(2) of this award. (2) Service shall not include: (a) any period of unpaid leave other than that which may be recognised as service by the employer; (b) any period of service subsequent to the date from which a pension is payable under the provisions of the State Superannuation Act 1988 (Vic) or of such other pension schemes as may apply where the employee retires on the grounds of age or ill health until re-employed by an employer respondent to this award. (3) No employee during any period of paid leave provided for by this award shall engage in any employment for hire or reward with an employer known to him or her to be bound by this award." 10 The substantive prescription of annual leave entitlements was in cl 9.1.2: "(1) An employee shall be entitled to twenty days annual leave for each twelve month period of continuous service, or on a pro-rata basis for any period of service which is less than twelve months. (2) Annual Leave shall accrue from the date of commencement at the rate of 1.67 days for each completed month of service. (3) Annual Leave shall be taken within fifteen months of being accrued unless otherwise agreed by the employee and the employer. (4) Annual Leave, including leave taken in excess of the leave credits accrued, shall be taken at a mutually agreeable time having regard to the operation of the employer, provided that a request for leave including a request for leave of four weeks' duration shall not be unreasonably refused. (5) Annual Leave not taken in accordance with clause 9.1.2(3) shall be paid in full to the employee upon expiration of the employee's employment. (6) Notwithstanding clause 9.1.2(1) and 9.1.2(2), if an employee's employment is terminated and that employee has taken more paid annual leave than would have been accrued at the rate of twenty days per year the employer may recoup the amount of paid annual leave in excess of the leave accrued." 11 The learned primary judge, at p 2 of his reasons for judgment, noted: · During her employment with Western Melbourne Ms Pretto accrued an entitlement to, and was required to take, 3.4 weeks annual leave. She was also entitled to 8 public holidays. · Ms Pretto performed teaching duties over a period of 39.4 weeks. Her actual teaching duty hours were 708. 12 His Honour also recorded, at the same page of his reasons, that: "There is no dispute between the parties about the number of hours which constitute 'the full teaching year'. The relevant number is 1,748. It is arrived at as follows: · 52 weeks represents a full calendar year. · From 52 weeks deduct 4 weeks annual leave and 2 weeks of public holidays leaving 46 weeks. · 46 weeks multiplied by 38 hours equals 1,748 hours. Ms Pretto was employed full-time but for a period of time less than the full teaching year, that is, less than 1,748 hours. Consequently, her maximum teaching duty hours are less than 800. The issue in dispute is how much less?" 13 During the course of argument on the appeal, the view was ventured from the Bench that the concession or agreement by the parties below that a "full teaching year" comprised 1,748 hours may have been misconceived. The expression "the full teaching year" is nowhere defined in the Award and it was speculated that it may have been a relic of earlier industrial prescriptions which applied to tertiary institutions all of which entirely ceased operations for commonly accepted periods of three weeks around the Christmas holiday and one week over Easter. Accordingly, the parties were given leave to put before the Court extrinsic evidence of the history of relevant award prescriptions and to make written submissions as to the impact of that history on the interpretation of cl 3.4.2(2) which is at the heart of this appeal. 14 Is it appropriate to go behind the acceptance by the parties that the "full teaching year" is 1,748 hours or 46 weeks of 38 hours each? Mr R Tracey QC, who appeared with Mr M McDonald for the appellant, submitted that because the application had proceeded before the judicial registrar and on review before the primary judge on the agreed basis, that basis should not be disturbed on appeal even if this Court were to doubt its correctness. 15 However, the construction of an instrument, although not its meaning, is a matter of law: Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60 at 79; Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 394-397. Accordingly, it is for the Court to determine what is the proper construction of the instrument and the parties cannot impose upon the Court, by their agreement, a construction that is contrary to law. 16 Further, there is good reason for resolving the meaning of "full teaching year". We were told from the bar table that there are fourteen or fifteen respondents to the Award and the interpretation that this Court adopts will have application to what is, presumably, a significant number of employees whose circumstances are similar to those of Ms Pretto. 17 We therefore consider it appropriate to determine the meaning of the phrase "full teaching year". In that connection we propose to refer to the material which the parties put before the court as part of the surrounding circumstances as an aid to the construction of the award. The material indicates that the phrase was first introduced into a relevant industrial prescription in 1991 when the Federated Teachers' Union of Victoria and the Government of Victoria concluded an "Agreement on Award Restructuring for TAFE Teachers" ("the 1991 Agreement"). That superseded an "Agreement between the Minister for Education and the Teachers' Federation of Victoria on Terms and Conditions of Employment for TAFE College Teaching Staff" ("the 1988 Agreement") which was expressed to apply from 1 January 1988 until 1 January 1991. Clause 12 of the 1988 Agreement provided: "STRUCTURE OF THE COLLEGE YEAR AND AVAILABILITY OF TEACHING STAFF 12.1 TAFE Colleges will be available for teaching programs between the hours of 8.00 am and 10.00 pm from Monday to Friday during the year up to 48 weeks in the year as determined by College Councils. 12.2 Colleges will not be available for teaching programs during three weeks over the Christmas - New Year period and one week over the Easter period. The dates of these four weeks will be published in the TAFE Gazette. 12.3 Colleges may utilise their facilities for teaching programs on gazetted public holidays and weekends according to community demand in accordance with the provisions of this Agreement. 12.4 Teachers will be available for duty in any of the weeks that the College is open for teaching programs. 12.5 College Councils may assign duties to individual teachers during 42 weeks of the year. 12.6 Teachers are not required to attend the College during weeks in which they are not assigned duties. 12.7 Teachers non-attendance periods will be administered in accordance with the agreed 'Leave Regulations'." 18 Clause 4.2 of the 1991 Agreement recited: "STRUCTURE OF THE COLLEGE YEAR AND AVAILABILITY OF TEACHING STAFF 4.2.1 TAFE colleges will be available for teaching programs between the hours of 8.00 am and 10.00 pm from Monday to Friday during the year. Where local circumstances permit and subject to consultation, including consultation with the FTUV branch, individual colleges may be available between 7.00 am and 8.00 am Monday to Friday and 9.00 am and 5.00 pm on Saturday and Sunday. 4.2.2 Colleges may utilise their facilities for teaching programs on gazetted public holidays according to community demand in accordance with the provisions of this Agreement." 19 Clause 4.6 of the 1991 Agreement provided for the payment of overtime rates for work done on designated public holidays including Christmas Day, Boxing Day, New Year's Day and Good Friday. It can therefore be seen that a transition occurred between the 1988 Agreement and the 1991 Agreement from a "college year" comprising no more than 48 weeks as determined by each College council to a "college year" extending over the full chronological year of 365 days and including, subject to the overtime penalty, all designated public holidays. As a result there is no longer any generally accepted, or required, period of "shut-down". In the absence of evidence tending to establish a custom or practice which gives it a different meaning, we are therefore disposed to equate "full teaching year" with a full chronological year of 365 days. 20 "The full teaching year" cannot be confined, as the parties' agreement or concession implies, to a period during a calendar year for which a particular teacher is "on duty". To confine the concept in that way could entail a different "full teaching year" for each teacher according to whether he or she took any and, if so, how much, annual leave in the calendar year in question. It is to be borne in mind, however, that cl 3.4.2(1) by prescribing that maximum teaching hours shall be "pro rata for part-time or employment for less than the full teaching year" contemplates that there shall be a single identifiable "full teaching year" against which the part of the teaching year for which a short-term teacher has been employed is to be measured. 21 The learned primary judge was induced by the concession or agreement to which we have just referred to calculate "the full teaching year" by deducting from the 52 weeks of the calendar year the amount of annual leave and the public holidays allowed by the Award to a teacher who has been employed for a full calendar year. His Honour said: "The use of the word 'pro-rata' is indicative of a figure proportionate to the figure for a full teaching year. As indicated above the figure for a full teaching year is 1,748 hours. This means that a teacher employed for 52 weeks is treated as having a full teaching year of 46 weeks; six weeks being excluded for leave and public holidays. The parties accept the figure of 1,748 hours as the appropriate denominator in the formula for the calculation of pro rata maximum teaching duty hours for persons employed for less than a full year." 22 In our view, the preferable application of cl 3.4.2(1) on its proper construction to the facts of this case is to express the maximum number of teaching hours for Ms Pretto as bearing the same proportion or ratio to 800 as her employment for less than the full teaching year (44.4 weeks) bore to 52 weeks. The calculation can be expressed mathematically as follows: