Fair Work Act 2009

s.229 - Bargaining order

Application for bargaining orders sought by the Independent Education Union of Australia pursuant to s.229 of the Fair Work Act 2009 (Cth)

[1] The Independent Education Union (IEU) has made an application for a bargaining order under s.229 of the Fair Work Act 2009 (Cth) (Act). The application relates to IEU members employed as Orientation and Mobility Specialists (O&MSs) and Guide Dog Mobility Instructors (GDMIs) by Guide Dogs NSW/ACT (Guide Dogs). Collectively they will be referred to as the (Relevant Employees). The IEU seeks the following bargaining orders:

"a) That Guide Dogs NSW/ACT is to recognise the Independent Education Union of Australia as a bargaining representative for the Guide Dogs NSW/ACT Client Services Agreement 2018-2020; and

b) That Guide Dogs NSW/ACT will conduct meetings with the Independent Education Union of Australia for the purposes of bargaining, with the first meeting to take place within 7 days of the date of this order."

[2] On 16 and 30 July 2018 Mr Mark Gibian of counsel with Mr Iain Bailey instructing appeared for the IEU, and Mr Luis Izzo and Mr Michael Roucek, solicitors, appeared for Guide Dogs. Having regard to s.596(2)(a) of the Act, permission to appeal was granted to both parties.

[3] Ms Carol Matthews (Assistant Secretary of IEU NSW/ACT), and O&MSs employed by Guide Dogs - Ms Carolyn Bates, Mr Peter McKenzie, and Mr Matthew Wood gave evidence for the IEU, while Ms Louise Rassack (former Human Resources Manager for Guide Dogs) and Mr Paul Adrian (supervisor at the Guide Dog Centre and dog production team within Guide Dogs) gave evidence for Guide Dogs.

[4] The IEU previously applied for the making of a majority support determination in B2017/1162, however, that matter was concluded as a result of Guide Dogs agreeing to commence bargaining in respect of employees engaged within its Client Services Team - which includes the Relevant Employees.

[5] On 6 April 2018, Guide Dogs issued a Notice of Employee Representational Rights and on 12 April 2018, the IEU wrote to Guide Dogs seeking to participate in bargaining meetings on behalf of its members.

[6] On 13 April 2018, Guide Dogs informed the IEU that it did not agree that the IEU was an organisation entitled to represent the industrial interests of the Relevant Employees.

[7] On 19 April 2018, the IEU gave written notice to Guide Dogs setting out its concerns that the good faith bargaining requirements were not being met, and on 23 April 2018 Guide Dogs indicated that it maintained the view that the IEU was not entitled to represent the industrial interests of the Relevant Employees and refused to invite the IEU to attend bargaining meetings.

[8] In these circumstances, the critical issue is whether the IEU is entitled to represent the industrial interests of the Relevant Employees as bargaining representatives, for the purposes of seeking a bargaining order under ss.229 and 230 of the Act.

[9] The primary submission of the IEU is that the Relevant Employees are "teachers employed in or by any non-government social or community organization" for the purposes of the IEU's Rules. It is submitted that whilst the term "teacher" is not defined in the rules of the IEU, the word is clearly capable of having a broad meaning.

[10] Rule 2(e) of the IEU's Rules states as follows:

"The Union shall consist of an unlimited number of persons howsoever described who are employed, usually employed or qualified to be and desirous of being employed or seeking to be employed in or in connection with the industry or industries, and/or occupation, and/or calling, and/or vocations, and/or industrial pursuits of:

(e) teachers in non-government pre-schools and/or centres in which Early Childhood Services are provided in New South Wales, the Australian Capital Territory and Queensland only (but excluding any teacher employed by any municipal or Shire Council in New South Wales), and teachers employed in or by any nongovernment social or community organization, or any non-government educational institution or body;

Definition of teacher within the meaning of the IEU's Rules

[11] The ordinary meaning of the word "teach" includes:

"...to impart knowledge of or skill in; give instruction in..."[1]

[12] The meaning of the word "teacher" includes:

"... someone who teaches or instructs, especially as a profession; instructor."[2]

[13] The ordinary meaning of the word "teacher" is not limited to a person with any particular set of qualifications, or who teaches students in a school, or exclusively to persons who may be considered part of the profession of teaching. Adopting a liberal approach to interpretation, the term "teacher" in the IEU's Rules should be given its broad and common meaning.

[14] Moreover, the IEU's Rules cannot be construed as limited to teachers engaged in formal school education or possessing particular teaching qualifications in circumstances in which:

"(a) The Rules were formulated at a time when teachers were not required to be registered or accredited and could be employed, even in a school environment, without any formal qualifications at all;[3] and

(b) The Rules expressly extend coverage to teachers engaged outside of schools and formal educational settings, including to persons employed in "any nongovernment social or community organization".

[15] In NSW, formal teacher accreditation was first introduced by the Teacher Accreditation Act 2004 (NSW) (TA Act) which for the first time required new teachers employed in schools to have a minimum level of qualification. Given that teacher accreditation requirements are a relatively recent invention and are limited in their application to persons undertaking teaching of the mandatory school curriculum or an approved learning framework in a school or early childhood education centre;[4] it would make no sense to interpret the expression "teacher" in the IEU Rules as limited to teaching as defined in teacher accreditation legislation. This is particularly the case in circumstances where the IEU Rules expressly extend to teaching and instruction outside formal schooling or early childhood education.

[16] The Rules of the IEU must be read as a whole.[5] There are a number of exclusions, including of persons employed in teaching or supervising teaching in day training centres under mental health legislation or employed in teaching and/or training handicapped children in certain non-government organisations.[6] Those exclusions only make sense if the Rules are sufficiently broad to encompass that type of work. The coverage of the IEU is plainly intended to extend broadly to teaching and associated roles in a wide array of contexts. The concept of teaching should not be given a narrow or technical construction but rather should be construed to extend to "persons providing instruction or teaching in the course of their employment, including for a non-government social or community organisation."

[17] Guide Dogs assert that it is problematic to adopt the IEU's view that if a person performs a level of instruction or imparts any level of knowledge or skill that one is to be considered a "teacher" for the purposes of its Rules. Such view eschews the notion that a "teacher" must be someone who is considered part of the profession of teaching, and more specifically it:

1. Leads to the absurd outcome that almost every occupation could be considered to fall within the meaning of the term "teacher" as it appears in the IEU Rules. For example, well established occupations such as that of a lawyer or doctor and a number of other occupations often involve responsibility for the provision of instruction to younger/junior employees or apprentices and additionally, training to external clients. Such instruction and the imparting of knowledge does not however change the fundamental nature of these occupations and it could not be contended that such occupations could be described as constituting a 'teacher' within the meaning of the IEU Rules.

In reply the IEU submits that the possibility that a lawyer or doctor etc. may, as an incidental part of their employment undertake some level of instruction does not mean that they are "teachers".

1. Ignores the primary function or purpose of the role being performed, by relying on some aspects of the duties performed as being the core functions and purpose of the role. This approach is likely to lead to error because it does not involve a holistic assessment of the role against the coverage of the relevant Rules.

In reply, the IEU contends that Guide Dogs ignore that the core function of the Relevant Employees is to provide teaching and instruction because it does not (in many cases at least) occur at a school. Guide Dogs' submissions are made even though the IEU's Rules expressly extend to persons engaged in teaching in non-government social and community organisations.

iii. Disregards the meaning of the term "teacher" within the context of industrial regulation and the community more broadly. The term means more than to just provide some instruction. Teaching is recognised as its own special profession, with particular characteristics. This is clear from the dictionary definition, decisions of the Australian Conciliation and Arbitration Commission[7] (AIRC) and Awards[8] that define the term "teacher" industrially (and which ordinarily require such teachers to have obtained teaching diplomas or degrees in educational instruction or to be otherwise accredited or registered as a teacher).

The IEU in reply assert that to rely upon definitions contained in Awards which apply to formal school or post-school educational settings, in the interpretation of the IEU's Rules, would lead into error. The IEU's Rules ought to be interpreted in its context and not by reference to instruments which have a different operation and were largely drafted decades after the IEU's rules. Guide Dogs' reference to the AIRC decisions also provide no support for the conclusion that the coverage of the IEU is limited to school teaching. That assertion, if accepted, would leave large parts of the eligibility rules with no work to do, in particular, the extension of coverage to teachers employed in non-government social or community organisations.

[18] In relation to the work of O&MSs and GDMIs, the parties described the work as involving:

Teach skills necessary to travel safely and independently in the community.[10]

Responding to requests for information about available services.

Develop, plan and provide face-to-face teaching and instruction programs to clients individually or in a group in relation to orientation and mobility skills and the assessment of client skills.[11]

Planning and conducting assessments of the needs of vision impaired persons to determine available solutions.

Utilise pedagogical and andragogical approaches in the course of their work and are expected to understand and apply learning theories to the delivery of instruction, including early childhood teaching.[12]

Selecting and providing potential mobility options and (free) aids that are best suited including long cane, guide dog, electronic travel device, GPS system, optical devices.

Utilise various curriculum guidelines in the course of their work, including the "Teaching Age-Appropriate Purposeful Skills" ("TAPS") resource, to assist in developing program objectives, individual education plans and lesson plans.[13]

Explaining development programs available so clients can make informed choices.

Provide teaching and instruction to clients in a range of different environments, including to school-age children public schools, catholic schools and independent schools, and provide instruction to school teachers and learning support officers working in schools.[14]

Assisting clients to use mobility services and to orientate themselves to various surroundings. This part of the role includes two distinct elements;

1. providing instruction (i.e. teaching) to the client regarding how to use mobility aids and skills to improve orientation and mobility; and

2. providing basic orientation assistance when clients encounter new places. For instance, it is not uncommon for O&MS to visit clients in environments that are new to the client to help the client walk around a new space and orientate themselves. At a basic level, this involves the O&MS telling the client where they are going and where potential hazards are.

Assessment of a client's existing skills and learning needs and the setting of learning goals for the programs.

Assessing hazards in the client's living spaces or to ensure risks to health and safety are minimised.

Assessment or evaluation of the client's progress and skills acquired by the client through the program.

Advocating and advising on modifications to environments to enable clients to have safe and easy access to relevant premises.

Documentation of the program and the outcomes for the client through reports and

Collaboration with other Guide Dogs departments and staff, local media and other community or Government groups.

[19] The IEU also refers to the position description for the Relevant Employees[15] and submits that the primary role of the Relevant Employees is to teach the skills necessary to travel safely and independently in the community and a main component of that role involves teaching in the sense of the design and preparation of programs and lessons, direct instruction of clients with vision impairment and assessment and evaluation of the progress of the client. Additionally the Relevant Employees are:

• Required to have or obtain the specific qualification of Masters of Disability Studies. The degree has a high educational content and parts of the course have been delivered through the School of Education at the University of Newcastle and Macquarie University.[16]

• Members of a professional association (Orientation and Mobility Association of Australia) which publishes professional standards of practice for teaching and education of orientation and mobility skills for the vision impaired.[17] The Orientation and Mobility Association of Australia has also established the Board of Orientation and Mobility Australasia ("BOOMA") to facilitate the development of industry training and practice standards and the development and implementation of an Australian system of certification for O&MSs specialists.[18] Guide Dogs has encouraged staff to become certified as O&MSs and supports the certification process being established for O&MSs.[19]

• Have, at least in the past, been informed that they would be required to have an "educational qualification" and a number of Relevant Employees have formal school teacher backgrounds and qualifications.[20] Guide Dogs has also encouraged staff to become certified as O&M Specialists, which involves adopting a scope of practice which encompasses planning O&M programs, teaching O&M related concepts teaching orientation strategies and skills, mobility skills and use of senses and teaching a range of consumers.[21]

[20] Guide Dogs on the other hand, state that whilst there is a level of instruction/teaching involved in the role, the assessment process, the free provision of equipment, the instruction process, the basic orientation steps taken to introduce clients to new environments and the other tasks performed make up a holistic service that provides clients with greater access to mobility. The provision of assistance with instruction/teaching is merely one of the many activities engaged in as part of a much broader welfare-focused role. Ultimately, teaching is not the primary function of these employees. There are also key differences between the work of teachers and the work of O&MSs and GDMIs in that they:

(a) do not perform work that complies with professional standards set for a teacher by NSW Education Standards Authority (NESA);

(b) do not work according to a curriculum or syllabus or other programmatic study schedule;

(c) do not assess or test clients for the purpose of measuring their performance against professional educational standards;

(d) do not teach lessons and map them to a curriculum as each client has highly individualised circumstances;

(e) do not perform work that leads to any educational attainment or award of any qualification; and

(f) do not teach Braille or other syllabus based teaching as occurs at the Royal Institute for Deaf and Blind Children (a NESA registered school to which the IEU refers to as an allegedly analogous employer).

(g) the preferred qualification (that is throughout 2017), being the Master of Disability Studies provided by Macquarie University is not a teaching degree.[22]

[21] In reply, the IEU assert that Guide Dogs have downplayed the aspects of work. What are claimed to be additional aspects of the roles are inherently part of the teaching/instruction duties which form the core of the functions of the Relevant Employees. Firstly, the assessments of clients undertaken by the Relevant Employees are undertaken not merely to allocate devices to the clients, but for the purposes of assessing the skills and learning needs of the client. The assessment is used to formulate a program of teaching/instruction for the client. That is part of the role of a teacher. Guide Dogs also fail to properly describe the role of providing "orientation assistance". The role requires the assessment of the client's skills and imparting knowledge and passing on orientation skills. It is an aspect of a teaching or instructional role. To the extent that there is any disagreement about the nature of the work, the evidence of employees who have undertaken those roles for many years ought to be preferred to Guide Dogs' evidence.

[22] In the alternative the IEU submit that at least 10 Relevant Employees are, for the purposes of the IEU's Rules, "teachers employed in or by any non-government social or community organization" because they have formal teaching qualifications.[23]

[23] In reply, Guide Dogs assert that the IEU's alternate proposition is flawed for these reasons:

1. It contradicts established authority which indicate that determining whether an employee falls within an occupational coverage rule requires the assessment of:

   1. the primary function performed by the employee in their job and to determine whether that falls with the coverage rule; and

b. the totality of the duties performed by the employee and to determine whether a holistic view of the duties would fall within the coverage rule. [24]

1. It does not have regard to IEU Rule 3, which directs focus on schooling, education and teaching. It stands to reason that someone must presently be performing a job in this industry in order to fall within the occupational rules.

2. It leads to absurd outcomes, that is, the attainment of a teaching qualification at some point in the past will forever grant the IEU coverage over an employee - regardless of the role they currently perform.

[24] Such an approach in Guide Dogs' view is analogous to the approach unsuccessfully adopted in Construction, Forestry, Mining and Energy Union v CSBP,[25] where the Federal Court held that the CFMEU's interpretation of its own rules gave an "impossibly wide operation" to the union's rules.

[25] In reply, the IEU point out that Guide Dogs cannot on the one hand, submit that the term 'teacher' should be given a narrow interpretation such that being a teacher requires the acquisition of a particular qualification or accreditation and is limited to the "profession of teaching". While on the other submit that it would be incongruous for the IEU's Rules to apply to persons by reference to being a teachers who holds such a qualification. If the term 'teacher' were to be interpreted as a person qualified or accredited as a teacher in a limited sense, then there is nothing incongruous about the IEU's Rules applying to persons possessing that professional status. Further, the IEU's evidence demonstrate that the Relevant Employees with formal teaching necessarily draw upon their teaching knowledge and training in their work.

[26] The statutory provisions in respect of bargaining are set out as follows:

**"**228 Bargaining representatives must meet the good faith bargaining requirements

(1) The following are the good faith bargaining requirements that a bargaining representative for a proposed enterprise agreement must meet:

(a) attending, and participating in, meetings at reasonable times;

(b) disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner;

(c) responding to proposals made by other bargaining representatives for the agreement in a timely manner;

(d) giving genuine consideration to the proposals of other bargaining representatives for the agreement, and giving reasons for the bargaining representative's responses to those proposals;

(e) refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining;

(f) recognising and bargaining with the other bargaining representatives for the agreement.

Note: See also section 255A (limitations relating to greenfields agreements).

(2) The good faith bargaining requirements do not require:

(a) a bargaining representative to make concessions during bargaining for the agreement; or

(b) a bargaining representative to reach agreement on the terms that are to be included in the agreement.

(1) A bargaining representative for a proposed enterprise agreement may apply to the FWC for an order (a bargaining order) under section 230 in relation to the agreement.

Note: See also section 255A (limitations relating to greenfields agreements).

(4) The bargaining representative may only apply for the bargaining order if the bargaining representative:

(i) one or more of the bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements; or

(ii) the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the agreement; and

(b) has given a written notice setting out those concerns to the relevant bargaining representatives; and

(c) has given the relevant bargaining representatives a reasonable time within which to respond to those concerns; and

(d) considers that the relevant bargaining representatives have not responded appropriately to those concerns.

Non-compliance with notice requirements may be permitted

(5) The FWC may consider the application even if it does not comply with paragraph (4)(b) or (c) if the FWC is satisfied that it is appropriate in all the circumstances to do so.

230 When the FWC may make a bargaining order

(1) The FWC may make a bargaining order under this section in relation to a proposed enterprise agreement if:

(a) an application for the order has been made; and

(b) the requirements of this section are met in relation to the agreement; and

(c) the FWC is satisfied that it is reasonable in all the circumstances to make the order.

Note: See also section 255A (limitations relating to greenfields agreements).

Agreement to bargain or certain instruments in operation

(2) The FWC must be satisfied in all cases that one of the following applies:

• (a) the employer or employers have agreed to bargain, or have initiated bargaining, for the agreement;

• (b) a majority support determination in relation to the agreement is in operation;

• (c) a scope order in relation to the agreement is in operation;

• (d) all of the employers are specified in a low-paid authorisation that is in operation in relation to the agreement.

(3) The FWC must in all cases be satisfied:

• (a) that:

(i) one or more of the relevant bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements; or

(ii) the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the agreement; and

(b) that the applicant has complied with the requirements of subsection 229(4) (which deals with notifying relevant bargaining representatives of concerns), unless subsection 229(5) permitted the applicant to make the application without complying with those requirements.

Bargaining order must be in accordance with section 231

(4) The bargaining order must be in accordance with section 231 (which deals with what a bargaining order must specify)."

[27] Section 176 of the Act also sets out circumstances in which an employee organisation will be a bargaining representative of an employee who will be covered by an agreement;

"176 Bargaining representatives for proposed enterprise agreements that are not greenfields agreements

(1) The following paragraphs set out the persons who are bargaining representatives for a proposed enterprise agreement that is not a greenfields agreement:

(b) an employee organisation is a bargaining representative of an employee who will be covered by the agreement if:

(i) the employee is a member of the organisation; and

(ii) in the case where the agreement is a multi-enterprise agreement in relation to which a low-paid authorisation is in operation - the organisation applied for the authorisation...

(b) an official of an employee organisation (whether acting in that capacity or otherwise);

cannot be a bargaining representative of an employee unless the organisation is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement."

[28] Foremost, I note that the Australian Municipal, Administrative, Clerical and Services Union (ASU) may have in fact had coverage over the Relevant Employees. It appears however that the ASU made a conscious decision not to represent the Relevant Employees as their bargaining representative. In Ms Matthews' statement dated 7 June 2018, the following is observed in relation to the ASU's decision not to represent the Relevant Employees:

"6. ... I was advised that at least some of the O&MS employees, on whose behalf the enquiry had been made, were members of the [ASU]. Both the Secretary and I wished to understand why these employees had approached the [IEU] when some were apparently ASU members. I was advised that the employees were unhappy with the assistance and support they received from the ASU to pursue bargaining for an enterprise agreement...

9. I am aware that in late June and early July 2016 Mr John Quessy, the Secretary of the [IEU], met and corresponded with officials of the ASU to advise that O&MS employees had joined the [IEU]. I attended the meeting that was held with the ASU. The ASU officials advised that they had previously sought to commence bargaining with [Guide Dogs] but the employer had refused to commence bargaining and they warned the IEU that the employer would be likely to continue to take this position. The ASU did not dispute that the O&MS employees were eligible for [IEU] membership and conceded there would be better prospects of achieving an agreement for this group only rather than an agreement covering all employees. I understood that this was because ASU did not have sufficient membership across the organisation as a whole to make a whole of enterprise agreement a realistic prospect... [26]

[29] In cross-examination of Ms Matthews' evidence, it was put that the ASU could potentially have coverage over the Relevant Employees. Ms Matthews replied as follows:

"PN150 [MR IZZO]: ... paragraph 7 to 9 of your statement you discuss interactions that were had with the ASU, predominantly paragraph 9. But my question is, do you accept that they can cover these employees?

[MS MATTHEWS]: Look, I think it's difficult, to be honest, for me to give a view about the union rule. I had assumed, prior to these proceedings, that they could cover them. I'm actually not sure, having looked at their rule, whether that is or is not the case. Having actually specifically referred to their rule, I'm not sure whether that is the case. But, certainly, in the negotiations and the discussions, up until yesterday, when I looked at their rule, I had assumed that the ASU had coverage."

[30] Although, it certainly appears that the ASU could potentially have coverage over the Relevant Employees but had made a conscious decision not to represent them as bargaining representatives on the basis that they did not have sufficient membership across Guide Dogs to make a whole enterprise agreement a reality, the ASU's decision cannot form the basis to extend coverage to the IEU. Rather, the basis of extending coverage must be from the IEU's Rules itself. As the provisions referred to in this decision makes clear, in order to demonstrate coverage, the IEU need only show that they are entitled to represent just one Relevant Employee (who is also a member of the IEU) as a bargaining representative.[27]

[31] Ultimately, the task of the Commission in determining whether the IEU is entitled to represent at least one member as a bargaining representative for the purposes of ss.176 and 229, is to apply the ordinary meaning of the words used in the IEU Rule, construed liberally and as a whole, to the circumstances of the O&MS' and GDMIs' employment.

[32] As mentioned, Rule 2(e) provides that the IEU shall consist of persons who are:

"employed, usually employed or qualified to be and desirous of being employed or seeking to be employed in or in connection with the industry or industries, and/or occupation, and/or calling, and/or vocations, and/or industrial pursuits of...

(e) teachers in non-government pre-schools and/or centres in which Early Childhood Services are provided in NSW , the ACT and Queensland only (but excluding any teacher employed by an municipal or Shire Council in NSW), and teachers employed in or by any non-government social or community organisation, or any non-government education institution or body."

[33] It is not disputed that Guide Dogs is a "non-government social or community organisation". Accordingly, the question for construction is the definition of teachers in the context of Rule 2(e). The ordinary and objective meaning[28] of the term teacher, as defined in the Macquarie Dictionary, is "[s]omeone who teaches or instructs, especially as a profession; instructor..." Construed liberally, the ordinary and objective meaning of the term teacher would effectively result in the term teachers in Rule 2(e), extending to all persons who teach or instruct in any non-government social or community organisation. Indeed this is a very wide reading of the Rule.

[34] Therefore the difficulty in this case, is the history of the interplay with the teachers unions and the industrial understanding of the term "teachers" in the teacher Awards.

[35] While I note that the IEU objects to the reliance upon definitions contained in the Awards (which apply to formal school or post-school educational settings), and decisions of the AIRC concerning the history of the ITF/IEU in the interpretation of the IEU's Rules, authorities indicate that regard may be had to:

"any common understanding among people concerned with the relevant industry and particularly with industrial matters of the ordinary application of the words used and to take account of evidence of that common understanding furnished by the previous use of the words in the relevant organisation rules and in statutory provisions, decisions, determinations, awards, reports and other papers concerned with the relevant industry or industries." [29]

[36] In any event, I consider that the historical context of Rule 2(e) and the industrial understanding of the term teachers is of particular relevance in the interpretive task presently before me - especially in circumstances where the term is undefined in the IEU Rules.

[37] The IEU is the successor union to the Independent Teachers Federation of Australia (ITF), and derives its history from a grouping of unregistered state based non-government teacher unions. In 1986, following the 1983 CYSS decision in the High Court,[30] the AIRC confirmed that the following organisations were registered in the Federal industry of school teaching:

1. ATU covered the industry in the government sector;

2. ITF was limited to the non-government sector; and

c. TAA was registered to represent the interests of teachers in both sectors.[31]

[38] In 1988, a Full Bench of the AIRC[32] confirmed the federal registration of the ITF as the relevant union for school teaching in the non-government sector. In upholding the Full Bench's decision, the High Court in Re Lee; Ex parte Harper described the ITF as an association focused on schooling:

"The membership of the TAA under its constitution consists of persons employed in or in connexion with school teaching, whether employed in government or non-government schools, and includes school teachers in administrative, inspectorial, advisory and research positions. The membership of the ATU under its constitution is similar to that of the TAA, except that the ATU membership is largely confined to those employed in government educational institutions. The membership of the ITF is also similar, except that it is confined to employees of non-government and independent schools, including grammar schools."[33] (Emphasis added).

[39] In this context it is clear that the ITF, and its successor the IEU, were concerned with the work of persons engaged in the profession of teaching.[34] However, this is not to say that the IEU's coverage is limited to school teaching, indeed the language of Rule 2(e) tells against such construction.

[40] Another matter relevant in determining the scope of Rule 2(e) is the consideration of industrial instruments such as Awards. In cross-examination, Ms Matthews conceded that the industrial instruments which were referred to in her statement, that is, those instruments which applied to NSW registered non-government schools, only extended coverage to teachers who work in schools:

"PN97 [MR IZZO]: So what I might do is hand you a copy of the relevant award, and I've got copies for the Commission [Teachers' Independent State Schools Award 2001 and the Teachers' Archdiocese of Sydney and Diocese of Broken Bay and Parramatta State Award 2009]. So, Ms Matthews, if I can ask you to go to - the pages aren't numbered, but the third page of the document you've been handed?

PN99: For the purposes of this award "teacher" means a person employed as such to assist the principal in the work of the school.

PN101 [MR IZZO]: So do you accept now that "teacher", as it was contained in this award, only applied to people engaged in schools?

PN104 [MR IZZO]: Now, I asked you as well about the Teachers, Archdiocese of Sydney and Diocese of Broken Bay and Parramatta, do you accept that that award also only defined teacher as someone working in a school, do you accept that?

PN105 [MR IZZO]: I happily will do so. Apologies, if I could ask you to go to page 4 of that document?

PN107: "Teacher" means a person employed as such to assist the principal in the work of the school.

PN109 [MR IZZO]: So do you accept now that that award defined a teacher as someone working in the school?

[MS MATTHEWS]: Assisting the principal in the work of the school, yes, I would agree with that.

PN112 [MR IZZO]: ... Now, at paragraph 19 you mention that:

PN113: Typically the state industrial instruments commonly define the term "teacher" as someone who is employed as such.

PN115 [MR IZZO]: What I'd like to put to you is that those instruments, that is, the pre-2006 New South Wales instruments, didn't refer to a teacher as someone engaged as such, but referred to them as someone engaged as such in a school, do you accept that position, or proposition?

PN116 [MR IZZO]: You do accept that, okay. They often refer to teachers engaged as such to support principals of schools, do you accept that as well? That was the language used in those pre-2006 instruments?

PN117 [MR IZZO]: Okay. Do you accept that under all the New South Wales awards pre-2009 you had to be employed in a school or early childhood learning centre to be covered by those teaching awards?

[MS MATTHEWS]: I certainly accept that the coverage was limited to schools, of those awards, yes. But I'm not saying every award, but the awards you've named, yes, they apply to schools.

PN118 [MR IZZO]: Yes, okay. So when, in paragraph 19, you say:

PN119: A teacher was commonly defined in instruments as simply being a person who is employed as such.

PN120 [MR IZZO]: That is part of the definition but there's a bit that also follows that, isn't there, which says:

PN121: Employed as such to support the principal and the school and employed as such in the school.

PN122 [MR IZZO]: That language was also there?

[41] It is curious as to why Ms Matthews would exclude or otherwise inadvertently leave out parts of the definition of "teacher" as found in the Awards[35] that she had disclosed in her evidence. In my view, based on Ms Matthews' responses in cross-examination above, her evidence at paragraphs [18]-[19] of her statement (insofar as it relates to MFI 2 and MFI 3) dated 7 June 2018 should not be accepted. To that end I find that the term teacher in the state industrial instruments referred to by Ms Matthews, extended only to teachers who worked in schools.

[42] Given the history of the IEU's formation as an organisation that was registered to cover school teachers in the non-government sector, and given the industrial understanding of the term teacher as found in the teaching Awards which applied to non-government schools in NSW, I find that the term "teachers", when construed liberally in the context of Rule 2(e), must not extend to any person who teaches or instructs in any non-government social or community organisation. This construction would be extremely wide such that it could potentially cover lawyers, doctors and any other person engaged in instruction and teaching in a non-government social or community organisation. I also find that the term teachers in Rule 2(e) is not confined to school teachers; however given the historical and industrial context detailed above, caution needs to be exercised in adopting an unreasonably wide definition such that a person is considered to be a teacher where teaching and instruction is not the primary function of their job. This is in my view should be the outer boundary of Rule 2(e)'s coverage of teachers in non-government social or community organisations.

[43] Having construed Rule 2(e), it is now appropriate to examine the primary purpose of the employment of the Relevant Employees in order to ascertain if an employee fits within Rule 2(e).[36] This is a matter of applying Rule 2(e), as construed above, to the circumstances of the case.[37] In applying the primary purpose test, one ought not "focus upon one aspect of an employee's work in isolation from the totality of his or her duties."[38]

[44] The IEU contend that the primary function of O&MSs is to teach the skills necessary to travel safely and independently in the community and a main component of that role involves teaching in the sense of the design and preparation of programs and lessons, direct instruction of clients with vision impairment and assessment and evaluation of the progress of the client. Guide Dogs on the other hand reject this and assert that if the Commission was to accept the IEU's submission this would lead to an absurd outcome. Guide Dogs specifically point to Occupational Therapists (OTs), a profession that Ms Matthews had conceded that the IEU did not seek to cover,[39] who would also be caught by the IEU if its approach to asserting coverage of the O&MSs was accepted.

[45] As with the Relevant Employees, OTs set goals with clients, initiate training programs and evaluate the training programs.[40] Mr McKenzie describes the role of OTs as follows:

"...as far as I'm aware they're main role is to deal with what we call independent living services. So they go into people's homes, and perhaps workplaces, and make changes. Teach people how to cook, teach people how to operate a kitchen, that sort of thing, and recommend things like a handrail in a bathroom, or something like that."[41]

[46] In cross-examination however Mr McKenzie sought to draw a distinction between the work of the Relevant Employees and OTs. Specifically, Mr McKenzie asserted that the work of the Relevant Employees' was more akin to teaching because it was more focused on safety than that of OTs:

"PN442 [MR IZZO]: What about how to medicate, empower to do medication management, how to do clothing identification? All of these skills that are being taught to these people, do you say it's training, teaching or what is it, from your perspective?

[MR MCKENZIE]: From my perspective the difference between us and that is that when we're teaching people skills or travel over a particular route, we have a very detailed evaluation process to make sure that the people have learnt the skills, because it is a safety issue, primarily

PN462 [THE VICE PRESIDENT]: Mr McKenzie, so we're clear about this, are you saying that the evaluation of safety is what makes it teaching and training?

[MR MCKENZIE]: I'm saying it's a substantial part of the teaching process. The acquisition of skills, from our - - -

PN467 [THE VICE PRESIDENT]: So just so I'm clear, we'll get it on the record is the evaluation of safety the critical matter that you are taking into account when you are distinguishing as to whether or not he was teaching or not?

[MR MCKENZIE]: What I'm saying is that there is a very - my belief is that there is a much greater emphasis on evaluating that the skills that we teach have actually been learnt, because I think the safety issues are more important, when people are travelling around the environment outside, which is what orientation and mobility is about..."

[47] To the extent that Mr McKenzie's evidence seeks to distinguish the work of the Relevant Employees' with OTs, on the basis that the former is more akin to teaching because it is more focused on safety evaluation than that of OTs, I reject that evidence. Safety evaluation is one of many factors which form part of teaching and instruction and it cannot be reasonably considered to be the sole indicative factor of what constitutes a teacher.

[48] Based on the evidence, I find that there is no discernible difference in the type of instruction provided by OTs to the type of instruction provided by the Relevant Employees. Both sets of employees are helping vision impaired persons perform daily activities, whether that be; self-care, meal preparation, home management and financial and communication activities (in the case of occupational therapists); or walking and public transport travelling activities (in the case of the Relevant Employees). In that regard, having considered all the evidence and materials relating to the duties and functions of the Relevant Employees, I am of the view that the primary function of the Relevant Employees is not teaching or instruction. When the duties and tasks of the Relevant Employees are considered as a whole, I consider that their primary function is more akin to an allied health service than it is to teaching, that is; to provide a holistic mobility and orientation service that provides vision impaired clients with greater access to mobility.

[49] Whilst the Relevant Employees do impart knowledge to vision impaired persons about how to become more mobile and self-sufficient, the same can be said for a number of other professions assisting the disabled, such as OTs, social workers, counsellors, aged-care workers and rehabilitation specialists. All these types of occupations might 'teach' or instruct disabled persons, but the IEU has conceded that they have not traditionally sought coverage over these established categories of allied health and disability support workers within its Rules.

[50] Especially given my observations regarding the historical context of the IEU and the industrial understanding of the term teachers as being primarily concerned with school teaching, I have determined that to extend coverage under Rule 2(e) to the Relevant Employees would necessarily result in an interpretation that is extremely wide or indefinite as to be unlikely to have been intended by the Rules.[42] The potential implication of such a construction would be far reaching.

[51] For the reasons set out above, I do not consider that the Relevant Employees are teachers within Rule 2(e) of the IEU's Rules. As such, the IEU does not have coverage over the Relevant Employees and therefore it is not entitled to represent their industrial interests pursuant to ss.176 and 229 of the Act.

[52] Accordingly, the application for bargaining orders is dismissed.

Mr M. Gibian of counsel, with Mr I. Bailey instructing, for the IEU

Mr L. Izzo and Mr M. Roucek, solicitors (Australian Business Lawyers), for Guide Dogs

Guide Dogs' closing submissions dated 3 September 2018

IEU's closing submissions in reply dated 10 September 2018

[3] Statement of Carol Matthews dated 7 June 2018 (Exhibit 1).

[5] Construction, Forestry, Mining and Energy Union v CSBP Limited [2012] FCAFC 48; (2012) 212 IR 206 at [39].

[7] Application for the registration of the Teachers' Association of Australia as an organization of employees [1986] AIRC 441; [1988] AIRC 1074.

[8] Educational Services (Teachers) Award 2010 (Teachers Award); Education Services (Post-Secondary) Award 2010 (Post-Secondary Award); Guide Dogs' submissions in reply dated 20 June 2018, Appendix 1 "Antecedent Awards To The Educational Services (Teachers) Award 2010".