Fair Work Act 2009

s.739 - Dispute resolution

Technical and Further Education Commission T/A TAFE NSW

Alleged dispute about any matters arising under the TAFE Commission of NSW Teachers and Related Employees Agreement 2016.

[1] On 4 March 2019, Mr Mark Hartley made an application for the Commission to deal with a dispute pursuant to s.739 of the Fair Work Act 2009 (the Act) and clause 4, Dispute Resolution Procedures, of the TAFE Commission of NSW Teachers and Related Employees Agreement 2016 (the Agreement).

[2] Mr Hartley has been employed by the TAFE Commission of NSW (TAFE) since 2008. In June 2009 he was engaged as a "Part time Casual Teacher" to teach Aboriculture at Richmond College. Later he began to teach the Diploma of Arboriculture.[1]

[3] His dispute with TAFE concerns his contention that he has performed work in support of his teaching duties that he has not been paid for in accordance with the Agreement. He says that he has not been provided teaching materials and equipment as he contends is required by the Agreement and has had to develop his own teaching materials in his own time.

[4] Efforts to resolve the dispute were undertaken by conciliation of the Commission[2] and in direct discussions between Mr Hartley and TAFE. These efforts proved unsuccessful and Mr Hartley referred the dispute to the Commission to be resolved by arbitration. Mr Hartley and TAFE agree, and I concur, that the Commission has the power to resolve the dispute by arbitration. To this end the parties provided the following agreed questions for the Commission's consideration:[3]

1. Are the Related Duties of a Part time Casual Teacher (PTCT) listed in Clause 37.4.1 (i to xii) of the TAFE Commission of NSW Teachers and Related Employees Enterprise Agreement 2016 compensated for as a part of the rate paid for direct teaching activities?

2. If the answer to question 1 is 'no', how is a Part Time Casual Teacher compensated for performing Related Duties under the TAFE Commission of NSW Teachers and Related Employees Enterprise Agreement 2016? Is a Part Time Casual Teacher compensated for performing these Related Duties on an hourly basis?

3. If the answer to question 1 is 'yes', does clause 37.4.1 of the TAFE Commission of NSW Teachers and Related Employees Enterprise Agreement 2016 require a Part Time Casual Teacher to complete any or all related duties, as listed in Clause 37.4.1 (i- xii) associated with the direct teaching activities performed?

4. Other than as listed in clause 37.4.1, does the TAFE Commission of NSW Teachers and Related Employees Enterprise Agreement 2016 (the EA), and in particular clause 37.15.1 of the EA, oblige TAFE to provide all curriculum materials, course materials, learning materials, and assessment tools to the PTCT necessary for the PTCT to perform their direct teaching activities? Yes/No

[5] Mr Hartley appeared on his own behalf and, by permission, TAFE was represented by Ms Rebecca Gall of counsel instructed by Minter Ellison.

[6] TAFE contended that permission to be represented by a lawyer pursuant to s.596 of the Act was not necessary due to clause 4.3 of the Agreement. Clause 4.3 provides:

4.3 An Employer or Employee may appoint another person, organisation or association to accompany and/or represent them for the purposes of this clause. The Employer recognises the Union as a representative of an employee who is a member of the Union under these procedures.

[7] In the alternative, TAFE submitted that permission to be represented by a lawyer ought to be granted by the Commission because it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.[4]

[8] Mr Hartley challenged the meaning of clause 4.3 of the Agreement and objected to permission being granted pursuant to s.596 of the Act.

[9] I decided that my discretion to give permission was enlivened as the construction of the Agreement in the circumstances of the dispute did involve complexity and the matter would be able to be dealt with more efficiently if I allowed TAFE to be legally represented. I exercised my discretion in favour of TAFE's application. In this circumstance I decided that it was unnecessary to determine whether clause 4.3 had the meaning asserted by TAFE.

[10] Mr Hartley's employment as a "Part-time Casual Teacher" is fundamental to this dispute. The provisions of the Agreement concerning payment for teaching and teaching related duties are specific to this employment category.

[11] The definition of "Part-time Casual Teacher" is found in clause 3.34 of the Agreement:

3.34 "Part time Casual Teacher" means a Teacher engaged to teach on an hourly basis. It is the Employer's intention that no Part time Casual Teacher shall be engaged to deliver the Equivalent of a Full Time teaching program for 12 or more weeks in a semester except where a Temporary Teacher is not able to be employed following recruitment action.

[12] The rates of pay for Part time Casual Teachers are provided for in clause 37.2 and Schedule 6 of the Agreement as follows:

37.2 Subject to satisfying the conditions prescribed by this Agreement, the hourly rate of pay inclusive of all incidents of employment, excluding entitlements under the Long Service Leave Act 1955 and including duties in the subclause 37.7 of this clause, of Part time Casual Teachers and Coordinators shall be as set out in Schedule 6.

Schedule 6 - Rates of Pay - Part time Casual Teachers, Coordinators and Counsellors and Contract Teachers (OTEN)

From the first full pay period to commence on or after 24 November 2016

From the first full pay period to commence on or after 24 November 2017

From the first full pay period to commence on or after 24 November 2018

Open Training and Education Network Contract Teaching Per Unit ($)

Open Training and Education Network Contract Teaching Per Unit ($)

Open Training and Education Network Contract Teaching Per Unit ($)

[13] Clause 37 of the Agreement provides other working conditions that are specific to Part time Casual Teachers.

[14] The meaning of clauses 37.4.1, 37.7.1, 37.7.2, 37.7.3 and 37.15.1 are in particular contention. These clauses are set out below:

37.4.1 The rate paid for Part time Casual Teachers is for the duties on which Part time Casual Teachers are engaged during the hours for which they have been authorised to undertake direct teaching activities and performance of related duties including:

(i) attendance in the classroom before the commencement and after the completion of class;

(iii) assessing and marking students' practical work;

(iv) preparing special lectures and lecture demonstrations;

(x) preparation of lesson notes, and teaching aids;

(xii) preparation for practical work, drawing and practical exercises.

37.7.1 Part time Casual Teachers teaching 10 or more hours in a week in any Insititute/s shall be entitled to payment for related duties, provided that they attend to perform the related duties. Such related duties shall be paid at the teaching duties rate according to the following table:

37.7.2 Payment for related duties paid to Part time Casual Teachers teaching 10 hours or more a week are for duties associated with the Part time Casual Teacher's teaching section as well as for duties related to the Part time Casual Teacher's direct teaching activities set out in subclause 37.4.

37.7.3 The apportionment of the related duties to be undertaken and the required attendance shall be by agreement between the Part time Casual Teacher and their supervisor/s and become part of the teacher's Approved Program. Where practical, attendance is to be arranged so that the Teacher can attend staff meetings, professional development and other related duties on the day/s the teacher is programmed to teach. Split shifts are not to be included as part of a Part time Casual Teacher's Approved Program unless requested by the Part time Casual Teacher.

37.15.1 The Institute shall ensure that the facilities are available to all Part time Casual Employees. Subject only to the needs for security and safety, teaching materials, working areas and equipment, resource and reference materials and technical and administrative Employees shall be readily accessible by Part time Casual Employees before, during and following their scheduled duty periods.

[15] Also of relevance to the dispute is the definition of "Approved Program" contained in clause 3.4 of the Agreement, the definition of "Duties Other Than Teaching (DOTT)" contained in clause 3.16 of the Agreement and the definition of 'Institute' contained in clause 3.29 of the Agreement. These are reproduced below:

3.4 "Approved Program" means a teaching program comprising direct teaching and other duties as approved by the Employee's line manager to be performed across the Standard Educational and/or TAFE Year to meet the Institute's needs.

3.16 "Duties Other Than Teaching" in clause 37, Working Conditions - Part time Casual Teachers, Coordinators and Counsellors, means duties other than teaching and coordination except as provided in subclause 37.7 of clause 37 of this Agreement.

3.29 "Institute" means any grouping of TAFE Campuses or locations where TAFE provides education, training, administrative and other services from time to time as specified by the managing director.

[16] Mr Hartley and TAFE agree that the words of the Agreement that I must construe in order to answer the questions must be given their ordinary meaning. They both assert that the words are not ambiguous. They just disagree about their meaning.

[17] TAFE submits[5] that the principles for interpreting an enterprise agreement were recently and succinctly restated by the Full Court of the Federal Court in WorkPac Pty Ltd v Skene [2018] FCAFC 131 (Skene) as follows:

"The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context. The interpretation "...turns on the language of the particular agreement, understood in the light of its industrial context and purpose ...". The words are not to be interpreted in a vacuum divorced from industrial realities; rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently 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. To similar effect, it has been said that the framers of such documents were like of a "practical bent of mint" 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."[6]

[18] A summary of the principles relevant to the approach that the Commission should take to the construction of enterprise agreements was set out in Australian Manufacturing Workers Union (AMWU) v Berri Pty Ltd [2017] FWCFB 3005:

1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:

(ii) the disputed provision's place and arrangement in the agreement;

(iii) the legislative context under which the agreement was made and in which it operates.

1. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.
2. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.

The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.

The FW Act does not speak in terms of the 'parties' to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are 'covered by' such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement 'with the employees who are employed at the time the agreement is made and who will be covered by the agreement'. Section 182(1) provides that an agreement is 'made' if the employees to be covered by the agreement 'have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement'. This is so because an enterprise agreement is 'made' when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.

Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.

In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning

Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement

If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.

The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.

Evidence of objective background facts will include:

(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

(ii) notorious facts of which knowledge is to be presumed; and

(iii) evidence of matters in common contemplation and constituting a common assumption.

1. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.

2. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties' intention or purpose was.

3. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.

[19] The above principles outlined in Berri are derived from earlier decisions of the Federal Court and the Commission, some of which are also authorities drawn upon in Skene.[7] The two formulations are consistent and I will deal with each question posed by Mr Hartley and TAFE by applying the principles set out in Skene and Berri.

1. Are the the Related Duties of a Part time Casual Teacher (PTCT) listed in Clause 37.4.1 (i to xii) of the TAFE Commission of NSW Teachers and Related Employees Enterprise Agreement 2016 compensated for as a part of the rate paid for direct teaching activities

[20] Mr Hartley contends that the answer to this question is 'no'. He submits that the wording of clause 37.4.1 requires that all authorised work undertaken by a Part time Casual Teacher be paid for based on the time taken to perform that work,[8] and that it would be manifestly unfair and unreasonable to require "an unlimited or unspecified amount of related duties ... as a consequence of undertaking direct teaching activities".[9]

[21] TAFE contends that the answer to this question is 'yes'. It submits:

"Clause 37.4.1 provides that the rate paid for a PTCT (i.e. the Teaching Rate) 'is for' authorised direct teaching activities and performance of the duties related to the PTCT's direct teaching activities. That is, the Teaching Rate includes payment for authorised direct teaching activities, and performance of related duties."[10]

[22] TAFE also points to extrinsic materials in support of this construction.[11] I have not had regard to these materials because I consider that a plain reading of the Agreement supports the construction put forward by TAFE and it is not necessary to have regard to these materials in determining whether the Agreement is ambiguous.

[23] Considered together, a plain reading of clauses 37.4 and 37.7 makes clear that a Part-time casual Teacher is to be paid for two types of activities. Firstly, direct teaching so long as it is authorised and secondly, related duties so long as the payment conforms with the conditions set out in clause 37.3. Related duties plainly include the duties listed in (i) to (xii).

[24] The relevant rate of pay is the rate of pay for Teaching Duties. This is because Schedule 6 as directed by clause 37.2 provides a rate of pay for Teaching Duties. It is plain on the face of it that this is the rate for teaching. This rate is distinguished from the rate of pay for Co-ordination/Consultancy Duties or Duties Other Than teaching (DOTT) or Part time Casual Councillors or Contract Teaching Duties. The rate of pay for Duties Other Than Teaching (DOTT) is defined to exclude the duties provided in clause 37.7. The duties provided in clause 37.7 are the related duties provided in clause 37.4.1. That is, the DOTT rate does not apply to these duties and the only other relevant rate is the rate of pay for Teaching Duties.

[25] I consider that the rate of pay for Teaching Duties is paid for:

• time spent conducting authorised face to face teaching of students in a classroom; and

• time spent undertaking activities that are related to teaching but are not face to face teaching of students in a classroom, subject to:

  • the time in authorised teaching being 10 or more hours per week;

  • the activities being approved by the teacher's supervisor;

  • the activities actually being carried out;

  • the payment being subject to a cap that is determined by a formula that is provided in Clause 37.7.1 of the Agreement.

[26] Put another way, I consider that the Agreement means that Part time Casual Teachers who perform up to and including 9 hours of teaching per week are to receive payment at the Teaching rate for those hours and no more. This is the case notwithstanding that they may spend time performing related duties in addition to the time spent in face to face teaching.

[27] Part time Casual Teachers who perform 10 or more hours of teaching per week are to receive payment at the Teaching rate for those hours and for the time, up to a maximum of 6 hours and 20 minutes per week, that they perform approved related duties.

[28] Accordingly, I find that the answer to the Question 1 is 'yes'.

1. If the answer to question 1 is 'no', how is a Part Time Casual Teacher compensated for performing Related Duties under the TAFE Commission of NSW Teachers and Related Employees Enterprise Agreement 2016? Is a Part Time Casual Teacher compensated for performing these Related Duties on an hourly basis?

[29] Strictly speaking it is not necessary for me to answer this question since my answer to the first question is 'yes'. However, both Mr Hartley and TAFE put forward clear but competing answers to the question so I will answer the question.

[30] Mr Hartley contends that the answer to this question is the Duties Other Than Teaching (DOTT) rate.[12]

[31] TAFE contends that the answer to this question is the Teaching rate because the definition of Duties Other Than Teaching (DOTT) set out above excludes the duties that clause 37.7 is concerned with.[13] That is "related duties", being the duties referred to in clause 37.4.1.

[32] TAFE points out that the DOTT rate is only payable for approved attendance at staff meetings (clause 37.10.1), attendance at formal induction on initial engagement for up to 2 hours (clause 37.17.1) and excess travel time (clause 3.2.2).

[33] I consider that the DOTT rate remunerates the third set of activities that a Part time Casual Teacher is entitled to be paid for under the Agreement. Duties other than teaching are distinct from teaching and related duties. There is no support in clause 37.4.1 or clause 37.7.1 for related duties being remunerated at the DOTT rate.

[34] Accordingly, I find that the answer to the Question 2 is 'the Teaching rate, subject to the cap outlined by the formula provided in Clause 37.7.1 of the Agreement'.

1. If the answer to question 1 is 'yes', does clause 37.4.1 of the TAFE Commission of NSW Teachers and Related Employees Enterprise Agreement 2016 require a Part Time Casual Teacher to complete any or all related duties, as listed in Clause 37.4.1 (i- xii) associated with the direct teaching activities performed?

[35] Mr Hartley contends that the answer to this question is 'no'.[14] He submits that:

"...there is no obligation to complete all the related duties associated with the direct teaching duties performed. Clause 37.7.2 of the Agreement allows for payment for related duties that are listed in 37.4. This means there is no requirement to complete all of the related duties listed in 37.4.1 as a part of the compensation provided for direct teaching."[15]

[36] TAFE contends that the answer to this question is 'yes'. It submits that:

"...clause 37.4.1 sets out the duties that a PTCT is required to perform. This is clear from the wording of the clause and the fact that it is the only subclause in clause 37.4 which is titled 'Duties' ... It is clear from the wording of clause 37.4.1 that those duties include the performance of related duties and that the list of related duties in clause 37.4.1 that those duties include the performance of related duties and that the list of related duties in clause 37.4.1 (i) to (xi) is a non-exhaustive list given the use of the word 'including' immediately preceding the list."[16]

[37] I consider that the list of activities set out in clause 37.1.4 contains activities that are related duties. I agree with TAFE that the list is non-exhaustive and therefore there could be other duties that could be described as related duties.

[38] The question of the related duties to be completed should also be addressed by reference to clause 3.4 and clause 37.7.3 of the Agreement.

[39] The Approved Program is defined in clause 3.4 to include direct teaching and other duties approved by the teacher's line manager. Clause 37.7.3 conditions the Approved Program. It provides that the "apportionment of related duties to be undertaken and the required attendance shall be by agreement between the Part time Casual Teacher and their supervisor/s and become part of the teacher's Approved Program".

[40] TAFE says:

"Plainly, on the text of the clause, there's nothing that limits which duties are to be performed by the PTCT, within the context of that clause. However, of course, as TAFE has acknowledged in its submissions, at 5.4, it's not necessarily the case that all related duties will need to be performed each week. I think Mr Hartley, himself, acknowledged that. For example, depending on the time in the semester, it might not be necessary to set and mark a test. You certainly wouldn't be setting one and marking one at the same time, necessarily, unless there was multiple different tests and some had already occurred and you were setting a new one."[17]

[41] I consider that this is a practical interpretation of the Agreement, I also agree with TAFE's submissions that:

"...in terms of any suggestion that they might be required an unreasonable amount of hours, or an unconscionable amount, that goes back to then the approved program, which is in discussion with the supervisor. If it was the case that a teacher was - it would not be the case that an approved program would require something that would not be reasonable. It certainly wouldn't be reached by agreement between the part-time teacher and the supervisor. It's not what's provided for by the agreement."[18]

[42] I consider that the answer to Question 3 is 'yes', subject to the qualification that the duties are related to teaching and are reasonable. There are general constraints upon an employer's directions to an employee. These include that the direction is lawful, reasonable and safe.

1. Other than as listed in Clause 37.4.1, does the TAFE Commission of NSW Teachers and Related Employees Enterprise Agreement 2016 (the EA), and in particular clause 37.15.1 of the EA, oblige TAFE to provide all curriculum materials, course materials, learning materials, and assessment tools to the PTCT necessary for the PTCT to perform their direct teaching activities? Yes/No

[43] Mr Hartley contends that the answer to this question is 'yes'. He submits:

"...the institute is obliged to provide teaching materials. As I've said, I've tried to flesh those out but an assessment tool is required under the statute that governs registered training organisations. So they must have assessment tools, they must have learning aids, they must have notes. So all those things are obligated upon us. So those things that are required to teach I say they're providing, apart from 37.4(i) to (xii)."[19]

[44] TAFE contends that the answer to this question is 'no' because clause 37.15.1 is concerned with an Institute (as defined at paragraph [15] above) making facilities available, that is, providing access to the teaching materials, working areas and equipment, resource and reference materials and technical and administrative employees that are, for the purpose of this clause, 'facilities'.[20]

[45] TAFE said:

"So the clause is talking about making things available and making them readily accessible. It doesn't impose upon TAFE an obligation to prepare or create."[21]

[46] TAFE places emphasis on the clause referring to "the Institute" rather than TAFE. I agree that in light of the definition of 'Institute' in the Agreement it is the "grouping of TAFE Campuses or locations where TAFE provides education, training, administrative and other services from time to time" that is required to ensure that facilities are available, and that teaching materials, working areas and equipment, resource and reference materials and technical and administrative employees are readily accessible.

[47] This fortifies the interpretation of the clause to mean that the clause requires these things to be available, not that TAFE must supply the teacher with all curriculum materials, course materials, learning materials, and assessment tools.

[48] The reference to "safety and security" that qualifies the availability of facilities also fortifies this interpretation. Safety and security are relevant to access to facilities, not to the development or provision of curriculum materials and the like.

[49] Accordingly, my answer to Question 4 is 'no'.

[50] Whether the materials provided by TAFE and the time allowed for preparation of materials in the current environment is sufficient or reasonable is for the framers of the Agreement to consider. My task is not to decide whether the Agreement is fair or unfair. Nor is my task to determine what materials TAFE should provide and how much paid time a Part time Casual Teacher should be allowed to prepare for face to face teaching. Rather it is to construe the Agreement as it is written in answer to the questions posed.

R. Gall appeared on behalf of the Technical and Further Education Commission T/A TAFE NSW.

[1] Information taken from document entitled 'Statement of Facts' provided by the Applicant on

[2] Conferences were held before me on 8 April 2019, 1 May 2019, 9 September 2019 and 25 October 2019.

[3] Provided from the Applicant via email on 29 November 2019.

[4] Fair Work Act 2009 (Cth), s.596(2)(a).

[5] Respondent's submissions of 31 January 2020 at 2.3.

[6] WorkPac Pty Ltd v Skene [2018] FCAFC 131 at [197].

[7] See for example Kucks v CSR Limited [1996] IRCA 166; (1996) 66 IR 182 at 184 and City of Wanneroo v Australian, Municipal, Administrative, Clerical and Services Union [2006] FCA 813; (2006) 153 IR 426 at 440; AMIEU v Golden Cockerel Pty Limited [2014] FWCFB 7447 at [19]-[22].

[8] Applicant's submissions dated 10 January 2020 at 11.

[10] Respondent's submissions dated 31 January 2020 at 3.7.

[12] Applicant's submissions in reply dated 7 February 2020 at 35.

[13] Respondent's supplementary submissions dated 12 February 2020 at 4.4.

[14] Applicant's submissions dated 10 January 2020 at 15.

[16] Respondent's submissions of 31 January 2020 at 5.1-5.2.

[17] Transcript of hearing of 13 February 2020 at PN571-573.

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