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[2020] FWCFB 3280
General information, not legal advice.
Fair Work Commission (Full Bench)
2020-06-23
Original judgment source is linked above.
s.604 - Appeal of decision
Technical and Further Education Commission T/A TAFE NSW
Appeal against decision [2020] FWC 1195 of Deputy President Booth at Sydney on 5 March 2020 in matter number C2019/1384 - dispute arising under an enterprise agreement - interpretation - no error - permission to appeal refused.
[1] Mr Mark Hartley has lodged an appeal, for which permission is required, from a decision of Deputy President Booth made on 5 March 2020[1] pursuant to s.739 of the Fair Work Act 2009 (Act) and the dispute resolution provision in clause 4 of the TAFE Commission of NSW Teachers and Related Employees Agreement 2016 (Agreement).
[2] Mr Hartley is employed by the Technical and Further Education Commission (TAFE). His employment is covered by the Agreement. Mr Hartley is a 'part-time casual teacher' (PTCT), which is defined in clause 3.35 of the Agreement as a teacher engaged to teach on an hourly basis and within certain parameters.
[3] A dispute arose between Mr Hartley and TAFE concerning the work that Mr Hartley is required to perform as a PTCT and the payments to which he is entitled under the Agreement. The parties submitted four questions to the Deputy President for determination, each of which concerned the interpretation and application of relevant provisions of the Agreement. Mr Hartley appeals from the Deputy President's decision in so far as it relates to her answers to the third and fourth questions.
[4] The third question asked whether PTCTs are required to complete any and all of the duties listed in clause 37.4.1(i)-(xii) of the Agreement that are associated with direct teaching duties. The Deputy President's answer was 'yes'. The fourth question asked whether TAFE is required to provide PTCTs with all curriculum and course materials necessary for them to perform their direct teaching duties. The Deputy President's answer was 'no'.
[5] The parties consented to the determination of this appeal on the basis of the submissions filed by them in the Commission, and it appears to us that the appeal can be adequately determined without oral submissions (see s.607(1)). We therefore determine the appeal on the papers.
[6] An appeal under s.604 of the Act is an appeal by way of rehearing, however the Commission's powers on appeal are exercisable only if there is error on the part of the primary decision maker. There is no right to appeal. An appeal may be made only with the permission of the Commission. Subsection 604(2) requires the Commission to grant permission to appeal if it is satisfied that it is in the public interest to do so. Permission may otherwise be granted on discretionary grounds. An appeal cannot succeed in the absence of appealable error. The fact that a member at first instance made an error is not necessarily a sufficient basis to grant permission to appeal.
[7] Clause 37 of the Agreement sets out terms and conditions of employment for PTCTs. The rates of pay for PTCTs are dealt with in clause 37.2 and schedule 6 of the Agreement. Clause 37.2 states:
"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 subclause 37.7 of this clause, of Part time Casual Teachers and Coordinators shall be as set out in Schedule 6."
[8] Schedule 6 of the Agreement sets out the hourly rates and annual salary increases for PTCTs, as well as other categories of teacher:
'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
[9] Clause 37.4 deals with the duties of a PTCT. It states:
"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."
[10] Clause 37.7 is headed 'Payment for Related Duties' and comprises three sub-provisions. The clause states:
"37.7.1 Part time Casual Teachers teaching 10 or more hours in a week in any Institute/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."
[11] Clause 37.15.1 is entitled 'Access to Facilities' and states:
"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."
[12] Of relevance are the definitions of the following expressions:
_"_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."
[13] The four questions put to the Deputy President for determination were as follows:
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?
[14] The Deputy President decided that the answer to question 1 was 'yes'. This required her to answer question 3. She concluded that the answer to that question was also 'yes'. The Deputy President's consideration of question 3 is found at paragraphs [35] to [42]:
'[35] Mr Hartley contends that the answer to this question is 'no'. 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."
[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."
[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".
"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."
[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."
[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.' (citations omitted)
[15] The Deputy President then addressed question 4. Mr Hartley had contended that the Agreement, and in particular clause 37.15.1, obliged TAFE to provide to PTCTs all 'curriculum materials, course materials, learning materials and assessment tools' that are necessary for them to perform their direct teaching activities. The Deputy President rejected this contention. She agreed with TAFE that clause 37.15.1 is concerned with what an 'Institute' must make available to PTCTs, and that an Institute, as defined in clause 3.29, is a grouping of campuses or locations, and is distinguishable from TAFE.[3] She also agreed with TAFE that clause 37.15.1 was concerned with PTCTs having access to certain things, namely teaching materials, working areas and equipment, resource and reference materials and technical and administrative employees, and that the clause did not impose upon TAFE any obligation to prepare or create course materials for PTCTs.[4]
[16] The notice of appeal advanced two principal grounds. The first ground, which concerned question 3, stated that '...appropriate and full consideration has not been given to section 37.7 and in particular to 37.7.2 of the Agreement in answering question 3.' The second ground of appeal, which concerned question 4, stated that '...no consideration has been given to the first part of the question namely "Other than as listed in Clause 37.4.1."' The notice of appeal referred to an attachment comprising 28 paragraphs, which are in the nature of submissions and elaborate on the two appeal grounds. Essentially, Mr Hartley submits that the Deputy President erred in her consideration of questions 3 and 4 by misinterpreting the relevant provisions and consequently reached the wrong conclusions.
[17] The approach of a Full Bench to the determination of an appeal depends on the nature of the decision below. In the present case, the Deputy President was resolving a dispute pursuant to the dispute resolution procedure in clause 4 of the Agreement. Clause 4.2 states that, where a dispute arises in relation to a matter under the Agreement, it will be 'dealt with in accordance with the procedures set out in this clause.' Clauses 4.7 and 4.8 permit the Commission to arbitrate an unresolved dispute. In arbitrating such a dispute, it is clear that the Commission must act in accordance with the Agreement (see s.739(5)). The questions posed by the parties to the Deputy President were questions of interpretation of the Agreement and required her to correctly interpret the relevant provisions. The Full Bench must determine whether the Deputy President's answers to questions 3 and 4 were correct.[5]
[18] Before addressing the first appeal ground and the Deputy President's answer to question 3, we briefly address the Deputy President's answer to question 1. This asked whether the 'related duties' of a PTCT listed in clause 37.4.1 were compensated for as part of the rate paid for direct teaching duties. Mr Hartley contended that they were not. The Deputy President found that they were. At [26], the Deputy President explained that under the Agreement, a PTCT who performs up to and including nine hours of teaching per week is to receive payment at the teaching rate for those hours and no more. This was the case notwithstanding that they may spend time performing related duties in addition to the time spent in face to face teaching. However, a PTCT who performs 10 or more hours of teaching per week is to receive payment at the teaching rate for those hours and for the time, up to a maximum of six hours and 20 minutes per week, that they spend performing approved 'related duties', in accordance with the table at clause 37.7.1. We agree with this analysis.
[19] It was in this context that the Deputy President was required to consider the third question. Mr Hartley contended that if, below the relevant threshold of teaching hour duties, the 'related duties' are only paid at the teaching rate, then there must be no obligation on the teacher to perform those related duties, and the answer to question 3 is 'no'. The Deputy President reached a contrary conclusion. She determined that PTCTs are required under clause 37.4.1 to complete any or all duties, as listed in Clause 37.4.1(i)-(xii), that are associated with the direct teaching activities.
[20] In our opinion, the Deputy President's analysis and conclusion in relation to question 3, extracted earlier, is correct.
[21] Clause 37.4.1 states that the rate paid to a PTCT is 'for the duties on which (they) are engaged during the hours for which they have been authorised to undertake direct teaching activities and performance of related duties.' The statement that the rate paid to a PTCT is for direct teaching activities and related duties confirms that the related duties are required to be performed, because PTCTs are paid for this work. The rate of pay for a PTCT is prescribed by clause 37.2 and schedule 6. Clause 37.2 states that 'the hourly rate of pay' is for all incidents of employment, 'including duties in subclause 37.7...of Part time Casual Teachers'. Clause 37.7 then establishes the framework explained by the Deputy President as part of her answer to question 1. For teaching hours fewer than 10, no additional payment is made for related duties; where teaching hours number 10 and above, related duties are paid for at the teaching rate, in the number of hours set out in the table at clause 37.7.1.
[22] The list of twelve types of 'related duties' found in sub-clauses (i) to (xii) is clearly not an exhaustive one, because it is preceded by the word 'including'. Mr Hartley submitted that, because clause 37.4.1 does not say 'including but not limited to', as clause 19.2 does, its meaning must be exclusive. This is wrong. The word 'including' of itself connotes inclusivity. There is no need for the clause to use words such as 'but not limited to' to convey this meaning.
[23] Mr Hartley submitted that the Deputy President did not give consideration to clause 37.7 and in particular to clause 37.7.2. He said that under clause 37.7.2 there are two types of related duties that can be performed by a PTCT; those that relate to the 'teaching section' (which he referred to as the relevant 'department') and those that relate to the PTCT's direct teaching duties as listed in 37.4. Mr Hartley said that if all of the related duties associated with direct teaching activities set out in subclause 37.4 had to be completed as a part of the pay received for the direct teaching activities, then there would be no need to refer to them at clause 37.2.2. He said that there is an 'expectation' (he appears to mean 'inference') PTCTs do not need to complete all the duties listed in clause 37.4 as a part of their hourly pay for teaching. We reject this contention. There is no tension between clauses 37.4.1 and 37.7.2. No expectation or inference of the kind he suggests is apparent.
[24] Mr Hartley submitted that, subject to the approval of the head teacher, a PTCT who teaches for 18 hours and who can complete all the duties related to their direct teaching activities in six hours or less would not need to perform any of the related duties listed in clause 37.4 as part of the pay received for their direct teaching activity. By this he appears to mean that in this situation, all of the related duties performed by the PTCT would be paid, whereas another PTCT, who performed fewer than 10 teaching hours, would not be paid for any time spent on related duties. That is indeed the case. Mr Hartley considers that this is unfair and that the provisions ought to work in a different way. But the question for the Commission is not how they should work, but how they do work. In any event, we see nothing unfair about an operating presumption, apparent in the related hours framework in the Agreement, that fewer teaching hours warrant fewer hours of related duties, and that below a certain threshold of teaching hours, no related duties will be paid.
[25] Mr Hartley contended that, if there is an obligation on a PTCT to do any related duties associated with direct teaching duties, without constraint, their effective rate of pay would be eroded. But again, the Agreement provides for payments for related duties, in accordance with the table. Below the threshold of 10 teaching hours, no additional hours are payable for related duties, but such duties must nonetheless be reasonable, as the qualification to the Deputy President's answer to question 3 made clear. In our view the Deputy President's interpretation was correct. We reject the first ground of appeal and its challenge to the answer to question 3.
[26] Mr Hartley's second ground of appeal contended that the Deputy President erred in her conclusion that the Agreement, and in particular clause 37.15.1, did not oblige TAFE to provide 'all curriculum materials, course materials, learning materials and assessment tools to the PTCT as are necessary for the PTCT to perform their direct teaching activities'.
[27] Mr Hartley contended that the Deputy President's analysis did not take into account the first part of the question, namely the words 'other than as listed in Clause 37.4.1.' We do not see how this contention supports Mr Hartley's interpretation. The open-ended list of related duties set out in clause 37.4 requires PTCTs to prepare relevant teaching materials for their lessons. Items (x) and (xii) appear to require this directly, as they refer to preparation of lesson notes and teaching aids, and preparation of practical work, drawing and practical exercises. In any event the matters contemplated by the fourth question are within the scope of clause 37.4; they are plainly duties related to direct teaching activities.
[28] Question four was principally directed at the meaning of clause 37.15.1 and whether it imposes certain obligations on TAFE in relation to the provision of teaching materials to teachers. By contrast, clause 37.4.1 is concerned with teachers' duties, not with TAFE's obligations (other than as to teacher payments).
[29] In his appeal submissions, Mr Hartley contended that the Deputy President had given to the words 'provide' and 'provide access to' meanings that were much narrower than would commonly be understood. However, clause 37.15.1 does not contain these words. Mr Hartley sought to explain in his reply submissions that he was referring to the word 'provide' as it appears in question 4. But it is the words of the Agreement that need to be interpreted. Clause 37.15.1 does not require TAFE to 'provide' anything to PTCTs.
[30] The Deputy President concluded that clause 37.15.1 is concerned with what an 'Institute' must make available to PTCTs, and that an Institute, as defined in clause 3.29, is distinguishable from TAFE. But even if the reference to 'Institute' were read as meaning simply 'TAFE', the answer to question 4 would be the same. The Deputy President stated at [47] that clause 37.15.1 requires certain things to be made available to PTCTs, but not that TAFE had to 'supply the teacher with all curriculum materials, course materials, learning materials, and assessment tools'. We agree. This is consistent with the plain words of the provision.
[31] Mr Hartley contended that clause 37.4 encompasses the entirety of a PTCT's duties, and that it does not refer to the preparation of materials. But as we have said above, and as the Deputy President concluded in her Decision, the 12 listed matters are inclusive, not exhaustive. In any event, whether a PTCT is required to provide teaching materials is a different question from the one posed in question 4, which is whether TAFE is required to provide all materials to PTCTs.
[32] Clause 37.15.1 simply does not say what Mr Hartley wants it to say. The clause requires that 'teaching materials, working areas and equipment, resources and reference materials and technical and administrative Employees shall be readily accessible' by PTCTs. On no interpretation does the clause require TAFE to do what is contemplated by the fourth question, namely to 'provide all curriculum materials, course materials, learning materials and assessment tools to the PTCT'. There is a clear semantic difference between ensuring that something is 'available' or 'readily accessible' and creating something. Mr Hartley's interpretation treats the two as synonymous. He says that, because the clause requires that TAFE ensure PTCTs have access to certain things, those things must exist, and if they do not exist, TAFE must create them. Clause 37.15.1 does not say this, nor, to the extent that the fourth question is concerned with the Agreement more generally, does any other provision.
[33] We would also point out that there is an obvious difference between 'teaching materials', referred to in clause 37.15.1, and 'curriculum materials, course materials, learning materials and assessment tools' that are suggested by the fourth question. The former, read in context, is a reference to teaching materials of a general nature. There is no definite article; the clause does not refer to 'the teaching materials.' The words 'teaching materials' do not connote materials that are tailored to the relevant course and that constitute the 'curriculum' and 'course material'. 'Teaching material' might simply be library books or reference material. On Mr Hartley's unduly expansive interpretation, it would seem that PTCTs just need to turn up to class and read out the lectures that TAFE has prepared for them. This cannot have been intended. And the plain words of the Agreement do not say this.
[34] The framing of the fourth question, when compared to the actual words used in clause 37.15.1, underscores the difference between what Mr Hartley says is the meaning of the clause, and what the provision actually states. Clause 37.15.1 refers to facilities, teaching materials, working areas and equipment, as well as to resource and reference materials. It refers to access to technical and administrative employees. But it does not refer to 'curriculum materials.' It does not refer to 'course materials.' It does not refer to 'learning materials.' And it does not refer to 'assessment tools.'
[35] In his written submissions, Mr Hartley contended that, based on the Deputy President's interpretation of the Agreement, it now fails the 'better off overall test' (BOOT). This submission is misconceived. The Commission is required to examine the question of whether an enterprise agreement passes the BOOT as part of its consideration of an application to approve an enterprise agreement under s.185 of the Act. It must conduct the analysis 'as at the test time', which is defined as the time when the application for approval of the agreement was lodged in the Commission (see ss.193(1) and (6)). There is simply no basis for the Commission to revisit the BOOT at some later time and in the context of another application. A Full Bench in an appeal which is not against the decision to approve an enterprise agreement cannot reconsider the BOOT or 'strike down' an enterprise agreement, as Mr Hartley invited us to do. In any event, we do not accept Mr Hartley's contention that the Deputy President's interpretation results in the employees not being better off overall under the Agreement than under the Educational Services (Post-Secondary Education) Award 2020.
[36] Mr Hartley also contended that the effective pay rate for PTCTs under the Agreement is determined by individual agreement between a teacher and TAFE and is subject to change by TAFE, which is the party with the greater power. He says that the Commission should not interpret clauses of the Agreement in a way that enhances the power of TAFE or that produces an unconscionable situation. No unconscionable situation has been revealed. In any event, the Commission's function in a proceeding under s.739 is to perform the role assigned to it by the terms of the enterprise agreement. Unless those terms direct the Commission to do so, its function is not simply to determine for itself what is a fair or appropriate outcome in a particular case. Indeed, it would be both unfair and inappropriate for the Commission to use an interpretative construct to alter the meaning or effect of an enterprise agreement to suit its own generalised notions of fairness. The second ground of appeal is rejected.
[37] The Deputy President was required to resolve the dispute in the manner authorised by the dispute resolution provision in the Agreement. This required her to interpret the relevant provisions of the Agreement correctly and apply them to the questions that had been put to her in order to determine the dispute. This is what she did. Her analysis was correct. The Deputy President's decision is not affected by error.
[5] Pawel v AIRC [1999] FCA 1660; EnergyAustralia Yallourn Pty Ltd v CFMEU [2017] FWCFB 3574 at [17]
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Mark Hartley
Technical and Further Education Commission T/A TAFE NSW [2020] FWCFB 3280