s.739 - Application to deal with a dispute

Lutheran Church Of Australia Queensland District Trading as St Johns Lutheran Kindergarten Kingaroy

Alleged dispute about any matters arising under the enterprise agreement - whether provisions of the Queensland Lutheran Early Childhood Services Sessional Kindergarten Agreement 2023 require retrospective classification as Senior Teacher - consent request for determination - determination made

• [1] The Queensland Lutheran Early Childhood Services Sessional Kindergarten Agreement 2023 ("the 2023 EA") provides for pay increases, which are backdated to 1 January 2023, even though the Agreement did not start operating until October that year. The 2023 EA also provides for a new classification, Senior Teacher. The parties are in dispute as to whether a person classified as a Senior Teacher should be paid at the Senior Teacher rate from January or October 2023.

• [2] The parties have asked the Commission to review their materials and make a binding determination.

• [3] For the reasons that follow I determine that the Applicant, Ms Jennifer Christensen, should have been paid at the Senior Teacher rate from the date the Agreement started operating in October 2023, and not from 1 January 2023.

• [4] The parties have filed an Agreed Statement of Facts and Contentions.[1] It sets out the following background.

1.2 From 13 January 2014, the Applicant was employed by the Respondent as a Service Leader/ECT covered by the Queensland Lutheran Early Childhood Services Sessional Kindergarten Agreement 2015 (2015 EA). The Applicant was classified as Band 3, Step 3 under the 2015 EA.

1.3 On 13 January 2015, in accordance with the 2015 EA, the Applicant moved to the Band 3, Step 4 classification.

1.4 From 16 July 2020, the Applicant was covered by the Queensland Lutheran Early Childhood Services Sessional Kindergarten Agreement 2020 (2020 EA), employed on classification Band 3, Step 4.

1.5 From 16 October 2023, the Applicant was covered by the Queensland Lutheran Early Childhood Services Sessional Kindergarten Agreement 2023 (2023 EA).

1.6 The 2023 EA came into operation on 16 October 2023 and introduced a new Senior Teacher (Band 4) classification.

1.7 After the 2023 EA commenced, the Respondent moved the Applicant to the Band 4 classification from the first pay period commencing 16 October 2023 (noting that there was an administrative error that resulted in a later pay date, which was subsequently corrected).

1.8 The Applicant is currently employed by the Respondent as a Director of Early Childhood Education and Established Senior Teacher employee (at the Band 4, Step 2 classification).

1.9 During bargaining for the 2023 EA, the Respondent and the Independent Education Union, Queensland and Northern Territory Branch (IEU) mutually agreed that the Respondent would provide an interim 4% pay wage increase to employees covered by the proposed 2023 EA. This agreement was reflected in a joint letter sent to these employees by the Respondent and the IEU on 11 January 2023.

1.10 The interim 4% pay increase was implemented by the Respondent from 12 January 2023 (i.e. the first full pay period in January 2023)."

• [5] In this decision I have adopted the same short references as are used in the parties' Agreed Statement of Facts and Contentions.

• [6] The 2023 EA has a new Senior Teacher classification. The 2020 EA did not have an equivalent classification. Instead, it provided for a Senior Teacher allowance. The Agreed Statement of Facts and Contentions describes and contrasts the two different arrangements as follows.

2.1 Under the 2020 EA, the highest classification level for a teacher was Band 3, Step 4.

2.2 A Senior Teacher allowance was paid to classroom teachers who:

(a) met the following criteria in clause 18 of the 2020 EA:

(i) completing one year's employment on Band 3, Step 4;

(ii) completing five days professional development, in their own time, in each of the three years preceding their application;

(iii) provision, on request, of a portfolio of evidence of professional development activities undertaken; and

(iv) a commitment to continue to participate in professional development;

(b) demonstrated teaching skills of a high standard, a commitment to excellence in classroom practices and professional development; and

(c) applied to become a Senior Teacher and received a decision to be appointed as a Senior Teacher.

2.3 The Applicant did not apply to be a Senior Teacher in accordance with the provisions in clause 18 of the 2020 EA and was not paid the Senior Teacher allowance.

3. Senior Teacher classification under the 2023 EA

3.1 The 2023 EA introduced a new classification for Senior Teachers (Band 4) and does not include a Senior Teacher allowance, as was contained in the 2020 EA.

3.2 "Schedule B - Wages Table, Table 1: Wages and Allowances" in the 2023 EA sets out wage rates for the classifications covered by the 2023 EA.

3.3 The 2023 EA also introduced a new mechanism for recognition as a Senior Teacher that did not exist in the 2020 EA.

3.4 Under the 2023 EA, classroom teachers are not required to "apply" to be classified as a Senior Teacher (Band 4) as the progression from Band 3, Step 4 to Band 4, Step 1 is now time-based and subject to the employee holding the requisite qualifications and is applied by the Respondent.

3.5 Clause 21.3 of the 2023 EA provides that an early childhood teacher can attain the level of Senior Teacher (Band 4):

(a) if the employee demonstrates teaching skills of a high standard, a commitment to excellence in classroom practices and professional development; and

(b) if the employee has completed their required length of service at the specified classification level (i.e. an early childhood teacher can progress to Senior Teacher after one year at Band 3 Step 4)."

• [7] The crux of the parties' dispute is about the operation of clause 1.3(b) of the 2023 EA. Their Agreed Statement of Facts and Contentions deals with this, and sets out the parties' respective contentions, as follows.

"4. Application of earlier benefits under the 2023 EA

4.1 Clause 1.3(b) of the 2023 EA provides the following:

Where this Agreement provides for a benefit to apply from a date earlier than the date of operation, the employer will apply such benefit from the earlier date to all employees employed at that earlier date.

4.2 The classification and pay of a Band 4 Senior Teacher constitutes a "benefit" for the purpose of clause 1.3(b) of the 2023 EA.

(a) whether the 2023 EA provides for the new Band 4 classification to apply from a date earlier than the operation of the 2023 EA (being 16 October 2023);

(b) whether, by reason of "Schedule B - Wages Table, Table 1: Wages and Allowances", the Band 4 classification is applicable from 1 January 2023 for employees who were not receiving the Senior Teacher allowance under the 2020 EA; and

(c) accordingly, when the Applicant was first entitled to be paid the Band 4, Step 1 classification pay rate.

(a) On 1 January 2023 the Applicant met the requirement of a Senior Teacher provided for in Clause 21.3 of 2023 EA;

(b) the Senior Teacher substantive salary rate is a benefit applied from a date earlier than the date of operation of the 2023 EA (being 1 January 2023) because of the "Schedule B - Wages Table, Table 1: Wages and Allowances"; and

(c) therefore, the Applicant was entitled to be classified in accordance with 21.3(d) from 1 January 2023.

(a) the 2023 EA does not provide that the new Band 4 classification applies from a date earlier than the date of operation of the 2023 EA;

(b) the "Schedule B - Wages Table, Table 1: Wages and Allowances" does not demonstrate any intention to "backdate" the requirements that apply under the 2023 EA to obtain Senior Teacher (Band 4) recognition;

(c) therefore, the Applicant was entitled to be paid the Band 4 classification pay rate from 16 October 2023 (i.e. the operative date of the 2023 EA); and

(d) the Respondent has paid the Applicant in accordance with its position."

• [8] The Statement of Agreed Facts and Contentions sets out the question for my determination as follows.

6.1 Does the Senior Teacher (Band 4) classification in the 2023 EA apply retrospectively to entitle the Applicant to be classified as a Senior Teacher (Band 4, Step 1) employee from 1 January 2023?"

• [9] The 2023 EA was approved on 9 October 2023.[2] Clause 1.3(a) of the 2023 EA provides:

"(a) This Agreement is to operate from the first full pay period to commence seven (7) days after the date of approval from the Fair Work Commission. The nominal expiry date of this Agreement is 31 December 2025."

• [10] In light of that clause, and pursuant to section 54 of the Fair Work Act 2009 (Cth) ("the Fair Work Act") the Agreement commenced operating from the first full pay period on or after 16 October 2023.

• [11] Section 595 of the Fair Work Act sets out the Commission's power to deal with disputes. Clause 4 of the 2023 EA provides for procedures for settling disputes. It is not in contest that the matter is properly before the Commission having regard to that clause. Subclause 4.6 confers on the Commission power to deal with the dispute in two stages. The first stage has been undertaken. The second stage allows for arbitration and binding determination.[3]

• [12] This application was filed on 11 October 2024. The employer response was filed on 30 October 2024. The matter was listed for conference on 12 November. The matter did not resolve at conference. On 13 November 2024 I issued directions, directing the parties to file an Agreed Statement of Facts and Contentions, and to report back as to whether they reached a consent position as to whether the Commission should make a recommendation or proceed immediately to arbitration.

• [13] By consent the parties advised my chambers on 22 November 2024 that they had agreed to seek a "binding recommendation," and sought directions programming the exchange of materials for that purpose. I issued further directions accordingly on 26 November 2024.

• [14] The parties filed their Agreed Statement of Facts and Contentions on 6 December 2024. The Applicant filed submissions on 11 December 2024. The Respondent filed submissions on 18 December 2024. The Applicant filed submissions in reply on 7 January 2025. Despite the earlier agreement to refer to a "binding recommendation," the Agreed Statement of Facts and Contentions, and the submissions, all indicate that I am to make a "determination" or "binding determination." This is probably a distinction without a difference given the earlier description of "binding recommendation" was by consent. For clarity I will refer to the task I am presently undertaking as making a determination as contemplated in stage 2 of the procedures for settling disputes in sub-clause 4.6 of the 2023 EA.

• [15] By consent, the matter is being decided on the papers.

• [16] The Applicant submitted that on the operative date of the 2023 EA, by operation of clause 1.3(b) of the 2023 EA, she was entitled to be:

• • classified as a Senior Teacher employee from 1 January 2023;[4] and

• • retroactively paid a substantive Senior Teacher salary from 1 January 2023.[5]

• [17] The Applicant drew the Commission's attention to the principles for construing enterprise agreements, by reference to City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union[6] and Manildra Flour Mills (Manufacturing) Pty Ltd v National Union of Workers.[7] She submitted that:[8]

"On a plain reading of the words, Clause 1.3(b) must mean that, where the Agreement provides for any benefit to apply from a date earlier than the date of operation, the employer will apply such benefit from the earlier date to the employee employed at that earlier date."

• [18] She submitted the 2023 EA covered her employment before the operative date of the 2023 EA, that the pay rate for the Senior Teacher classification which took effect from 1 January 2023 was a benefit, and that the 2023 EA on its plain and ordinary meaning conferred an entitlement to Senior Teacher Classification from 1 January 2023. She said:[9]

"The benefit of Clause 21.3 [the clause introducing the Senior Teacher classification] is inextricably linked to the 1 January 2023 commencement date of the new Senior Teacher substantive salary rates. Consequently, it is submitted that it is not open to the Respondent to artificially divorce the newly introduced substantive Senior Teacher rate from the classification mechanism contained in the 2023 Agreement."

• [19] She submits that as she had met the relevant criteria she was entitled to be classified as a Senior Teacher from 1 January 2023.

• [20] The Respondent submitted that it was not in contest that the classification and pay of a Senior Teacher constituted a benefit for the purposes of clause 1.3(b) of the 2023 EA.[10]

• [21] The Respondent submitted that the Senior Teacher classification does not apply from a date earlier than the date of operation of the 2023 EA.[11] It submitted that to the extent they argued that clause 21.3 and Schedule B of the 2023 EA conferred an entitlement to be classified as a Senior Teacher from 1 January 2023, requiring backpay to that date, the Applicant's submissions were incorrect.[12]

• [22] The Respondent submitted[13] that the Commission should not accept the Applicant's submissions, on the basis that they:

"(a) are inconsistent with the plain meaning of the text of the 2023 EA;

(b) are inconsistent with an objective view of the intention of the parties based on what a reasonable person would understand by the language in the agreement;

(c) ignore the industrial context of the 2023 EA, which included the agreement between the Independent Education Union (IEU) and the Respondent that the Respondent would provide a pay increase from January 2023 prior to the conclusion of bargaining; and

(d) lead to anomalous results that are not justified in the circumstances."

• [23] They submitted the principles for construing enterprise agreements are well known, and referred[14] the Commission to a summary of those principles in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union' known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Ltd.[15]

• [24] They submitted that the relevant provisions of the 2023 EA are clear and unambiguous with reference to the text of the relevant provisions as a whole and with reference to their arrangement and place in the 2023 EA.[16]

• [25] They refer to clause 16.1 (Wage Increases) as being a clause that provides for a benefit to which clause 13.1(b) would apply.[17]

• [26] They also submitted that it could not have been the parties' intention to create a retrospective entitlement to both a new classification and to the applicable pay rate, create inequitable outcomes for employees who had applied for and were entitled to the Senior Teacher allowance under the 2020 EA, and provide the Applicant with a "double entitlement" to both the 4% pay increase of January 2023 and the back pay entitlement claimed in this dispute.[18]

• [27] In reply the Applicant submitted the 2023 EA had to be read as a whole, and that the Respondent's submissions sought to create an artificial distinction between the wage increases set out in clause 16.1 of the 2023 EA, and the Senior Teacher classification.[19]

• [28] This is a summary and not a full statement of the parties' submissions. I have referred here to the most relevant submissions. I have considered the whole of the submissions made.

• [29] I have had regard to the Statement of Agreed Facts and Contentions filed in this matter. The material facts are not in dispute.

• [30] Both parties attached documents to their submissions rather than filing supporting affidavits annexing those documents. Neither party objected to the documents being provided in this unsworn matter or took issue with the content of the documents. The Respondent's document goes to the agreed fact stated in paragraph 1.10 of the parties' Agreed Statement of Facts and Contentions. The Applicant's document relates to a citation for excellence dated 2015. It is evident from the material, including the agreed fact that she has been classified as a Senior Teacher, that the parties consider Ms Christensen to be an excellent teacher. Neither of the documents attached to the parties' submissions assist me with the construction of the 2023 EA.

• [31] Having regard to clause 4 of the 2023 EA, and to section 595 of the Fair Work Act, I consider I have the power to make a binding determination.

• [32] If accepted, the Applicant's submission as to the effect of clauses 1.3(b) and 21.3, and Schedule B of the 2023 EA has various ramifications and consequences, including that:

• the Applicant is taken to have been a Senior Teacher from 1 January 2023, which may also mean that any time-based progression occurs by reference to that date; and

• she ought to have received backpay for the period from 1 January to the operative date of the Agreement in October 2023.

• [33] To make the determination sought it is necessary to construe the terms of the 2023 EA. In Health Services Union v Northern Health[20] the Full Bench summarised the principles of interpretation of enterprise agreements as follows:[21]

"The principles of interpretation of enterprise agreements are well established.[22] In summary, the starting point is the ordinary meaning of the words, read as a whole and in context. Context may be found in the provisions of the entire enterprise agreement, or in the arrangement and place of the words in the enterprise agreement and may extend to other documents with which there is an association. The statutory framework under which the enterprise agreement is made or in which it operates may also provide context, as might an antecedent instrument or instruments from which a particular provision or provisions might have been derived. The industrial context in which an agreement is made and operates is relevant, as is the evident purpose of the provisions or expressions being construed. A purposive approach is preferred to a narrow or pedantic approach, as such documents "are not always drafted carefully by lawyers or professional drafters" and the framers of the agreement may not have paid attention to "legal niceties and jargon".[23] However, the task remains one of interpreting the document, and not to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the instrument or what the Commission might consider to be the preferrable outcome.[24]"

• [34] In full, clause 1.3 of the 2023 EA is:

a) This Agreement is to operate from the first full pay period to commence seven (7) days after the date of approval from the Fair Work Commission. The nominal expiry date of this Agreement is 31 December 2025.

b) Where this Agreement provides for a benefit to apply from a date earlier than the date of operation, the employer will apply such benefit from the earlier date to all employees employed at that earlier date."

• [35] Self-evidently paragraph (b) qualifies paragraph (a) by indicating that even though the 2023 EA operates from the first full pay period seven days after approval, a benefit under the 2023 EA applies from an earlier date if the 2023 EA provides for that to occur.

• [36] What work does clause 1.3(b) do? At the least it allows for people to have been entitled to the pay rate, set out in 2023 EA, for their relevant classification, since 1 January 2023, even though the 2023 EA was not operating at that time. It retrospectively recasts the voluntary payment of a pay rise, from January 2023, as an entitlement capable of enforcement under the 2023 EA and the Fair Work Act. It does so because clause 16 provides for a pay increase that predates the date on which the 2023 EA comes into operation. Clause 16 provides:

Salaries, wages and the Service Leader's Allowance will be increased as follows from the first full pay period on or after the date specified:

(a) The rates of pay and allowances for each occupational classification are set out in Schedule B, Wage schedule.

(b) Payment for periods of vacation leave, and annual leave loading, will be made as they fall due in accordance with the normal pay cycle. However, an employee may request in writing to receive these payments in advance of commencing vacation.

(c) For the purposes of this Agreement, the rate of payment for paid leave will be the rate the employee would have received for their ordinary hours of work had the employee attended for work."

• [37] Sub-clause 16.1 clearly and explicitly provides for the increases to take effect from an earlier date.

• [38] Sub-clause 21.3 does not make any clear or explicit provision for the Senior Teacher classification to come into effect prior to the date on which the 2023 EA comes into operation. To argue that it 'provides' for that to occur, it must be read with clause 16, and to Schedule B of the 2023 EA which has effect according to sub-clause 16.2(a) set out above.

[Bands 2 and 3, with corresponding rates, were set out here]

• [40] Reading the words of the 2023 EA as a whole and giving them their ordinary meaning, I do not accept the Respondent's submission that no ambiguity arises. The Schedule refers to the Senior Teacher classification that is in effect from 1 January 2023, while there is nothing in clause 21.3 to provide for the Senior Teacher classification to come into existence from that date. Absent provision for an earlier effective date, clause 21.3 takes effect from the operative date. Clause 21.3 and Schedule B, to which effect is given by clause 16, are inconsistent with each other.

• [41] Reading the words in the context of the enterprise agreement, and having regard to the arrangement and the place of the words in it, I observe that clauses of it are likely to prevail over schedules to it. Reading the pay rates for the Senior Teacher in the context of Table 1 in Schedule B to the 2023 Agreement, it is clear that the table is organised so that all classifications, and all increments and steps for each, appear within it. Most of the classifications existed in the previous enterprise agreement so naturally most of them had an applicable pay rate from 1 January 2023, when the pay rises took effect. It is true that the new classification could have been put in a different table under different headings, or could have had an asterisk with a footnote indicating that the payrates listed as in effect from 1 January 2023 would not apply to the Senior Teacher classification until it came into existence. But we are dealing here with an enterprise agreement drafted by persons with a practical bent of mind who no doubt wanted an easy-to-read single table for workers and payroll staff to be able to use conveniently.

• [42] Having regard to the previous enterprise agreements, and the industrial context, it is clear that the parties wanted to move from a "Senior Teacher Allowance" to a full Senior Teacher classification. If they had agreed that the new classification should start operating retrospectively, then they would most likely have included an explicit provision in that regard, rather than relying on an inference being drawn from Table 1 of Schedule B.

• [43] The Senior Teacher classification came into effect when the 2023 EA commenced operation in accordance with its terms and section 54 of the Fair Work Act. The Applicant, as a Senior Teacher, should have been paid the applicable rate under the 2023 EA for the Senior Teacher classification from the first pay period commencing on or after 16 October 2023. I determine accordingly.

Mr C. Schmidt of the Independent Education Union of Australia Qld and NT Branch for the Applicant.

[2] Lutheran Church of Australia Queensland District (Queensland Lutheran Early Childhood Services - Re Queensland Lutheran Early Childhood Services Sessional Kindergarten Agreement 2023 [2023] FWCA 3303, approved under the Fair Work Act 2009 (Cth), s 185.

[3] Queensland Lutheran Early Childhood Services Sessional Kindergarten Agreement 2023, cl 4.6(b).

[4] Applicant's submissions filed 11 December 2024, [8].

[5] Applicant's submissions filed 11 December 2024, [9].

[6] [2006] FCA 813; 153 IR 426, [53].

[7] [2012] FCA 1010, [50].

[8] Applicant's submissions filed 11 December 2024, [20].

[9] Applicant's submissions filed 11 December 2024, [29].

[10] Respondent's submissions filed 18 December 2024, [2.2].

[11] Respondent's submissions filed 18 December 2024, [2.2(a)].

[12] Respondent's submissions filed 18 December 2024, [2.2(b)].

[13] Respondent's submissions filed 18 December 2024, [2.3].

[14] Respondent's submissions filed 18 December 2024, [3.1].

[15] [2017] FWCFB 3005.

[16] Respondent's submissions filed 18 December 2024, [4.1].

[17] Respondent's submissions filed 18 December 2024, [4.5].

[18] Respondent's submissions filed 18 December 2024, [4.15].

[19] Applicant's submissions in reply filed 7 January 2025, [1]-[2].

[20] [2025] FWCFB 5.

[22] citing James Cook University v Ridd [2020] FCAFC 123, (2020) 278 FCR 566, [65] and the authorities cited therein; Workpac Pty Ltd v Skene (2018) 264 FCR 536, [2018] FCAFC 131, [197] and the authorities cited therein.

[23] citing Kucks v CSR Ltd (1996) 66 IR 182, 184 (Madgwick J); Ridd v James Cook University [2021] HCA 32; (2021) 274 CLR 495, [17] (Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ); Hempel (Wattyl) Australia Pty Ltd v United Workers' Union [2024] FCAFC 298, [64]-[66] (Rangiah, Snaden and Abraham JJ).

[24] citing City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362, 379 (French J).

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