Fair Work Act 2009

s.739 - Application to deal with a dispute

Ms Jody Powell, Ms Jayne Treloar, Ms Trudy Harris

Alleged dispute about matters arising under the Ballarat and Queen's Anglican Grammar School (School Assistant) Agreement 2024 - remuneration calculation - payment for school holidays - dispute determined

• [1] Ms Jody Powell, Ms Jayne Treloar and Ms Trudy Harris have each made an application pursuant to s 739 of the Fair Work Act 2009 (the Act) seeking that the Commission deal with a dispute involving their employer, Ballarat and Queens Anglican Grammar School (the School). The applications have been dealt with jointly and relate to the same subject matter.
• [2] The applications are brought pursuant to clause 12 of the Ballarat and Queen's Anglican Grammar School (School Assistant) Agreement 2024 (the Agreement). The Applicants are all engaged by the School as Teacher Assistants. Ms Powell has been employed at the School since 2016. Ms Treloar has been employed since 2006. Ms Harris has been employed since 2011.
• [3] Clause 12 of the Agreement provides as follows:

12.1 In the event of a dispute about a matter under this Agreement, or a dispute in relation to the NES, the following procedures apply:

(a) An Employee who is a party to the dispute may appoint a representative for the purposes of the procedures in this clause.

(b) In the first instance, the parties to the dispute must try to resolve the dispute by discussions between the Employee or Employees and the Employer.

(c) If the dispute remains unresolved, the parties will seek to agree on an independent external arbiter to assist with resolution.

12.2 If discussions do not resolve the dispute, a party to the dispute may refer the matter to the FWC. The FWC may deal with the dispute in two stages.

(a) The FWC will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation.

(b) If the FWC is unable to resolve the dispute at the first stage, the FWC may then: (i) arbitrate the dispute; and (ii) make a determination that is binding on the parties.

(c) If the FWC arbitrates the dispute, it may also use the powers that are available to it under the Act. An appeal may be made against the decision.

12.3 While the parties are trying to resolve the dispute using the procedures in this clause:

(a) An Employee must continue to perform his or her work as they would normally, unless they have a reasonable concern about an imminent risk to their health or safety; and

(b) An Employee must comply with a direction given by the Employer to perform other available work at the same workplace, or at another workplace, unless: (i) the work is not safe; or (ii) applicable occupational health and safety legislation would not permit the work to be performed; or (iii) the work is not appropriate for the Employee to perform; or (iv) there are other reasonable grounds for the Employee to refuse to comply with the direction.

• [4] I first attempted resolve the dispute by conducting several conciliation conferences. When this proved unsuccessful, I arbitrated the dispute by conducting a hearing on 2 September 2025. The Applicants were represented at the hearing by Mr Cooney from the Independent Education Union of Australia (IEU) and the School, by Mr Prisk, after I granted it permission pursuant to s 596 of the Act to be represented by a lawyer.

• [5] As I will explain further below, this dispute is about whether the Applicants should be paid in respect of "non term time" periods during which students are on school holidays. The Applicants claim they should be paid for non term time even though they do not work during these periods.
• [6] The parties agreed that the Commission arbitrate three questions. They were as follows:

1. Is the Respondent entitled to require the following employees to take leave without pay during non-term weeks, pursuant to cl. 31.1 of the Ballarat and Queen's Anglican School (School Assistant) Agreement 2024:

2. If the answer to Question 1 is No, is the Respondent entitled to require the Applicants to perform work when they are not otherwise on annual leave and if so what type of work?

3. If the answer to Question 2 is 'No', are the Applicants entitlements to be calculated on a pro-rata basis in accordance with the table titled "Full Time Employee 52.18 weeks in receipt of 5 weeks' annual leave" in Schedule B of the Agreement?

• [7] When written outlines of submissions were eventually filed in relation to this matter, it transpired that both parties are in agreement as to the answer I should give to questions one and three and are also in agreement that I should not answer (or cannot answer) question two. This somewhat unusual circumstance - where parties seeking arbitration already agree on the answers to the questions to be arbitrated before the arbitration has occurred - appears to have arisen because the parties had obviously not managed to express themselves correctly when framing the questions to be arbitrated or the nature of the dispute itself.
• [8] During the course of the hearing, it became evident that there is a dispute between the parties and that it is about what the Applicants are entitled to be paid under the terms of the Agreement. The school contends that the Applicants are entitled to be paid in accordance with second table depicted in Schedule B of the Agreement, B.1 "Annual rates of pay", entitled "Term Time Employee in receipt of 5 weeks' annual leave 45 / 52.18". The Applicants contend they are entitled to be paid a higher rate of pay in accordance with the first table depicted in Schedule B of the Agreement, entitled "Full Time Employee 52.18 weeks in receipt of 5 weeks' annual leave 52.18 / 52.18".
• [9] It is this controversy that I must determine in order to deal with this dispute and in doing so, I will be required to traverse some of the matters to which the questions formulated by the parties are directed. As will become clear, the dispute arises because the parties are in disagreement over whether the Applicants' pay entitlements under the Agreement should include remuneration for the non-term time periods (or school holidays), during which they do not work.

• [10] It appears clear the Commission is limited to determining the dispute in so far as it relates to entitlements under the Agreement. Both parties have confirmed their agreement with this proposition.
• [11] The dispute resolution procedure only allows the Commission to deal with disputes as defined - those being dispute a matter under the Agreement, or a dispute in relation to the NES[1].
• [12] Thus, it does not appear that the Commission is empowered to deal with any dispute over whether the Applicants may be entitled, arising from their contract of employment, to be remunerated in such a way as they are paid for non-term time even if they don't work during those periods.

• [13] The Agreement was approved on 24 September 2024 and commenced operation from 1 October 2024. It covers Schools Assistant employees and does not cover other employees, such as teachers or administration staff.
• [14] In several locations the Agreement refers to employees working "term time". The expression "term time" is not defined in the Agreement. At clause 24.2 the Agreement provides that "employees working term time only" are entitled to be paid monthly, 12 payments per year, with electronic transfers occurring on the bank business day on about the 15th day of each month. It also says each term is attributable to three months as follows:

• [15] The expression "term-time" is also referred to in Schedule B of the agreement, which deals with salaries. Schedule B begins with part B.1 and provides "annual rates of pay" in several tables. The first two such tables are relevant to this dispute. The first table is entitled "Full Time Employee 52.18 weeks in receipt of 5 weeks' annual leave 52.18 / 52.18". The second table is entitled "Term Time Employee in receipt of 5 weeks' annual leave 45 / 52.18"
• [16] Clause 13 of the agreement provides for employment in either a full-time, part-time, casual or fixed-term category. At the time of engagement, the School is obliged to provide an employee with a letter of engagement setting out which of these categories they fall into. A part-time employee's entitlements are to be calculated on a pro-rata basis.
• [17] Clause 31 of the Agreement is entitled "Leave without pay during non-term weeks". Clause 31.1 provides as follows:

An Employee may be required to take leave without pay during non-term weeks, provided that:

(a) the Employee's contract of employment specifies the arrangement in writing;

(b) all such periods count as service for the purpose of calculating accrued leave entitlements and do not break continuity of service;

(c) if appropriate work is available for an Employee during any such period, the existing Employee may be offered such employment (whether on a full-time, part-time or casual basis). The Employee who is on leave without pay may refuse an offer of employment without prejudice to their normal employment relationship; and

(d) appropriate work will mean such work as is available that is capable of being performed by the Employee. Remuneration for such work will be at the rate of pay applicable to the work being performed.

• [18] Clause 31.2 contains a formula to be used to calculate an annual salary. The formula is expressed to be used "for an Employee whose contract of employment makes provision, in writing, for leave without pay during non-term weeks". The formula requires the number of working weeks plus 5 weeks annual leave to be divided by 52.18. It also provides that an employee may elect in writing "to be paid only for the time worked (and therefore not during non-term weeks) rather than to be paid an adjusted annual salary as provided by this clause".

• [19] Evidence was given by the Applicants, and by Ms Judd from the School. It is clear to me that what I must do to determine this dispute is construe the Agreement to determine what the Applicants are entitled to be paid under its terms. I did not consider the evidence assisted me in this task to any great extent. For example, evidence as to the nature of the Applicants' contracts of employment, their variation or evolution, what they may have been told by managerial or human resources personnel in the form of representations or undertakings may all be relevant if I was being asked to and was empowered to construe and enforce their contracts of employment. But I am not so empowered and, as I have said above, must determine this dispute in accordance with the terms of the Agreement which was made and began operating with respect to the Applicants in October 2024.
• [20] Further, I did not understand it to have been submitted that evidence such as what the Applicants were told or not told about the Agreement during the period it which it was being negotiated, or when employees were asked to approve it by voting for it, are matters I should have regard to in the construction task before me. While there is some authority to support the notion that in circumstances where the language of an enterprise agreement is ambiguous or susceptible to more than one meaning, regard might be had to evidence of the "surrounding circumstances", limited to evidence tending to establish objective background facts known to both parties[2], even if a submission had been made that I should have regard to such material, I do not consider it would have assisted me in this matter. The principles to construe an enterprise agreement are, as I mention below, well settled, and begin with the ordinary meaning of the words, read as a whole and in context. To the extent that there was evidence before me of this kind it was not, in my view, evidence of "objective background facts" but rather evidence of subjective understanding, or misunderstanding, about what was or had been negotiated.
• [21] I will provide a short summary of the evidence which follows.
• [22] Ms Powell has been employed as an ongoing Teacher Assistant at the School since 13 December 2017 and prior, worked casually at the school since 2016. When commencing as a Teacher Assistant, Ms Powell was provided with a letter from the Headmaster in relation to her employment which provided she would be employed on a part time and ongoing basis, and provided for a salary, payable monthly, on a pro-rata basis. Ms Powell says she was never told that her employment was on a term time only basis and that she would not receive pay for school holidays - rather - Ms Powell understood she was paid for school holidays up until the commencement of the Agreement in 2024. Ms Powell has never been required to perform any duties during the school holidays and has always had those periods off work.
• [23] In late 2020 and early 2021 Ms Powell had some engagement with Ms Leah Moneghetti who was the Director of Risk, Compliance and Culture at the school. Ms Powell said in these conversations she was encouraged to sign a new employment contract which would have removed her right to be paid during the school holidays but at no stage did she sign that contract.
• [24] On 5 August 2024, Ms Powell received a letter from Mr Mark Warwick, Deputy Head - Operations at the school which said that her classification under the new enterprise agreement (the Agreement) was "Term Time School Assistant Level 2-8". In October 2024 Ms Powell was provided with a proposed contract of employment which contained a clause that described Ms Powell's "employment type" as "Term time (45 / 52.18) weeks per year". It also said:

"Term Time employees are entitled to 40 weeks of salary, 5 weeks of paid annual leave and 7 weeks of leave without pay per year, annualised over 52 weeks. Term Time employees are required to work during Term Time (unless otherwise approved) and not required to work during School Holidays. During School Holiday periods, Term Time employees are to utilise their paid annual leave plus the 7 weeks of leave without pay."

• [25] Ms Powell did not sign the proposed contract.
• [26] Ms Treloar has been employed as a Teacher Assistant at the School since 2010 and had previously worked in other roles since 2006. Between 2010 and 2015 Ms Treloar was employed on the basis of a series of fixed term contracts, none of which required her to take leave without pay during the school holidays. In December 2015 Ms Treloar was sent a letter which appeared to vary her employment contract which confirmed her employment on an ongoing basis, but which did not provide that she was employed on a term time only basis or that she would not receive pay for school holidays. Ms Treloar understood she was paid for school holidays up until the commencement of the Agreement in 2024. Ms Treloar has never been required to perform any duties during the school holidays and always had those periods of work.
• [27] In late 2020 and early 2021, Ms Treloar had some engagement with Ms Leah Moneghetti who was the Director of Risk, Compliance and Culture at the school. Ms Treloar said in these engagements she was encouraged to sign a new employment contract which she believed would have decreased her overall salary. She did not sign this contract.
• [28] On 5 August 2024 Ms Treloar received a letter from Mr Mark Warwick, Deputy Head - Operations at the school which said that he classification under the new enterprise agreement (the Agreement) was "Term Time School Assistant Level 2-8".
• [29] Ms Treloar said that at no stage has she signed a document that states she is required to take leave without pay during school holidays.
• [30] Ms Harris has been employed as a Teacher Assistant at the School since 10 October 2011. Between 2011 and 2015 Ms Harris was employed on the basis of a series of fixed term contracts, none of which provided that she was required her to take leave without pay during the school holidays. In December 20215 Ms Harris was sent a letter which appeared to vary her employment contract which confirmed her employment on an ongoing basis but which did not provide that she was employed on a term time only basis or that she would not receive pay for school holidays. In March 2023 Ms Harris signed a new employment contract which did not refer to any requirement to take leave without pay during school holidays or that she would not receive pay during those periods.
• [31] Ms Harris understood she was paid for school holidays up until the commencement of the Agreement in 2024. Ms Harris has never been required to perform any duties during the school holidays and always had those periods of work.
• [32] In late 2020 and early 2021 Ms Harris said the school tried to have her agree to vary her employment contract to provide that she would no longer receive pay during school holidays. She did not sign that contract because she thought she would suffer a pay cut.
• [33] On 5 August 2024, Ms Powell received a letter from Mr Mark Warwick, Deputy Head - Operations at the school which said that he classification under the new enterprise agreement (the Agreement) was "Term Time School Assistant Level 2-8". In October 2024 Ms Powell was provided with a proposed contract of employment which contained a clause that described Ms Powell's "employment type" as "Term time (45 / 52.18 weeks per year". It also said:

"Term Time employees are entitled to 40 weeks of salary, 5 weeks of paid annual leave and 7 weeks of leave without pay per year, annualised over 52 weeks. Term Time employees are required to work during Term Time (unless otherwise approved) and not required to work during School Holidays. During School Holiday periods, Term Time employees are to utilise their paid annual leave plus the 7 weeks of leave without pay."

• [34] Ms Haris did not sign the proposed contract.
• [35] I note that Ms Treloar, Ms Harris and Ms Powell each tendered copies of pay slips, including pay slips dated after the commencement of the Agreement, which describe them as "Sch Ass - Grade 1 - 5+yrs Exp Paid School Holidays" (or in the case of Ms Harris, "Sch Ass - Grade 2 - 2 yrs Ex Paid School Holidays").
• [36] Ms Judd has been employed at the school since 5 December 2021 as its Director of People and Culture. Ms Judd described herself as a "bargaining representative" for the school during the negotiations over the Agreement which occurred between February 2023 and August 2024. Ms Judd gave evidence as to the various "intentions" of the school in relation to the negotiation of the Agreement, which for the reasons I have referred to above, I do not consider assists me in relation to this matter.

• [37] The provenance of some of the matters in dispute lies in the Victorian Independent Schools - Schools Assistants - Award 1998 (the Schools Assistants Award). This Award contained an entitlement for school assistants to "paid school holidays" - "school holidays without deduction of pay", in circumstances where their salary was calculated according to a 48/52 model[3]. Clause 22 of the Award provided:

22. ANNUAL LEAVE FOR SCHOOL ASSISTANTS IN RECEIPT OF PAID SCHOOL HOLIDAYS

22.1 A school assistant paid in accordance with 14.2 of this award will other than in circumstances prescribed in 22.2, be entitled to school holidays without deduction of pay.

22.2 Where a school assistant takes leave without pay or unpaid carer's leave in excess of ten working days in any school year, the school assistant's entitlement to school holidays will, at the discretion of the Principal, be calculated on the basis of one third of that school assistant's number of working weeks (excluding paid holiday periods already received, periods of leave without pay and unpaid carer's leave).

22.3 Where a school assistant's entitlement to paid annual leave has been reduced pursuant to 22.2 the period which, but for that reduction, would have been paid annual leave will be unpaid leave (other than leave without pay or unpaid carer's leave) and will be counted as service for all purposes of the award.

22.4 A school assistant who is employed for part only of a school year will be paid a pro rata holiday entitlement calculated on the basis of one third of that school assistant's number of working weeks (excluding paid holiday periods) at the rate of pay applicable at the time leave is taken or employment is terminated.

• [38] In 2005 the School made the Ballarat and Queen's Anglican Gramma School Certified Agreement 2005 (the 2005 Agreement) pursuant to s 170LT of the Workplace Relations Act 1996. The Agreement was expressed to operate in conjunction with the Schools Assistants Award, whose terms applied to employees covered by the agreement as terms of the agreement except to the extent of inconsistency with the agreement[4].
• [39] Accordingly, employees of the School continued to be entitled, where relevant, to "paid school holidays" while covered by the 2005 Agreement by virtue of the continued operation of the School Assistants Award.
• [40] The 2005 Agreement applied to the relevant employees of the School, including each of the Applicants, until it ceased to operate as a "zombie agreement" pursuant to subitem 20A of Sch 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. The 2005 Agreement ceased operating on 6 June 2024.
• [41] There was a period of time between then and the commencement of the Agreement, during which the relevant industrial instrument was the Educational Services (Schools) General Staff Award 2020 (the modern Award) because the 2005 Agreement had ceased to operate without any new enterprise agreement to replace it_._ The modern Award provides (and at all relevant times provided) as follows:

An employee may be required to take leave without pay during non-term weeks, provided that:

(a) the employee's contract of employment specifies the arrangement in writing;

(b) all such periods count as service for the purpose of calculating accrued leave entitlements and do not break continuity of service;

(c) if appropriate work is available for an employee during any such period, the existing employee may be offered such employment (whether on a full-time, part-time or casual basis). The employee who is on leave without pay may refuse an offer of employment without prejudice to their normal employment relationship; and

(d) appropriate work will mean such work as is available that is capable of being performed by the employee. Remuneration for such work will be at the rate of pay applicable to the work being performed.

12.2 Calculating annual salary for an employee on leave without pay during non-term weeks

(a) The formula in clause 12.2(b) may be used to calculate an annual salary for an employee whose contract of employment makes provision, in writing, for leave without pay during non-term weeks.

(b) The adjusted annual salary for an employee is:

A means the employee's adjusted annual salary

C means the annual salary (as contained in clause 17 - Minimum rates ) for the employee's classification

Working weeks means the number of weeks that the employee is required to work

(c) For the purpose of calculating any allowance or penalty rate for an employee, the allowance or penalty rate will be calculated on the minimum hourly rate applicable before the adjustment provided for in clause 12.2(b) is applied.

(d) An employee may elect, in writing, to be paid only for the time worked (and therefore not during non-term weeks) rather than to be paid an adjusted annual salary as provided in clause 12.2(b) .

(e) Where a person employed as at 1 January 2010 was not employed:

(i) on a contract which allows for leave without pay during non-term weeks; or

(ii) under an award or notional agreement preserving State award (NAPSA) which permits an employee to be required to take leave without pay during non-term weeks (however expressed) the employee must not be required to take leave without pay during non-term weeks or have their contract changed as a result of this award coming into operation.

(f) The making of this award is not intended to prevent other arrangements for staff who are not required to work during non-term weeks to be agreed between the employer and majority of employees in a school.

• [42] The Agreement commenced operation on 1 October 2024.
• [43] Clause 31 of the Agreement, which is set out above, replicates, to some extent, clause 12 of the modern Award. It provides for five weeks annual leave, instead of four, and does not contain clauses 12(e) and (f) of the modern Award. It includes a definition of "base rate of pay" which is not provided for in the modern Award. Otherwise it is the same.
• [44] The modern Award does not use the phrase "term time employee". I consider however that its effect is to arrive at the same concept as is envisaged by what is described as a term time employee in the Agreement. A term time employee in the Agreement is obviously one who is remunerated on the basis that they do not work and are not paid for non-term time. They are in effect on "leave without pay" during non term time, in that they do not work during these periods, their remuneration excludes payment for this period but their employment is contiguous. It is in this way that the second table in Schedule B which refers to "term time employee" is based on 45 weeks of work. The non-term time - 7 weeks - is deducted from the "year" (52.18 weeks).
• [45] Clause 12 of the modern Award arrives at a similar concept - that is a salary is determined for such an employee which is calculated by reference to the number of "working weeks", thus excluding those weeks which are not worked - non-term weeks.
• [46] Neither party made submissions as to what clause 12.2(e) of the modern Award might mean. Clause 12.2(e) of the modern Award appears to provide that if a person employed as at 1 January 2010 (before the commencement of the Award) was not employed on a contract which allows leave without pay during non-term weeks, or was not covered by an award or a NAPSA which permits the employee to be required to take leave without pay during non-term weeks, the employee must not be required either to take leave without pay during non-term weeks or have their contract changed.
• [47] It is unclear whether what follows as a result is that such an employee is entitled to be paid for non-term time, and / or is not required to work - to in effect continue to receive "paid school holidays" as envisaged by the School Assistants Award.
• [48] I note in any event that clause 5 of the Agreement provides that the Agreement operates "to the complete exclusion of all Awards which would otherwise apply to Employees covered by this Agreement including, but not limited to the Educational Services (Schools) General Staff Award 2020, including successor awards".

• [49] The Applicants contend that they should be paid in accordance with the first table set out in item B.1 of Schedule 1 of the Agreement and not in accordance with the second table, because they are not "term time Employees". The first table contains rate of pay which are significantly higher than those in the second table - arising from the inclusion in the calculation of those rates 7 additional weeks of paid time (the school holidays).
• [50] The Applicant's submit, in effect, that clause 31.1 of the Agreement creates a constraint as to the circumstances in which an employee covered by the Agreement may be required to take leave without pay during non-term weeks. They contend that if an employee's contract of employment does not specify an "arrangement" in writing that they may be required to take leave without pay during non-term weeks (within the meaning of clause 31.1(a) of the Agreement), they cannot be required to take leave without pay during those periods. They further submit that in these circumstances, such an employee cannot be a "term time Employee" and therefore must be entitled to the higher rate of pay in the first table of Schedule B of the Agreement.
• [51] The Applicants submit that given that none of their contracts of employment specify in writing an arrangement that they may be required to take leave without pay during non-term breaks, the Commission should conclude they are not "term time" employees.

• [52] The School made two fundamental submissions. The first is that the Applicants are not engaged to work during non-term time, and never have been. It contends that "leave" whether paid or unpaid refers to absence from work, and an employee can only be relevantly "absent from work" at a point in time when the employee is required to attend and perform work. It says it follows that even if the School is not entitled to require the Applicants to take leave without pay in accordance with clause 31.1 of the Agreement, this does not mean the Applicants are entitled to any additional pay because they do not have any hours of work during school non-term weeks. It further follows, in the Respondent's submission, that the non-term time rates of pay provided for in the second table in Scheduled B of the Agreement apply, because they are derived by averaging salary over the year based on a formulation which does not include that period of time in which the Applicants do not, and never have performed work.
• [53] The School's second submission is that if there is a requirement that the employees perform work during non-term time, from which they would require "leave" to be absent from, the School is entitled not to pay for those periods - to treat the periods as leave without pay - because there is adequate written authorisation from the terms of the contracts themselves. It submits that because each of the Applicants' contracts is expressed to provide that their hours of work are to be "averaged over the term" there is adequate reference to an arrangement whereby the Applicants do not work during non-term time.

• [54] The principles to properly construe an enterprise agreement are well settled[5]. Taking into account the manner in which this matter was argued before me, the following summary of those principles provided by a Full Bench of this Commission is apt[6]:

"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". 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."

• [55] With these principles in mind, I have had regard to the terms of the agreement read in context, including the context provided by the industrial instruments from which it was derived.

• [56] I consider that to resolve this dispute I must determine whether the first table or the second table of Schedule B applies to the Applicants. They are presently paid according to the second table and contend they should be paid according to the first table.
• [57] It seems clear enough that the second table applies to "Term Time Employees". A term time-employee is not defined in the Agreement. However defined, the second table applies to term time employees and the first applies otherwise.
• [58] The reference to "term-time employee" sits within the immediate context of the second table of Schedule B, which provides for a remuneration arrangement based on an employee working 45 weeks in a year. In the context of the industrial operation of the Agreement, these are employees who do not work during non term time (a period of some 7 weeks a year). Conceivably, it might also apply even to a person who does not work during non term time but somehow has an entitlement to be paid for that time.
• [59] There was evidence before me about the nature of the engagement of the Applicants. The uncontested evidence was that the Applicants have never worked during non-term time and are not presently engaged to work non-term time - during school holidays.
• [60] However, on the evidence before me, the Applicants, while not engaged to work during school holidays, were paid for this period in the past.
• [61] It appears to me that historically, there was some basis to this entitlement. The School Assistants Award appears to have provided for this entitlement and the terms of that Award continued to apply to employees of the School, including each of the Applicants, through the operation of the 2005 Agreement until it was terminated in 2024.
• [62] When the 2005 Agreement ceased to operate, the basis of any such entitlement in respect of the Applicants, at least in relation to any applicable industrial instrument, is unclear.
• [63] For a period of time the Applicants were covered by the modern Award. Several aspects of the modern Award require consideration.
• [64] First, it is not apparent that the modern Award contains an explicit entitlement that employees covered by it are "entitled to school holidays without deduction of pay" as was provided for in the School Assistants Award.
• [65] Second, perhaps clause 12.1(e) of the modern Award was intended to preserve such an entitlement in respect of people employed as at 1 January 2010 who had such an entitlement derived from contract of a relevant industrial instrument? Such an entitlement, if it existed, may have been applicable to Ms Treloar who was employed at the School before 2010. However, one difficulty that arises is that the capacity in which Ms Treloar was employed at the School prior to 2010, when she commenced as a Teacher Assistant, is not clear on the evidence before me, and may not have been such that she was covered by the School Assistants Award. More importantly however, in circumstances where I am clearly required to construe her entitlements under the Agreement, not the modern Award, any such entitlement she may have had under the modern Award appears clearly to have been extinguished by clause 5 of the Agreement, which provides that the Agreement operates to the exclusion of the modern Award.
• [66] Third, it seems to me a tension exists in the terms of the modern Award which is similar to a tension existing in the Agreement - that being that while the modern Award provides that a person can be required to take leave without pay during non-term weeks provided their contract of employment specifies the arrangement in writing, a person's remuneration under the modern Award is calculated by reference to whether they do, or do not work during the school holidays. Clause 12.2 of the Award provides that for the purposes of calculating annual salary, a formula using the "number of working weeks" (meaning the number of weeks the employee is required to work) is used. It is not clear to me how an employee such as one of the Applicants, who do not work during school holidays, would therefore include those weeks in the calculation of their salary under the Award.
• [67] For the reasons I have mentioned, it is not necessary for me to determine whether the Applicants were entitled to be paid in respect of school holidays for the relatively brief period they were covered by the modern Award because I am, to resolve this dispute, required to determine that question with respect to the Agreement.
• [68] There seems to me to be merit in the submission made by the Applicants, that they cannot be required by the terms of clause 31.1 of the Agreement to take leave without pay during non-term weeks, because their contracts of employment do not specify such an arrangement in writing. I do not accept the submission made by the School, that the Applicant's contracts can be interpreted as contain such an arrangement, because their contracts provide for their hours of work to be "averaged over the term. I note that on several occasions the School has made efforts to have the Applicants agree to variations of their written contracts to include an explicit "arrangement" that they would no longer be entitled to be paid for school holidays and on each of these occasions, the Applicants refused to agree. I consider that clause 31.1 envisages an "arrangement" of a kind in which there is written use of the words "may be required to take leave without pay during non-term weeks", or words to that effect. The Applicant's contracts of employment do not contain those words.
• [69] However, I do not accept that even if the Applicants cannot be required, by operation of clause 31.1 of the Agreement, to take leave without pay during non-term weeks, they are necessarily entitled to be paid for those periods, when they do not work. In this regard, I do not accept the submission that if an employee covered by the Agreement cannot be required by clause 31.1 to take leave without pay during school holidays, they cannot be considered a "term time" employee within the meaning of the second table in Schedule B of the Agreement.
• [70] As I have said, the reference to "term-time employee" sits within the immediate context of the second table of Schedule B, which provides for a remuneration arrangement based on an employee working 45 weeks in a year. In the context of the industrial operation of the Agreement, these are employees who do not work during non term time (a period of some 7 weeks a year).
• [71] By operation of clause 22 of the School Assistants Award (having application through the 2005 Agreement), such employees had, in some circumstances, an entitlement to be paid for non-term time - school holidays - regardless.
• [72] There is nothing in the Agreement that now covers the Applicants that is similar to clause 22 of the School Assistants Award. There is no explicit entitlement in the Agreement for employees to be paid for school holiday periods when they do not work. If it somehow arises from the terms of the Applicant's contracts, perhaps through some kind of implied term arising from custom and practice, this is beyond my jurisdiction to determine, because I am limited to interpreting the Agreement, and the entitlements it confers upon employees covered by it.
• [73] An entitlement to be paid during non term time might arise under the Agreement if an employee was engaged to work during non term time. Such an employee, who would work 52.18 weeks a year would be entitled to the rates of pay set out in the first table of Schedule B of the Agreement. But these employees are not. The nature of the engagement is that they do not work during non term time and are not engaged to work during non term time.
• [74] Accordingly, I determine that:
  1. The Applicants are entitled to be paid under the second table of item B.1 of Schedule B of the Agreement, and are engaged as term time employees; and
  2. The Applicants are not entitled to be paid, under the terms of the Agreement, for non term time.

[1] Ballarat and Queen's Anglican Grammar School (School Assistant) Agreement 2024 cl 12.1

[2] Automotive, Food, Metals, Engineering, Printing and Kindred Industries' Union known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited [2017] FWCFB 3005 [114]

[3] Victorian Independent Schools - Schools Assistants - Award 1998, cl 14.2, cl 22

[4] Ballarat and Queen's Anglican Gramma School Certified Agreement 2005 cl 6.6

[5] Applicant's Outline of Submissions, 19 May 2025; [25] Respondent's Outline of Submissions, 18 June 2025 [39] - [42]

[6] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Manildra Energy Australia Pty Ltd [2025] FWCFB 149 [43]

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