s.739 - Dispute resolution

Melbourne Archdiocese Catholic Schools Ltd T/A Padua College

Application to deal with a dispute arising under an enterprise agreement.

• [1] Mr Johnstone is a teacher at Padua College to whom the Catholic Education Multi-Enterprise Agreement 2022[1] (Agreement) applies. The Agreement, which commenced operation on 7 August 2023, introduced for the first time the entitlement to time in lieu (TIL) for teachers. Under the Agreement, where reasonable notice is given, a teacher may be required to attend a school activity outside the normal hours of attendance. Where, as a result, a teacher's attendance in that week exceeds 38 hours of duty (for a full-time teacher), TIL will be provided to the teacher "over the course of that school year."

• [2] Amongst other dates throughout 2024, Mr Johnstone was directed by the College to acquit his accrued TIL between 16 and 20 December 2024. It is not in dispute that this was a non-teaching week, prior to the conclusion of the school term, during which teachers of the College were not required to attend work. Mr Johnstone contends that this direction was unfair and financially detrimental, and breached clauses 59.3(c) and 60.1 of the Agreement.

• [3] The pre-requisites to the Commission's involvement having been followed, I am satisfied that the Commission is empowered to resolve the dispute in accordance with clause 22 of the Agreement and s 739 of the Act. The parties agreed that the Commission should determine the answer to the following questions in resolution of the application:

1. Having regard to clause 60.1 of the Catholic Education Multi-Enterprise Agreement 2022, which requires the fair and equitable treatment of staff, was the College permitted to direct the Applicant to take accrued Time in Lieu (TIL) from 16 to 20 December 2024, in circumstances where other staff who have not accrued an equivalent amount of TIL and are not engaged in teaching duties during that period are being granted the same time off without deduction from any entitlements?

1. Has the College acquitted the applicant's TIL balance of 45 hours over the course of the relevant school year in accordance with the requirements of clause 59.3(c) of the Catholic Education Multi-Enterprise Agreement 2022?

1. Was the provision of TIL to the applicant by the College from 16 to 20 December 2024 permissible under clause 59.3(c) of the Catholic Education Multi-Enterprise Agreement 2022?

• [4] Clause 59 of the Agreement concerns Hours of work. Clause 59.1 is titled Teachers, and it relevantly provides that subject to certain exceptions, the hours of work for full time teachers will consist of an average of 38 hours per week averaged over a school term, plus reasonable additional hours (clause 59.1(a)). Clause 59.2 is titled Allocation of Teacher work and deals with matters relating to class time, which are not presently relevant.

• [5] Clause 59.3 is titled Time in lieu and is one of the provisions in dispute in this application. It provides as follows:

(a) The Employer may require a Teacher to attend a school activity outside the normal attendance of the Teacher where such attendance is required and reasonable notice is provided.

(b) School activity for the purpose of clause 59.3 refers to a structured activity organised by the school such as a parent-Teacher meeting/interview, a camp, an excursion, a concert, open days, parent sessions or after-school hours sport.

(c) Where a Teacher is required to attend a school activity outside the normal attendance for a Teacher on that day, and the Teacher's attendance in that week exceeds 38 hours for a full-time Teacher or on a pro-rata basis for a part-time Teacher, time in lieu will be provided to that Teacher over the course of that school year.

(d) A Teacher may request not to attend the school activity outside the normal attendance of the Teacher where this will unreasonably affect the Teacher's personal or family commitments. The Employer may only refuse the request on reasonable grounds.

(e) Annual planning for time in lieu for Teachers will be discussed at the Consultative Committee. This planning should occur at the end of the previous year or the beginning of the school year as far as practicable.

(f) All work required in excess of 38 hours per week for a full-time Teacher (or on a pro-rata basis for a part-time Teacher) must be documented by the Employer.

(g) For Teachers' attendance at a school camp, time in lieu will be calculated on the basis of 100% time in lieu for the time the Teacher is performing duties and 50% for the time the Teacher is on call and available to perform duties.

(h) As an alternative to time in lieu, the Principal, as the Employer's representative, and the Teacher may agree to payment for time in lieu owed at the Teacher's ordinary rate of pay.

(i) Unless otherwise agreed between the Principal, as the Employer's representative, and the Teacher, where accrued time in lieu has not been granted to a Teacher by 1 March of the following school year, the Employer must:

(i) grant time in lieu equivalent to the time owed immediately; or

(ii) pay the Teacher for the time owed at 150% of the Teacher's ordinary rate of pay.

• [6] Clause 59.4 is titled Part-time Teachers and is not presently relevant to the dispute.

• [7] The College is a co-educational secondary school serving students from Years 7 to 12. It operates across multiple campuses in the Mornington Peninsula region, including campuses in Rosebud and Tyabb, and the main campus in Mornington, which is also the largest. Mr Johnstone is a teacher at the Tyabb campus.

• [8] During the 2024 school year, Mr Johnstone undertook school camp activities, relevantly on Monday 29 April to Thursday 2 May 2024, and on Tuesday 29 October to Friday 1 November 2024. It is not in dispute that over the course of 2024, Mr Johnstone accrued a total of 72 hours of TIL.[2] Mr Johnstone's position is that 43.42[3] of these hours remain unacquitted.[4] The College rejects this contention.

• [9] The programmed TIL acquittal days for the College were determined through the College's Consultative Committee. Amongst other dates earlier in the year, it was determined that TIL would be acquitted by teachers on dates including the period between Monday 16 December to Friday 20 December 2024. I say more about the process for determining TIL acquittal days at the College later in this decision.

• [10] The evidence of the College is that in 2024, Mr Johnstone acquitted 73 hours and 54 minutes of TIL[5] (that is, more than the 72 hours of TIL he had accrued)[6] on the following days:

(a) 3 May 2024 (7 hours 36 minutes were acquitted);

(b) 28 October 2024 (7 hours, 36 minutes were acquitted);

(c) 4 November 2024 (Cup Eve) (7 hours, 36 minutes were acquitted);

(d) 11 November 2024 (7 hours, 36 minutes were acquitted);

(e) 20 November 2024 (2 hours, 30 minutes were acquitted);

(f) 3 December 2024 (3 hours were acquitted); and

(g) 16 to 20 December 2024 (5 days / 38 hours were acquitted).

• [11] This dispute fundamentally concerns the acquittal of TIL between 16 December and 20 December 2024 as set out at (g) above. Mr Johnstone submits that it was not open to the College to acquit the balance of his accrued TIL in this period because the College had ceased its teaching function with effect on Friday 13 December 2024.[7] Mr Johnstone submits that teachers who did not have residual TIL to acquit were paid during this same period without any requirement to perform teaching functions or present for work, as there were no students present during that week. Mr Johnstone contends that he has been disadvantaged by the requirement to acquit his TIL while his colleagues were not otherwise teaching. He says that the College is in breach of clauses 59.3 and 60.1 of the Agreement by requiring him to do so.

• [12] The College rejects this contention. It submits that the acquittal of Mr Johnstone's TIL has been in accordance with clause 59.3(c) of the Agreement.

• [13] The principles of interpretation of enterprise agreements are well established.[8] 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 the framers of such documents were likely to be of a practical bent of mind. The words are not to be interpreted in a vacuum or divorced from industrial realities. The customs and working conditions of the particular industry are relevant. But 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.

What is the proper construction of the Agreement?

• [14] As earlier noted, the Agreement - being a multi-enterprise agreement applicable to over 300 schools within the Catholic education system - introduced the concept of TIL for the first time, within clause 59. Clause 59 contains four subclauses_._ These provisions are not extracted in full in this decision but are relevant contextual indicators as to the way in which disputed clause 59.3 operates under the Agreement.

• [15] As a matter of principle, the language in the Agreement is to be read as a whole and in context.[9] The apparent function of clause 59.3 is to deal with the crediting of TIL to teachers in circumstances where:

(a) a teacher is required to attend a school activity outside the normal attendance for a teacher on that day; and

(b) the teacher's attendance in that week exceeds 38 hours (for a full-time teacher).

• [16] Upon satisfaction of (a) and (b) above, TIL will be provided to the teacher over the course of that school year (clause 59.3(c)). The term school year is defined in clause 5(s) of the Agreement as follows:

"School year" means the period from the commencement of the first day of the Victorian government school year in one year to the commencement of the first day of the Victorian government school year in the next year as determined by the Victorian Government from year to year.

• [17] In 2024, the Victorian Government school year commenced on 29 January 2024 and the first day of the Victorian government school year in 2025 was 28 January 2025.[10] It follows, for clause 5(s) of the Agreement, that the school year for the purposes of this application was 29 January 2024 to 28 January 2025. This is different to the school term, which is defined in the Agreement at clause 5(r) as meaning "such periods as determined by the Victorian Government from year to year." The relevant school term in this matter was Term 4 2024 which was between 7 October and 20 December 2024.[11]

• [18] For attendance at school camp, TIL is calculated at 100% for the time the teacher is performing duties and 50% for the time the teacher is on call and available to perform duties (clause 59.3(g)). As an alternative, agreement may be reached between the teacher and the Principal to payment for time in lieu at the teacher's ordinary rate of pay (clause 59.3(h)). The circumstances of this application do not require the Commission to draw a distinction between the time Mr Johnstone was performing duties or was on call.

• [19] As clause 59.3(e) of the Agreement makes clear, the Agreement requires that "annual planning for time in lieu for Teachers" be the subject of discussion and planning by the Consultative Committee. Such planning should occur, as far as practicable, at the end of the previous year or the beginning of the school year. The requirement that this planning occurs is demonstrated by the use of the word will in clause 59.3(e). However, with the exception of clause 59.3(i), which will be addressed shortly, the Agreement does not otherwise specify when TIL is to be acquitted. Rather, the Agreement contemplates that the taking of TIL by teachers will be determined at the workplace level, utilising the local Consultative Committee.

• [20] The concept of a Consultative Committee is addressed at clause 16 of the Agreement, which is titled Consultation and specifies as follows:

(a) These agreed procedures set out a process for registered primary, secondary and special schools.

(b) The parties acknowledge that staff morale and Employee job satisfaction are enhanced where the views of all Employees are taken into account before decisions are made. The aim of this Agreement is to establish workplace consultative arrangements that ensure the Principal's responsibility, as the Employer's representative, is to make school-based decisions carried out in a framework that enables staff to have input into decisions that affect their working life.

(c) The Principal, as the Employer's representative, has ultimate administrative and operational responsibility for decisions made at the school level, provided that these decisions are made in accordance with the consultation principles outlined in this clause.

(d) "Consultation" means a serious attempt through a fair exchange of views is made in order to reach an understanding and consensus.

For the purpose of this clause, the parties adopt the following comments made by Smith C. in CPSU, the Community and Public Sector Union v Vodafone Network Pty Ltd (Print PR911257): "Consultation is not perfunctory advice on what is about to happen. This is a common misconception. Consultation is providing the individual, or other relevant persons, with a bona fide opportunity to influence the decision maker ... Consultation is not joint decision making or even a negative or frustrating barrier to the prerogative of management to make decisions. Consultation allows the decision making process to be informed, particularly as it may affect the employment prospects of individuals."

(e) The Principal is responsible for the teaching and learning process within the school. The Principal meets this responsibility in collaboration with staff through a process of consultation, including with the Consultative Committee, in respect to class size, scheduled class time and Positions of Leadership.

(f) Consultation about class sizes, workloads and Positions of Leadership occurs having regard to the professional expectations of Teachers, including the following:

(i) teaching the curriculum;

(ii) curriculum development, preparation, assessment, record keeping and reporting;

(iii) student pastoral care and supervision;

(iv) meetings and administration;

(v) professional development;

(vi) co-curricular activities;

(vii) professional collegial activities; and

(viii) contributing to the mission of Catholic education.

(g) The factors which impinge on the professional expectations of Teachers and influence the workload of an individual include:

(i) class size;

(ii) curriculum mix;

(iii) range of ability of students;

(iv) age of students;

(v) special needs students;

(vi) resources and facilities available; and

(vii) availability of specialist and/or support staff, and school culture.

• [21] Clause 16.2 is titled Consultative Committee. It provides as follows:

(a) There shall be a Consultative Committee in each school which will be either that agreed between the Principal and the majority of staff or a Committee comprising:

(i) the Principal;

(ii) two nominees of the Principal;

(iii) two nominees of the Union; and

(iv) one staff nominee elected by and from the total staff.

(b) In a multi-campus school, the composition of the Consultative Committee may include representatives from each campus, provided the total composition retains the same balance of representatives as a single-campus school.

(c) The specified model will apply unless and until there is an agreed alternative. The Union will be given two weeks' notice prior to a vote being taken.

(e) The term of office of members and the duration of the model agreed shall be decided at the school, but shall be for a minimum of one year and a maximum of three years.

• [22] Clause 16.3 is titled Procedures. It provides as follows:

(a) Meetings of the Consultative Committee may be called by the Principal or by at least three members of the Committee at any time.

(b) The Consultative Committee shall meet each year as often as required.

(c) Consultative Committee meetings will be held within or adjacent to the school day.

(d) The Consultative Committee shall provide recommendations or proposals to the Principal prior to the Principal, as the Employer's representative, making decisions on the following issues:

(i) class sizes;

(ii) scheduled class time;

(iii) total workloads for Teachers including meetings, parent-Teacher meetings and extra/co-curricular duties;

(iv) staff email and other communication protocols, including with parents and after hours; and

(v) Positions of Leadership.

(e) The Consultative Committee will meet in Term 4 in accordance with clauses 16.3(b) and 16.3(c) to discuss and make recommendations to the Principal in relation to the arrangements and schedule of meetings for Teachers for the following school year, with a focus on maximising the efficient use of meeting times.

(f) Reasonable notice of meetings will be given and the agenda, motions and relevant papers shall be distributed in sufficient time to allow consultation prior to the meeting.

(g) Minutes of the meeting shall be made available to the members of the Consultative Committee within two weeks of the date of the meeting. The minutes will contain decisions made and any recommendations/advice contrary to the decision. The minutes will be made available to staff.

(h) Where a Principal makes a decision which is not consistent with a proposal or recommendation (if a recommendation is made) put forward by at least three members of the Consultative Committee, the Principal shall provide to staff, in writing, the reasons for the decision. The decision will not be implemented by the Principal until the reasons have been provided in writing to staff.

(i) Where the Committee decides that insufficient consultation has taken place, this concern should be taken up formally with the Principal.

(j) Where a grievance arises in relation to the operation of the Committee, clause 22 will apply.

• [23] Clause 16.4 of the Agreement sets out the kinds of information that is to be shared with the Consultative Committee by the Principal, to facilitate the consultative process. This includes information such as income and expenditure, capital deficit/surplus, bank account balances, budget and demographic data.

• [24] It follows from the above that as a matter of construction, the Principal of the College has ultimate administrative and operational responsibility for decisions made at the College, including in respect of the acquittal of TIL, provided that such decisions are made in accordance with the consultation obligations in clause 16. This ensures staff of the College to "have input into" decisions that affect their working life (clause 16.1(b)). These consultation obligations recognise that the "professional expectations of Teachers" extend beyond teaching the curriculum, as clauses 16.1(f) and (g) make clear.

• [25] The Agreement requires that there be a Consultative Committee in each school, comprising the Principal and a specified mixture of personnel nominated by the Principal, the Independent Education Union of Australia (IEUA) and a staff elected nominee (clause 16.2(a)). The Consultative Committee will provide recommendations or proposals to the Principal about decisions including workloads for teachers and extra/co-curricular duties. Minutes of the meetings of the Consultative Committee will be made available to staff (clause 16.2(g)).

• [26] The Principal of the College, Ms Kelly McGurn, gave evidence in the proceeding about the workplace level discussions held in relation to the acquittal of TIL in 2024. This evidence is part of the industrial context in which the Agreement and the disputed term is to be understood,[12] and part of the industrial reality in which the Agreement operates.[13]

• [27] The evidence of Ms McGurn is that the Consultative Committee and College Improvement Team met in 2023 to consider and make recommendations to her about the TIL acquittal days for the 2024 school year. In addition, staff of the College were consulted about the events that attract TIL and the proposed TIL acquittal days through the delivery of staff presentations and the publication of information through a communications portal. Ms McGurn said that she took into account any feedback provided through this process, feedback provided by staff members throughout 2023 in relation to the acquittal of TIL, the views of the College Executive Vice Principal (Staff, Strategy and Development), and the recommendation of the Consultative Committee, in order to set the TIL acquittal days for 2024. Ms McGurn said that as part of this process, the "College calendar" was discussed at Consultative Committee meetings, through which proposals for acquittal of TIL days were modelled and discussed in accordance with the Victoria Catholic Education Authority's Implementation Guide on Teacher Time in Lieu which was published in August 2023. In this context, Ms McGurn liaised with a representative of the IEUA "about TIL being acquitted between the end of the College Calendar year and prior to the gazetted end of School Year date, discussing that this would be the common expectation within secondary schools."

• [28] Having regard to the above matters, I find as follows:

(1) The Agreement does not dictate the dates upon which TIL is to be acquitted by a teacher; rather, the dates for TIL acquittal in each school year is to be determined at the workplace level through the Consultative Committee (clause 59.3(e)).

(2) The only boundary set by clause 59 of the Agreement is in clause 59.3(i). That is, if a teacher's accrued TIL has not been granted by 1 March in the following school year, the time in lieu must be granted immediately or paid out at 150% of the teacher's ordinary rate of pay.

(3) A decision concerning the timing and acquittal of TIL is at the discretion of the Principal, having regard to the operational needs of the College provided that such decisions are made in accordance with the consultation obligations in clause 16 (clause 16.1(a)).

(4) The consultation obligations are designed to ensure that teachers such as Mr Johnstone have input into decisions that affect their working life and extend to matters including, but not limited to, teacher workloads and extra/co-curricular duties of a teacher (clause 16.3(d)). The requirement for consultation engages the input of the Consultative Committee, as clause 59.3(e) makes clear.

(5) The consultation obligations in the Agreement do not require Mr Johnstone's agreement to the programmed TIL acquittal dates (clause 16.1(d)).

(6) The evidence of Ms McGurn, which I accept, demonstrates that the College met its consultation obligations with respect to the dates determined for acquitting TIL in 2024. In this respect:

• (a) The Consultative Committee meeting on 11 May 2023 recorded that information regarding the topic of TIL, including its acquittal, had been communicated to teachers and notes that "there were discussions regarding how staff [were] feeling about the [then] proposed agreement."[14]

• (b) On or around 1 June 2023, a staff presentation was held in relation to the (then) proposed Agreement. As part of this, staff of the College were informed of the new TIL provisions including the acquittal of TIL throughout the school year.[15]

• (c) Upon the conclusion of the 1 June 2023 presentation, staff were invited to complete a survey to provide feedback or concerns, which included a direct question regarding TIL: "Do you have a question regarding the TIL - Time In Lieu? Please write your question below."[16]

• (d) Also in June 2023, staff were invited to complete a Staff Intention Form indicating their preferences for participation in extracurricular activities. Mr Johnstone's form indicated an intention to participate in certain co-curricular activities that attracted TIL and he did not request a meeting to otherwise discuss the commitment.[17]

• (e) The Consultative Committee meeting on 12 October 2023 records the proposed TIL acquittal days being the subject of discussion, including the acquittal of TIL over the days at "end of the year." It was also recorded that "[t]he aim is to ensure that all camps are staffed and that the load is spread across all staff" and "that all staff are contributing to the events that acquire TIL. This will support equity and workload for all staff."[18]

• (f) Teachers were provided with information about the accrual and acquittal of TIL through "CIT Comms" information. On 17 May 2023, 21 February 2024 and 28 February 2024, a CIT Comms was sent to all staff in relation to the implementation of the Agreement, outlining how the new TIL provisions were to operate:[19]

The new agreement will introduce a formal TIL process designed to recognise required work performed by teachers outside normal school hours.

The agreement will provide that the principal can direct a teacher to undertake work and attend a school activity outside the normal hours of attendance (i.e. in excess of the 38 hours or normal hours for a part-time teacher) and, when this occurs, attract TIL.

The timing of the acquittal of the TIL is at the discretion of the principal having regard to the operational needs of the school. Principals should consider how the acquittal of TIL will occur within their school...

• (g) A staff presentation was held with all College employees on 7 March 2024 and repeated on 12 March 2024. The staff presentation addressed The Agreement and TIL and set out how TIL would be accrued, the events attracting TIL, the TIL process and when TIL would be acquitted in the 2024 school year. This included advice that TIL acquittal days would include 16 December to 20 December 2024, being dates that had been determined based on feedback given over the course of 2023 and in consultation with the Consultative Committee and leadership team. Mr Johnstone attended the meeting on 7 March 2024.[20]

• (h) During the above staff presentations, a "Google Form" was shared to each of the College's campuses which invited staff to ask any question they had or provide feedback about the TIL process.[21]

• (i) Feedback in relation to the TIL process and acquittal days continued in 2024.[22] Recognising that by this date, the TIL acquittal days for 2024 had already been determined, Ms McGurn's evidence that was these processes provided staff with an opportunity to provide feedback in relation to the TIL acquittal process, which she would further consider with the College when determining TIL acquittal days in 2025.[23]

(j) There is no evidence before the Commission that Ms McGurn's decision regarding TIL acquittal between 16 December and 20 December 2025 was "not consistent with a proposal or recommendation (if a recommendation is made) put forward by at least three members of the Consultative Committee." As such the procedures contemplated by clause 16.3(h) of the Agreement were not triggered in this case.

(7) Having satisfied the consultation obligations in the Agreement with respect to the acquittal of TIL in the 2024 school year, it follows that as the Principal of the College, Ms McGurn could require Mr Johnstone to acquit his TIL on the days programmed for TIL acquittal, including between 16 December and 20 December 2024 (clause 16.1(c)).

(8) The period 16 December to 20 December 2024 forms part of the relevant school year for the reasons given at paragraph [17] of this decision (clause 59.3(c)).

(9) Accordingly, Mr Johnstone's TIL was properly acquitted within the school year as defined by clause 5(s) of the Agreement and there was no TIL owing to Mr Johnstone on 1 March 2025. As such, clause 59.3(i) is not engaged and Mr Johnston is not entitled to payment of the TIL.

(10) To the extent it is contended, and for completeness, I also record that the TIL acquittal dates in dispute here (16 December to 20 December 2024) fell within Term 4 2024, which concluded on 20 December 2024, as noted at paragraph [17] of this decision.

(11) Additionally, the evidence before the Commission demonstrates that the College has attempted to ensure a fair and equitable treatment between Teachers with respect to their participation in activities that give rise to the accrual of TIL. While all Teachers are expected to perform school activities outside the normal attendance of a Teacher and in excess of 38 hours per week, the Agreement makes it clear teachers may request not to attend a school activity which accrues TIL if it would unreasonably affect a Tacher's personal or family commitments (clause 59.3(d)). There is no evidence before the Commission that Mr Johnstone made such a request.

• [29] For the reasons given, the ordinary meaning of clause 59.3 of the Agreement, when read in its context and with clause 16, favours the construction advanced by the College. It is therefore strictly unnecessary to consider the Victoria Catholic Education Authority's Implementation Guide on Teacher Time in Lieu (Guide) at length. I observe however that the above construction is consistent with the relevant provisions of the Guide_,_ which was implemented in August 2023 for the stated purpose of supporting schools with guidance about "managing the introduction of time in lieu (TIL) for teachers." In summary, the Guide relevantly states as part of its Background as follows:[24]

The introduction of a TIL process to Victorian Catholic schools brings a significant industrial and cultural shift. The agreement's respondent employers recognise the impact of workload intensification for teachers and a formal TIL process is one step being taken to support them.

This guide is intended to provide clarification and guidance for the planning, accrual and acquittal of teachers' TIL. Principals and school leadership teams can refer to the guide to better understand the nature of the changes, and how they should be applied in their school. This guide contains a number of examples and strategies to assist principals and school leaders with the planning, accrual and acquittal of TIL; however, individual employers will need to determine the appropriate arrangements for their school(s).

• [30] Under the heading Time in lieu, the Guide relevantly provides as follows:

The agreement introduces a formal TIL process for teachers, designed to recognise required work performed by teachers outside normal school hours.

The timing of the acquittal of the TIL is at the discretion of the principal, having regard to the operational needs of the school. Principals should consider how the acquittal of TIL will occur within their school. There are a number of different ways in which TIL can be acquitted throughout the school year, which include, but are not limited to:

• finishing earlier at the end of the school year rather than on the gazetted end-of-year date approved by the relevant employer
• finishing earlier on the last day of a term, using current student-free days
• enabling a teacher to work less than the required 38 hours in the weeks following TIL being performed
• replacing the teacher with a casual relief teacher or other teaching resource.

• [31] Under the heading School camps, the Guide relevantly provides as follows:

School camps are a 'school activity' and their arrangements regarding TIL form part of the long-term planning determined by the principal through the school consultative process...

• [32] Under the heading Acquit, the Guide relevantly provides as follows:[25]

Where a teacher has accrued TIL, it is to be acquitted at a time that causes the least disruption to the educational program of the school...Where possible, TIL should first be acquitted at the end of the school year to cause the least disruption to the school's educational program...

• [33] The Guide further states that "TIL should be acquitted during the school term where the teacher does not need to be on site at the workplace and is not required to undertake duties."[26]

• [34] Against this construction, I turn to the questions for determination in this matter.

Question 1: Having regard to clause 60.1 of the Catholic Education Multi-Enterprise Agreement 2022, which requires the fair and equitable treatment of staff, was the College permitted to direct the Applicant to take accrued Time in Lieu (TIL) from 16 to 20 December 2024, in circumstances where other staff who have not accrued an equivalent amount of TIL and are not engaged in teaching duties during that period are being granted the same time off without deduction from any entitlements?

• [35] Question one directs attention to clause 60.1 of the Agreement, which provides as follows:

(a) No Teacher covered by this Agreement shall be required to perform an unfair, unreasonable or excessive workload. In making determinations about the work of Teachers, the school shall attempt to provide for equitable workloads across the school and among Teachers.

(b) The provisions relating to school level consultation about class sizes, scheduled class time (including limits) and Positions of Leadership are contained in clauses 16 and 60.

• [36] Mr Johnstone submits that the College has failed to comply with clause 60.1 because he was directed to acquit TIL during a non-teaching period between 16 December and 20 December 2024 without consultation, and while other teachers (with no TIL owing) received full pay without a requirement to attend work or perform teaching duties during the same period.[27] Mr Johnstone submits that this amounts to a breach of clause 60.1 of the Agreement.

• [37] I do not accept Mr Johnstone's contention for the following reasons. First, the evidence before the Commission and which I accept demonstrates that the College complied with its consultation obligations with respect to the programming of TIL acquittal days for the 2024 school year. Mr Johnstone's contention that he was not consulted[28] therefore is not made out.

• [38] Second, clause 60.1(a) concerns circumstances where a teacher is required to perform an unfair, unreasonable or excessive workload. Mr Johnstone submits that he was directed to attend school camp.[29] I do not accept this contention, although I acknowledge that the College maintains an expectation that teachers will contribute to a school activity outside the normal attendance of a teacher where required (and where reasonable notice is provided) (clause 59.3(a)). The evidence demonstrates that Mr Johnstone volunteered for school camp in 2024 in lieu of taking the alternative step of making a time to speak with the College about matters that restricted or impaired his capacity to participate in such extracurricular activities. Such alternative step was open to Mr Johnstone pursuant to clause 59.3(d) of the Agreement which provides a teacher with the capacity to request not to attend the school activity outside of their normal attendance "where this will unreasonably affect the Teacher's personal or family commitments. The Employer may only refuse the request on reasonable grounds." Subject to this express carve out, I do not consider that the expectation of the College set out in clause 59.3(a) is "unfair, unreasonable or excessive" within the meaning of clause 60.1(a).

• [39] Third, the plain words of clause 60.1(a) protect teachers from the performance of excessive work. The clause is not relevant to the specific question of when TIL should be acquitted.

• [40] Fourth, I am nonetheless satisfied that the College has sought to provide for equitable workloads across the school and among teachers as contemplated by clause 60.1(a) of the Agreement by setting an expectation that all staff are required to assist in running the College's programs. However, for various reasons including personal matters, compassionate circumstances and illness, the College accepts that a teacher may not reach the baseline accrual of 45.6 TIL hours per year (i.e. six days).

• [41] For the reasons given, the answer to question one is "yes."

Question 2: Has the College acquitted the applicant's TIL balance of 45 hours over the course of the relevant school year in accordance with the requirements of clause 59.3(c) of the Catholic Education Multi-Enterprise Agreement 2022?

• [42] For the reasons given at paragraph [28] of this decision, I am satisfied that the College has acquitted Mr Johnstone's TIL balance over the course of the school year in accordance with clause 59.3(c) of the Agreement.

• [43] It follows that the answer to question two is "yes."

Question 3: Was the provision of TIL to the applicant by the College from 16 to 20 December 2024 permissible under clause 59.3(c) of the Catholic Education Multi-Enterprise Agreement 2022?

• [44] Having determined the TIL acquittal dates through the required process of consultation in accordance with clause 16 of the Agreement, the Principal of the College was permitted to determine 16 December to 20 December 2024 as TIL acquittal dates. Contrary to Mr Johnstone's contentions,[30] the College was not required to reach a "mutual agreement" with him for the acquittal of TIL during this period.

• [45] The acquittal of TIL during this period was permissible under clause 59.3(c) of the Agreement for the reasons given at paragraph [28] above. It follows that the answer to question two is "yes."

• [46] On a proper construction, the questions posed for determination are answered as follows:

• [47] The dispute is determined accordingly.

[1] Catholic Education Multi-Enterprise Agreement 2022 [2023] FWCA 2379; AE520953

[2] Reply witness statement of Ms McGurn at [6]

[3] Applicant's outline of submissions dated 9 June 2025 at pp. 3 and 6; however see the Applicant's outline of submissions dated 19 May 2025 at Appendix I Item 9 which refers to 47.6 hours of time in lieu owing

[4] Applicant's outline of submissions dated 19 May 2025 at p.2, Appendix E Item 5

[5] Transcript of proceedings at PN166-167

[6] Reply witness statement of Ms McGurn, Annexure KM-21

[7] Applicant's outline of submissions dated 19 May 2025 at p.1, Appendix C Item 3 and Appendix D Item 4

[8] See for example James Cook University v Ridd [2020] FCAFC 123, 298 IR 50 at [65] per Griffiths and SC Derrington JJ; WorkPac Pty Ltd v Skene [2018] FCAFC 131 264 FCR 536 at [197] and the authorities referred to therein; AMWU v Berri Pty Ltd [2017] FWCFB 3005; 268 IR 285

[9] See, City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 at [43] citing Australian Timber Workers Union v W. Angliss & Co Pty Ltd [1924] CthArbRp 33; (1924) 19 CAR 172

[10] Witness statement of Ms McGurn, Annexure KM-2 at pp. 2 and 6

[11] Witness statement of Ms McGurn, Annexure KM-2 at p.6

[12] Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at [2]

[13] City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 at [43]

[14] Witness statement of Ms McGurn, Annexure KM-5

[15] Witness statement of Ms McGurn, Annexure KM-13

[16] Witness statement of Ms McGurn, Annexure KM-14

[17] Witness statement of Ms McGurn at [36] and Annexure KM-17

[18] Witness statement of Ms McGurn, Annexure KM-6

[19] Witness statement of Ms McGurn, Annexure KM-10, KM-11, KM-12

[20] Witness statement of Ms McGurn at [34] and Annexure KM-15

[21] Witness statement of Ms McGurn at [35] and Annexure KM-16

[22] Witness statement of Ms McGurn at [37], [39] and Annexures KM-18 and KM-19

[23] Witness statement of Ms McGurn at [38]

[24] Witness statement of Ms McGurn at [23] and Annexure KM-4, p.3

[25] Witness statement of Ms McGurn, Annexure KM-4, p.13

[26] Witness statement of Ms McGurn, Annexure KM-4, p.13

[27] Applicant's outline of submissions dated 19 May 2025, Appendix A, Item 1; Applicant's outline of submissions dated 9 June 2025 at p.1

[28] Applicant's outline of submissions dated 19 May 2025 at p.1

[30] Applicant's outline of submissions dated 19 May 2025 at p.1 and Appendix B Item 2; p2 and Appendix F Item 6, Appendix G Item 6; Applicant's outline of submissions dated 9 June 2025 at p.3-4

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