Application by Bendigo Kangan Institute & Victorian TAFE Association (Vta) and Others
[2016] FWC 970
•12 February 2016
[2016] FWC 970
DECISION
| Fair Work Act 2009 |
| s.185 - Application for approval of a multi-enterprise agreement |
Bendigo Kangan Institute; Box Hill Institute; Chisholm Institute T/A
Chisholm Institute; Federation Training; Goulbourn Ovens Institute of
TAFE T/A GOTAFE; Holmesglen Institute of TAFE; Melbourne
Polytechnic T/A NMIT; South West TAFE; Sunraysia Institute of TAFE;
The Gordon Institute of TAFE; William Angliss Institute; Wodonga
Institute of TAFE; Victorian TAFE Association (VTA)
(AG2015/6648)
| COMMISSIONER BISSETT | MELBOURNE, 12 FEBRUARY 2016 |
Application for approval of the Victorian TAFE Teaching Staff Multi-Enterprise Agreement
2015.
Introduction
[1] On 11 November 2015 the Commission received an application from the Victorian
TAFE Association (VTA) as a bargaining representative for a number of Victorian TAFE
Institutions for approval of the TAFE Teaching Staff Multi-Enterprise Agreement 2015 (2015
Agreement).
[2] Both the AEU and the NTEU have sought to be covered by the Agreement. There is
some dispute as to whether or not the NTEU is a bargaining representative for the Agreement.
[3] The Agreement was listed for hearing on 24 November 2015. At the conclusion of that
hearing I indicated that I intended to approve the 2015 Agreement but also issue an interim
decision in relation to union coverage. My decision with reasons was issued on 25 November
1
2015. During the hearing I issued directions for hearing arguments on whether the NTEU
could be covered by the Agreement. That matter was heard on 18 December 2015.
[4] This decision deals with that matter.
[5] It was put, and not disputed during proceedings, that the role of TAFE has changed
dramatically over the last 20 years. In 2003 the role of TAFE institutes was extended beyond
the Vocational Education and Training (VET) sector to the higher education sector. It would
appear that many TAFEs, with the probable exception of Melbourne Polytechnic, have, since
that time, blurred the boundary between VET and higher education programs. This has led to
some staff within TAFE working across both streams.
[2016] FWC 970
[6] Some specific terms were used during the hearing of this matter. It is necessary that
these and what they reference is properly understood as are used in this decision:
| Higher education: | Training delivered that results in qualifications in the AQF 6-10 |
| range. It is regulated by the Tertiary Education Quality Standards | |
| Agency (TEQSA). Some higher education training is delivered in | |
| TAFE. | |
| TAFE: | The institution which delivers vocational and/or technical and |
| further education or training. Each of the employer parties to the | |
| 2015 Agreement is a TAFE institute. TAFE also delivers some | |
| higher education programs. | |
| Tertiary education: | A broad term encompassing higher education and VET delivered in |
| a post-secondary school setting such as TAFE. | |
| VET: | Vocational education and training that results in qualifications in the |
| AQF 1-6 range. It is regulated by the Australian Skills Quality | |
| Agency (ASQA). | |
| Vocational and/or | As it appears in the AEU rules, excludes higher education. It is also |
| technical and further | referred to as VET. |
| education or training: |
Legislative requirements to be covered by an Agreement
[7] The Fair Work Act 2009 (the Act) states:
183 Entitlement of an employee organisation to have an enterprise agreement
cover it
(1) After an enterprise agreement that is not a greenfields agreement is made,
an employee organisation that was a bargaining representative for the
proposed enterprise agreement concerned may give the FWC a written
notice stating that the organisation wants the enterprise agreement to cover
it.
(2) The notice must be given to the FWC, and a copy given to each employer
covered by the enterprise agreement, before the FWC approves the
agreement.
Note: The FWC must note in its decision to approve the enterprise agreement that the
agreement covers the employee organisation (see subsection 201(2)).
[8] An employee organisation is, relevantly, a bargaining representative for an employee
to be covered by an agreement if the employee is a member of that organisation and has not
appointed another person as his or her bargaining representative (s.176(1)(b) of the Act) and
the employee organisation is entitled to represent the industrial interests of the employee in
relation to work that will be performed under the agreement (s.176(3) of the Act).
[2016] FWC 970
[9] For the 2015 Agreement to cover the NTEU it must have been a bargaining
representative for the 2015 Agreement. To be a bargaining representative it must have a
member who will be covered by the 2015 Agreement and it must be entitled to represent the
industrial interests of that employee with respect to the work covered by the Agreement.
[10] In order to determine the issue before me I must:
Firstly decide the scope of the 2015 Agreement and who it does cover by reference
to its terms;
Second, decide if the NTEU is entitled to enrol as a member employees within the
scope of the 2015 Agreement; and
Third, if it is so entitled, determine if it had as members such employees during the
bargaining for the 2015 Agreement.
General evidence
[11] Witness statements were filed in these proceedings by Dr Colin Long for the NTEU,
Ms Pat Forward and Mr Gregory Barclay for the AEU and Ms Leanne Sumpter, Ms Joanna
Brown and Mr Jim Andrews for the VTA. Only Dr Long and Mr Barclay were required for
cross examination. The remaining statements were admitted without objection.
[12] Dr Long’s evidence is that in 2015 he was engaged in bargaining on behalf of the
NTEU with respect to the 2015 Agreement. He met in person with the VTA on two occasions,
had several telephone calls and provided feedback on the proposed agreement to the VTA by
email. He says he understood the AEU did not wish to sit at the same table as the NTEU in
bargaining for the new agreement but never understood the NTEU would not be covered by
the proposed agreement.
[13] Dr Long’s evidence is that he had always understood that the 2009 Agreement applied
to all teaching staff employed by the institutions covered by that Agreement including
employees eligible to be members of the NTEU.
[14] Dr Long agreed that the NTEU was not a party to the 2009 Agreement and had not
participated in negotiations for it.
[15] On 10 September 2015 Dr Long sent an email to Andrew Williamson, the Executive
Director of the VTA, in which he said:
Hi Andrew,
Unless the provisions of the agreement seek to exclude our members (which is exactly
clear), we intend to sign on to it.
We would ask the VTA to clarify whether Melbourne Polytechnic's academic teachers
could be incorporated into the agreement.
[2016] FWC 970
[16] Mr Williamson replied that day:
Hi Colin,
Thanks for that, I will include the NTEU as a signatory.
I tested your concerns about coverage with the AEU, and their lawyer and ours had a
good conversation about it. The parties bound by the 2009 agreement are those eligible
to be members of the AEU, and the AEU view is that academic teachers are eligible to
be members of the AEU by virtue of their being TAFE teachers. That they choose to
be NTEU members as well as or instead of being AEU members is their own
prerogative. So legally, your members are covered.
My understanding for the Melbourne Poly teachers who are not currently covered by
the MBA, they will not be covered by this roll-over. I will get advice on this and get
back to you.
[17] Dr Long gave evidence that he was involved in negotiations with the AEU and
management of William Angliss Institute (an employer covered by the 2015 Agreement) for
15 months prior to the making of the 2015 Agreement. He said that the negotiations were for
a single agreement to cover all teaching staff at the Institute. The negotiations occurred prior
to a decision being taken by the State Government that there could be a multi-enterprise
agreement covering TAFE Institutes. He does not recall Mr Barclay telling him in July 2014,
during these negotiations, that the NTEU should have a separate agreement for higher
education and PACCT (professional administrative, clerical, computing and technical) staff.
[18] Dr Long said of Melbourne Polytechnic that the NTEU served a log of claims on it
claiming it have an agreement that excluded VET teachers because of its strict separation of
higher education and VET. In any event he says such an agreement was not pursued as higher
education teachers were being paid reasonably well.
[19] Ms Forward’s evidence is that the Australian Teachers Union (ATU) was registered in
December 1986. Prior to this the national affairs of government school and TAFE teachers
and other education workers were conducted by an (unregistered) federation of state based
employee organisations. The ATU eligibility rules with respect to Victoria were, at that time,
rules 4(4), 4(5) and 4(6). At the time of registration of the Australian Education Union (AEU)
the eligibility rule became rule 5 and the eligibility rule in relation to TAFE Victoria became
rule 5(4)(b).
[20] Ms Forward says that the current Vic TAFE rule was inserted by a rule change in
December 2001 following the abolition of the ‘Technical and Further Education Teaching
Service’. She said that at the time the rule change was sought the NTEU (and others) objected
to the change but a settlement was eventually reached. That settlement was effected by an
2
exchange of letters between the AEU and NTEU.
[21] Mr Barclay gave evidence that in 2013 the AEU wrote to all TAFE CEOs and dual
sector university Vice Chancellors advising that it wished to commence discussions for a
replacement to the 2009 Agreement. He says that initially the employers refused to bargain
for a multi-enterprise agreement so from July 2013 to the end of 2014 he was engaged in
separate formal enterprise agreements with a range of institutions. During this time he said the
[2016] FWC 970
NTEU was involved consistently in discussions at William Angliss, in discussions at RMIT
and in only 2 meetings at Ballarat University.
[22] Mr Barclay said he wrote to all TAFE CEOs and dual sector university Vice
Chancellors in May 2014 in which he said that the AEU was seeking an agreement to cover
only work to which the AEU is entitled to represent the industrial interests of employees. It
also sought to exclude academic work, lecturing or tutoring or higher education courses.
[23] He said that in December 2014, with the election of a new State Government, the
approach to bargaining in the sector changed. In about August 2015 the VTA agreed to a roll
over the 2009 Agreement. At a preliminary meeting with the VTA he told the VTA the AEU
would not meet with the NTEU.
[24] Mr Barclay said that throughout 2014 he repeatedly told the NTEU that the new
agreement should cover the same employees as the 2009 Agreement – that is, VET staff. He
says that in June 2015 the AEU rejected an NTEU proposal that a schedule be attached to the
3
replacement agreement dealing with higher education employees.
[25] Mr Barclay said that the AEU had consistently bargained for industrial instruments
that have the same scope since the TAFE Teachers’ Conditions of Employment (Victoria)
Award 1994.
What is the scope of the 2015 Agreement?
[26] The scope of the 2015 Agreement is at clause 3:
3. Application and scope of the Agreement
This Agreement shall apply according to its terms to the employment of
Employees of the Employers listed in Schedule 2 who are eligible to be
members of the AEU other than Industrial Skills Instructors and who were
covered by the 2009 Agreement immediately before the Operative Date of this
Agreement.
[27] The 2015 Agreement ‘rolled-over’ the Victorian TAFE Teaching Multi-Business
Agreement 2009 (the 2009 Agreement or MBA). The classifications in the 2015 Agreement
are ‘teacher’ and ‘senior educator’.
[28] The scope of the 2009 Agreement therefore defines (with some limitation on the
employers covered) the scope of the 2015 Agreement. The 2009 Agreement states:
3. Application and scope of the Agreement
This Agreement shall apply according to its terms to the employment of
Employees of the Employers listed in Schedule 2 who are eligible to be
members of the AEU other than Industrial Skills Instructors.
[29] An enterprise agreement covers an employee if it is expressed to cover (however
described) the employee (s.53(1) of the Act).
[2016] FWC 970
[30] The 2009 Agreement and the 2015 Agreement, apart from listing the employers
covered by the Agreement, do not further define the scope of either agreement. The
determination of who is covered by the 2015 Agreement therefore requires a consideration of
its terms. The determination therefore requires consideration of the rules of the AEU.
The AEU rule
[31] Rule 5(4)(b) of the AEU rules is the eligibility rule as is relevant to the 2015
Agreement:
5. Constitution
The Union shall consist of an unlimited number of persons employed or usually
employed in the following categories:
…
(3) (a)…
(b) In the State of Victoria: (A) All persons employed or seeking employment in or in connection
with the vocational and/or technical and further education and
training industries or by, in or in connection with institutions which
provide vocational and/or technical and further education,
howsoever named, to deliver or assess in, or to prepare vocational
and/or technical or further education or training programmes or
who (holding a relevant teaching qualification) directly co-ordinate
or manage other teachers, including:
i. such employees who are employed by, in or in
connection with TAFE Institutes (being education
providers whose primary or exclusive business is the
provision of vocational and/or technical and further
education or training other than Universities), and
ii. such employees who are employed by other education
providers whose primary or exclusive business is the
provision of vocational and/or technical and further
education or training, and
iii. such employees who are employed by Universities for
the provision of vocational and/or technical and further
education or training;
and
(B) Employees employed in those classes of work known at 1 June
2000 as “TAFE Industrial Skills Instructors”, “TAFE Vocational
Skills Instructors”, “TAFE Teacher-Librarians”, “Trainee Teachers
[2016] FWC 970in TAFE”, “TAFE Directors” and “Workplace Trainers and
Assessors”;
and
(C) Persons who were members and eligible to be members of the
union on 30 September 2001 by virtue of eligibility arising under
the then sub-rule 4(b).
(D)Nothing in paragraphs (A) and (B) shall be construed as conferring
eligibility for membership of the union on:
i. persons, in respect of work performed as a member of academic
staff employed in or in connection with higher education; or
j. persons employed in any class of work, to which, as at 1 June 2000, the following awards applied:
Higher Education Workers Victoria (Interim) Award, 1993.
Universities and Post Compulsory Academic Conditions Award
1999.
Teachers (English Language Centres of Australian Universities)
Conditions of Employment Award 1998.
(E) Provided that for the purpose of this subrule the term “vocational
and/or technical and further education or training” includes
workplace-based training and assessment, but excludes higher
education.
Submissions of the NTEU re AEU rules
[32] The NTEU says that rule 5(4)(b)(A) allows the AEU to enrol as members persons:
Employed in or in connection with the vocational and/or technical and further
education and training industries, or by, in or in connection with institutions which
provide such education; who are also
Employed to deliver or assess in, or to prepare vocational and/or technical and
further education or training programs, or (if qualified) employed to directly
coordinate or mange other teachers.
[33] It submits that rule 5(4)(b)(A)(i) expressly includes persons employed by TAFE.
[34] It says that rule 5(4)(b)(B) encompasses persons employed in specific classes of work
as they were known as at 1 June 2000.
[35] It says that rule 5(4)(b)(C) encompasses persons who were members and eligible to be
members by virtue of sub-rule 4(b) as it existed at 1 September 2001. That sub-rule read:
[2016] FWC 970
All persons employed in the technical and further education teaching service of the
state of Victoria or in or by TAFE Technical and Further Education Institutions in
Victoria, in a position of industrial skills instructor or in a teaching position or in
teaching classes or skill to work transition programs administered by TAFE such
institutions, as teachers, lecturers, emergency teachers, librarians, instrumental
musicians.
[36] The NTEU submits that rule 5(4)(b)(D) operates to limit the breadth of clauses (A)
and (B). Persons eligible to be members of the AEU by virtue of clauses (A) and/or (B) are
not eligible to be members of the AEU with respect to work performed as a member of
academic staff employed in or in connection with higher education if the person is employed
in a class of work covered by one of the named awards.
[37] The NTEU says that rule 5(4)(b)(E) defines the phrase “vocational and/or technical
and further education or training” as it appears in clauses (A) and (B). Further, it says that,
while the breadth of clause (C) is constrained by a point in time it is not limited by clauses
(D) or (E).
[38] The NTEU distinguish persons who are eligible for membership from the work which
is excluded.
Submissions of AEU re AEU Rule
[39] The AEU says of its rule:
(a) The rule operates by reference to vocational and/or technicaland further education or training.
(b) Paragraph (E) makes it clear that the term “vocational and/or technical and further education or training” does not include higher education.
(c) Paragraph (D) excludes from eligibility for membership persons who perform work as academic staff employed in or in connection with higher education.
(d) Paragraph (D) also excludes persons employed in work which, at 1 June 2000, was covered by one of the designated awards.
[40] The AEU submits that paragraph (A) of the rule requires that a person be employed in
or be seeking employment in or in connection with vocational and/or technical and further
education or training, or be employed by or in connection with institutions (including TAFE)
which deliver vocational and/or technical and further education or training. In this respect it
says that any person employed to deliver or service the higher education industry would not
be eligible to be a member of the AEU under this rule.
[41] Further, the AEU says that a person so employed under clause (A) must also be
employed to deliver or assess or prepare vocational and/or technical and further education or
training programs or, if qualified, manage other teachers.
[42] The AEU says the predominance of the rule is on the supply of VET programs.
Paragraph (D) it says, excludes certain categories of persons from coverage under the rule and
they are persons employed in respect of work performed as a member of academic staff
employed in or in connection with higher education.
[2016] FWC 970
[43] The AEU says that the rule operates to exclude from eligibility for membership
employees of TAFE institutes who ‘as part of their activities are performing work of the kind
4
| referred to in paragraph (D)(i)’ | (that is, persons, in respect of work performed, in or in |
| connection with higher education). | |
| Submission of VTA re AEU rules |
[44] The VTA makes submissions with respect to the operation of rule 5(4)(b)(D)(i) which
| states: |
| Nothing in paragraphs (A) and (B) shall be construed as conferring eligibility for |
| membership of the union on: |
i. persons, in respect of work performed as a member of academic staff
employed in or in connection with higher education.
[45] The VTA submits that the preferred meaning of this provision is that a person
employed by a TAFE Institute would not gain eligibility for membership of the AEU by
virtue of any higher education work but would not be excluded from membership of the AEU
if they were otherwise eligible because of other work performed that falls within the rule.
Consideration of the AEU rule
[46] In this case the AEU argues that its rules should be narrowly construed. At the same
time the NTEU argue that the AEU rules should be broadly construed. As the VTA so aptly
observed during the hearing of the matter:
It would appear that the unions have each adopted an interpretation which suits their
current aims and purposes. It's noteworthy that neither of them have pursued this
5
particular interpretation on behalf of their members in the past in any proceedings.
[47] I agree with this observation. I have found the submissions made quite confounding.
These are submissions of convenience and, I expect, would not be reflected in any other
proceedings with respect to the AEU rules.
[48] Whilst there are conflicting views as to the breadth or otherwise of the AEU rule, that
difference is around the operation of paragraphs (D) and (E) of the rule. Whilst no specific
mention is made by the AEU or VTA, I will also consider the submissions of the AEU as to
the breadth of paragraph (C) and its interaction with paragraph (D).
[49] I am satisfied that paragraph (A) of the AEU rules provides eligibility for membership
to persons employed or seeking employment:
i. in or in connection with vocational and/or technical and further education or
training; or
ii. by, in or in connection with institutions (including TAFE) which provide
vocational and/or technical and further education, howsoever named.
[2016] FWC 970
to deliver or assess in, or to prepare vocational and/or technical or further education or
training programmes or who (holding a relevant teaching qualification) directly co-
ordinate or manage other teachers.
[50] That is, a person must be employed or seeking employment in VET or in an institute
such as TAFE which delivers VET. The purpose of employment must be to prepare, deliver or
assess VET programs or to co-ordinate or manage other teachers (if qualified).
[51] It is undisputed that this rule encompasses persons employed by TAFE institutes who
prepare, deliver or assess VET programs. It also includes employees who co-ordinate or
manage such persons.
[52] I am satisfied that paragraph (B) specifies particular classes of work such that persons
employed in those classes of work are eligible for membership of the AEU.
[53] I am also satisfied that paragraph (C) provides that persons who were members or
eligible to be members on 30 September 2001 in accordance with the then rule 4(b) are
eligible to be members of the AEU. That is:
All persons employed in the technical and further education teaching service of the
state of Victoria or in or by TAFE Technical and Further Education Institutions in
Victoria, in a position of industrial skills instructor or in a teaching position or in
teaching classes or skill to work transition programs administered by TAFE such
institutions, as teachers, lecturers, emergency teachers, librarians, instrumental
musicians.
[54] I do not accept the submissions of the AEU in respect of the operation of paragraph
| (D)(i). | |
| [55] | Paragraphs (A) and (B) provide broad bases for eligibility for membership of the |
AEU. They each refer to persons and the grounds on which such a person may be eligible for
membership.
[56] Vocational and/or technical and further education or training excludes higher
education. However, many TAFE institutes that deliver vocational and/or technical and
further education or training also deliver higher education training. This was accepted by all
the parties. Paragraph (D)(i) does no more than state that, regardless of the institute that has
engaged a person, if it delivers higher education in addition to VET programs, eligibility for
membership of the AEU cannot be derived from the higher education work undertaken by the
person. That is, a person only working in higher education within a TAFE institute would not
be eligible for membership of the AEU. Paragraph D(i) does not exclude from membership of
the AEU a person who, by virtue of their VET work, falls within eligibility just because they
undertake some higher education work. It would be incorrect to read the paragraph that way.
[57] This conclusion is supported by the use of the phrase ‘in respect of work performed’ in
paragraph (D)(i). If it had been intended to exclude from membership persons who performed
any higher education work then it can reasonably be expected that the clause would have
provided such an absolute exclusion, just as paragraph (D)(ii) does. There is a distinction with
meaning in wording between paragraphs D(i) and D(ii). If it was intended that the exclusion
in each paragraph have the same effect it would be reasonable to expect that paragraph D(i)
[2016] FWC 970
would exclude from eligibility for membership a person employed in or in connection with
higher education. If this was the intent it is not clear what purpose was meant by including the
words ‘in respect of work performed.’ These words must have some work to do.
[58] If I was to accept the submissions of the AEU they would exclude from eligibility for
membership of the AEU a person who spent 90% of their time delivering VET and 10% on
higher education at the same institution. It is difficult to comprehend that it purposefully
drafted its rule with such an effect in mind.
[59] I am therefore satisfied that paragraph D(i) operates only such that a person cannot
gain eligibility for membership of the AEU under paragraphs (A) or (B) by virtue of work
performed as a member of academic staff employed in or in connection with higher education.
[60] I am satisfied that paragraph (D)(ii) operates to exclude from eligibility for
membership of the AEU persons engaged in any class of work to which, as at 1 June 2000 the
named awards applied. That those awards have since been set aside does not mean that the
exclusion no longer operates. The exclusion applies to persons employed in particular classes
of work. That the classes of work are determined by reference to awards that have been set
aside is not relevant. No submissions was put that paragraph D(ii) has any affect in the matter
before me.
[61] I agree with the NTEU who say that the exclusion in paragraph (D) does not apply to
paragraph (C) of the rule. Paragraph (D) operates only in respect of eligibility for membership
that is otherwise conferred by paragraphs (A) or (B). It is technically feasible that a person
excluded from eligibility for membership under paragraph (A) because of the operation of
paragraph (D) could still be eligible for membership through paragraph (C).
[62] Paragraph (E) of the rule seeks to clearly define what is meant by vocational and/or
technical and further education or training by specifying what it is not – that is higher
education.
[63] The NTEU suggest in its submissions that the limitation on what is meant by
vocational and/or technical and further education or training (that it excludes higher
education) in paragraph (E) does not operate to limit paragraph (C). There is no basis for such
a submission. There is nothing in the wording of paragraphs (C) or (E) to suggest that the
limitation in paragraph (E) does not apply to all other paragraphs, including paragraph (C). If
it had been the intention to limit the meaning of vocational and/or technical and further
education or training to some, but not all clauses in the rule, wording to this effect would have
been used. In inserting paragraph (E) the AEU would have been aware of the work it would
do on paragraph (C) but did not seek to excise it from the effect of paragraph (E). Further,
paragraph (E) says ‘for the purpose of this subrule’ – clearly referring to all of subrule (4)(b).
No other reading of this paragraph makes sense.
[64] I am therefore satisfied that the limitation in rule 5(4)(b)(E) applies to all of rule
5(4)(b) of the rules of the AEU.
[2016] FWC 970
The coverage of the 2015 Agreement
NTEU submissions
[65] On its construction of the AEU rules the NTEU says, of the scope of the 2015
Agreement, that:
(a) Any TAFE employee who performs teaching duties is relation to the delivery of VET programs, including all teachers who perform duties in the higher education
sector as well as VET programs; and
(b) Any TAFE employee who performs a specialist teacher role such as student advisory or guidance roles, teacher librarians, curriculum development etc,
whose work relates to both VET and higher education; and
(c) Any TAFE employee who holds a relevant teaching qualification and who supervises the work of other teachers
is eligible for membership of the AEU and is therefore covered by the Agreement with
respect to the entirety of their employment with the relevant employer.
[66] However, the NTEU also argues that the scope clause of the 2015 Agreement (and the
2009 Agreement) is ambiguous. To resolve this it referred to the principles in The
6
| Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited | and says that |
the principals set out therein should be applied in deciding on the proper meaning of the scope
clause.
[67] The NTEU says that, in ordinary circumstances, invoking union coverage would
suggest no ambiguity. It submits however that the AEU is arguing that the 2015 Agreement
only covers employees of the employers to the extent that the work performed by the
employees falls within the eligibility rules of the AEU. This, it says supports a finding that the
scope clause of the 2015 Agreement (and 2009 Agreement) is ambiguous and therefore
requires some resolution by the Commission.
[68] The NTEU submits that, on a proper construction of the AEU rules and the scope
clause of the 2015 Agreement, employees who work in both VET and higher education
sectors of TAFE are covered by the Agreement for the totality of their employment.
[69] It says that evidence of prior negotiations is relevant to determining the true meaning
of the coverage of the 2015 Agreement only to the extent that it is evidence of objective facts
known to the parties at the time. The NTEU submits that the negotiations establish the fact,
known to all parties involved in negotiations for the 2015 Agreement (the AEU, the NTEU
and the VTA), that the 2015 Agreement was intended to encompass academic staff and that
the reference to the AEU eligibility rule was not seen as an impediment to such as academic
staff are ‘TAFE teachers’.
[70] The NTEU also says it was known to the parties that, within a TAFE institute
(excluding Melbourne Polytechnic), some staff teach only VET, some teach only higher
education and some teach across both streams.
[71] Further, the NTEU says that, in construing the meaning of the scope clause of the
2015 Agreement it is necessary to consider the 2015 Agreement as a whole.
[2016] FWC 970
[72] Firstly, it says that the 2015 Agreement contemplates the engagement of employees
who do not undertake teaching duties. This is evidenced by the reference to Senior Educators
in the 2009 Agreement where a non-teaching role is clearly within the scope of the Agreement
(see, for example, the Schedule 4 - Classification standards in the 2009 Agreement which says
that a Senior Educator covers management, curriculum/project design and support services,
industry consultancy and teaching).
[73] The NTEU submits that appendix 2 and 4 to the 2009 Agreement indicate an intention
that the 2015 Agreement would apply to teachers engaged solely in the delivery of higher
education programs.
[74] The NTEU submits that the conduct of the TAFE employers both in respect of the
2009 Agreement and in voting in the 2015 Agreement evinces an intention that the 2015
Agreement was intended to apply to:
those employees engaged in VET only;
those employees engaged in higher education only; and
those employees engaged in both.
[75] It says that the TAFE employers provided staff with contracts of employment that
indicated that the employment was subject to the 2009 Agreement. Further, it provided those
staff with an opportunity to vote in the making of the 2015 Agreement.
[76] The NTEU submits that, relying on custom and practice, the 2015 Agreement must
cover all teaching staff, regardless of the stream within which they teach. If custom and
practice doesn’t overcome the plain words, which limit the scope of the 2015 Agreement to
persons eligible for membership of the AEU, then at least it must support an interpretation
that the agreement is intended to cover all the work performed by persons eligible for
membership of the AEU. Including such portions of their work (ie higher education work)
that would not, of itself, bring them into AEU eligibility.
[77] The NTEU submits that, applying the principals in Golden Cockeral requires a
conclusion that persons are covered by the Agreement if they fall within that class of
employees that the parties understood the AEU rules to cover; that there was mutual intention
that the 2015 Agreement would apply to all persons to whom everyone understood the 2009
Agreement applied.
[78] In the alternative, the NTEU submits that the 2015 Agreement was intended to apply
to persons eligible for membership of the AEU but that this includes persons working in both
VET and higher education programs and that it applies with respect to all of the work done by
such a person, not just VET work.
AEU submission
[79] The AEU, relying on its interpretation of its rules, submits that the 2015 Agreement
excludes from coverage employees who, as part of their activities, are engaged as a member
of academic staff employed in or in connection with higher education. The AEU says if an
employee performs work of this kind – that is providing programs or courses of study in the
course of employment which is referable to higher education – then the employee cannot be
[2016] FWC 970
eligible for membership of the AEU by virtue of paragraph (D) of the AEU rules and
therefore cannot be covered by the Agreement.
[80] The AEU says this does not create the inconvenience of which the VTA complains.
Rather, it says, it ‘simply draws a clear line around those covered by the 2015 Agreement and
7
those not covered’.
[81] The AEU says that to adopt the approach of the VTA would create greater
inconvenience as a decision would have to be made on a case by case basis, based on the
‘principle purpose test’ as to whether an employee was employed principally on VET matters
– and therefore subject to the 2015 Agreement – or not.
[82] The AEU submits that a consideration of the 2015 Agreement demonstrates that it is
not framed to do more than encompass VET work and that this is supportive of how it says
the AEU eligibility rule should be interpreted. To do otherwise, it suggests, creates a greater
conundrum in terms of the employment conditions when a person engaged across both VET
and higher education work is doing higher education work.
[83] With respect to the NTEU submissions as to the relevance of prior negotiations, the
AEU submits that resort to the subjective intention of the parties in negotiations is not
permitted in determining the meaning of an agreement. Rather, the objective determination of
the meaning can be ascertained by consideration of surrounding circumstances. The AEU
agree that I could take into account that the NTEU proposed, in negotiations for the 2015
Agreement, a separate schedule for employees in higher education and that this was rejected
in deciding if the 2015 Agreement should be read as covering people eligible to be members
of the NTEU. Further, the AEU says I can have regard the fact that the 2015 Agreement
effectively rolled over the 2009 Agreement and that the NTEU did not participate in the
negotiations for, or become a party to, the 2009 Agreement.
[84] The AEU submits that I should not have regard to the history of TAFE institutes going
back to 2003 when they started to deliver higher education programs. It submits that the AEU
rules properly deals with the changing face of TAFE and this is reflected in the exclusion at
rule 5(4)(b)(D). To this extent it also says nothing can be taken from the job advertisement (its
origins being unclear) attached to the statement of Dr Colin Long as it does not reflect the
work of a teacher and, in any event, is of little probative value.
[85] With respect to the undertaking given by the VTA to the 2015 Agreement, the AEU
says that it does not assist in determining the coverage of the 2015 Agreement.
VTA submissions
[86] The VTA, relying on its submissions as to the construction of the AEU rules, submits
that such a construction reflects the way the 2009 Agreement has been applied within the
TAFE employers’ party to the 2015 Agreement.
[87] The VTA submits that, even if no ambiguity is identified, the industrial context of the
8
| agreement should always be considered in construing the agreement. | The 2009 Agreement |
was applied to teachers who performed a mix of both VET and higher education functions.
On this basis and relying on the decision in Amcor, I can take this into account in construing
[2016] FWC 970
the coverage of the 2015 Agreement. The VTA says such coverage was known to the parties
and has not been challenged in these proceedings.
[88] Further, the VTA submits that, to construe the coverage clause of the 2015 Agreement
narrowly, as proposed by the AEU, would create an inconvenience. This, it submits, is to be
9
| avoided. | The inconvenience arises from employers having to make a decision as to at which |
point in the mix of VET and higher education an employee falls within or outside the AEU
eligibility rules.
Conclusions as to coverage of 2015 Agreement
[89] The 2015 Agreement covers:
employees of the employers listed in Schedule 2,
who are eligible to be members of the AEU (other than Industrial Skills
Instructors), and
who were covered by the 2009 Agreement.
[90] The 2009 Agreement covered
employees of the employers listed in Schedule 2, and
who are eligible to be members of the AEU (other than Industrial Skills
Instructors).
[91] It should, in the first instance, be noted that the 2015 Agreement is expressed to cover
employees of the employers who are eligible to be members of the AEU. To this extent the
coverage of the Agreement is not restricted to employees who perform work that falls within
the eligibility rules of the AEU. The work that is covered by the Agreement may, in this
respect, extend beyond that might would be seen to fall strictly within the eligibility rules of
the AEU.
[92] The 2009 Agreement covers teachers and senior educators. This is apparent from the
classification structure of the Agreement. Such employees are therefore covered by the 2012
Agreement.
[93] The employers covered by the 2015 Agreement differ to that of the 2009 Agreement.
The employers covered by the 2015 Agreement are set in Schedule 2 to the 2015 Agreement.
[94] I have carefully considered the submissions of the NTEU with respect to the breadth
that I should give to the coverage clause of the 2015 Agreement. I accept the submissions
made to a point but I find it difficult to accept them all.
[95] The 2009 Agreement covers persons involved in the preparation of classes and
10
| assessment of degree programs. | Such employees are however excluded from coverage of the |
2015 Agreement by virtue of clause 9(e) of the 2015 Agreement which nullifies Appendix 2
and Appendix 4 of the 2009 Agreement, which is the only place such work is referenced. The
NTEU submissions on this point are incorrect.
[2016] FWC 970
[96] There is no basis on which I can find that the 2015 Agreement covers employees who
work wholly within the higher education stream. If I was to accept this proposition I would
have to ignore the words ‘eligible to be members of the AEU’ as they appear in Clause 3 of
the 2009 Agreement and the 2015 Agreement. Whilst an agreement must be read in context,
such context cannot disregard the plain words on paper.
[97] The 2015 Agreement does not cover employees engaged wholly in the delivery of
higher education programs. Whilst there may be such employees of the employers listed in
Schedule 2, such employees are not eligible to be members of the AEU by virtue of rule
5(4)(b)(D)(i) and the operation of rule 5(4)(b)(E).
[98] The 2009 Agreement (and hence 2015 Agreement) covers teachers.
[99] I am satisfied that the AEU rules do not exclude from eligibility for membership a
person who would otherwise be eligible for membership who also performs work as a
member of academic staff in or on connection with higher education. In this context I am
therefore satisfied that a person teaching wholly in VET or across both VET and higher
education is eligible for membership of the AEU and is therefore covered by the Agreement.
[100] For the same reason an employee who co-ordinates or manages other teachers wholly
within VET or across VET and higher education is covered by the 2015 Agreement.
[101] The 2009 Agreement (and hence the 2015 Agreement) covers senior educators to the
extent that senior educators are eligible to be members of the AEU.
[102] The role of a Senior Educators is set out in the 2009 Agreement:
| Senior Educator Level 1 | Senior Educator Level 2 | Senior Educator Level 3 |
| • Coordinate and supervise | • Lead the design, | • Responsible for projects |
| resources. | development, delivery and | that involve major change. |
| • Manage a team of staff. | evaluation of innovative, | • Plan long-term resourcing |
| • Manage the design, | customised, high quality | needs. |
| development, delivery and | vocational education and | • Provide support to team. |
| evaluation of innovative, | training responses for | • Research and initiate |
| customised, high quality | identified students and | continuous improvement |
| vocational education and | clients. | strategies in delivery, |
| training. | • Manage recruitment and | assessment strategies, modes |
| • Induct staff. | selection of staff. | of learning and reporting. |
| • Coordinate administrative | • Manage induction | • In conjunction with other |
| requirements. | process. | Senior Educators prepare |
| • Produce tenders and | • Provide support and | and deliver professional |
| submissions in conjunction | mentoring to team. | development for Teachers. |
| with other Senior Educators | • Assist staff to identify | • Make a significant |
| and Teachers. | professional development | contribution to teaching |
| • Manage training needs | opportunities. | strategies and directions. |
| analysis and skills audits for | • Provide staff coaching | • Undertake a significant |
| clients. | and counselling. | role in ensuring quality |
| • Provide specialist skills as | • Propose and implement a | teaching recruitment, |
| appropriate within the | range of programs/courses | including induction. |
| Institute, and the wider | for future delivery together | • Significant contribution to |
[2016] FWC 970
| community in Victoria, | with other Senior | the research, development |
| nationally or | Educators and Teachers. | and implementation of |
| internationally. | • Examine and make | course for the education |
| • Apply counseling (sic) | recommendations on | and/or professional |
| skills as appropriate. | alternative flexible delivery | development of teachers. |
| • Conduct action-based | strategies. | |
| research and prepare | • Initiate project | |
| briefing papers on | development. | |
| curriculum, teaching or | • Provide advice on | |
| management services as | improvements to records | |
| appropriate. | management systems. | |
| • Maintain program | ||
| operations data as per audit | ||
| requirements. | ||
| • Ensure graduation | ||
| candidates are verified. | ||
| • Ensure student results are | ||
| completed. | ||
| • Develop individualised | ||
| self-paced learning | ||
| materials. | ||
| • Develop and implement | ||
| assessment systems. |
[103] It is reasonable to assume, given the scope clause of the 2009 and 2015 Agreement,
that such work does fall within the eligibility rule of the AEU or is assumed by the AEU to
fall within its eligibility rule.
[104] In brief, it appears to me that Senior Educators are engaged in more complex, higher
level development and design of training and assessment materials, outside engagement with
stakeholders, management and supervision of others employees and strategic development
and management.
[105] I am satisfied that, to the extent the senior educator work is engaged wholly within
VET or across VET and higher education programs, a person employed to do such work is
covered by the 2015 Agreement.
[106] In seeking approval of the 2015 Agreement the VTA provided the Commission with
an undertaking that read:
The wages paid to employees covered by the MEA who meet the definition of an
“academic teacher” under the Educational Services (Post-Secondary) Award 2010 will
in all cases be higher than the employee would otherwise be entitled to under Clause
14.1 of the Educational Services (Post-Secondary) Award 2010.
[107] The definition in the Educational Services (Post-Secondary) Award 2010 is:
academic teacher means an employee engaged to teach students, where a majority of
the employee’s teaching work is in the delivery of units or programs which are at
[2016] FWC 970
bachelor’s degree level or higher academic level, including the delivery of units which
are intended subsequently to be accepted without discount as credit towards a degree.
[108] The undertaking and the definition of ‘academic teacher’ supports my conclusion that
the work of persons engaged across both VET and higher education programs are covered by
the 2015 Agreement. The definition of academic teacher does not indicate that it is a person
engaged wholly in teaching at the degree level or higher but just that the majority (ie more
than 50%) of the time is spent on such programs.
[109] The definition and undertaking also support my finding that the 2015 Agreement does
not apply to employees engaged wholly in higher education work. Neither the undertaking nor
definition suggests that a person engaged wholly within higher education is covered by the
Agreement.
[110] I am not convinced that the AEU submission as to the application of the ‘principal
purpose test’ is of assistance in resolving any question of the coverage of the 2015
Agreement. The question to be determined here is the coverage of the 2015 Agreement not,
given a person’s particular duties, whether they are covered by the 2015 Agreement or some
other industrial instrument. It seems to me that is a test for some other time.
[111] Imprecision of language in discussions between the AEU and NTEU would appear to
be a contributor as to confusion between the two as to whom the 2015 Agreement should
apply. Mr Barclay telling the NTEU that the 2015 Agreement should apply only to those
11
| covered by the 2009 Agreement | does not resolve any issue if the NTEU think the 2009 |
Agreement did apply to people engaged in VET or a combination of VET and higher
education work. There is nothing in the evidence of Mr Barclay to suggest there was a shared
understanding that the 2009 Agreement (and hence the 2015 Agreement) would only apply to
staff engaged wholly on VET.
[112] I am satisfied therefore that the 2015 Agreement covers employees eligible to be
members of the AEU (that is not excluded through the AEU rules) engaged in teaching and
senior educator roles as defined in the 2015 Agreement performing work wholly in VET or
across VET and higher education programs.
NTEU rules
[113] The next matter to decide is if the NTEU rules provide for coverage of any of the work
covered by the Agreement.
[114] If the NTEU does not have rules coverage of the work covered by the Agreement it is
not eligible to be a bargaining representative for any employee who may be covered by the
Agreement.
[115] The following excerpts from the NTEU eligibility rule are relevant to the matter:
6 - Eligibility for Membership
6.1 Persons shall be eligible for membership who are employed as academic staff in the industry of persons employed in or in connexion with tertiary education in the Australian Capital Territory, the Northern Territory and the States of New South
[2016] FWC 970Wales, Queensland, South Australia, Tasmania, Victoria and Western Australia; or in the other occupations specified in this sub-rule who are employed in the industry of persons employed in or in connexion with higher education in the Australian Capital Territory, the Northern Territory and the States of New South Wales, Queensland, South Australia, Tasmania, Victoria and Western Australia; or who are employed in the industry of persons employed in or in connexion with tertiary or adult education in Victoria; in any one or more of the following positions or in any class of work which forms a substantial part of the duties of such positions:
(a) Deputy Vice-Chancellor, Pro-Vice-Chancellor, Vice-Principal, Deputy Principal, Assistant Principal, Professor, Associate Professor, Assistant
Professor, Reader, Principal Lecturer,
Senior Lecturer, Lecturer, Assistant Lecturer, Associate Lecturer,
Principal Tutor, Senior Tutor, Tutor.
(b) Professorial Fellow, College Fellow, Senior Fellow, Principal Fellow, Junior Fellow, Fellow, Principal Research Fellow, Senior Research
Fellow, Junior Research Fellow, Research Fellow, Senior Teaching
Fellow, Teaching Fellow, Institute Fellow.
(c) (i) Senior Research Assistants and Research Assistants (other than in Australian Capital Territory, Northern Territory,
New South Wales, Queensland, Tasmania and Western
Australia).
(ii) Research Officers at the Australian National University
(d) Senior Demonstrator, Demonstrator, Senior Instructor, Instructor, Principal Instructor, Senior Supervisor, Supervisor, Clinical Supervisor,
Clinical Educator, Nurse Educator, Clinical Teacher, Clinical
Instructor, Clinical Tutor, Language Teacher.
(e) Director of School, Director of Department, Head of School, Head of Department, Head of Courses and Planning, Director of Institute,
Director of Specialist Centre, Director of Unit, Chairperson of
Department, Director of Division, Co-ordinator, Head of Faculty,
Deputy Director of School, Deputy Director of Department, Deputy
Head of School, Deputy Head of Department, Deputy Head of Courses
and Planning, Deputy Director of Institute, Deputy Director of
Specialist Centre, Deputy Director of Unit, Deputy Chairperson of
Department, Deputy Director of Division, Deputy Co-ordinator,
Deputy Head of Faculty.
…
6.2 Notwithstanding anything contained in sub-rule 6.1 of this Rule,
membership of the Union shall be open to persons in the following positions:
(a) …
[2016] FWC 970
(h) The positions of all keyboard, secretarial, clerical, administrative, technical, and professional staff employed in Colleges of Technical
and Further Education in the State of Victoria except the positions
of:
(i) all classes of Nursing employees
(ii) all classes of employees engaged in childcare work
including Mothercraft Nurses
(iii) teaching staff.
…
6.5 Notwithstanding sub-rules 6.1, 6.2, 6.3 and 6.4 of this rule, the following
persons shall not be eligible for membership of the Union:
…
(f) Persons employed as teacher, principal teacher, tutor or Associate Director/Head of School (howsoever called) in Technical and
Further Education Colleges (howsoever called) in Queensland.
(g) Persons employed in any non-academic capacity in any Technical and Further Education Colleges (howsoever called) other than in
Victoria.
…
6.9 (a) Persons employed by any higher education institution, or employed in connection with higher education or associated research, shall be eligible for membership of the Union. (b) Neither the generality nor the effect of (a) above is limited in any way by anything in Sub-Rules 6.1, 6.2, 6.3, 6.4, 6.5, 6.6 or 6.7.
NTEU submissions
[116] The NTEU submits that sub-rules 6.1-6.4 and 6.7-6.9 are inclusive provisions and
12
should be read as cumulative and additive.
[117] Sub-rule 6.5 sets out exclusions to sub-rules 6.1-6.4. The NTEU submits that the
wording of the exclusions at sub-clause 6.5(f) and (g) provide some insight into the breadth
otherwise of the rule. Each of the exclusions is expressed to operate in respect of some
classifications in TAFE in Queensland (6.5(f)) and TAFE other than in Victoria (6.5(g)).
These exclusions strongly suggest that otherwise the NTEU eligibility rules do enable the
NTEU to enrol as members some employees of TAFE, otherwise the exclusions have no work
to do.
[2016] FWC 970
[118] The NTEU highlights that the exclusion in sub-rule 6.5 does not apply to sub-rule 6.9.
[119] Further, the NTEU submits that the concentration by the AEU on sub-rule 6.2(h) is
misplaced and that what that rule does is provide eligibility for membership of the NTEU to
persons working in TAFE in Victoria but does not include teaching staff. However, the NTEU
says that other parts of the eligibility rule do encompass TAFE employees who will be
covered by the Agreement.
[120] Broadly, the NTEU submits that Rule 6.1 provides that persons who are employed as
academic staff in or in connection with tertiary education in Victoria or who are employed in
or in connection with tertiary or adult education in Victoria who work in a position specified
and in a class of work which forms a substantial part of the duties of the specified positions,
13
are eligible for membership of the NTEU (subject to the exclusions in the rule).
[121] It submits that sub-rule 6.1 brings within eligibility a range of TAFE employees with
teaching roles which encompass duties typical of lecturing, tutoring, instructing, teaching in
nursing or health disciplines in a clinical setting, heads of department, directors of a unit,
division or school or teacher-librarian.
[122] The NTEU submit that ‘tertiary education’ means all forms of education beyond
secondary education and includes university, colleges of advanced education, technical
college etc. It says that tertiary education is a broad term encompassing higher education and
those parts of VET delivered in a post-school setting such as TAFE.
[123] Further, it submits that the term ‘academic staff’ includes a teacher or researcher in a
university or college and is not restricted under sub-rule 6.1 to those holding an academic
appointment at a university. If this had been the intent it says that the sub-rule would have
referred to higher education and not tertiary education.
[124] ‘Academic teacher’ is defined in the Educational Services (Post-Secondary Education)
Award 2010 at clause 3:
academic teacher means an employee engaged to teach students, where a majority of
the employee’s teaching work is in the delivery of units or programs which are at
bachelor’s degree level or higher academic level, including the delivery of units which
are intended subsequently to be accepted without discount as credit towards a degree.
[125] The NTEU submits that some staff within TAFE are designated as academic teachers.
It says that, whilst the definition is not used in the 2015 Agreement, some staff may be
eligible for membership of the AEU if some of their work is other than in relation to higher
education programs or if the work is in the delivery of VET programs where the units are
subsequently accepted without discount as credit towards a degree.
[126] The NTEU says the 2015 Agreement is clearly intended to cover academic teachers.
The reference in the NTEU rules to academic staff clearly encompasses, but is not limited to,
academic teachers.
[2016] FWC 970
AEU submission
[127] The AEU submits that sub-rule 6.1 of the NTEU rules provides for three categories of
members. The first is academic staff employed in or in connection with tertiary education, the
second is non-academic staff of the kind specified employed in or in connection with higher
education and the third is those employed in or in connection with tertiary or adult education
in Victoria in one or more of the position specified in the sub-rule.
[128] The AEU notes that the rules do not define tertiary education or higher education.
[129] The AEU submits that sub-rule 6.2(h) contains an exclusion with respect to certain
employees employed in colleges of technical education in Victoria including ‘teaching staff’.
The AEU says that the rules of the NTEU must be construed as a whole and that attempt
should be made to give every part of the rule some utility.
[130] Further, it says that the words ‘notwithstanding anything contained in sub-rule 6.1 of
this Rule, membership of the Union shall be open to persons in the following positions’ at the
beginning of sub-rule 6.2 implies that the positions identified in sub-rule 6.2 ‘may not be
14
| covered by rule 6.1.’ | For this reason the AEU says it is reasonable to assume that the work |
or positions identified in sub-rule 6.2 are work or positions additional to those identified in
sub-rule 6.1.
[131] On this basis, the NTEU submits that paragraph 6.2(h) says, in effect, a person is
eligible for membership of the NTEU if they fall within the work identified in sub-rule 6.2(h)
except if they fall within the categories at 6.2(h)(i), (ii) or (iii). Therefore, paragraph 6.2(h)
adds a class of work not otherwise within the rule but excludes specifically from the group
teachers in TAFE Victoria.
[132] The AEU says that in 1999 the NTEU applied to the Australian Industrial Relations
Commission (AIRC) to amend its rules to insert sub-rule 6.9. Whilst the AEU did not
formally object to the rule change it was ‘comforted [by] the NTEU’s advice that it had no
15
| intention to seek to represent the industrial interests of Victorian TAFE teaching staff.’ | The |
understanding between the NTEU and AEU was recorded in writing and filed with the
16
| AIRC | and the NTEU’s intended scope of the rule change, including that it was not intended |
to ‘extend to…persons employed primarily in technical and further education’ was recorded
17 18
| in the decision | and appeal decision | of the Commission. |
| Consideration |
[133] I am satisfied that the NTEU rules should be considered as cumulative. I accept the
conclusion of the Commission that ‘the clear purpose of sub-rule 6.2 is to create further rights
as to membership eligibility, not to qualify or extinguish rights to membership eligibility
19
created by the application of sub-rule 6.1.’
[134] It is apparent that where it is intended a class of employees or specific work or tasks
shall be excluded from eligibility for membership of a union it will clearly be expressed in the
rules. See, for example, sub-rule 6.5 of the NTEU rules: ‘Notwithstanding sub-rules 6.1, 6.2,
6.3 or 6.4 of this rule, the following persons shall not be eligible for membership of the
Union’; or the AEU rules where clause 5(4)(b)(D) says: ‘Nothing in paragraphs (A) and (B)
shall be construed as conferring eligibility for membership of the union on…’.
[2016] FWC 970
[135] I am satisfied that the words ‘notwithstanding anything contained in sub-rule 6.1’ as
they appear in sub-rule 6.2 do no more than mean that ‘regardless of the operation or effect of
sub-rule 6.1.’ There is nothing in the words of the rules that suggests sub-rule 6.2 was
intended to bring within eligibility a group of employees that were otherwise clearly outside
sub-rule 6.1 such that the exclusion of teachers in TAFE in Victoria in paragraph 6.2(h)(iii) is
absolute.
[136] I reject the submission of the AEU that the work brought within scope of the eligibility
of the NTEU rule by sub-rule 6.2 must be assumed not to have been within the scope of sub-
rule 6.1 and that, therefore, the exclusion of teachers in TAFE in Victoria by paragraph
6.2(h)(iii) can be taken to imply that such work is not within the scope of sub-rule 6.1.
[137] The drafting technique used in sub-rule 6.2 (the use of the phrase ‘notwithstanding
anything else contained within these rules…’) is not an unusual drafting technique for union
20
rules.
[138] In considering the scope of eligibility for membership of the NTEU I have adopted the
approach of the Full Bench of the AIRC in Technisearch in which it considered the
construction of rule 6. In its decision the Full Bench found:
From the first step in construction of the relevant subrule it is manifest that for an
employee to be within the first of the three classes, it is necessary that the employee
be:
1. employed “academic staff”;
2. employed in or in connection with tertiary education; and
3. in a position, or in a class of work which forms a substantial part of the duties of a
position, or occupational calling listed in the subrule (a listed designation).
The second class comprises persons who are “engaged...in the other occupations
specified in the subrule who are employed in the industry of persons employed in or in
connection with higher education in Australia”, in a position, or in any class of work
which forms a substantial part of the duties of a position identified in the list of
particular designations and occupations set out in the subrule.
The second class of employees is distinguished from the first, in that the specification
of the second class refers to “other occupations” and to “higher education”. Giving the
words their ordinary meaning in the context, the class is intended to include persons
who are in an occupation listed that does not meet the description “academic staff”
employed in or in connection with tertiary education, but who are employed in or in
connection with higher education. “Higher education” we understand to include the
activities undertaken formerly by institutions known as Colleges of Advanced
Education but in any event educational activity that is not primary or secondary
education and includes but is not limited to tertiary education. For an employee to be
within the second class, it is necessary that the employee be:
1. employed in one of “the other occupations listed in the subrule”;
[2016] FWC 970
2. employed in or in connection with higher education; and
3. in a position, or in a class of work which forms a substantial part of the duties of
a position or occupational calling listed in the subrule.
The third class is comprised of persons employed in a position, in a class of work
which forms a substantial part of the duties of a position identified in the list of
designations of occupational callings in the subrule, and who is employed in the
industry of persons employed in or in connection with tertiary or adult education in
21
Victoria.
[139] A consideration of the designations and occupations listed in sub-rule 6.1 (and the
class of work) along with the decision of the Full Bench strongly suggests that the NTEU
does have coverage of persons employed as teachers and in non-teaching roles such as those
in roles that include leading a department, course planning or co-ordinating.
[140] I am satisfied that ‘teaching’ comes within the class of work which forms a substantial
part of lecturing, tutoring, instructor, educator etc. I am also satisfied that ‘senior educator’
and the indicative duties set out for such positions in the 2015 Agreement come within the
class of work which forms a substantial part of at least the work of the positions of Deputy or
Head of Courses and Planning, Deputy or Director of a Division or Deputy Co-ordinator or
Co-ordinator.
[141] Further, a consideration of sub-rule 6.5 of the AEU rules is instructive as to what
breadth may be given to sub-rule 6.1. Paragraph 6.5(f) provides, for example, a specific
exclusion for teachers etc employed in TAFE in Queensland suggests they might otherwise be
included in eligibility in other parts of rule 6 and an exclusion for non-academic staff
employed in TAFE in other than Victoria in paragraph 6.5(g) suggests that other staff
employed in TAFE other than in Victoria may be within the eligibility rule.
[142] I have not relied on sub-rule 6.9 in reaching my decision. I should say however that
the undertaking given by the NTEU to the AEU at the time of that rule change is not disturbed
by this decision. The undertaking provided in relation to rule 6.9 is in relation to that sub-rule
only. It does not affect eligibility provided by other sub-rules.
[143] I therefore find that the NTEU is entitled to represent the industrial interests of
teachers and non-teaching staff ‘in any class of work which forms a substantial part of the
duties’ of positions identified in sub-rule 6.1 within TAFE and that the class of work that
forms part of the duties of some of those positions includes teaching and the work identified
of senior educators.
[144] I therefore am satisfied that the NTEU is entitled to represent the industrial interests of
employees in relation to work performed under the 2015 Agreement.
Was the NTEU a bargaining representative for employees?
[145] It is not disputed that the 2015 Agreement was made on 28 October 2015. Bargaining
for the 2015 Agreement commenced on 7 August 2015.
[2016] FWC 970
[146] The question to be answered is whether, during the period of bargaining, the named
members of the NTEU performed work covered by the 2015 Agreement and the NTEU was
entitled to represent their industrial interests with respect to that work. In this respect it clearly
is not enough that the NTEU has as a member, in accordance with its rules, any of the named
individuals. If the work done by the individual is not work covered by the Agreement even if
the NTEU is entitled to represent the employee’s industrial interest with respect to that work,
it will not make them a bargaining representative for the 2015 Agreement.
[147] I am satisfied that the NTEU did participate in bargaining for the 2015 Agreement.
That they did not do so for the 2009 Agreement is not relevant to this matter.
[148] As I have found above, I am satisfied that the scope of the 2015 Agreement is such
that the Agreement covers all of the work of an employee to whom it applies, not just that
work that makes the employee eligible to be a member of the AEU – that is both VET and
higher education work. On its scope however, the 2015 Agreement does not apply to
employees of the named employers who are employed to only undertake higher education
work.
[149] I have also found that the NTEU can enrol as members people engaged in teaching
and senior educator roles to the extent that that the work undertaken forms a substantial part
of the duties of positions specified in sub-rule 6.1 of the NTEU rules.
[150] Evidence that was given as to what the named individuals may have done in the past is
not a relevant consideration in this matter and I have had no regard to that. Further, I have had
no regard to what the named individuals may do at some time in the future.
[151] In making my decision I have also not had regard to whether or not the named
individuals participated in the vote for the 2015 Agreement. As I expressed during the
hearing, whilst it is clear that there may have been some confusion as to who was eligible to
vote, no one is suggesting that the vote was invalidated by this confusion. This is supported
by the very high participation of those eligible to vote and, of those who voted, the high
number supporting the 2015 Agreement.
[152] Against this background I turn now to consider each of the individuals named by the
NTEU, each of whom was employed by a TAFE institute party to the 2015 Agreement at the
relevant time.
[153] Dr Long gave uncontested evidence of the members of the NTEU who he says come
within scope of the 2015 Agreement and are eligible to be members of the NTEU under the
NTEU rules. In considering this evidence, and in accordance with an order given in transcript,
I have maintained the anonymity of the individuals.
[154] Whilst it is sufficient that the AEU only have one member whose industrial interest it
is entitled to represent with respect to work covered by the agreement for it to be a bargaining
representative I have considered all of those members it put forward and determined for each
of them if it is a bargaining representative for them for the purpose of the 2015 Agreement.
[2016] FWC 970
1. AB
From January to September 2015 AB was the VET Operations Manager.
From 21 September 2015 AB was a course co-ordinator in the School of Higher
Education. In that role AB was responsible for co-ordinating staff who work across both
VET and higher education. AB is classified as a Senior Educator.
I am satisfied that the work performed by AB is covered by the Agreement. The work
clearly falls with the eligibility rules of the AEU in that AB is ‘employed to directly co-
ordinate or manager other teachers’, some of whom carry out VET work. I am satisfied
that the work is work within scope of the 2015 Agreement.
I am also satisfied that the AB is eligible to be a member of the NTEU. AB is a co-
ordinator and such work is clearly captured by NTEU rule 6.1(e).
I am therefore satisfied that the NTEU could represent AB’s industrial interests in relation
to work covered by the 2015 Agreement. The NTEU is therefore a bargaining
representative for the 2015 Agreement.
2. LH
Dr Long says the LH in employed at a TAFE wholly in higher education programs. LH
considers that she could be shifted between higher education and VET. LH also works at
another TAFE Institute where she teaches in the VET program.
To the extent that LH teaches at one TAFE wholly in the higher education program, that
work is not covered by the 2015 Agreement and the AEU cannot be bargaining
representative for its member in respect of that work.
I am satisfied that the work of LH (in a second and separate contract) teaching in a post
graduate diploma is work that is covered by the 2015 Agreement.
Dr Long gave uncontested evidence that the teaching done by LH was for a course
registered with ASQA – the VET regulator. I accept that evidence and that it indicates LH
teaches in a VET program.
I am therefore satisfied that the work done by LH is covered by the 2015 Agreement. I am
also satisfied that the NTEU has the right to represent LH’s industrial interests with
respect to that work.
I am therefore satisfied that the NTEU is a bargaining representative for the 2015
Agreement for LH.
3. LR
LR performs work wholly within the higher education sector. This work is not covered by
the Agreement.
[2016] FWC 970
The NTEU was therefore not a bargaining representative for LR with respect to the 2015
Agreement. That LR has maintained VET teaching qualifications is not relevant.
4. AD
AD holds a senior position in higher education at a TAFE institute. Whilst two subjects
within his broad area of responsibility area allow students an option to undertake activities
that count towards a VET qualification, there is no evidence on which to conclude that
this tangentially related aspect of AD’s work is within the scope of the 2015 Agreement.
However, AD does supervise staff who deliver aspects of VET training (Cert IV in
Training and Assessment). For the same reasons given above in respect of AB, I am
satisfied that the work AD does is covered by the Agreement.
The NTEU is entitled to enrol AD as a member, they have the right to represent AD’s
industrial interests in respect to work covered by the Agreement and is therefore a
bargaining representative for the 2015 Agreement.
5. LF
LF only performs work in higher education. That work is not covered by the Agreement.
The NTEU was therefore not a bargaining representative in respect of LF.
6. RH
RH is a sessional teacher at a TAFE institute. The work RH performs falls within the
scope of the 2015 Agreement.
The AEU says the NTEU cannot enrol RH as a member by virtue of paragraph 6.2(h)(iii)
of the NTEU rules. I have dealt with the operation of that rule above and dismissed the
submissions of the AEU on that point.
I am therefore satisfied that the NTEU can enrol RH as a member and is entitled to
represent RH’s interests in respect to work covered by the 2015 Agreement.
I am therefore satisfied that the NTEU is a bargaining representative for the 2015
Agreement.
Conclusion
[155] On 26 November 2015 I issued a decision approving the 2105 Agreement, indicating
that the AEU was covered by the Agreement and that I would determine if the NTEU was
covered at a later date.
[156] For all of the reasons given herein I am satisfied that the NTEU was a bargaining
representative for the 2015 Agreement. Having made the appropriate application to the
Commission in accordance with s.183 of the Act I am satisfied that the NTEU is covered by
the Agreement and a further decision in relation to approval of the 2015 Agreement will be
issued in conjunction with this decision.
[2016] FWC 970
[157] I appreciate that, in reaching this decision, some parties may consider that it will make
staff management in respect of terms and conditions of employment, difficult. Not all
teaching and related staff within a TAFE will be covered by the Agreement. I would observe
however that it appears that the unions and employers with a real interest in this area have not
put their collective minds to the effect of the expansion of educational offerings by TAFEs on
the regulation of employees terms and conditions of employment. A variety of assumptions
have been made by different parties about the scope of the agreements that have been
negotiated with no apparent joint consideration of what work is performed within the TAFEs
and what this means for the scope of the 2015 Agreement. The AEU says it has been
bargaining with respect to the same scope for many years but it is not clear it has considered
the changing nature of who is employed by a TAFE what courses are delivered and by whom.
The VTA seems to have assumed a much broader coverage of agreements than the AEU has
understood to be the case and the NTEU has, until now, been content for the AEU to do the
work on negotiating agreements.
[158] I would note that it is not unusual, in a workplace context, for employees to move in
and out of coverage of an enterprise agreement depending on the work performed. A person
may be covered by a particular agreement but, by promotion or a period working in another
position, be covered by a different agreement. This does not make a workplace unworkable
but does require attention to the terms and conditions on which a person is employed with
clarity of when or how these might change.
[159] I am aware that bargaining for the next agreement to cover TAFE institutes is now
underway. This decision raises matters with respect to the need for clarity of coverage of the
future agreement the parties would be well advised to put their collective minds to.
COMMISSIONER
| Appearances: |
| L Gale of the NTEU. |
| H Borenstein and J Fetter of Counsel for the AEU. |
| W Spargo for the VTA. |
| Hearing details: |
| 2015. |
| Melbourne: |
| 18 December |
| Printed by authority of the Commonwealth Government Printer |
| <Price code G, PR577035> |
[2016] FWC 970
1
[2015] FWCA 8129.
2
Exhibit AEU1, attachments 3 and 4.
3
Exhibit AEU2, paragraph 15.
4
Transcript PN485.
5
Transcript PN438.
6
[2014] FWCFB 7447.
7
Transcript PN488.
8
Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241.
9
Kuck’s v CSR Limited (1996) 66 IR 182 cited in Amcor at [96].
10
2009 Agreement, appendices 2 and 4.
11
Exhibit A2, paragraph 14.
12
NTEU v Rusden Union Services(1995), Print L9465.
13
See Technisearch Limited and another (1996) 66 IR 38.
14
Transcript PN577.
15
Exhibit AEU1, paragraph 15.
16
Exhibit AEU1, attachment 5.
17
NTEU v CPSU (1999) 93 IR 365, [8].
18
Print S9084, [4]-[5].
19
Rusden Union Services, at p.6.
20
See, for example, the industry and/or eligibility rules of Australian Municipal, Administrative, Clerical and Services
Union; “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian
Manufacturing Workers’ Union (AMWU); Construction, Forestry, Mining and Energy Union; CPSU, the Community
and Public Sector Union.
21
(1996) 66 IR 38, at 44-45.
1