Application by Independent Education Union (South Australia) Incorporated

[2016] FWC 1057

[2016] FWC 1057

DECISION

Fair Work Act 2009

s.472 - Application for an order relating to certain partial work bans

Independent Education Union (South Australia) Incorporated

v

Catholic Schools Endowment Society Incorporated (Catholic Education

Office)

(B2016/265)

COMMISSIONER HAMPTON ADELAIDE, 23 FEBRUARY 2016

Application for an order relating to certain partial work bans – decision issued on substantive

matter – further hearing conducted – whether proposed reductions reasonable and consistent

with the statutory scheme – whether sufficient account taken of other work being performed

during partial work bans – refusal to attend meetings or undertake curriculum extension

activities – refusal to undertake relief teaching – nature of bans and context of enterprise

agreement considered – impact of approach to the assessment of the period of the bans and

the normal working day taken into account – proposed reductions unfair in relation to relief

teaching – Order issued modifying certain reductions – undertaking noted in relation to

notices issued to non-teachers – application granted in part.

1.          The initial decision and the remaining issues

[1]        This decision deals further with an application made by the Independent Education

Union (South Australia) Incorporated (IEU) under s.472 of the Fair Work Act 2009 (the FW

Act) for an order relating to certain partial work bans at six Catholic schools in South

Australia. These schools are being represented by the Catholic Schools Endowment Society

Incorporated, which is known as the Catholic Education Office.

[2]        This application was substantially dealt with in a decision issued on 15 February 2016

Independent Education Union (South Australia) Incorporated v Catholic Schools Endowment

Society Incorporated (Catholic Education Office) [2016] FWC 892 (the initial decision). The

context of the dispute is outlined in the initial decision and what follows should be read in

conjunction with that decision.

[3]        Without detracting from the detailed consideration and findings in the initial decision,

the context for this matter is that all but one of the employers at the six schools have given

notice to the employees of a reduction in salary that they propose to implement as a result of

the partial work bans. The IEU sought through the initial application to reduce those salary

reductions to zero on the basis that the notices were not valid under the FW Act. In the
[2016] FWC 1057

alternative, the IEU has sought a significant decrease in the salary reductions on the basis that

the employers’ proposals are not consistent with the legislation and are unfair.

[4]        The relevant Teachers and other employees working at the Catholic schools referred to

in this application are covered by the South Australian Catholic Schools Enterprise

1

Agreement 2013 (the Enterprise Agreement). The Enterprise Agreement has a nominal

expiry date of 31 July 2015 and since March 2015, the parties have been negotiating a

proposed new enterprise agreement under the terms of the FW Act.

[5]        IEU members at six Catholic schools took protected industrial action from 1 February

to 5 February 2016. The employers at five of the Catholic schools issued notices to the

relevant staff pursuant to s.471(1)(c) of the FW Act. These notices contained an explanation

of the proposed industrial action and the effect of the partial work bans, and notified all staff

that participation in some of the partial work bans would result in a percentage reduction in

their salaries. Further, the notices detailed the basis upon which the reductions would operate.

[6]        The validity of the s.471 notices, the “formula” adopted by the employer to calculate

the proposed reductions, and the fairness of these proposals are in dispute and were

comprehensively considered as part of the initial decision.

[7]        In the initial decision, I concluded as follows:

“[74] I have found, on balance, that the s.471 notices are valid and have been

provided in accordance with the FW Act and the FW Regulations.

[75]      I have also found that the employers’ approach to the calculation of the

proposed reductions is fundamentally compliant with the legislative scheme and

subject to one aspect, capable of operating fairly.

[76]      Given the nature of the outstanding issues that I have identified, the relative

novelty of the issues, the natural justice considerations, and the on-going importance

of the matter, I consider that I should provide an opportunity to the parties to be

further heard on those issues. These considerations outweigh the delay in the

finalisation of the matter and the consequential uncertainty.

[77]      Accordingly, I will expeditiously relist this matter to hear further from the

parties on the issues that have been outlined at paragraphs [70], [71] and [72] above

and any issues that directly flow from those matters. I will also grant liberty to both

parties to provide further evidence and submissions on the issue of the Education

Support Officers (and other non-teaching employees) in the event that s.471 notices

have been provided to them and the employers intend to make, or have made,

deductions in respect to these employees.”

[8]        The outstanding issues that were outlined in the initial decision, and required further

contributions from the parties, were as follows:

“[70] The calculation of the reduction by reference to the time during which the

partial ban has meant that the relevant (banned) work was not being performed, is a

rational and reasonable approach consistent with earlier decisions of the Commission.

[2016] FWC 1057

[71]      However, the formula and approach adopted by the employers involves, in

effect, a full reduction for the time of the banned work. That is, because the “usual

time” includes the actual period of the industrial action, there is no identifiable

allowance made for any (other) meaningful work that might be undertaken by the

employee during that time. There is limited factual material before the Commission on

this aspect; however, it is common ground that the bans being dealt with in this

application are partial work bans. If no other work is being performed during the

period of these bans, it may on the contrary, be reasonable to assume that these would

be work stoppages and not partial work bans. In this case, it may be appropriate to

proceed on the basis that at least some other work is being performed during what has

been agreed to be partial work bans.

[72]      I have not heard from the parties on this element or the implications of such for

the overall fairness of the calculation and the matter more generally. This includes

whether some (additional) allowance for the partial nature of the bans should be made.

That assessment must, of course, also take into account the rounding down of the

results to 7 per cent and the other factors discussed above. I will return to this aspect

shortly.”

[9]        The reference to the non-teaching staff concerns the following issue as set out in the

initial decision:

“[19] To the extent that Education Support Officers (or other non-teaching

employees) have participated in the bans on attending meetings or briefings, it would

be evident that the s.471 notices are not directed to their circumstances. That is, the

approach evident in the proposed reductions is based upon arrangements applying to

Teachers. This may mean that if any notices have been issued to the non-teaching

employees in the form provided to the Commission, these notices are likely to be

deficient to that extent. I grant liberty to both parties to provide further evidence and

submissions on that issue. I will however otherwise deal with this matter on the basis

that the s.471 notices apply to Teachers.”

[10]      This decision deals with all of the outstanding issues and the conclusion of the

application more generally.

2.          The contentions of the parties

2.1 The Independent Education Union

[11]      The IEU notes that the partial work bans cover the three regulated components of

work; being, Student Contact Time (SCT), Other Professional Activities (OPA) and

2

Curriculum Extension Activities (CEA). The IEU submits that when these three components

are not being performed because of a partial work ban, the Teacher concerned is undertaking

professional commitments, which are not regulated, as described in Appendix G.4.2.3 of the

Enterprise Agreement.

[12]      That is, if a Teacher is not performing SCT (due to partial ban on relief lessons) the

Teacher will continue with their normal Non-Contact Time activities, including the

performance of professional commitments, which is unregulated, but still required work.
[2016] FWC 1057

Furthermore, if Teacher is not performing OPA (due to a partial ban on attendance at

meetings/briefings), or a Teacher is not performing CEA (due to a partial ban on attendance at

a CEA activity), then the Teacher undertakes other (unregulated) professional commitments

that are required of them.

[13]      As an example, the IEU contends as follows in relation to relief lessons:

	A relief lesson is defined as a lesson or activity undertaken by a Teacher in lieu of
the Teacher that is usually assigned to that lesson or activity;
	A relief lesson will be taken at the direction of the employer instead of usual work
and professional commitments;
	A Teacher can only be assigned a relief lesson if they are undertaking Non-Contact
Time, which is defined as the amount of time provided during timetabled time
where the Teacher is self-directed in the undertaking of professional commitments
in the support of their teaching or pastoral care;
	Professional commitments include required activities that are not regulated, such as,
marking, course/subject preparation, moderation, report writing and religious
observances and spiritual activities;
	Professional commitments are required, non-optional work that must be performed;
	Professional commitments and other unregulated work are a major component of a
Teachers’ work and constitutes the second largest component of work after SCT,
and is greater than OPA or CEA;
	Therefore, if a Teacher is directed to conduct a relief lesson and refuses, they will
still be doing normal work at the normal time and in the normal place such as
marking, assessing, programming and preparation; and
	As a result it is unreasonable and unfair for a full salary deduction to apply to the
partial ban on relief teaching.

[14]      The IEU also submits that the employers consider that the undertaking relief lessons

does not involve the full extent of work undertaken by other Teachers, and point to the basis

3  4

of the payments to casual and part-time Teachers under the Enterprise Agreement.

[15]      The IEU contends that whilst professional commitments and other unregulated work

are acknowledged as a component of Teacher’s work, they do not feature within the formula

used by the employers to determine the salary deductions for the partial work ban. The IEU

speculated that if these are not taken into consideration, future protected action ballot orders

would need to be lodged in relation to bans or partial bans on marking, report writing and

other non-regulated work. Furthermore, such bans or partial bans should only attract a zero

reduction in salary based on the employers’ approach.

[16]      On that basis, the IEU submits that to exclude the unregulated and professional

commitments work of Teachers from the formula to determine what salary reduction should

apply, means that the formula is flawed. Additionally, the formula does not take into account

the required, regulated Professional Development of Teachers, which is 5 days per year.

[2016] FWC 1057

[17]      The IEU fundamentally contends that a full salary deduction should only occur where

a full stoppage/work ban occurs so as to distinguish between the two types of bans. Further,

the formula does not differentiate between the different actions of a Teacher or the

meaningful work done by the Teacher.

[18]      In addition, the IEU submits that relief teachers, who undertake five or less

5

consecutive days of work in the school, are paid at Band 1 Step 3 annual salary regardless of

their actual classification. This, the Union suggests, is due to the fact that a relief teacher is

not required to perform the unregulated work associated with the lesson. The relief teacher

can be required to undertake some OPA, for example, yard duties; however, meetings are

optional if they occurred on the day in which they work.

[19]      The IEU contends that to deduct a full salary for a partial work ban related to relief

lessons, and for the other partial work bans, is unreasonable and unfair. To make the reduction

fair it must be a fraction of the proposed amount, otherwise there is the potential for the

employer to benefit in two ways; being the full retention of part of the salary and the usual

work still being done.

[20]      Additionally, the IEU raises the concern that if an employee activates a partial work

ban but only by refusing to undertake work offered then it might attract unwanted

consequences, including the employer circumventing the proposed industrial action by

selectively approaching Teachers who would refuse because of the ban, or alternatively,

approaching only non-IEU members. In that regard, the IEU referred to an understanding that

it will, in the event of future industrial action, advise the employers which of its members will

be involved.

[21]      In relation to the non-teaching staff who may have participated in partial work bans,

the s.471 notices provided by the employers related only to Teachers wages and the IEU

contends that as such notices do not comply with the legislation and that no reductions should

take place for such employees.

2.2 The Catholic Education Office

[22]      The employers contend that the formula that has been arrived at is fair and reasonable

and that no further modifications are required. Whilst there is no precise calculation, the

employers have significantly rounded down the final percentage figure of the reductions in the

interests of trying to make the amount deducted as fair as possible. The employers reject the

notion that the unregulated work takes up more time for Teachers than OPA and CEA.

[23]      The employers submit that in the 5.5 hours allocated as the teaching day, it comprises

of both SCT and Non-Contact Time, including marking and preparation time. The employers

submit that it is not possible to take any more unregulated time into account, as it varies a

great deal between Teachers, and is at the Teacher’s discretion. The employers contend that it

would be unfair to require the introduction of a further specific component into a formula that

is already conservative and has been rounded down to take into account the other work that

Teachers do. In any event, this would be “too difficult” and all reasonable factors have

already been taken into account.
[2016] FWC 1057

[24]      With respect to the 5.5 hours that make up the teaching day, the employers contend

that this does not mean that the Teacher concerned is in front of a class for all of that

5.5 hours, because this allocation includes provision for Student Contact Time (22 and a half

hours a week for secondary and 24 hours a week for primary teachers) and also Non-Contact

Time when some of those unregulated professional commitments are undertaken.

[25]      The employers did not accept the IEU’s analysis of the relief teaching arrangements

and contend that the adoption of the single rate with the Enterprise Agreement for some of

this work was a negotiated matter and took into account a number of factors, not simply the

narrower range of duties that may be involved.

[26]      The Catholic Education Office rejected the notion that the employers might seek to

circumvent the ban on relief teaching and indicated that they had provided the s.471 notices to

all Teachers because they do not know who the IEU members were that might be taking the

industrial action. Furthermore, in terms of not allocating relief lessons to IEU members, the

employers contend that this is not a practical issue as reliefs are only offered to those who

have non-contact time and might well be allocated by a union member who was in charge of

allocating the reliefs in the school.

[27]      The employers confirmed their position, which was not disputed by the IEU, that each

of the bans that were subject to the s.471 notices were partial work bans within the meaning

of the FW Act. They also submit that they do not know whether the Teachers undertake other

work during the partial work ban period, and even if the Teacher did undertake other

activities, this is not the specific task that has been assigned by the employer at that specific

time. Accordingly, any other work does not off-set the damage caused by the partial work

ban, and the proportion of wages that is deducted is proportionate to the impact that is likely

to occur during the partial work ban. That is, the carrying out of marking by the Teacher at

that time might be beneficial for them, but it’s value to the employer does not compare with

the disruption, inconvenience and cost that may be incurred if the Teacher does not take an

allocated relief lesson or fails to perform extracurricular activities with the students. The

6

employer referred to the approach adopted by the Commission in Bowers v Victoria Police	to
support this notion.

[28]      Furthermore, the employers contend that it would be unfair to further discount the

proposed reductions given that the Teachers concerned are not performing the work required

of them during the partial work ban and the existing “formula” adopted by them means that

the reductions have already been significantly discounted.

[29]      In relation to the non-teaching staff, the employers submit that the notices should not

have been supplied to these employees and that the partial work bans only apply to Teachers.

The only partial work bans that are relevant to Education Support Officers (ESOs) are those

which relate to wearing T-Shirts and badges, and these are not the subject of the issued partial

work ban notices.

[30]      The Catholic Education Office indicated that if any non-teaching staff had accidentally

or unintentionally been served with a s.471 reduction notice, the intention of the employers

was not to make a reduction in their wages. In that light, the employer provided an

undertaking to the Commission that there would be no reductions based upon the current

notices for non-teaching staff and that if any deductions from wages had already occurred,

these would be redressed.

[2016] FWC 1057

3.          Consideration

[31]      The present task of the Commission has been comprehensively set out in the initial

decision. In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v

7

ASC Pty Ltd,	Bartel DP also summarised that role as follows:
“[32] Section 472(3)(a) of the Act requires FWA to examine the proportion
specified in the notice given by the employer with a view to determining if it
was reasonable having regard to the ‘nature and extent of the partial work ban
to which the notice relates’. In my view s.472(3)(a) requires FWA to consider
more than whether the employer’s estimate of the usual time spent performing
the work that has been banned was reasonable. It is apparent by the inclusion
of s.472(3)(b) of the Act that, in considering an application for an order
varying the proportionate reductions determined by the employer, FWA is to
consider a range of matters that are broader than the calculation undertaken by
the employer. As such there is no reason to read s.472(3)(a) narrowly or to
interpret it other than in accordance with the ordinary meaning of the words
contained within it. Part of the consideration of ‘fairness between the parties
taking into account all of the circumstances of the case’ as required by
s.472(3)(b) of the Act will include a consideration of, but is not limited to the
matters set out in s.472(3)(a) of the Act.”

[32]      The issue of other work being performed by employees during a partial work ban was

8

considered by Roe C in Bowers v Victoria Police. That matter focused on two forms of

partial work ban involving a refusal to attend meetings and a ban upon participating in

screening activities that had the effect that the Prosecutors concerned did not attend court

proceedings on time.

[33]      It is reasonably apparent that the Prosecutors concerned were not performing their

normal duties when participating in the ban on screening activities, but in relation to the

meetings, the following findings were made:

“[35] I accept that it is probable that some work related discussion and activity took

place during the ten minute meeting and that the employer should have regard to the

fact that in the notice Sergeant Bowers advised that the purpose of the meeting was to

“discuss activities relating to prosecutions.” However, I am satisfied that this activity

was not occurring at the normal time and place and it was not in the time and place

desired by the employer. Furthermore, for the reasons discussed earlier I do not

consider this to be the primary purpose of the activity and Victoria Police were right to

make the assessment that this was not the primary purpose. Adopting the approach

taken by Commissioner Deegan in the ACTION case, I have asked did the employer

have reasonable expectation of the benefit of significant productive work during the

period of the partial work ban and or was the productive work likely to be performed

likely to offset the damage or disruption of the partial work ban and or was the

proportion of wages deducted disproportionate to the damage or disruption likely to

occur? If this had been the case then I would have grounds to consider that 100%

deduction for the time of the meeting action was inappropriate. However, after

considering all the circumstances I do not regard this to be the case.”

[2016] FWC 1057

[34]      In order to deal with the remaining issues in this matter, it is necessary to consider the

basis of the proposed reductions before dealing with the detailed issues left to be resolved. In

the initial decision, I found as follows:

“[65] The terms of regulation 3.21 have been set out earlier in this decision. It

contemplates an employer calculating the reductions for an employee, or class of

employees, by following three steps. These steps are:

	Identifying the work an employee or class of employees is failing or refusing to
perform (or is proposing to fail or refuse to perform);
	Estimating the usual time that the employee or the class of employees would
spend performing the work during a day; and
	Working out the time estimated in Step 2 as a percentage of an employee’s
usual hours of work for a day.

[66]      The reduction is the proportion by which the employee’s payment will be

reduced for a day.

[67]      Consistent with the approach adopted earlier in this decision, I do not consider

that the “usual time” that the employee or the class of employees would spend

performing the banned work during a day means that the activities concerned should

be considered over the whole school year or some other period. That is, the focus of

the steps in Regulation 3.21, and the provision more generally, is upon a day. In

circumstances where the work that is subject to the ban is worked irregularly and not

by all of the employees, it would be unworkable and unfair for the “usual time” not to

be considered with respect to the day concerned with the ban. Accordingly, what the

“usual time” means will depend upon the nature of the ban and whether the employee

concerned is otherwise required to perform that work on the day in question. To

average the requirement out as contended by the IEU would not be consistent with the

approach in, and apparent purpose of, the provision and would in any event not

represent a reasonable or proportionate reduction in salary. Presumably, if considered

in the manner contended, it would also apply to Teachers who were not in fact acting

on the ban at that time. Such an outcome would not be consistent with the scheme of

the FW Act.

[68]      The employers’ approach to the usual hours of work does not use the teaching

or “payroll” hours of 5.5 per day, but rather takes reasonable account of the CEA and

OPA. I acknowledge that this has meant making an overall provision for the annual

CEA and OPA and that this contrasts to the approach I have taken with respect to the

assessment of the estimated usual time for the banned work. However, these are

different concepts and apply in different ways, and not to include those elements in

some manner would not be consistent with the intention of the provision when applied

in the present context. In any event, not to include some provision for the CEA and

OPA in the usual hours of work would be unfair to the Teachers, and if not done

through the formula, this would be a matter that the Commission would otherwise

have regard to in the present exercise of discretion.

[69] I accept that the full extent of OPA, and potentially other unregulated work,

undertaken by the Teachers has not been included in the calculation of “usual time”
[2016] FWC 1057

spent performing work on that day. However, this is difficult to assess given that

nature of the work and the fact that these matters only partially regulated by the

Enterprise Agreement. Importantly, the rounding down of the deduction to seven per

cent indirectly takes account to some degree of the fact that other factors, such as the

unregulated work, may not have been expressly included.”

[35]      The reference to the “rounding down” above, arises from the fact that the employers’

“formula” produces a proposed reduction of 7.9 per cent and 7.6 per cent of the “daily” salary

for the various categories of Teachers and this has been rounded down to 7 per cent in all

9

cases. I note that the exact reductions for each category of Teacher were set out in an

attachment to each s.471 notice.

[36]      The Enterprise Agreement contains comprehensive provisions dealing with hours of

work and workload commitments for Teachers. Appendix G Workload of the Enterprise

Agreement sets out the arrangements for the various categories of work including some that

are regulated (as to time and/or extent) and others that are not regulated in that way, or only

partially so. The unregulated or partially regulated work activities are still work

responsibilities required of the Teachers.

[37]      The following definitions set some of the context for the operation of the various

provisions:

“G.3.	DEFINITIONS
G.3.1	Curriculum Extension Activities means activities of the nature of those
listed in sub-clause GA.3 requiring a Teacher's attendance at the School
or elsewhere either within Non-Timetabled Time or outside of the
school's Span of Hours.
G.3.2	Duties means the supervision of students undertaking activities, including
lunch and recess breaks, outside of Timetabled Time.
G.3.3	Meetings and Briefings: means all such events, however titled, which a
Teacher is required to attend.
G.3.4	Middle School means Marymount College and Sacred Heart College
Middle School.
G.3.5	Non Contact Time means the amount of time provided during
Timetabled Time where the Teacher is self-directed in the undertaking of
professional responsibilities in support of their teaching or pastoral care.
Non Contact Time is the difference between Timetabled Time and
Student Contact Time.
G.3.6	Non-Timetabled Time means time within the Span of Hours, but outside
of Timetabled Time.
G.3.7	Off Line Lessons means lessons and related activities provided in part or
wholly outside of Timetabled Time.
G.3.8	Other Professional Activities means activities undertaken (consistent
with subclause GA.2) by the Teacher directly related to the profession of
teaching. A Teacher may be required to attend to these activities at
specified times outside of Timetabled Time usually, but not always,
within Non-Timetabled Time.

[2016] FWC 1057

G.3.9 Preparation/Professional Development means preparation, training,

professional development, or study undertaken at the employer's

instruction. It may be included in Other Professional Activities where the

employer approves the inclusion in the required time.

G.3.10	Professional Commitments means required activities which are directly
related to teaching and also to teaching in a Catholic school but which are
not regulated.
G.3.11	Relief Lessons means lessons or activities undertaken by a Teacher in
lieu of the Teacher usually assigned to that class or activity.
G.3.12	Span of Hours means the times between which a Teacher's work is
usually performed. It is not the usual daily starting time or the usual daily
finishing time and does not indicate the usual span of attendance each day.
The Span of Hours in the Technical Colleges will be 8 am to 9 pm for
optimum use of their specialist facilities but all other provisions of this
Appendix apply except where stated.
G.3.13	Special School means Our Lady of La Vang School and St Patrick's
Special School.
G.3.14	Student Contact Time means the total amount of time from Timetabled
Time that a Teacher is scheduled to exercise responsibilities (as listed in
G4.1) either with individual students or with specified groups of students.
A Teacher who is assigned a less than full teaching load may be required
by the employer to undertake other activities up to the usual amount of
Student Contact Time.
G.3.15	Timetabled Time means the total amount of scheduled time available in
the timetable, exclusive of meal breaks. It is the total of Student Contact
Time and Non-Contact Time. Timetabled Time for a Teacher
commences from the time when the Teacher is first required to attend
class or receive students in the morning until the Teacher is free to leave
the classroom in the afternoon following the dismissal of students.
G.3.16	Varied by Agreement means that the matters specified may be varied to
the extent indicated by way of consensus, or in the absence of consensus
by way of a ballot which shall be conducted jointly by the Principal and
accredited IEU (SA) worksite representative or a staff representative
where no IEU (SA) worksite representative exists or where the IEU (SA)
representative is not able to conduct the ballot.”

[38]      The weekly and daily requirements set out in Appendix G include timetabled time

(with specified student contact time), non-contact time, relief lessons, non-timetabled time,

off-line lessons, OPA, CEA and preparation/professional development (PD) days.

[2016] FWC 1057

[39]      The nature of the work associated with some of these weekly and daily requirements is

further clarified by clause G.4 of Appendix G in the following terms:

“G.4 TASK IDENTIFICATION

G.4.1 Student Contact Time activities comprise:

(i)          lessons and associated activities eg ‘practical’ lessons, excursions,

guest speakers

(ii)         pastoral care lessons, attendance in class with students (home room

period), administration period, supervised lunch eating in primary

classrooms or special units

(iii)        library, study hall, examination supervision, computer lab, time-out

room, etc supervision

(iv)        assemblies, year level or house gatherings of students

(v)         regular timetabled supervision in Timetabled Time.

(vi)        tasks allocated to specialist Teachers in Timetabled Time

(vii)       liturgies and sport in Timetabled Time

(viii)      other activities of a similar nature as directed.

G.4.2 Other Professional Activities comprise:

G.4.2.1 Supervision duties

(i)          supervision of students - other than that undertaken with the teacher's

allotted class/group in Timetabled Time.

G.4.2.2 Meetings and briefings required or approved by the employer such as:

(i)          staff/faculty/team/subject/curriculum/campus, etc meetings

(ii)         representational responsibilities such as OH&S Committee,

Consultative Committee, School Board (including union representation

on such bodies)

(iii)        parent information evenings/afternoons

(iv)        scheduled parent teacher meetings but excluding informal one-on-one

meetings

(v)         planning meetings

(vi)        other activities of a similar nature as directed.

G4.2.3 Professional Commitments (not regulated) such as:

(i)         course/subject preparation

(ii)        marking/assessment

(iii)       moderation

(iv)        report writing

[2016] FWC 1057

(iv)       religious observances and spiritual activities as described in sub-clause

G.2.7.8

G.4.3 Curriculum Extension Activities comprise activities such as:

(i)          school camps and retreats

(ii)         excursions

(iii)        sporting activities, Pedal Prix

(iv)        social and/or cultural events

(v)         speech days/nights, graduation ceremonies

(vi)        debating, Tournament of Minds

(vii)       rehearsals for school productions, concerts, choirs

(viii)      open days, fetes, and similar activities

(ix)        other activities of a similar nature, as directed.”

[40]      There are three types of partial work bans at issue in this matter. Meetings and

briefings form, in general terms, part of the regulated OPA. CEA have separate provisions and

involve, amongst other parameters, an ability for a school to require Teachers to undertake

“reasonable” CEA work. If those requirements are consistent with Schedule 1 of Appendix G,

they will be considered to be reasonable. Schedule 1 provides a range of commitments

involving, in general terms, allowance for up to 20 or 30 hours per year of CEA (depending

upon the school) within the existing salary and work arrangements, and additional payments

and arrangements for work required beyond that commitment. Additional CEA may be

undertaken on a voluntary basis.

[41]      The undertaking of relief lessons is set out in part in clause G.2.3 in the following

terms:

“G.2.3	Relief Lessons
G.2.3.1	Teachers may be required to undertake Relief Lessons in Non Contact
Time but subject to the following conditions:
(i) Where the absence of a Teacher is likely to be prolonged, other

Teachers will not normally be required to undertake the duties of

the absent Teacher.

(ii)        Where a Teacher is absent due to attendance at employer

instigated activities such as conferences and school camps, the

remaining Teachers will not be required to undertake the duties of

the absent Teacher if this would involve them exceeding the

normal teaching load at the School.

G.2.3.2

The total amount of Relief Lessons shall not exceed

(i)	20 hours per year for secondary Teachers
(ii)	15 hours per year for primary school Teachers
(iii)	For middle and special Schools the number of hours will be

averaged.

[2016] FWC 1057

G.2.3.3	A secondary Teacher shall not be required to undertake more than 6 hours
of Relief Lessons in anyone school term. A primary Teacher shall not be
required to undertake more than 4.5 hours of Relief Lessons in anyone
school term.
G.2.3.4	The undertaking of Relief Lessons shall not count towards the totals
expressed in sub-clause G.2.3.2 where the relief is undertaken within the
'relieving' Teachers' normal amount of Student Contact Time.
G.2.3.5	The allocation of Relief Lessons to part-time Teachers shall be on a pro-
rata basis.”

[42]      I note that additional provisions are set out in the Enterprise Agreement for casual

Teachers, and those circumstances where a temporary increase in teaching hours occurs for

10

other Teachers, in the context of relief teaching. These provisions include using a particular

daily rate, being the Band 1 Step 3 annual salary for all such work that in performed by any

level of part-time or casual Teacher provided that it does not extend beyond 5 consecutive

11

school days.

[43]      In my view, there are particular features of relief teaching that impact upon the present

exercise of discretion and I will come to those features shortly.

[44]      Having regard to all of the circumstances, including those set out comprehensively in

the initial decision, I accept that there is sufficient allowance already built into the employers’

approach to reasonably recognise that other work may be undertaken by the Teachers during

the time of the partial bans associated with CEA, and the non-attendance at

meetings/briefings, and to take account of the other factors bearing upon the present issue.

Further, I accept that the proposed reductions with respect to these partial work bans are

reasonable. I also continue to accept, for reasons largely set out in the initial decision, that this

approach, including the rounding down, makes sufficient allowance for the fact that not all

OPA and PD work has been expressly included in the “formula”.

[45]      However, because of the nature of the relief teaching, how that work and the bans

operate in practice, and how this work is dealt with under the Enterprise Agreement, I

consider that the “full” reduction of 7 per cent for the estimated (full) duration of the bans on

such work is not reasonable, despite the rounding down and other elements of the “formula”.

The factors leading to that conclusion include that in general terms, a Teacher can only be

assigned a relief lesson if they are, in effect, undertaking Non-Contact Time, which is defined

as the amount of time provided during timetabled time where the Teacher is self-directed in

the undertaking of professional responsibilities in the support of their teaching or pastoral

care. In that context, the likelihood of other genuinely productive work being performed at

that time is very high in the case of the partial ban on undertaking relief lessons. As

referenced above, I acknowledge that some of the other partial work bans involve work that

may also take place during Non-Contact Time. However, the context in which the relief

teaching arises, and the requirements surrounding when that work is undertaken and how such

work is treated by the Enterprise Agreement, are in my view different to that operating with

respect to the other partial bans considered in this matter (and those dealt with by Roe C in

Bowers v Victoria Police).
[2016] FWC 1057

[46]      The IEU proposes that, in effect, a very low (or no) reduction should take place

because the Teachers are performing other duties during the partial bans. Consistent with the

approach taken in Bowers v Victoria Police and the other authorities cited in the initial

decision, the probable consequences of the partial bans for the schools concerned militates

against such an approach. That is, the Teachers are not performing the work that is required of

them by the employers during the period of the partial ban and this has consequences for the

schools concerned. In such circumstances, a reasonable reduction from salaries may be

applied consistent with the scheme of the FW Act.

[47]      Accordingly, I consider that as a matter of discretion the Commission should issue an

order modifying the s.471 notices in terms of the reduction that is to be made with respect to

the ban on undertaking relief teaching. In all of the circumstances, a reduction of five per cent

(of the “daily salary”), applying the approach that is otherwise set out in the s.471 notices, is a

better and more reasonable reflection of the balance of considerations involved. The factors

going to the level of the revised reduction are those that have been set out earlier in this

decision. This involves all of the relevant circumstances including the nature and import of

the “formula” and approach adopted by the employers - when applied to the ban on

undertaking relief teaching in the context of that work, the likely consequences of that ban,

and the particular treatment of relief teaching within the Enterprise Agreement.

[48]      The adoption of the five per cent figure represents a modification of approximately a

third in the amount of the salary reduction attributable to the ban on undertaking relief

teaching. This, in my view, takes reasonable account of the various factors and considerations

set out above.

[49]      I have also considered whether the above findings, and the additional submissions of

the parties, should lead to a revision of the earlier findings about the validity of the notices.

The approach that I have adopted to the assessment of the reasonableness of the proposed

reductions is consistent with that taken in the initial decision and does not mean that the

notices were invalid or inconsistent with the requirements of the FW Act and

FW Regulations.

[50]      Rather, my conclusions in this decision are that the application of the formula as

adopted by the employers, whilst being consistent with the FW Act and FW Regulations,

results in an unreasonable reduction when applied to one of the particular partial work bans

given the circumstances applying to that work under the Enterprise Agreement. Making an

order to deal with that finding is consistent with the scheme of the FW Act and the discretion

expressly given to the Commission under s.472.

[51]      In terms of the non-teaching staff, I note that there is a dispute about whether any such

employees have participated in the bans on CEA and it is not clear whether they have been

provided with the notices. It is also not clear whether any non-teaching staff have participated

in the bans on attending meetings and briefings however this is certainly possible. In any

event, in light of the undertaking provided by the Catholic Education Office, the IEU did not

press for orders on that issue. The undertaking is appropriate given the probable deficiencies

with the current form of s.471 notices if applied to the non-teaching staff and the acceptance

of that undertaking by the IEU is also constructive.

[2016] FWC 1057

4.          Orders

[52]      Orders dealing with the modifications of the reductions to give effect to this decision

12

are being issued today. These orders apply with respect to the s.471 notices issued by the

relevant employers to the extent that they provide for a reduction in relation to the partial bans

impacting upon relief teaching. The reduction in these circumstances will be five per cent in

lieu of the seven per cent as set out in those notices. The s.471 notices are otherwise not

modified by this decision.

[53]      Liberty is granted to the parties to apply with respect to any technical drafting issues

concerning the Orders made.

COMMISSIONER

Appearances:

F Bernardi on behalf of the Independent Education Union (South Australia) Inc.

Y Webb, with permission, for the Catholic Church Endowment Society Inc (Catholic

Education Office) on behalf of the employers concerned.

Further hearing details:

2016

Melbourne with a video link to Adelaide

February 17.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR577152>

5

Referred to in Clause 31.6 of the Enterprise Agreement.

6

[2011] FWA 6960.

7

[2012] FWA 1377.

8

[2011] FWA 6960.

9

See initial decision at [62].

10

Clauses 28 and 31.

11

Clause 31.6; see also clause 28.3.

12

PR577257.

1

AE405996 approved on 19 December 2013.

2

CEA is regulated by the Enterprise Agreement as part of the Teacher workload provisions of that instrument – Appendix G.

3

Clause 31.

4

Clause 28.