Application by Independent Education Union (South Australia) Incorporated
[2016] FWC 892
•15 February 2016
[2016] FWC 892
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, 15 FEBRUARY 2016 |
Application for an order relating to certain partial work bans – bargaining period – protected
industrial action notified and taken – employers give notice to employees of intention to
reduce salaries as a result of partial work bans – whether notices valid and contain
prescribed content – whether notices must be provided to the bargaining representative as
well as the employees – notices found to be valid and properly provided – whether proposed
reductions in accordance with the legislative scheme and regulatory requirements – proposed
approach and reductions generally sound – whether sufficient allowance made for productive
work during the period of the partial work ban – novel issue – appropriate and necessary to
hear further from the parties – matter to be expeditiously relisted – liberty to apply in the case
of non-teaching staff.
1. The application and the context in which it has been made
[1] The Independent Education Union (South Australia) Incorporated (IEU) has made an
application 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] 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 seeks through this application to reduce those salary reductions to zero on the basis that
the notices are not valid under the FW Act. In the 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.
[2016] FWC 892
[3] 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. A single interest authorisation was granted to the Catholic
2
| Education Office on 19 March 2015, | to allow employees at 16 entities to bargain together for |
| a proposed new enterprise agreement. |
[4] A Notice of Employee Representation Rights was distributed to the employees
covered by the proposed new agreement in late March 2015 and negotiations commenced
early in April 2015.
3
| [5] | The IEU subsequently gained orders for protected industrial action ballots, | which |
endorsed the taking of a range of work bans and limitations. Extensions of the period for the
4
taking of protected industrial action were granted on 7 January 2016.
[6] IEU members at the following six Catholic schools took protected industrial action
from 1 February to 5 February 2016:
Sacred Heart College (Senior School) Cabra Dominican College St Francis of Assisi School Blackfriars Priory School St Joseph's Memorial School Kildare College [7] I note that the IEU has also advised that its members will continue to take protected
industrial action in the coming weeks.
[8] Following the notification of planned industrial action by the IEU, the Catholic
Education Office unsuccessfully sought to prevent two of the form of protected industrial
5
action from being taken.
[9] The employers at five of the schools named above 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.
[10] 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 need to be
determined as part of this application.
2. The notified bans and the s.471 notices that have been issued
[11] There are various forms of bans that the IEU has notified to the employers. They can
be conveniently grouped as follows:
Wearing campaign badges stickers and particular clothing including T shirts;
[2016] FWC 892
Not attending (all or part of) morning briefings or whole of staff meetings
including as part of Other Professional Activities (OPA) as defined by the
6
Enterprise Agreement;
7
Not undertaking Curriculum Extension Activities (CEA) for a day or part of a day; Not taking relief lessons as provided for in clause 6.3.11 of the Enterprise
Agreement; and
Stoppages of work for various periods.
[12] It is common ground between the parties that each of these forms of ban, with the
exception of the work stoppages, are partial work bans within the meaning of s.470(3) of the
FW Act.
[13] On 21 and 22 January 2016, the IEU notified the Catholic Education Office of the
intention to take protected industrial action at each of the six schools. The following is an
example of the notification provided in relation to the proposed protected industrial action at
Blackfriars Priory School:
“I write to advise that commencing Monday 1st February 2016 members of the
Blackfriars Priory Branch of the IEU will take protected industrial action in the manner
described in Question 1, 2, 3, 4 and 5 of the ballot.
Specifically the actions and the dates on which they will occur are -
• Wearing campaign badges and/or T-Shirts during the week commencing Monday 1st of February
• Not attending morning briefing on Thursday 4th of February • Ban on CEA on Thursday 4th of February • Ban on taking of relief lessons on Monday 1st of February • 30 minute work stoppage (including supervision duties) from beginning of student recess break on Thursday 4th of February”
8
[14] Following the receipt of these notices each school (apart from St Francis of Assisi)
issued s.471 notices to staff in relation to the notified protected industrial action. The details
9
| of some of the notices vary, however, the following example | is representative of the notices |
| issued: |
“NOTICE OF REDUCTION IN PAYMENTS
28 January 2016
Partial work bans
Notice under section 471(1)(c) of Fair Work Act 2009
The Independent Education Union (South Australia) Incorporated has notified the
school that its members at this school will engage in:
• Not attending morning briefing on Thursday 4 February;
[2016] FWC 892
• Ban on taking Curriculum Extension Activities ('CEA') on Thursday 4 February;
• Ban on taking of relief lessons on Monday 1 February.
This notice will take effect from the later of:
(i) The start of the first day of the partial work ban; and
(ii) The start of the first day after the day on which the notice is given to the
employee, if the employee performs work on that day.
This notice will cease to have effect at the end of the day on which the partial work
ban ceases.
Please be advised that if you engage in the partial work bans specified above, your
payments will be reduced by 7% for each half hour on each day you engage in the
partial work ban.
This is based upon an estimate of the usual time that the employer considers an
employee would spend during a day performing the work that is the subject of the
work ban.
The amount by which the employee's payments will be reduced for each half hour of
each day that you engage in the work ban will be the amount as detailed on the
attached schedule.
If you have enquiries about this matter please contact the Principal.”
[15] Each of the notices issued by the employers also had a schedule appended that sets out
the dollar amount of the half hour reduction relevant to each of the classifications and levels
10
of Teachers under the Enterprise Agreement.
[16] The IEU sought clarification about the intended operation of the reductions and the
Catholic Education Office and the Union exchanged emails in that regard in the lead up to this
application, and subsequently.
[17] It is not necessary or appropriate for the Commission to deal with the work stoppages
as these do not fall under the scope of this application, which is dealing with partial work bans
as defined by the FW Act. Further, the bans associated with the wearing of campaign badges
and T-shirts have not led the employers to issue s.471 notices and as a result I also do not
need to deal with any issues arising in that context.
[18] The bans for which notices have been provided generally involve the work performed
by Teachers under the Enterprise Agreement and although Education Support Officers and
other classes of employees are members of the IEU, there is no evidence that these employees
have participated in the industrial action associated with the conduct of CEA or OPA.
[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
[2016] FWC 892
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.
3. The contentions of the parties
| 3.1 | The Independent Education Union |
[20] The IEU submits that the notices provided to the employees at the five schools were
deficient on a number of grounds. The IEU contends that:
the employers did not provide the notice, or take reasonable steps to provide the
notice, to the employees’ bargaining representatives and this was a requirement of
ss.471(7) and (8) of the FW Act;
the notices did not specify an estimate of the usual time an employer considers an
employee would spend during the day performing the work that is the subject of
the work ban as required by the Fair Work Regulations 2009 (FW Regulations);
the amount to be deducted from the employees’ wages as stated in the notice was
unclear and did not identify the specific amount by which the employees’ salaries
would be reduced for each partial work ban that the employee engages in,
breaching of the requirements of s.471(2) of the FW Act; and
there was an absence of calculations and details of deductions for relief lessons in
the notices, which is problematic and unclear to the employees given their sporadic
and unpredictable nature and occurrence of the work requirement.
[21] In terms of the basis of the proposed reductions relied upon by the employers, the IEU
contends that this basis does not comply with the requirements of the relevant
FW Regulations and produces a result which is unfair. Amongst other matters, it contends
that:
the formula on which the schools relied in calculating the reductions was flawed
and this contravenes regulation 3.21 of the FW Regulations;
the estimate applied to the work that is subject to the partial bans was not correctly
assessed or applied;
the estimated time of relief lessons, for example, should be calculated based on
performance over a whole school year which is 40 weeks, taking into account the
maximum amount of relief teaching hours that can be undertaken for that year (20
hours for secondary schools, 15 hours for primary) and divided by the days per
week, which the IEU contends would equate to 6 minutes per day for high school
teachers and 4.5 minutes for primary school teachers;
the assessment of the “usual working day” was not reasonable as it used the
maximum obligations of the employee and did not take into account the
unregulated professional commitments expected of teachers including subject
preparation, marking, assessment, report writing, religious observance and spiritual
activities;
[2016] FWC 892
the “usual working day” should be based on a 7.6 hours per day (38 hour week) for
teachers in accordance with the NES and 7.5 hours per day (37.5 hour week) for
ESOs in accordance with the Enterprise Agreement;
reductions should only be applied to (no more than) the actual time that the limited
bans impacted upon the work in question; and
pro rata reductions should take place for part-time employees.
[22] As a result of the above contended non-compliance with the requirements, the IEU
submits that the schools should make no deductions from salaries for the protected industrial
action that is the subject of these notices, and that the Commission should, in effect, reduce
the amount to zero. Alternatively, the IEU contends that should the Commission find that the
notices were valid and that a reduction should occur, then the amount should at least be
reduced in line with its preferred approach.
| 3.2 | The Catholic Education Office |
[23] The employers submit that the notices are valid and that the proposed reductions are
fair and in line with the requirements of the FW Act and FW Regulations, and that the
Commission should not interfere with the notices.
[24] In relation to the validity of the notices, the employers contend that:
they have complied with the requirements in s.471(1)(c) by providing the notices to
IEU members at the each school;
the IEU’s contention that the notices must also be provided to an IEU “official”
who is not working in a school, is in any event flawed as s.471(7) of the FW Act is
a default or deeming provision;
the contents of the notices comply with each of the steps and other requirements set
out in FW Regulations, including the intention to make a reduction, the estimate of
the time involved with the work subject to the partial ban, and the amount of the
reduction by reference to a percentage of the “daily” salary and a schedule of
reductions for each Teacher classification; and
there has never been any suggestion that the proposed deductions would be
compounded and apply over a full day.
[25] In relation to the calculation of the salary reductions, the employers contend that:
the reduction is conservative, fair and reasonable in all of the circumstances as
s.472 of the FW Act requires;
the usual time that the employee would spend performing the work during the day
is the duration of the relief lesson required or the actual time that the partial work
ban prevents the work being undertaken. For example, if the relief lesson has a
duration of 30 minutes, this would be the usual time that the employee would spend
performing the work during a day when a relief lesson is required;
the time by which the employee's payment will be reduced is 7% for each half hour
(or part thereof) on each day of engaging in industrial action (partial work ban)
divided by the number of minutes in a typical day and the result has then been
rounded down;
[2016] FWC 892
the calculation of the typical work day makes allowance for the fact that the
5.5 hour day, which is used for the payment of Teachers’ salaries, does not
accurately reflect the time taken by teachers to fulfil their employment
requirements and appropriate allowances have been made for CEA and OPA;
the employers’ method of calculation is intended to reduce the pay for the actual
time that required work is refused and then only to reduce it at a lower hourly rate
of pay than is normally used for teachers. For example, if a Step 10 Teacher refuses
to take a 30 minute relief lesson on a particular day, the amount of pay deducted in
total for that day will be $24.62 (7% of a day's pay) which is less than if this was
calculated on the 5.5 hour day, which would be $31.98; and
the IEU’s reference to a 7.6 hour day and the NES is irrelevant as there are no set
working hours for Teachers, and Catholic schools in South Australia do not require
teachers to attend for and perform work for 7.6 hours per day.
[26] Furthermore, the Catholic Education Office contends that the impact of the partial
work bans by Teachers is very significant and inevitably causes disruptions to the work of
other employees and to students. If a Teacher refuses to take a scheduled relief lesson the
school will either have to allocate another Teacher (who may have already taken a reasonable
share of their cap of relief lessons in the term) or pay for the hire of a relieving casual teacher.
Moreover the employers contend that it is not feasible to customise each notice for every
single one of the 4500-5000 teachers especially given the timeframes that occur with the
taking of protected industrial action and the nature of the bans involved.
4. The requirements of the FW Act and FW Regulations
[27] The FW Act relevantly provides as follows:
“470 Payments not to be made relating to certain periods of industrial action
(1) If an employee engaged, or engages, in protected industrial action against an employer on a day, the employer must not make a payment to an employee in relation to the total duration of the industrial action on that day. Note: This subsection is a civil remedy provision (see Part 4-1). (2) However, this section does not apply to a partial work ban. Note: For payments relating to periods of partial work bans, see section 471. (3) A partial work ban is industrial action that is not:
(a) a failure or refusal by an employee to attend for work; or (b) a failure or refusal by an employee who attends for work to perform any work at all; or
(c) an overtime ban.
[2016] FWC 892
(4) If the industrial action is, or includes, an overtime ban, this section does not apply, in relation to a period of overtime to which the ban applies, unless:
(a) the employer requested or required the employee to work the period of overtime; and
(b) the employee refused to work the period of overtime; and (c) the refusal was a contravention of the employee’s obligations under a modern award, enterprise agreement or contract of employment.
(5) If:
(a) the industrial action is, or includes, an overtime ban; and (b) this section applies in relation to a period of overtime to which the ban applies;
then for the purposes of this section, the total duration of the industrial action
is, or includes, the period of overtime to which the ban applies.
471 Payments relating to partial work bans
Employer gives notice of reduction in payments
(1) If:
(a) an employee engaged, or engages, in protected industrial action against an employer on a day; and
(b) the industrial action is a partial work ban; and (c) the employer gives to the employee a written notice stating that, because of the ban, the employee’s payments will be reduced by a proportion
specified in the notice;
then the employee’s payments are reduced in accordance with subsection (2) in
relation to the period (the industrial action period) referred to in subsection (5).
(2) The employee’s payments in relation to the industrial action period are reduced:
(a) by the proportion specified in the notice; or (b) if the FWC has ordered a different proportion under section 472—by the proportion specified in the order;
and the modern award, enterprise agreement or contract of employment that
applies to the employee’s employment has effect accordingly.
(3) The regulations may prescribe how the proportion referred to in paragraph (2)(a) is to be worked out.
[2016] FWC 892
Employer gives notice of non-payment
(4) If:
(a) an employee engaged, or engages, in protected industrial action against an employer on a day; and
(b) the industrial action is a partial work ban; and (c) the employer gives to the employee a written notice stating that, because of the ban:
(i) the employee will not be entitled to any payments; and
(ii) the employer refuses to accept the performance of any work by the
employee until the employee is prepared to perform all of his or her
normal duties;
then the employee is not entitled to any payments in relation to the period (the
industrial action period) referred to in subsection (5).
(4A) If:
(a) an employer has given an employee a notice under paragraph (4)(c); and (b) the employee fails or refuses to attend for work, or fails or refuses to perform any work at all if he or she attends for work, during the
industrial action period;
then: (c) the failure or refusal is employee claim action, even if it does not satisfy subsections 409(2) and 413(4), if the related industrial action referred to in paragraph (4)(a) is employee claim action; or (d) the failure or refusal is employee response action, even if it does not satisfy subsection 413(4), if the related industrial action referred to in paragraph (4)(a) is employee response action.
The industrial action period
(5) The industrial action period is the period:
(a) starting at the later of: (i) the start of the first day on which the employee implemented the
partial work ban; or
(ii) the start of the next day, after the day on which the notice was
given, on which the employee performs work; and
(b) ending at the end of the day on which the ban ceases.
Form and content of notice
(6) The regulations may prescribe requirements relating to one or both of the following:
[2016] FWC 892
(a) the form of a notice given under paragraph (1)(c) or (4)(c); (b) the content of such a notice.
Manner of giving notice
(7) Without limiting paragraph (1)(c) or (4)(c), the employer is taken to have given a notice in accordance with that paragraph to the employee if the employer:
(a) has taken all reasonable steps to ensure that the employee, and the employee’s bargaining representative (if any), receives the notice; and
(b) has complied with any requirements, relating to the giving of the notice, prescribed by the regulations.
Employer does not give notice
(8) If:
(a) an employee engaged, or engages, in protected industrial action against an employer on a day; and
(b) the industrial action is a partial work ban; and (c) the employer does not give the employee a notice in accordance with paragraph (1)(c) or (4)(c);
then the employee’s payments for the day are not to be reduced because of the
ban.
472 Orders by the FWC relating to certain partial work bans
(1) The FWC may make an order varying the proportion by which an employee’s payments are reduced. (2) The FWC may make the order only if a person has applied for it under subsection (4). (3) In considering making such an order, the FWC must take into account:
(a) whether the proportion specified in the notice given under paragraph 471(1)(c) was reasonable having regard to the nature and extent of the
partial work ban to which the notice relates; and
(b) fairness between the parties taking into consideration all the circumstances of the case.
(4) An employee, or the employee’s bargaining representative, may apply to the FWC for an order under subsection (2) if a notice has been given under paragraph 471(1)(c) stating that the employee’s payments will be reduced.”
[2016] FWC 892
The Fair Work Regulations 2009 relevantly provide as follows:
“Division 9—Payments relating to periods of industrial action
3.21 Payments relating to partial work bans—working out proportion of
reduction of employee’s payments
For subsection 471(3) of the Act, the proportion mentioned in paragraph 471(2)(a) of
the Act is worked out for an employee or a class of employees by carrying out the
following steps.
Step 1 Identify the work that an employee or a class of employees is failing or refusing to perform, or is proposing to fail or refuse to perform. Step 2 Estimate the usual time that the employee or the class of employees would spend performing the work during a day. Step 3 Work out the time estimated in Step 2 as a percentage of an employee’s usual hours of work for a day. The solution is the proportion by which the employee’s payment will be reduced for a day. 3.22 Payments relating to partial work bans—form of partial work ban notice
For paragraph 471(6)(a) of the Act, a notice given under paragraph 471(1)(c) or (4)(c)
of the Act about the reduction of an employee’s payments due to a partial work ban
must be in a legible form and in English.
3.23 Payments relating to partial work bans—content of partial work ban notice
(1) For paragraph 471(6)(b) of the Act, a notice about a partial work ban given to an employee under paragraph 471(1)(c) or (4)(c) of the Act must:
(a) specify the day on which the notice is issued; and (b) specify the industrial action engaged in, or proposed to be engaged in, that constitutes the partial work ban; and
(c) state that the notice will take effect from the later of: (i) the start of the first day of the partial work ban; and
(ii) the start of the first day after the day on which the notice is given to
the employee, if the employee performs work on that day; and
(d) state that the notice will cease to have effect at the end of the day on which the partial work ban ceases.
(2) If the notice is given under paragraph 471(1)(c) of the Act, it must also:
(a) state that the employee’s payments will be reduced by an amount specified in the notice for each day the employee engages in the partial
work ban; and
[2016] FWC 892
(b) specify an estimate of the usual time the employer considers an employee would spend during a day performing the work that is the subject of the
work ban; and
(c) specify the amount by which the employee’s payments will be reduced for each day the employee engages in the work ban.
(3) If the notice is given under paragraph 471(4)(c) of the Act, it must also state that the employee will not be entitled to any payment for a day on which the employee engages in the partial work ban. 3.24 Manner of giving notice about partial work ban
(1) For paragraph 471(7)(b) of the Act, this regulation prescribes how the employer may give employees notice for paragraph 471(1)(c) or (4)(c) of the Act. (2) The employer may give the notice to the employee personally. (3) The employer may send the notice by pre-paid post to:
(a) the employee’s residential address; or (b) a postal address nominated by the employee.
(4) The employer may send the notice to:
(a) the employee’s email address at work; or (b) another email address nominated by the employee.
(5) The employer may fax the notice to:
(a) the employee’s fax number at work; or (b) the employee’s fax number at home; or (c) another fax number nominated by the employee.
[29] The Explanatory Memorandum to the Fair Work Bill 2008 explained the intended
operation of these provisions in the following term:
“Clause 471 - Payments relating to partial work bans
1870. This clause deals with payments relating to partial work bans (other than
overtime bans) that are protected industrial action. Provided certain prerequisites are
met, an employer may reduce an employee's payments by a specified proportion, or
withhold payments altogether where the employer refuses to accept partial
performance.
1871. Subclauses 471(1) to (3) allow an employer to reduce an employee's payments
by a proportion specified in a written notice given to the employee, in relation to the
period of industrial action (the industrial action period). Subclause 471(5) defines the
industrial action period during which deductions may be made if a valid notice has
[2016] FWC 892been issued. Deductions may be made in respect of any day on which an employee
implements a partial work ban, providing the employer's notice covers that period.
However, a notice cannot take effect retrospectively, or earlier than the start of the
next day after the day on which the notice was given, on which the employee performs
work.
1872. The notice must state that, as a result of the ban, the employee's payments will
be reduced by a proportion specified in the notice (paragraph 471(1)(c)). The
employee's modern award, enterprise agreement or contract of employment
(whichever applies) would then take effect accordingly (subclause 471(2)).
1873. In the absence of a valid notice, payment must be made in full. If an employer
deducts pay without a valid notice, or does not make deductions in accordance with
the notice, then the affected employee could bring proceedings for underpayment of
wages under the applicable modern award, enterprise agreement or contract of
employment.
1874. The proportion specified in the notice must be worked out in accordance with
the regulations (subclause 471(3)) and may be varied by FWA in certain
circumstances (clause 472).
1875. An employer may also refuse to accept partial performance of work and instead
refuse to make any payment to the employee, by giving the employee notice of its
refusal and non-payment in relation to the industrial action period (subclause 471(4)).
Illustrative example
Allison works at the Sandy Shores Private Clinic which operates seven days a week.
On Friday 13 May 2011, Allison's bargaining representative provides her employer
with three working days' notice of protected industrial action by employees it
represents that will take the form of partial work bans over a two week period,
commencing the following Thursday. The bans include refusing to admit new patients
before noon on each day.
On the Monday, Allison's employer decides that the employees' payments will be
reduced by 40 per cent on account of any partial work bans and gives the bargaining
representative and affected employees written notice of the proposed reductions over
the two week period. The reductions begin on the Thursday, the first day on which the
bans are implemented. Sandy Shores could have decided to issue notices under the
provision at a later stage, including after the bans have started. In that case, it could
not have made deductions from employees' pay until the start of the next day after the
day notice was given on which the employee performed work.
1876. Subclause 471(6) allows the regulations to prescribe the form and content of a
notice referred to under paragraphs 471(1)(c) or 471(4)(c).
1877. An employer is taken to have given notice to an employee under this provision
if the employer has taken all reasonable steps to ensure that the employee and the
employee's bargaining representative receives the notice (paragraph 471(7)(a)). The
employer must also comply with any requirements relating to the giving of the notice
prescribed in the regulations (paragraph 471(7)(b)).
[2016] FWC 892
1878. If an employer fails to provide valid notice of reduction or non- payment under
this clause an employee remains entitled to payment in full (subclause 471(8)).
Clause 472 - Orders by FWA relating to certain partial work bans
1879. Clause 472 provides that an employee, or his or her bargaining representative,
may apply to FWA to vary the effect of a notice that has been issued under paragraph
471(1)(c), stating that the employee's payments will be reduced (subclauses 472(1), (2)
and (4)). Under this clause, e.g., FWA could decide to increase or decrease the
amount employees are entitled to be paid during the partial work bans. No application
may be made, however, in relation to a notice issued under subclause 471(4) to
withhold the employees' pay altogether.
1880. In deciding whether to vary the effect of a notice issued under paragraph
471(1)(c), FWA must take into account the reasonableness of the proposed reduction,
having regard to the nature and extent of the relevant partial work ban or bans to
which the notice relates (paragraph 472(3)(a)). FWA must also take into account
fairness between the parties, considering all the circumstances of the case (paragraph
472(3)(b)).
Illustrative example
Allison's bargaining representative applies to FWA to reduce the proportion of Sandy
Shores' proposed deduction. After taking into account whether the 40 per cent
deduction was reasonable having regard to the nature and extent of the partial work
bans and fairness between the parties, FWA orders Sandy Shores to reduce the
deduction to 15 per cent and to pay the difference to the employees.”
[30] A convenient summary of the approach that has been adopted by the Commission, and
its predecessors, to s.471 of the FW Act has been provided by Catanzariti VP in United Voice
– Northern Territory v Commissioner for Public Employment for the Northern Territory
[2014] FWC 1185 as follows:
“[18] There are a limited number of authorities on the application of s. 472 of the Act. Despite this, however, it is clear that the application of s. 472 has been considered
as requiring closer analysis than a perfunctory application of the “formula” set out in
Regulation 3.21. The seminal decision with respect to the application of s. 472 is
Transport Workers Union v Department of Territory and Municipal Services in which
Commissioner Deegan said:
“[33] … When determining an application for an order to vary the proportion by which an employee’s payments are to be reduced, FWA is required to take
into account ‘whether the proportion specified in the notice was reasonable…
having regard to the nature and extent of the partial work ban…’ and also to
take account of ‘fairness between the parties taking into consideration all the
circumstances of the case’. If all that were to be considered, as was argued by
the TWU, was whether the employer had properly estimated the time involved
in physically performing the banned task, the matters to be taken into account
by FWA would have little relevance, particularly the ‘nature’ of the ban and
‘fairness between the parties’ in light of ‘all the circumstances of the case’.
[2016] FWC 892
...
[35] Clearly, s.472 of the Act gives a wide discretion to FWA to deal with
disputes concerning the amount of reduction an employer proposes to make
and the section does not require, or allow, FWA to determine such a dispute
merely by applying the ‘formula’ set out in Regulation 3.21.
[36] It is apparent from the terms of the Explanatory Memorandum that
sections 470 and 471 were introduced to allow employers to make a judgment
about the effect of a partial work ban and decide how to respond to the ban,
that is whether to refuse to pay the employee at all for the period of the ban,
refuse to accept the performance of any work by the employee or pay the
employee proportionally for the work performed. Under the previous
legislation the employer had no discretion in this regard and was required by
the legislation to deduct at least four hours’ pay from any employee
implementing protected action, no matter how minimal the effect of that action.
According to the Explanatory Memorandum the new provisions might ‘assist
in resolving disputes more efficiently and may prevent the escalation of some
disputes’.
[37] Under the provisions of the Division, the employer has the discretion to
decide that a task that an employee proposes to ban is not so critical that it is
preferable that the employee perform no work at all and receive no payment. In
such a circumstance the employer can determine what proportion of the
employee’s wage should be paid for the performance of the work not banned
and notify the employee of the proposed reduction in payment. The employee
can then determine whether to accept that proportion of payment which will be
made or take some other form of protected action, such as performing no work
at all. It is also open to an employee, if it is considered that the proportion by
which the payment has been reduced is too high, to make an application such
as the present one under s.472 of the Act and have FWA determine the amount
by which the payment should be reduced [19] This decision has been followed
with approval in Automotive, Food, Metals, Engineering, Printing and Kindred
Industries Union v ASC Pty Ltd [2012] FWA 1377; The Australian Institute of
Marine and Power Engineers v Port of Brisbane Pty Ltd [2011] FWA 4653;
and Bowers v Victoria Police [2011] FWA 6960.”
[19] This decision has been followed with approval in Automotive, Food, Metals,
Engineering, Printing and Kindred Industries Union v ASC Pty Ltd [2012] FWA
1377; The Australian Institute of Marine and Power Engineers v Port of Brisbane Pty
Ltd [2011] FWA 4653; and Bowers v Victoria Police [2011] FWA 6960.
[20] In addition, in Automotive, Food, Metals, Engineering, Printing and Kindred
Industries Union v ASC Pty Ltd, Deputy President Bartel noted that:
“[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
[2016] FWC 892
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.” (Footnotes omitted)
11
[31] In JJ Richards & Sons Pty Ltd and Anor v Fair Work Australia and Anor
(JJ Richards) the Federal Court of Australia (Flick J) discussed three long established and
fundamental principles to statutory construction that should be considered in ascertaining the
intended operation of the Act. Justice Flick said:
"First, the so-called "golden rule" of the common law as to statutory construction is that
"the grammatical and ordinary sense of the words is to be adhered to, unless that would
lead to some absurdity, or some repugnance or inconsistency with the rest of the
instrument, in which case the grammatical and ordinary sense of the words may be
modified, so as to avoid that absurdity and inconsistency, but no farther": Grey v
Pearson [1857] EngR 335; (1857) 6 HLC 61 at 106 per Lord Wensleydale. See also:
[1910] HCA 53; (1910) 11 CLR 311 at 341 to 342 per Higgins J. The "golden rule" is
not confined to circumstances where a "mistake" has been made in the wording of an
Act; the rule is also applied to avoid construing legislation so as to produce patently
unintended or absurd results: Footscray City College v Ruzicka [2007] VSCA 136 at
[16], 16 VR 498 at 505 per Chernov JA (Warren CJ and Maxwell P agreeing).
Second, the common law also recognised that "[i]t is a strong thing to read into an Act
of Parliament words which are not there, and in the absence of clear necessity it is a
wrong thing to do": Thompson v Goold & Co [1910] AC 409 at 420 per Lord Mersey.
See also: Dallikavak v Minister for Immigration and Ethnic Affairs (1985) 9 FCR 98 at
103 per Northrop and Pincus JJ; Minister for Immigration and Citizenship v Hart
[2009] FCAFC 112 at [6] per Spender J.
Third, a construction of a statutory provision is to be preferred "that would best
achieve the purpose or object of the Act": Acts Interpretation Act 1901 (Cth) s 15AA.
The requirement to look to the purpose or object of an Act is more than an instruction
to adopt the traditional mischief or purpose rule in preference to the literal rule of
construction; s 15AA requires no ambiguity or inconsistency in a statutory provision
before a court is not only permitted, but required to have regard to purpose: Mills v
Meeking [1990] HCA 6; (1990) 169 CLR 214 at 235. Dawson J there went on to
observe that the provision there in question, being a provision comparable to s 15AA,
"... requires a court to construe an Act, not to rewrite it, in the light of its purposes".
Similarly, in Trevisan v Commissioner of Taxation (1991) 29 FCR 157 at 162,
Burchett J observed that s 15AA "... is not a warrant for redrafting legislation nearer to
an assumed desire of the legislature. It is not for the courts to legislate ...". See also: R
v L (1994) 49 FCR 534 at 538 per Burchett, Miles and Ryan JJ; Skea v Minister for
Immigration, Local Government and Ethnic Affairs (1994) 51 FCR 82 at 85 per Moore
J; Minister for Immigration and Multicultural Affairs v Lim [2001] FCA 512 at [7],
[2016] FWC 892[2001] FCA 512; 112 FCR 589 at 592 to 593 per Sundberg J. "In the end the task of
the court is to ascertain and to enforce the actual commands of the legislature": Re
News Corporation Ltd (1987) 15 FCR 227 at 236 per Bowen CJ." (footnotes omitted)
5. The major issues to be determined
| 5.1 | The validity of the s.471 notices |
[32] Section 471(8) provides, in effect, that if the employer does not give the notice in
accordance with (in this case) subsection (1)(c), the employee’s payments are not to be
reduced because of the ban. This requires consideration of two main challenges made by the
IEU to the validity of the notices.
| 5.1.1 | Whether the notices must be provided to the IEU as the bargaining |
| representative |
[33] The IEU accepts that the employers have in each case provided the s.471 notice to the
12
| relevant employees in a manner contemplated by regulation 3.24. | It is also not in dispute |
that the employers have, as a matter of fact, provided the notices to the employees as required
by s.471(1)(c) of the FW Act. However, the IEU contends that s.471(7)(a) requires, in effect,
that the employers must take all reasonable steps to ensure that the bargaining representative
also receives the notices.
[34] The IEU is a bargaining representative for all of the relevant employees. The
employers provided the notices to all of the employees, including the delegates of the Union,
at each of the schools concerned. The employers did not provide a copy of the notices to the
officials of the IEU. The employers contend that this means that they have provided the
notices to the Union. I am inclined to the view that the provision of the notices to the
employees, who were also site delegates of the Union, would not represent the taking of all
reasonable steps to provide the notice to the IEU. That is, the Union is a separate legal entity
and the provision of a notice to its members in their capacity as employees, would not
constitute all reasonable steps to provide the notice to that entity. However, given my findings
below I do not need to finally determine that issue.
[35] I have set out the terms of the relevant provisions of the FW Act and the
FW Regulations above. In my view, s.471(7) and the provisions of the FW Act and
FW Regulations more generally, do not require that the notices must also be provided to the
bargaining representatives if they have been given (directly) to each of the employees as
required by s.471(1)(c) of the Act. My reasons for that conclusion are as follows:
The provisions of subsection (1)(c) (and (4)(c)) require that the relevant notice be
given to each of the employees (who are taking the industrial action and whose pay
may be deducted) and this is, in effect, the primary obligation;
Subsection (7) expressly states that it applies “without limiting” s.471(1)(c) and the
terms of the provision are directed at establishing certain conditions, which if met,
will mean that the employer is taken to have complied with the giving of notice
requirements;
[2016] FWC 892
The term “without limiting” when used in the present context means that the
provisions of subsection (7) are not intended to limit how the employer may meet
the primary obligation;
Subsection (7) is not intended to be a Code that must be met and if this was
intended by the legislation, the provision would have been expressed in mandatory
terms – see by contrast the provisions of the FW Act dealing with the Notice of
13
employee representational rights, the notice requirements associated with the 14
appointment of bargaining representatives, and the notice requirements for the
15
taking of protected industrial action; and The additional obligations, to also take all reasonable steps to provide the notice to
the bargaining representative and to comply with the prescribed methods of
providing the notice to employees, are consistent with the option of subsection (7)
being a less absolute requirement than the primary obligation of subsection (1)(c).
[36] Further, the ordinary and natural application of the provisions of the subsection, when
read in the context of the provisions and the Act more generally, support the approach that I
have adopted. That is, s.471(7) is a way of meeting of the obligations in s.471(1)(c), but not
the only way of doing so.
[37] Accordingly, the notices have been provided to the employees as relevantly required
by the FW Act. I would add as an aside, that it would generally be prudent for an employer to
also provide the notice to the bargaining representative(s) given that it may not always be
possible to demonstrate the actual provision of the s.471 notice to every employee as is
otherwise required by s.471(1)(c).
| 5.1.2 | Whether the notices must comply with the requirements of the FW Regulations |
| and if so, whether they did |
[38] Section 471(6) of the FW Act provides that the regulations may prescribe
requirements relating to the form and/or content of the notice required by subsection (1)(c) or
(4)(c). The regulations, by virtue of regulation 3.23, establish the required contents of the
notice.
[39] The IEU did not raise any issues about compliance with sub-regulation 3.23(1),
however it contends that the notices did not comply with the three requirements of sub-
regulation 3.23(2). The Union also contends that the combined effect of the notices was
unclear to the employees and was deficient for present purposes.
[40] I will deal with each of the specific requirements of sub-regulation 3.23(2) in turn,
having regard to the over-riding challenge made by the Union, and noting that the obligations
are directly related and it is the entirety of the provisions that must be considered. In so doing,
I also note that the terms of the regulation concerning the contents of the notice are written in
mandatory terms and that the requirements of the Act and the Regulations are to be applied in
the manner described in JJ Richards, including so as to avoid absurdity, or some repugnance
or inconsistency with the rest of the instrument.
[41] This approach must also be applied having regard to the nature of the partial work
bans and the working arrangements and employment conditions attaching to the Teachers
concerned. This includes the fact that for many of the partial work bans, the relevant work
[2016] FWC 892
activity is not a requirement for each day, is not carried out for the whole day where it is
required, and there are upper limits on such work in the Enterprise Agreement - at least for
some of the activities. For example, the obligation to undertake relief teaching arises in
practice only where the Teacher is requested (or rostered) to undertake such duties and this
may take place on an ad hoc basis. The extent of the requirement on each occasion will
depend upon the lesson or lessons that are to be taught and the overall requirement is also
limited to a certain number of hours per teacher in each school year.
[42] The working of CEA and OPA is also subject to regulation under the Enterprise
Agreement and the actual requirements will vary between Teachers, schools and the
circumstances of the Teacher’s role in that regard.
R.3.23(2)(a) – state that the employee’s payment will be reduced by an amount specified
in the notice for each day the employee engages in the partial work ban
[43] Each of the notices contain an express statement that the employee’s payment will be
reduced by an amount calculated in accordance with the notice for each day the employee
engages in the partial work ban. Subject to the later discussion under sub-regulation (2)(c) as
to whether the notices sufficiently specify the amount to be deducted, the notices comply with
this requirement.
R.3.23(2)(b) – specify an estimate of the usual time the employer considers an employee
would spend during a day performing the work that is subject of the work ban
[44] The notices state the amount of the reduction (7 per cent of the payments due for each
half hour on each day you engage in the partial work ban) and that “this is based upon an
estimate of the usual time that the employer considers an employee would spend during a day
performing the work that is subject of the work ban.”
[45] The IEU contends that the amount of the reduction is the result of a formula that is not
set out in the notice and that the notice itself does not specify an estimate of the usual time
that the employee would spend performing the work in question. The employers contend, in
effect, that the estimated time is the actual time that the work in question is not being
performed by the employee as a result of the partial work ban. Further, they contend that it is
not feasible to provide the estimate in any other way, given the nature of the bans, how they
have been notified, and the work in question.
[46] The purpose of these provisions is in part to make the employees concerned aware of
the actual reductions in pay that are to be made by the employer. This is consistent with the
approach to deductions from wages and salaries within the legislation more generally, which
16
| is a matter extensively regulated by the Act. | I note however that the FW Regulations do not |
require that the actual formula used by the employer, or all of the elements of the formula
(such as the normal hours of work that have been applied), be set out in the notice. The
evident purpose of the notice and the balance of the provision is that the employer is able to
elect to reduce an employee’s payment where partial work bans have been implemented
provided that the reductions are subject to a valid notice and are reasonable in the
17
| circumstances. | As outlined earlier in this decision, the s.471(1) notice is also designed to |
assist the employees concerned to make an informed decision with respect to the partial bans.
[2016] FWC 892
[47] The nature of the bans, including the fact that in most cases the extent of the ban, in
terms of how long the ban will actually impact upon the work in question, has not been set out
in the notification of proposed industrial action, must be taken into account here. That is, in
most cases, the effect of a ban on, for example, relief teaching will depend upon whether the
Teacher concerned is actually required to undertake such teaching during the ban and the
number of lessons contemplated. This dynamic will also apply to many of the forms of partial
bans in this matter and those that may be applied in other workplaces.
[48] In my view, the concept of the estimate of “usual time” should not be applied in a
narrow manner so as to mean that an employer could not in practice comply with the
requirement. Further, the proper application of the concept of an estimate of the “usual time”
will depend upon the nature of the partial ban and the circumstances of the parties.
[49] It is tolerably clear that the employer has specified in each notice that the estimate
used in each case is the actual time associated with the (banned) work in question. I that this
approach to the establishment and specification of the “usual time” for the banned work as
18
being the actual time was adopted by the parties without issue in Bowers v Victoria Police.
As with my conclusions relating to sub-regulation 3.23(2)(a), my finding about this aspect
also needs to be considered in the context of sub-regulation (2)(c) discussed below.
[50] The reasonableness of the salary reduction based upon that estimate is also a matter to
be considered in due course.
R.3.23(2)(c) – specify the amount by which the employee’s payments will be reduced for
each day the employee engages in the work ban
[51] The IEU contends, in effect, that the specification of the amount of the reduction must
be clear in dollar terms or at least clear to the employees concerned. The employers contend
that the statement of the amount of the reduction (7 per cent of the payments due for each half
hour on each day you engage in the partial work ban) combined with the schedule of the
dollar amount of the deductions for each half hour in relation to each classification of Teacher
which was attached to the notice, means that the actual amount is specified in the notice.
[52] Subject to one element that potentially impacts upon the notices more generally, I am
satisfied that the notices comply with this requirement. That is, the notices when read as a
19
whole specify the amount of the reduction by reference to each half hour (or part thereof)
that the employee engages in the partial work ban. Given the circumstances in which the
notice is given and is to operate, I consider that the amount of the reduction is clear from the
terms of the notice when read in conjunction with the attached schedule.
[53] The element of the notices that causes me some concern is that each notice states that
the reductions operate by reference to each half hour (or part thereof) that the employee
“engages in the partial work ban”. The employers have subsequently confirmed to the IEU,
and the Commission, that this is intended to operate on the basis that the reduction will apply
only to those periods where the ban leads to the non-performance of the duty involved. That
is, although the ban on (for example) undertaking relief lessons might be in place for the
whole day, the employee concerned will be taken to have engaged in the ban only for the
period when and if a teacher has been requested, or rostered, to undertake such work and
refuses to do so as a result of the ban.
[2016] FWC 892
[54] The approach proposed by the employers to the reduction is clearly reasonable in that
respect and is consistent with the scheme of the Act including the definition of industrial
action. That is, industrial action includes “the performance of work by an employee in a
manner different from that in which it is customarily performed, or the adoption of a practice
in relation to work by an employee, the result of which is a restriction or limitation on, or a
delay in, the performance of the work, a ban, limitation or restriction on the performance of
20
work by an employee or on the acceptance of or offering for work by an employee …….”.
However, the question in this matter remains whether it can be reasonably said that the
notices specify the amount of the reduction in the circumstances of this matter given their
terms.
[55] In the particular circumstances of the partial bans notified by the IEU and the s.471
notices issued in this matter, the term “engages in the partial work ban”, when used in
connection with the extent of the reduction, would not be reasonably understood as meaning
the entire period for which the ban has been notified. Rather, in this particular context, the
term would objectively be understood to mean that the reduction would be calculated by
reference to the period when the ban was being applied in practice so as to change the normal
performance of work.
[56] Accordingly, whilst it would have been preferable for the above to have been better
explained in the notices, I am on balance satisfied that the notices specify the amount by
which the employee’s payments will be reduced for each day the employee engages in the
work ban. My conclusions in relation to R3.23(2)(c) also have the effect of dealing with the
concerns outlined earlier with respect to R3.23(2)(a) and (b).
[57] Having regard to the above findings, I am also satisfied on balance that the s.471
notices were validly issued by the employers.
| 5.2 | The proposed reductions |
[58] Section 472 of the FW Act provides that the Commission may make an order varying
the proportion by which an employee’s payments are reduced taking into account whether the
proportion specified in the notice given under s.471(1)(c) was reasonable having regard to the
nature and extent of the partial work ban to which the notice relates, and fairness between the
parties taking into consideration all the circumstances of the case.
[59] I have earlier set out the summary of the proper approach to this discretion set out by
Catanzariti VP in United Voice – Northern Territory v Commissioner for Public Employment
for the Northern Territory, and I restfully adopt that view.
[60] The IEU contends, in effect, that the proposed reductions are not consistent with the
requirements of the FW Regulations and are not appropriate or fair. This position is based
upon the following propositions:
The estimated time of the banned work needs to be calculated having regard to the
nature of each form of protected action being taken;
In the case of the relief teaching (for example), this should be calculated having
regard to the maximum hours of such teaching in a year and converted to a daily
estimate (in the case of a full-time secondary teacher this would be six minutes per
[2016] FWC 892
day). The same approach should be adopted to other work that is subject to the
partial bans;
The usual hours of work in the case of Teachers should recognise both regulated
hours and work (including teaching time, OPA and CEA) and unregulated work
such as course/subject preparation, marking and assessments, report writing,
religious observances and the like; and
The “simplest and only unbiased” approach to the usual daily hours was to adopt a
National Employment Standards (NES) for Teachers – 7.6 hours a day and an
21
Enterprise Agreement approach for non-teaching staff – 7.5 hours a day.
[61] The employers contend that the proposed reductions have been developed by applying
the approach in the regulations having regard to the nature of the notification of industrial
action provided by the IEU, the nature of the bans, and the circumstances operating at the
schools concerned.
[62] The s.471 notices are the result of the following approach adopted by the employers,
which has been usefully summarised in an email clarification provided to the IEU by
Mr Kenny, Assistant Director, People and Culture with the Catholic Education Office as
follows:
“…. The payroll system for teachers is based on a 5.5 hour (330 minutes) day.
However, we acknowledge that while the actual teaching hours per day are
approximately 5.5 hours (and this is the basis of the calculation for casual teacher
payments), teachers have additional responsibilities which extend that time.
We have added into the 5.5 hours (330 minutes), OPA of 4.5 hours per week (54
minutes a day). We have also added CEA allocations (5 hours a year for primary
teachers/20 hours a year for Category 2 teachers/30 hours a year for Category 3
teachers). These allocations equate to 7 minutes a week or 1.4 minutes a day for
primary teacher/ 30 minutes a week or 6 minutes a day for a Category 2 teacher/45
minutes a week or 9 minutes a day for a Category 3 teacher.
Hence, the total minutes per day of time which we have calculated as teachers' work
is:
Primary
330 minutes (5.5 hours) + 54 minutes OPA + 1minute CEA = 385 minutes
If a teacher takes industrial action for 30 minutes on a day, this is, as a percentage:
30/385 X 100 = 7.79%
Category 2
330 minutes (5.5 hours) + 54 minutes OPA + 6 minutes CEA = 390 minutes
If a teacher takes industrial action for 30 minutes on a day, this is, as a percentage:
30/390 X 100 = 7.6%
Category 3
330 minutes (5.5 hours) + 54 minutes OPA + 9 minutes CEA = 393 minutes
[2016] FWC 892
If a teacher takes industrial action for 30 minutes on a day, this is, as a percentage:
30/393 X 100 = 7.6%
Rather than worry about decimal points, we have instead advised that the amount to be
deducted for each half hour of engaging in industrial action per day is 7%.
We have calculated this for each incremental step etc and this is attached.
We do not accept that 7% is more than half an hour's pay. Also, the 7% is for each half
hour of work ban; it does not matter what type of work ban it is. If the employee only
engages in a ban for 15 minutes, the percentage will be 3.5% of a day's pay. If an
employee engages in a work ban for an hour, it will be 14% of a day's pay. If the
22
employee does not participate in the partial work ban, their pay will be unaffected.”
[63] I note that the “usual hours of the day” as assessed above converts to 6.4 hours for the
Primary Teachers, and 6.5 hours for the Category 2 and 3 (secondary) Teachers.
[64] The above explains the intended assessment of the working day and the application of
the proposed reduction. As outlined earlier, the approach taken by the employers to the
assessment of the “usual time” for the banned work is that this equates to the actual time that
the work in question was not to be performed by the relevant employee.
[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.
[2016] FWC 892
[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” 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.
[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
23
reasonable approach consistent with earlier decisions of the Commission.
[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.
[73] I do not consider that the reductions should be pro-rated for part-time employees given
that the employers’ approach adopts, in effect, the usual time spent performing work on that
day for a full-time employee. That approach is consistent with step 3 of regulation 3.21 for
part-time employees who work full days, but not on each day of the week, and produces a
smaller reduction for those who work part days than would be the case if the part-time hours
were used in step 3 of the process.
[2016] FWC 892
6. Conclusions
[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.
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.
Hearing details:
2016
Adelaide
February 9.
Printed by authority of the Commonwealth Government Printer
<Price code G, PR576919>
[2016] FWC 892
1
AE405996 approved on 19 December 2013.
2
PR562160.
3
PR573716, PR573715, PR57314, PR573713, PR573711 and PR573710.
4
PR575909, PR575908; PR575907, PR575906; PR575905 and PR575904.
5
[2016] FWC 553.
6
OPA is partly regulated by the Enterprise Agreement as part of the Teacher workload provisions of that instrument –
Appendix G.
7
CEA is regulated by the Enterprise Agreement as part of the Teacher workload provisions of that instrument – Appendix G.
8
Given the absence of s.471 notices there is no suggestion that reductions will take place at this School, at least based upon
the industrial action that has already taken place.
9
Blackfriars Priory School – document 4b attached to the application.
10
Attachment 4f to the application.
11
(2012) 201 FCR 297.
12
Transcript PN281.
13
S.173 of the FW Act.
14
S.178 of the FW Act.
15
S.414 of the FW Act.
16
See Division 2 Payment of wages of Part 2-9 — Other terms and conditions of employment of the Act.
17
See the more detailed discussion of the purpose in Bowers v Victoria Police (supra).
18
[2011] FWA 6960 at [10].
19
Referred to in the attachment to the s.471 notice.
20
Section 19 of the Act.
21
Exhibit IEU 2.
22
Annexure 6a attached to the application. Mr Kenny also provided an affidavit concerning the facts supporting the
employers’ position – exhibit R2.
23
Bowers v Victoria Police at [27] - [32].
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