Australian Education Union v Council of the Western Melbourne Institute of TAFE
[1997] FCA 1243
•12 NOVEMBER 1997
FEDERAL COURT OF AUSTRALIA
INDUSTRIAL LAW - BREACH OF AWARD - Excess hours worked beyond maximum teaching hours - pro rata maximum teaching hours for employment for less than full teaching year - scope of full teaching year - calculation of pro rata maximum teaching hours for employment for less than full teaching year.
Workplace Relations Act 1996 s178
TAFE Teachers’ Conditions of Employment (Victoria) Interim Award 1994, Cl 3.4.1, 3.4.2, 3.6.1, 3.6.2, 3.6.3
AUSTRALIAN EDUCATION UNION v COUNCIL OF THE WESTERN MELBOURNE INSTITUTE OF TAFE
VG 258 of 1997
Before: Judicial Registrar Ryan
Place: Melbourne
Date: 12 November 1997
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 258 of 1997
BETWEEN:
AUSTRALIAN EDUCATION UNION
APPLICANTAND:
COUNCIL OF THE WESTERN MELBOURNE INSTITUTE OF TAFE
RESPONDENTJUDICIAL REGISTRAR:
RYAN
DATE OF ORDER:
12 NOVEMBER 1997
WHERE MADE:
MELBOURNE
THE COURT
orders that the orders of 20 October 1997 be set aside
declares that “the full teaching year” in clauses 3.4.1(1) and 3.4.2(2) of the TAFE Teachers’ Conditions of Employment (Victoria) Interim Award 1994 comprises 1748 hours worked over 46 weeks
declares Ms Gabriella Pretto was employed by the respondent from 26 February 1996 to 31 December 1996 and was not required to teach in excess of maximum teaching duty hours as prescribed in clause 3.4.2(2) of the award
orders that the application under s178 of the Workplace Relations Act 1996 be dismissed.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 258 of 1997
BETWEEN:
AUSTRALIAN EDUCATION UNION
APPLICANTAND:
COUNCIL OF THE WESTERN MELBOURNE INSTITUTE OF TAFE
RESPONDENT
JUDICIAL REGISTRAR:
RYAN
DATE:
12 NOVEMBER 1997
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
JUDGMENT 20 OCTOBER 1997
On 20 October 1997 the Court
declared that the respondent failed to pay Gabriella Pretto appropriate rates of pay pursuant to clause 3.6.1 of the TAFE Teachers’ Conditions of Employment (Victoria) Interim Award 1994 for excess hours worked beyond the maximum teaching duty hours and failed to pay the appropriate rates for excess hours within the fortnight following the roster period in which the excess hours were worked
required the applicant to submit a draft Order within 7 days that the respondent pay to Gabriella Pretto a sum to be specified in the draft order and calculated at time and a half of an ordinary hourly rate of $21.30 for excess hours with the excess hours to be calculated pro rata on the basis that a full teaching year comprises 1748 hours worked over 46 weeks
invited the parties to address further on the calculation of excess hours and on penalty
adjourned the application to a date to be fixed.
ASSUMPTION BEHIND JUDGMENT OF 20 OCTOBER
The first order was a declaration based on an incorrect assumption. Evidence was given at the hearing that Ms Pretto did not attend at and work as a teacher with the respondent after 6 December 1996. I regret to record that I incorrectly assumed that her employment terminated on 6 December. Her contract of employment ran till 31 December and this fact was admitted by the respondent. Indeed there are several references on the second page of the judgment of 20 October to a contract from 26 February to 31 December 1996.
Be that as it may, having incorrectly assumed that Ms Pretto was not employed by the respondent after 6 December, I concluded that agreed teaching hours were in excess of the maximum pro rata teaching hours and I required the applicant to draft an order reflecting that conclusion.
Counsel for the respondent attended when judgment was delivered on 20 October. Counsel for the applicant was not available but a solicitor, Ms Roxon, attended on behalf of the applicant. After judgment had been delivered I raised the question of the termination date of Ms Pretto’s contract of employment and counsel for the respondent drew to my attention the fact that the contract ran to 31 December.
Apart from the incorrect assumption which led to the orders on 20 October I rely on pages 1 to 8 of that judgment for the conclusion that “the full teaching year” in clauses 3.4.1(1) and 3.4.2(2) of the TAFE Teachers’ Conditions of Employment (Victoria) Interim Award 1994 comprises 1748 hours worked over 46 weeks.
RESPONDENT’S SUBMISSION ON CALCULATION OF MAXIMUM TEACHING DUTY HOURS
The respondent submits
Clause 3.4.2(2) provides “the maximum teaching duty hours shall be 800 hours per year (pro rata for part-time or employment for less than the full teaching year)”
full teaching year has been found to be 1748 hours over 46 weeks
Ms Pretto was employed for 44.4 weeks
pro rata maximum teaching hours are to be calculated as follows
44.4 weeks x 800 hours = 772.17 hours
46.0 weeks
less Ms Pretto’s agreed curriculum allowance of 57.2 hours = 714.97 maximum
teaching duty hoursMs Pretto worked 708 hours and did not work in excess of her maximum teaching duty hours
THE APPLICANT’S SUBMISSION ON CALCULATION OF MAXIMUM TEACHING DUTY HOURS
The applicant also accepts that Ms Pretto was employed for 44.4 weeks from 26 February to 31 December but submits that
Ms Pretto was entitled to 3.4 weeks annual leave and 1.6 weeks of public holidays during her period of employment (i.e. 5 weeks leave)
the period of leave for which she was eligible and to which she was entitled should be deducted from the 44.4 weeks employment leaving 39.4 weeks available for teaching
maximum teaching duty hours should be calculated as follows
39.4 weeks x 800 hours = 685.22 hours
46.0 weeks
less Ms Pretto’s agreed curriculum allowance of 57.2 hours = 627.72 maximum
teaching duty hoursMs Pretto taught 708 hours which was 80.283 excess hours
at the award rate of time and a half of the ordinary rate of $21.30 Mr Pretto is entitled to an additional $2,565.
CALCULATION OF MAXIMUM TEACHING DUTY HOURS
The calculation of maximum teaching duty hours pro rata for employment for less than the full teaching year on the basis of a divisor or denominator of 46 weeks and a nominator or dividend representing the period of employment (in this case 44.4 weeks) may lead to a situation where some teachers, who are not employed for the full twelve months 1 January to 31 December, are the subject, proportionally, of a more concentrated teaching load.
The applicant argues that a pro rata calculation based on period of employment without a further reduction for leave and public holidays, in other words without a pro rata calculation based on “availability” as opposed to employment, can discriminate against a teacher who is not employed from 1 January. The argument is that the shorter term employee may be the subject of a proportionally higher teaching load and in a sense subject to a form of discrimination when compared with a colleague on contract from 1 January to 31 December. That may or may not be the result of a pro rata calculation based on employment rather than using notional or actual availability. However, clause 3.4.2(2) provides that “maximum teaching duty hours shall be... pro rata (of 800 hours) for employment for less than the full teaching year”.
I do not accept that clause 3.4.2(2) can be read as if it provides for maximum teaching duty hours to be calculated pro rata of 800 hours for availability for less than the full teaching year. The award provides for a pro rata calculation for employment. A pro rata calculation based on employment of 44.4 weeks and a full teaching year of 46 weeks indicates that Ms Pretto did not work in excess of her maximum teaching duty hours. In those circumstances the application must be dismissed.
Initially, I was troubled by a pro rata calculation of maximum teaching duty hours which does not allow for any reduction in student contact teaching load for teachers who are employed for a period in excess of “the full teaching year” of 46 weeks but for less than a calendar year. Indeed, if the award provided for pro rata scheduled duty and teaching duty hours below the maxima for such teachers, the application of the formula using a nominator or dividend in excess of 46 weeks and a divisor or denominator of 46 weeks provides the absurd and invalid “result” of teachers employed for less than 52 weeks but more than 46 weeks with a “notional” maximum teaching hours in excess of 800 hours. Of course, this cannot be. The maximum teaching duty hours are fixed at 800 in clause 3.4.2(2).
However, I have concluded that clause 3.4.2 does not provide for pro rata maximum scheduled duty hours or pro rata maximum teaching duty hours for teachers who are employed for a period in excess of 46 weeks in a calendar year. The award provides maximum scheduled duty hours and maximum teaching duty hours and provides for a pro rata reduction in such hours for part time employment for less than the full teaching year and for employment for less than the full teaching year. There is no provision in the award providing for a pro rata reduction in maximum hours for teachers employed for between 46 and 52 weeks in a calendar year. This may or may not be the intention of clause 3.4.1(1) and (2) but it is the effect.
CONCLUSION
I am now of the view that
a correct calculation of Ms Pretto’s pro rata maximum teaching hours, with curriculum allowance deducted, is 714.97 hours
Ms Pretto taught 708 hours
the respondent is not in breach of the award and
the orders of 20 October should be set aside
the application under s178 of the Workplace Relations Act 1996 should be dismissed.
THE COURT
orders that the orders of 20 October 1997 be set aside
declares that “the full teaching year” in clauses 3.4.1(1) and 3.4.2(2) of the TAFE Teachers’ Conditions of Employment (Victoria) Interim Award 1994 comprises 1748 hours worked over 46 weeks
declares Ms Gabriella Pretto was employed by the respondent from 26 February 1996 to 31 December 1996 and was not required to teach in excess of maximum teaching duty hours as prescribed in clause 3.4.2(2) of the award
orders that the application under s178 of the Workplace Relations Act 1996 be dismissed.
I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of Judicial Registrar Ryan
Associate:
Dated: 12 November 1997
Counsel for the Applicant: Ms Melinda Richards Solicitor for the Applicant: Maurice Blackburn & Co Counsel for the Respondent: Mr Michael McDonald Solicitor for the Respondent: Minter Ellison Date of Hearing: 7 November 1997 Date of Judgment: 12 November 1997
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