Australian Education Union v Council of the Western Melbourne Institute of TAFE

[1997] FCA 1160

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

F J Walker Limited v Casey (1989) 29 IR 303 at 307

City of Wanneroo v Holmes (1989) 30 IR 367

Federated Municipal and Shire Council Employees Union of Australia New South Wales Branch v Sutherland Shire Council (1990) 32 IR 470

Professional Radio and Electronics Institute of Australasia v Qantas Airways Limited (1984) 10 IR 1

Seamen’s Union of Australia v Adelaide Steamship Co Ltd (1976) 46 FLR 444
Short v Hercus Pty Ltd (1993) 40 FCR 511

AUSTRALIAN EDUCATION UNION v COUNCIL OF THE WESTERN MELBOURNE INSTITUTE OF TAFE

VG 258 of 1997

Before: Judicial Registrar Ryan
Place:              Melbourne
Date:               20 October 1997

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 258  of   1997

BETWEEN:	AUSTRALIAN EDUCATION UNION APPLICANT
AND:	COUNCIL OF THE WESTERN MELBOURNE INSTITUTE OF TAFE RESPONDENT
JUDICIAL REGISTRAR:		RYAN
DATE OF ORDER:		20 OCTOBER 1997
WHERE MADE:		MELBOURNE

THE COURT:

1. declares 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

2. requires 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. The draft order should also specify excess hours calculated pro rata on the basis that a full teaching year comprises 1748 hours worked over 46 weeks

3. invites the parties to address further on the calculation of excess hours and on penalty

4. adjourns the application to a date to be fixed.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 258 of 1997

BETWEEN:	AUSTRALIAN EDUCATION UNION APPLICANT
AND:	COUNCIL OF THE WESTERN MELBOURNE INSTITUTE OF TAFE RESPONDENT

JUDICIAL REGISTRAR:	RYAN
DATE:	20 OCTOBER 1997
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

THE CLAIM
Pursuant to s178 of the Workplace Relations Act 1996 (the Act) the applicant claims the imposition of penalties for breach of award in that the respondent failed, in respect of Gabriella Pretto (Pretto), to pay the appropriate rates of pay 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 rostered period in which the hours were worked.

The applicant also seeks an order that the respondent pay to Pretto an underpayment and interest, the underpayment being calculated in paragraph 14 of the amended statement of claim as $2,637.11.

Finally, the applicant seeks an order that any penalty or penalties be paid to the applicant.

ADMISSIONS
The respondent admits

1. both parties are bound by the TAFE Teachers’ Conditions of Employment (Victoria) Interim Award 1994 (the Award) and that the applicant is an organisation of employees registered under the Act

2. the respondent employed Pretto to work as a teacher in the Department of Computer Studies between 26 February 1996 and 31 December 1996

3. Pretto was engaged under the Teacher subdivision 6 classification pursuant to Division 1, Part 2 of the Award and was entitled to a pro rata annual salary of $42,248

4. clause 3.4.2(2) of the Award prescribed 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)

5. between 26 February and 31 December Pretto was required to perform teaching duties over 41 weeks

6. clauses 3.6.1, 3.6.2 and 3.6.3 provide for the payment of excess hours at penalty rates with payment to be made no later than the fortnight following the roster period in which the hours were worked

7. between 26 February and 31 December Pretto was required to teach a total of 708 hours.

DENIALS
The respondent denies the following allegations in the amended Statement of Claim:

1. The maximum teaching duty hours for the period 26 February to 31 December on a pro rata basis was 683 hours.

2. The maximum teaching duty hours for Pretto was 625.5 hours calculated on the basis that she had been allocated 57.5 hours to curriculum allowances which counted as teaching duty hours.

3. Pretto was required to teach 82.5 hours in excess of maximum teaching duty hours of 625.5.

4. The respondent has failed to pay Pretto excess hours within the fortnight following the roster period in which worked.

The respondent’s denials are based on the proposition that Pretto’s total of 708 hours was below the maximum teaching hours which the respondent calculates at 727.12 hours.
THE ISSUE - WAS THE EMPLOYEE REQUIRED TO WORK IN EXCESS OF MAXIMUM TEACHING DUTY HOURS?
The applicant asserts the employee was required to work 82.5 hours in excess. The respondent denies that the employee was required to work in excess of maximum teaching duty hours.

The claim and the defence turn on the meaning and scope of the term “full teaching year” in clauses 3.4.1 and 3.4.2 of the Award.

The clauses, with the key words emphasised are as follows:

“DIVISION 4 - TEACHERS’ PROFESSIONAL DUTIES

3.4.1.   Scheduled Duties

1. Maximum Scheduled Duties
   The maximum scheduled duties shall be 960 hours per year (pro-rata for part-time or employment for less than the full teaching year). Scheduled duties shall include a minimum of 30 hours of professional development.

2. The following allowances shall be counted as scheduled duties:
              (a)       Union branch allowances,
              (b)       Occupational Health and Safety representatives allowances, and
              (c)       travel allowances.
   3.4.2    Teaching Duty Hours (Student Contact Hours)

3. Teaching duties shall include practical placement field teaching visits where practical placement is required by the accredited course.

4. Maximum Teaching Duty Hours
   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).

5. The following allowances shall be counted as teaching duty hours:
              (a)       curriculum allowances,
              (b)       program co-ordinator and head of department allowances,
              (c)       large department allowances, and
              (d)       administrative and program allowances.

6. Teaching duty hours shall be further reduced when scheduled duties other than teaching duty hours exceeds 160 hours per year.”
   THE RESPONDENT’S SUBMISSIONS
   The respondent contends that the full teaching year in 1996 was either the period 19 February to 29 November or the period 19 February to 19 December. The primary submission is that the full teaching year was the former. The latter is an alternative submission.

It is common ground that the Award does not define the term “full teaching year” and that there is nothing in the Award which specifies the scope and nature of the term. The respondent argues that

• “the Award (and the term itself) must be read in the context of the requirements of the industry to which it applies”: F J Walker Limited v Casey (1989) 29 IR 303 at 307

• the words of the Award are not “to be interpreted in a vacuum divorced from industrial realities” but rather “in the light of the customs and working conditions of each industry”: City of Wanneroo v Holmes (1989) 30 IR 367 at 378 and Federated Municipal and Shire Council Employees Union of Australia New South Wales Branch v Sutherland Shire Council (1990) 32 IR 470 at 475.

Counsel for the respondent asserted that “all 21 TAFE institutes” are respondents to the Award and all are “subject to VTAC admission requirements”. The Court notes that no evidence was called to support this assertion. Counsel for the applicant did not concede that all respondents to the Award “are subject to VTAC admission requirements”. However, for the purpose of the argument put on behalf of the respondent, the Court, for the moment, is prepared to assume that the “21 TAFE institutes” as respondents to the Award are subject to VTAC admissions requirements in respect of some courses and subjects. However, even if that be so, there is evidence that there are subjects and courses provided in the Computer Studies Department and taught by Pretto which were not subject to VTAC admission requirements (see the evidence of Mr Head).

Counsel for the respondent has submitted that because of VTAC admission requirements the “full teaching year” in 1996 could not commence prior to 19 February. For this assertion counsel relies on the evidence of the acting head of computer studies at Western Metropolitan College of TAFE, Mr Head. He confirmed that the first semester of the College in 1996 commenced on 19 February as stated in the College Diary Handbook (Exhibit R1).

Mr Head also confirmed the following dates published in the College Diary Handbook

• 24 January - first round VTAC offers posted

• 6 February - second round VTAC offers posted

• 28 June - first semester concludes

• 15 July - second semester commences

• 29 November - final examinations conclude

• 19 December - second semester concludes

The respondent submits that, given the VTAC admission requirements, the full teaching year could not commence before 19 February and concluded at the conclusion of examinations on 19 November or alternatively at the conclusion of the second semester on 19 December.

The respondent then argues that Pretto began teaching full-time on 26 February one week after the commencement of the “full teaching year” and that the maximum teaching duty hours pro rata are not 625.5 hours as calculated by the applicant but 727.12 hours and that therefore the 708 hours which it is agreed Pretto worked are not in excess of the 727.12 “pro rata (hours) for employment for less than the full teaching year”.

It is noted that the respondent calculates the pro rata hours as follows

• maximum teaching duty hours 800 hours per year

• deduct 1/52 of 800 (15.38) hours for commencing 26 February

• deduct 57.5 hours to curriculum allowances

• total 727.12 maximum teaching hours

THE APPLICANTS SUBMISSIONS
The applicant submits that “full teaching year” in the Award means that period in which a teacher may be required under the Award to perform scheduled and teaching duties and that such period is not confined, as the respondent asserts, to a period governed by VTAC admissions and/or the semesters set for the Western Metropolitan College of TAFE.

The applicant asserts that “the full teaching year” for a full-time teacher is a period of 1748 hours being 46 weeks at 38 hours a week. The Court has assumed that the applicant then argues that the maximum pro rata teaching duty hours for employment for less than “the full teaching year” should be calculated by a pro rata reduction in maximum teaching duty hours to correspond with the portion of the full teaching year worked by Pretto. However, the Court is uncertain as to whether the applicant has correctly calculated maximum teaching duty hours and is also unclear as to the basis of the calculation.

The maximum teaching duty hours calculated for Pretto pursuant to clause 3.4.2 of the Award are 625.5 hours (see amended Statement of Claim paragraph 9). In paragraph 7 of the amended Statement of Claim the calculation is stated to be based on Pretto being required to perform teaching duties over 41 weeks. However, in final submissions I understood Counsel for the applicant to argue that Pretto was only available to perform teaching and scheduled duties for 39 weeks. To add to the confusion, the 625.5 maximum teaching duty hours appear calculated over 41 weeks on the basis of a full teaching year of 48 weeks rather than 46 weeks.

CONCLUSION
I have concluded that a “full teaching year” is not a discrete period as asserted by the respondent but is a term denoting a maximum number of hours for the performance of scheduled and teaching duties. To that extent I agree with the position taken by the applicant. The term is only used twice in the Award and it is in the context of calculating pro rata scheduled duty hours and teaching duty hours for teachers who are employed part-time or full time for less than the “full teaching year”. As the term is only used in the context of calculating pro rata maximum scheduled duty hours and teacher duty hours it must, in my view, refer to a period from which pro rata calculations can be made.

I find that “full teaching year” denotes a period of 1748 hours and represents 46 weeks at 38 hours a week.

Such a construction is supported by

• clause 3.3.1 where a full-time teacher is employed for a minimum of 38 hours per week

• clause 9.1.2(1) where a teacher is entitled to twenty days annual leave per year,

• clause 8.1.1 which makes provision for eleven public holidays.

Such a construction is also supported by the scope of a teacher’s duties as reflected in the Award. Scheduled duties include duties such as professional development, union representation and duties as an Occupational Health and Safety Representative (see clause 3.4.2(2)). Some teaching duties do not require student contact and include curriculum, administrative and program duties as provided in clause 3.4.2(3). Clearly, such additional duties may be performed outside terms or semesters.

There is nothing in the Award to support the proposition that “full teaching year” is determined by VTAC admission requirements or the semester dates set by one particular TAFE College.

The evidence does not establish that all respondents to the Award are subject to the requirements of the VTAC admission system. Indeed, it is clear that some of the courses offered by the respondent were not subject to such requirements and that short courses and industry training programs are not linked to the VTAC admission system and need not be linked to the respondent’s own semester dates. Furthermore, the construction for which the respondent contends would lead to concentrated teaching loads for short term teachers and a variation of teaching load depending on semester dates or on the length and timing of different courses.

I have concluded that the 708 hours which Pretto was required to utilise as assessed teaching duty hours was in excess of maximum pro rata teaching duty hours.

In the course of the hearing I declined to allow the applicant to introduce as evidence correspondence to and from Ms Pretto and other staff at the TAFE College or a 1985 Agreement relating to Arrangements for Teaching Staff at the College. The correspondence could not be or of assistance as an aid to interpretation of the Award and, if evidence of the conduct of the parties after the making of the Award, it is not admissable: Professional Radio and Electronics Institute of Australasia v Qantas Airways Limited (1984) 10 IR 1at 3; Seamen’s Union of Australia v Adelaide Steamship Co Ltd (1976) 46 FLR 444. I have left open the possibility that the correspondence may be of some relevance to penalty in the event of orders in favour of the applicant. I was also unsatisfied that the 1985 Agreement could be of assistance, guidance or relevance or that it dealt with the general subject of a concept such as “full teaching year”.

On the other hand, despite objection, I admitted the Technical and Further Education Teaching Service Award of 5 April 1992, No 1 of 1992, an Award made by the Industrial Relations Commission of Victoria (Exhibit A5) and an Agreement on Award Restructuring for TAFE Teachers between the Federated Teachers’ Union of Victoria and the Government of Victoria, September 19, 1991 (Exhibit A4). Both the Agreement and the State Award contain reference to what are now clauses 3.4.1 and 3.4.2 of the present Award and I had no doubt that both documents were “plainly relevant to an understanding of what is likely to have been intended” by the term “full teaching year” in clauses 3.4.1 and 3.4.2 of the Award: Short v Hercus Pty Ltd (1993) 40 FCR 511 at 518.

I reached a conclusion that “full teaching year” denotes a period of 1748 hours and represents 46 weeks at 38 hours a week separately from any reference to the Agreement (Exhibit A4) or the State Award (Exhibit A5) but I found nothing in either document which is inconsistent with the meaning which I have attached to the term “full teaching year”.

I now invite the parties to address me further on the calculation of the excess hours and on penalty and require the applicant to submit a draft Order as outlined below.

ORDERS

The Court

1. declares 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

2. requires 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. The draft order should also specify excess hours calculated pro rata on the basis that a full teaching year comprises 1748 hours worked over 46 weeks

3. invites the parties to address further on the calculation of excess hours and on penalty

4. adjourns the application to a date to be fixed.

I certify that this and the preceding eight (8) pages are a true copy of the Reasons for Judgment herein of Judicial Registrar Ryan

Associate:

Dated:             21 October 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:	14 October 1997
Date of Judgment:	21 October 1997