Carr v ILSC (Brisbane) Pty Ltd and Anor and Pathik v ILSC (Brisbane) Pty Ltd and Anor
[2019] FCCA 456
•28 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CARR v ILSC (BRISBANE) PTY LTD & ANOR and PATHIK v ILSC (BRISBANE) PTY LTD & ANOR | [2019] FCCA 456 |
| Catchwords: WORDS & PHRASES – “Required”. |
| Legislation: Fair Work Act 2009, ss.45, 340, 341, 342, 360, 361, 539, 545, 547, 550 |
| Cases cited: Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463 |
| Applicant: | PETER CARR |
| First Respondent: | ILSC (BRISBANE) PTY LTD |
| Second Respondent: | CHRIS KEITH |
| File Number: | SYG 3855 of 2017 |
| Applicant: | SANGEET PATHIK |
| First Respondent: | ILSC (BRISBANE) PTY LTD |
| Second Respondent: | CHRIS KEITH |
| File Number: | SYG 3878 of 2017 |
| Judgment of: | Judge Cameron |
| Hearing date: | 6-7 February 2019 |
| Date of Last Submission: | 7 February 2019 |
| Delivered at: | Sydney |
| Delivered on: | 28 February 2019 |
REPRESENTATION
| Counsel for the Applicants: | Mr A. Duc |
| Counsel for the Respondents: | Mr N. Furlan |
| Solicitors for the Respondents: | Chadwick Workplace Law |
ORDERS
SYG 3855 of 2017
The application be dismissed.
SYG 3878 of 2017
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3855 of 2017
| PETER CARR |
Applicant
And
| ILSC (BRISBANE) PTY LTD |
First Respondent
| CHRIS KEITH |
Second Respondent
SYG 3878 of 2017
| SANGEET PATHIK |
Applicant
And
| ILSC (BRISBANE) PTY LTD |
First Respondent
| CHRIS KEITH |
Second Respondent
REASONS FOR JUDGMENT
INTRODUCTION
On 13 December 2017 the applicants, both former employees of the first respondent (“ILSC”), commenced individual proceedings in this Court alleging contraventions by ILSC of ss.45 and 342 (recte: s.340) of the Fair Work Act 2009 (“FW Act”). Those provisions are concerned respectively with breaches of modern awards and adverse action in employment.
The applicants also alleged that the second respondent in each proceeding, Mr Keith, the Centre Director of ILSC’s Sydney branch, was liable as an accessory to ILSC’s contraventions.
The matters were heard concurrently, with the evidence in one to be evidence in the other, and the parties filed a Statement of Agreed Issues on 1 February 2019. That statement has been reproduced later in these reasons.
For the reasons which follow, the applications will be dismissed.
ALLEGATIONS
Underpayment of wages
Mr Carr
Mr Carr alleged that he was employed by ILSC on 7 November 2016. He alleged that his employment was covered by the Educational Services (Post-Secondary Education) Award 2010 (“Award”) and that he was classified as a level 12 teacher.
Mr Carr alleged that:
a)from 7 November 2016 to 23 July 2017 he normally worked 23 contact hours per week, plus additional hours for assessments and administration. The additional hours were performed in Mr Carr’s personal time and from November 2016 to June 2017 he was paid 67% of his hourly rate for this work;
b)from 24 July 2017 to 24 November 2017 he normally worked 29 contact hours per week, plus additional hours for assessments and administration. He alleged that in the period May [sic] to September 2017 he did not receive any payments for working these additional hours. From September to November 2017, he was paid 10% of his hourly rate for assessments and administration;
c)in the period 7 November 2016 to 11 December 2017 “and ongoing”, ILSC breached cl.14.5 of the Award by failing to pay him, or underpaying him, for the additional hours he worked. He alleged that he was owed $38,908.01 in this regard, as well as $3,696.26 in superannuation which was a breach of cl.20 of the Award; and
d)he had not been paid an amount of $1,130.50 for the work he performed in the period 5 February 2018 to 17 February 2018.
Mr Pathik
Mr Pathik was employed by ILSC from 25 July 2016. He alleged that he was employed as level 10 teacher under the Award.
Mr Pathik alleged that:
a)in the period 25 July 2016 to 24 November 2017 [sic] he normally worked 24 contact hours per week, plus additional hours performed in his personal time for assessments and administration. In the period July 2016 to June 2017, he was paid 67% of the hourly rate for this work;
b)from May 2017 to 24 November 2017 he typically worked 24 contact hours per week, plus additional hours for assessments and administration. He alleged that in the period May 2017 to September 2017, he was not paid at all for working these additional hours; and
c)in the period 25 July 2016 to 11 December 2017 “and ongoing”, ILSC breached cl.14.5 of the Award by failing to pay him, or underpaying him, for the additional hours he worked. He alleged that he was owed $40,252.83, plus $3,824.02 in superannuation. He alleged that the latter was a breach of cl.20 of the Award.
Breaks
The applicants also alleged that in breach of cl.22 of the Award they did not receive any meal breaks during the period of their employment. They alleged that they were “entitled to overtime for all time worked thereafter”.
Mr Carr alleged that he was owed $24,750.25 in this regard, as well as $2,351.27 in unpaid superannuation. Mr Pathik alleged that he was owed $32,859.47, plus superannuation in the amount of $3,121.65.
Adverse action
On 3 November 2017 Mr Carr and Mr Pathik were sent proposed new contracts of employment by ILSC. They alleged that on 14 November 2017 they complained to ILSC, via Mr Keith, about various workplace issues, including that the proposed contract did not meet the Award’s minimum standards.
The applicants alleged that on 24 November 2017 ILSC reduced their working hours. Mr Carr’s hours were reduced to 19 hours per week and, from 24 February 2018, he was not allocated any hours at all. Mr Pathik alleged that his hours were reduced to 15 hours per week and then, from mid-December 2017, 6 hours per week. The applicants alleged that this occurred because of the complaint they made on 14 November 2017 and was adverse action taken in contravention of s.340(1) of the FW Act.
Accessorial liability
The applicants alleged that Mr Keith was liable as an accessory for ILSC’s contraventions as he had been the person directing ILSC’s actions.
Relief sought
The applicants sought:
a)declarations that ILSC contravened s.342(1) [sic] of the FW Act:
i)by reducing Mr Carr’s hours of work on 24 November 2017 from 32 to 19 hours per week; and
ii)by reducing Mr Pathik’s hours of work on 24 November 2017 from 32 to 19 [sic] hours per week;
b)declarations that ILSC breached cls.14.5 (casual rates), 20 (superannuation) and 22 (meal breaks) of the Award and thus contravened s.45 of the FW Act;
c)declarations that Mr Keith is liable pursuant to s.550 of the FW Act as an accessory to ILSC’s contraventions of the FW Act;
d)compensation; and
e)the imposition of pecuniary penalties.
DEFENCE
The respondents denied the allegations that they had breached the Award and the FW Act. They also alleged that the applicants had been employed on a casual basis and that their employment had since been terminated.
AGREED ISSUES
An identical Statement of Agreed Issues was filed in each matter.
The parties agreed that the following were the issues to be determined:
Claim One: Adverse Action – s.340 Fair Work Act 2009 (Cth)
1. By being named as one of 9 authors of an email to the First Applicant [sic] dated 14 November 2017:
(a) did the Applicant make a “complaint” to the First Respondent on 14 November 2017 (within the meaning of s.341(1)(c)(ii) of the Fair Work Act 2009 (Cth) (Complaint)?
(b) did the Applicant exercise a workplace right (within the meaning of s.340(1)(a)(ii) of the Fair Work Act 2009 (Cth)?
2. If so, did the First Respondent:
(a) reduce the Applicant’s hours of work because the Applicant made the Complaint?
(b) thereby take adverse action against the Applicant contrary to s.340 of the Fair Work Act 2009 (Cth)?
3. If so, did the Applicant suffer a loss because of this contravention?
4. If so, should compensation be ordered under s.545 of Fair Work Act 2009 (Cth), and in what amount?
Claim Two: Underpayment – marking/administration
5. Did the First Respondent fail to pay, or underpay, the Applicant for hours alleged to have been worked from home, marking assessments, preparing for classes and doing general administration work for the Respondents?
6. If so, did the First Respondent breach:
(a) the Educational Services (Post-Secondary Education) Award 2010, clause 14.5, Casual rates—teachers, tutor/instructors and general staff?
(b) section 45 of the Fair Work Act 2009 (Cth)?
7. If so, did the Applicant suffer a loss because of this contravention?
8. If so, should compensation be ordered under s.545 of Fair Work Act 2009 (Cth), and in what amount?
Claim Three: Underpayment – meal breaks
9. Did the First Respondent require the Applicant to work more than 5 hours on weekdays without an unpaid meal break of 30 minutes?
10. If so, did the First Respondent breach:
(a) the Educational Services (Post-Secondary Education) Award 2010, clause 22.2, Breaks?
(b) section 45 of the Fair Work Act 2009 (Cth)?
11. If so, did the Applicant suffer a loss because of this contravention?
12. If so, should compensation be ordered under s.545 of Fair Work Act 2009 (Cth), and in what amount?
Claim Four: Superannuation
13. Did the First Respondent fail to make superannuation contributions for the Applicant?
14. If so, did the First Respondent breach:
(a) the Educational Services (Post-Secondary Education) Award 2010, clause 20, Superannuation?
(b) section 45 of the Fair Work Act 2009 (Cth)?
15. If so, did the Applicant suffer a loss because of this contravention?
16. If so, should compensation be ordered under s.545 of Fair Work Act 2009 (Cth), and in what amount?
Accessorial Liability – Second Respondent
17. Was the Second Respondent:
(a) “involved in” (within the meaning of s.550(2) of the Fair Work Act 2009 (Cth)) any of the contraventions of a provision (or provisions) of the Fair Work Act 2009 (Cth) by the First Respondent alleged by the Applicant?
(b) thereby taken to have contravened that provision (or those provisions) himself?
18. If so, did the Applicant suffer a loss because of the contravention (or contraventions)?
19. If so, should compensation be ordered as against the Second Respondent under s.545 of Fair Work Act 2009 (Cth), and in what amount? (Emphasis in bold)
MODERN AWARD
At all material times, cls.10, 13, 14, 20, 21 and 22 of the Award relevantly provided as follows:
10. Types of employment
10.1 Employees under this award will be employed in one of the following categories:
…
(c) casual employment; …
…
10.4Casual employment
(a) A casual employee is engaged and paid by the hour.
(b) A casual employee will be paid in accordance with the provisions of clause 14.5.
…
…
13. Classifications
13.1 All employees covered by this award must be classified according to the classification descriptors set out in Schedule B—Classifications—Academic Teachers, Schedule C—Classifications—Teachers and Tutor/instructors or Schedule D—General Staff, and paid the minimum weekly rate or the minimum annual salary for the classification level in clause 14—Minimum wages. Employers must advise their employees in writing of their classification level and of any changes to their classification level.
…
14. Minimum wages
…
14.3 [Teachers’ annual salaries prescribed]
…
14.5 Casual rates—teachers, tutor/instructors and general staff
(a) A teacher … will be paid a daily rate except where the engagement is for less than five hours when payment will be at the hourly rate. Where an hourly rate is paid, it will be payable for each hour of attendance other than for timetabled tea breaks (in respect of which no more than 15 minutes will be deducted) and timetabled lunch breaks.
(b) Other than as specified above, casual rates for staff will be calculated as follows:
Category
Calculation
…
Teachers
Daily rate: annual salary divided by 261 plus 25%
Hourly rate: daily casual rate divided by 5
…
…
20. Superannuation
…
20.2 Employer contributions
An employer must make such superannuation contributions to a superannuation fund for the benefit of an employee as will avoid the employer being required to pay the superannuation guarantee charge under superannuation legislation with respect to that employee.
…
21. Ordinary hours of work
…
21.3 Ordinary hours of work—teachers and tutor/instructors
(a) For the purposes of the NES, the ordinary hours of work are 38 per week.
(b) …
(c) For the purpose of determining the number of hours worked by a teacher or tutor/instructor the following will apply:
(i) each contact hour of teaching delivery by a teacher will count as 1.5 hours of work, including administration, assessment and consultation; …
…
21.4 Where a member of the teaching staff is working annualised hours, the provisions of clause 22—Breaks and clause 24—Overtime will not apply. Save that such an employee will be entitled to an unpaid meal break of not less than 30 minutes after five hours of work.
22. Breaks
…
22.2 Non-shiftworkers
An unpaid meal break for non-shiftworkers of not less than 30 minutes and not more than one hour will be allowed for a meal. An employee will not be required to work for more than five hours without a meal break.
22.3 All employees
…
(c) If an employee is required to work through their normal meal break the employee will be paid double time for all time so worked until such time as the meal break is given.
…
RELEVANT LEGISLATION
Section 45 of the FW Act provides that a person must not contravene a term of a modern award.
Adverse Action
Part 3-1 of ch.3 of the FW Act provides for employees’ general protections. Division 3 of pt.3-1 provides for the protection of workplace rights and for the exercise of those rights. Sections 340 to 342 of the FW Act are found in div.3 of pt.3-1 and relevantly provide:
340 Protection
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b)to prevent the exercise of a workplace right by the other person.
…
341 Meaning of workplace right
Meaning of workplace right
(1) A person has a workplace right if the person:
(a)is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b)is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c)is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee—in relation to his or her employment.
…
342 Meaning of adverse action
(1)The following table sets out circumstances in which a person takes adverse action against another person.
Meaning of adverse action Item Column 1
Adverse action is taken by ...
Column 2
if ...
1 an employer against an employee the employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee’s prejudice; or
(d) discriminates between the employee and other employees of the employer.
…
Section 361 of the FW Act is concerned with proof of the reason for action alleged to be contrary to a provision of pt.3-1 of the FW Act. At all relevant times it provided:
361 Reason for action to be presumed unless proved otherwise
(1) If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
…
Section 360 provides:
360 Multiple reasons for action
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
Accessorial liability
Section 550 of the FW Act provides:
550 Involvement in contravention treated in same way as actual contravention
(1) A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
(2) A person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a) has aided, abetted, counselled or procured the contravention; or
(b) has induced the contravention, whether by threats or promises or otherwise; or
(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d) has conspired with others to effect the contravention.
Penalties and compensation
Section 539 of the FW Act provides that ss.45 and 340 are civil remedy provisions. Section 545(2)(b) of the FW Act provides that the Court may award compensation for loss suffered because of a contravention of a civil remedy provision. Section 547(2) provides that, unless good cause is shown to the contrary, if an order for interest is sought the Court must include interest up to the date of judgment on any sum for compensation ordered to be paid under the FW Act.
APPLICANTS’ EVIDENCE
Mr Carr – initial terms, conditions and working hours
Mr Carr deposed that he was employed by ILSC on 7 November 2016 pursuant to a contract of employment which specified the following terms:
a)his employment would be covered by the Award;
b)he would be employed on a casual basis as a VET Trainer and Assessor at a level 12 classification;
c)his hours of work would be Wednesdays and Thursdays from 2:45pm to 5:45pm and from 6pm to 9pm;
d)he would be paid an hourly rate of $57.60; and
e)ILSC would make superannuation contributions on his behalf at the rate of 9.5%.
Mr Carr deposed that in the period 7 November 2016 to 23 July 2017 he normally worked 23 contact hours per week, plus 4.5 additional hours per week for assessments and administration. He deposed that the additional hours were performed in his personal time and that ILSC paid him $38.36 per hour for this work (or 67% of his hourly rate). Mr Carr deposed that this rate was referred to as an “admin rate” on his timesheets and pay slips.
When the evidence was tested in cross-examination by reference to pay slips annexed to his first affidavit, Mr Carr conceded that these dates were incorrect and that commencing in January 2017 he had actually been paid his full hourly rate although he insisted that such pay rates were only “for the hours that we were allowed to claim”.
He excused the inaccuracy in his affidavit by saying that “they chopped and changed this so many times”. He said first they were paid at 67% of the hourly rate, then the full rate, then nothing. He conceded that he had not read, relevantly, Mr Keith’s analysis of his payments which summarised his hours worked and wages paid for October 2013 to April 2018. He said he had not had the time.
Mr Carr also said that he understood that his affidavit had created a misleading impression that his claim was larger than it actually was.
Mr Carr deposed that in the period 24 July 2017 to 24 November 2017 he worked 29 contact hours per week, plus around 6 additional hours per week for assessments and administration which he performed during his personal time.
Mr Carr deposed that in about July 2017 Mr Keith said to him words to the effect of:
You cannot claim for assessment marking anymore, and you won’t be paid any more for marking.
Consequently, from 24 July 2017 to about September 2017, he was not paid for marking assessments. However, he agreed in cross-examination that timesheets from that period showed him making no claims for marking his students’ work. He said that claiming for marking was not permitted at that time. However, he was taken to another timesheet (August – September 2017) where he had claimed for marking. Mr Carr explained this by saying that during that period he had, by special arrangement, marked the work of another teacher’s students and so was paid for that.
Mr Carr deposed that in about September 2017 Mr Keith said to him words to the effect of:
From now on, for assessment marking you can claim for, and will be paid for, a number of hours equivalent to 10% of your teaching hours. This is regardless of how many assessments you mark or how much time you spend marking.
Mr Carr deposed that he was subsequently paid at that rate until about November 2017. However, he was taken to a timesheet in that period in which he claimed 3.25 hours of marking although he said he had done much more and his teaching hours for that fortnight had totalled 58. He offered no substantive explanation for why he had not claimed 5.8 hours for marking, simply saying that ILSC’s staff would ask teachers to reduce their work hours claims in a given week because it looked “bad … with the company upstairs”.
Mr Carr said that it was ludicrous to suggest that a fortnightly timesheet which recorded 3.5 hours of assessment marking and preparation was an accurate reflection of the amount of such work done in that period. He said the fact that he had not claimed his full 10% entitlement in particular fortnights reflected the poorly-run nature of ILSC and the fact that the “rules were changing all the time”.
Mr Carr deposed that in the period 5 February 2018 to 17 February 2018, he did 19 hours of assessment marking work for which he had not been paid. In his affidavit in reply he “attached as evidence … a list of the assessments that [he] marked in February 2018, and for which marking [he] was not paid”. Mr Carr was taken in cross-examination to details of that “assessment marking work” and, in particular, to examples of students being failed on courses for not having submitted written work, a process which involved no marking and in one identified case took only a minute. Mr Carr said that this work was the assessment of students’ attainment at the end of their courses and that he was entitled to be paid for it on the basis that assessments were not limited to marking but also involved the determination of final results.
Mr Pathik – initial terms, conditions and working hours
Mr Pathik deposed that he was employed by ILSC on 25 July 2016 pursuant to the following terms and conditions:
a)he would be employed as a VET Trainer for Certificate IV in International Trade as a level 10 teacher;
b)pursuant to the Award, he would be paid an hourly rate of $53.47. The hourly teaching rate included all preparation, administration and other duties consistent with delivery of VET programs;
c)he would be paid an additional non-teaching rate for marking; and
d)his hours of work would be Mondays, Tuesdays and Wednesdays from 4:45pm to 9pm.
Mr Pathik deposed that in the period 25 July 2016 to 24 November 2017, he normally worked 20 contact hours per week, plus an additional 4.5 hours per week for assessments and administration which he performed in his personal time. In his written submissions these details were corrected to 25 July 2016 to 6 July 2017 and an average of 19.74 contact hours per week. He deposed that he was initially paid $34.46 per hour for this latter work (or 67% of his hourly rate), however, in May 2017 Mr Keith advised him that he could no longer claim for assessment marking. Consequently, from May 2017 until about December 2017, he was not paid for marking assessments. Mr Pathik conceded in cross-examination that from January 2017 he had been paid his full rate for that work. Mr Pathik said that in a meeting in May 2017 trainers were told to not claim for marking and were congratulated for not doing so. He said he undertook marking and did not claim for it.
Mr Pathik deposed that in the period 24 July 2017 to 24 November 2017 he worked 24 contact hours per week, plus unspecified additional hours for assessments and marking. In his written submissions, these details were corrected to 6 July 2017 to 26 November 2017 and an average of 23.05 contact hours per week.
Proposed new contract
Both applicants deposed that at a meeting on 17 October 2017 Mr Keith said words to the effect of:
I am responsible for deciding on breaks … 30-minute breaks will only be allowed for shifts of five hours or longer, but the shifts every weekday from 2.45PM until 9PM are not over five hours, because they are two separate shifts, one from 2.45 to 5.45PM, and then another shift from 6 to 9PM. So that is not a shift of more than 5 hours, and therefore I will not give you a 30-minute break on those days.
On 28 October 2017 Mr Pathik lodged a general protections claim with the Fair Work Commission alleging contraventions by ILSC of his workplace rights.
On 31 October 2017 Francis David, Director of Training of ILSC Education Group, emailed all VET Trainers, including the applicants, an “official notice” regarding changes to ILSC’s VET program and casual trainer contracts, including the roll-out of a new “daily rate delivery model and remuneration scheme”. The email also referred to the revision of “the new contract” to address issues which had been raised by the trainers “during the last meeting”. The applicants also received proposed new contracts of employment (dated 3 November 2017) which specified the following terms:
a)commencing on 27 November 2017, they would be employed as casual VET Trainers, Mr Carr as a level 12 trainer and Mr Pathik as a level 11 trainer;
b)their hours of work would be on “an engagement by engagement basis” as directed by their manager but between the hours of 7:30am and 9:30pm on business days;
c)Mr Carr’s hourly rate would be $59.50 and his daily rate would be $297.49;
d)Mr Pathik’s hourly rate would be $58.12 and his daily rate would be $290.60;
e)they would be paid in accordance with their hourly rate, with the following exceptions:
i)if they worked more than 5 hours per day, they would be paid their daily rate;
ii)if they worked 7 hours or more, they would be paid their daily rate plus one bonus hour at their hourly rate; and
iii)if they worked 8 hours or more, they would be paid their daily rate plus two bonus hours at their hourly rate; and
f)ILSC would continue to make superannuation contributions at the rate of 9.5%.
Their proposed contracts of employment also stated:
Trainers are required to provide one graded assessment for every hour of paid training. For any additional marking outside of this quota, trainers are entitled to claim 15 minutes per assessment at the admin rate.
…
As per the Award, one hour paid at this rate covers one hour of teaching and includes preparation, marking, administration and meetings. Additional non-teaching work that may be assigned will be paid at an hourly rate for administrative work which is calculated at 66% of your hourly teaching rate.
Both applicants deposed that a trainers’ meeting was held at around this time, at which point Mr Keith said words to the effect of:
You must sign the new employment contract or else your hours will be cut.
In his oral evidence Mr Pathik said this statement had in fact been made by David Tulloh, the VET Training Co-ordinator. The applicants both deposed that at that time they were concerned that the proposed replacement contracts:
a)applied an “admin rate” of 66% of the standard hourly rate to certain work;
b)required “one graded assessment for every hour of paid training”; and
c)did not provide a 30 minute break for shifts from 2.45pm to 9pm.
On 14 November 2017 Mr Carr sent an email to Messrs Keith and David “on behalf of the VET trainers of ILSC Sydney”, including Mr Pathik. The email relevantly stated:
1. We are not prepared to sign the version of the contract that you sent us recently, for the following reasons;
a. The contract was presented to us without consultation, which is our workplace right.
b. The contract attempts to effectively reduce our salaries by a considerable amount, even though we have existing contracts guaranteeing higher rates of pay.
c. The contracts discriminates against VET Trainers, as opposed to English teachers at ILSC.
d. The contract and linked timetable fails to provide 30 minute breaks for trainers working more than 5 hours, which is mandatory under the national employment standards.
e. The contract attempts to remove the 4 week required termination notice period that’s mandatory for systemic casual staff under the award, clause 11.2A, and replace it with a one day notice of termination period.
2. Furthermore, at our trainers meeting on 23rd of October, you said to us “if you don’t provide us with a signed copy of the new contract by the 3rd of November (later changed to 23rd november), we will not be able to provide you with any teaching hours”, i.e. effectively terminating our agreement. That is not legal under the Fair Work Act.
We would like to be involved in a process of consultation with you over the formulation of any new employment contracts for VET trainers at ILSC – as is our guaranteed workplace right under the national employment standards. … (Errors included) (Emphasis added)
The applicants deposed that on the same day they also participated in a meeting with Mr Keith to discuss their concerns about the proposed contracts. Both deposed that during that meeting Mr Keith said words to the effect of:
I have pushed back the deadline for contract signing, but if you don’t sign the new employment contract by 24 November 2017 your hours will be cut.
On 15 November 2017 Mr David invited Mr Carr and the other authors of the 14 November 2017 email to a meeting to discuss their concerns. The same day Mr Keith responded in writing to Mr Carr’s email essentially rejecting the allegations of non-consultation and discrimination against VET trainers. In relation to break times, Mr Keith stated:
… The Award states ‘An employee will not be required to work for more than five hours without a meal break’. Please note that there are no 5 hour blocks without breaks factored in. However, we are prepared to make any necessary timetable adjustments to ensure that there will be 30 minute breaks across all schedules.
The letter also said:
… ILSC is disappointed that you as a group are not in a position to accept the terms of the new employment agreements. We do note your preparedness to work through a process to find a solution to the current impasse and we too, are willing to engage with you to attempt to reach an outcome.
On 17 November 2017 Mr Carr lodged a general protections claim with the Fair Work Commission.
On 22 November 2017 Mr Tulloh emailed the trainers a proposed timetable. Mr Carr and Mr Pathik deposed that they were allocated 32 and 28 hours’ work respectively.
On 24 November 2017 Mr David sent the following email to the trainers:
Just reminding you that … we are expecting to receive the signed revised trainer contracts by 5pm today.
This will allow David [Tulloh] to finalise the timetable that was sent out earlier this week.
Please communicate with David or me as soon as possible in case you are not able to send the signed contract today, as it may result in changes in the roster.
As previously discussed, priority will be given to those who have signed the revised contracts.
Mr Pathik responded later that day, advising that he would not be signing the contract, that ILSC had reneged on its commitment to provide a timetabled 30 minute break, and that ILSC would be acting illegally if it reduced his hours of work in circumstances where his general protections application had not been resolved.
Later on 24 November 2017, Mr Tulloh emailed the trainers a revised timetable. Mr Carr deposed that his hours of work were reduced from 32 to 19 hours per week while Mr Pathik deposed that his hours were reduced from 28 to 15 hours per week.
On 25 November 2017 Mr Carr advised ILSC that he would not be signing the proposed contract of employment and that ILSC was acting illegally in reducing his hours of work.
On 27 November 2017 Mr Keith advised the trainers by email that the timetable would be changed to incorporate a 30 minute break (i.e from 5:30pm to 6pm). Mr Keith advised that the revised timetable would commence “from today” until 25 February 2018, when the new timetable, also incorporating a 30 minute break, would commence. Mr Carr agreed that the change had been implemented on 27 November 2017.
On 4 December 2017 Mr Carr received a proposed contract of employment in the same terms as the proposed agreement which had been offered to him on 31 October 2017 (but dated 3 November 2017). According to the covering email, Mr Carr had until close of business on 11 December 2017 to accept the offer. Mr Carr deposed that he signed the contract on 12 December 2017. However, his teaching hours were not reinstated and were reduced further on 30 January 2018 to 5 paid hours per week (although he also deposed that his hours were reduced to 6 hours on 5 February 2018). He deposed that he had not been allocated any hours of work since 23 or 24 February 2018.
On 27 March 2018 ILSC terminated Mr Carr’s employment on the basis of misconduct associated with the marking of assessments.
Mr Pathik deposed that he signed the new employment contract on 12 December 2017. On 10 May 2018 his employment was terminated for failing to mark assessments.
Mr Carr said that he and Mr Pathik had not helped each other prepare their evidence and he no recollection of them discussing its preparation. Mr Pathik said they had consulted each other in the preparation of their evidence.
Underpayments – breaks
Mr Carr deposed that from 7 November 2016 to 24 November 2017 he did not receive any 30 minute breaks on any of his shifts that started at 2.45pm and finished at 9pm.
Mr Pathik deposed that from 25 July 2016 to 24 November 2017 he received no 30 minute breaks on any of his shifts that started at 2.45pm and finished at 9pm. He said that the instructors had never been told that they could take a 30 minute break or given the opportunity to ask for one. He said that on one occasion he had been criticised for having been away from his classroom at 7pm although he had not been trying to have a 30 minute break. When pressed on whether he had even been told that he could not take a half-hour meal break, he recalled that when he started the job he had been told by the person who interviewed and employed him that he could not “take more than 15 minutes”. Later, he recalled that on more than one occasion he had asked Mr Tulloh, his supervisor, for 30 minute breaks but had been denied them.
RESPONDENTS’ EVIDENCE
Chris Keith
Mr Keith deposed that ILSC was part of the global ILSC Education Group (“ILSC Group”), which provided educational services in various locations in Australia (Sydney, Brisbane and Melbourne), Canada and India.
Mr Keith deposed that he had been employed as the Centre Director of ILSC’s Business College Sydney (“Sydney Business College”) since March 2016. As such, he was responsible for “operations”, namely building management, health and safety, the meeting of performance and financial targets and ensuring the provision of good customer service and good education. He said that at the relevant times responsibility for academic rostering rested with academic managers and that that was not part of his role. He had nothing to do with rosters and did not approve them. He reported to ILSC’s Regional Director for Sydney and Melbourne (i.e Mr Flaming) and they both reported to Christopher Mediratta, the Chief Operating Officer (“COO”) of the ILSC Group.
Mr Keith deposed that these proceedings were only concerned with ILSC’s Sydney Business College, which operated various language and business schools. He deposed that the college offered certificate and diploma courses and its students were predominately from overseas and living in Australia on student visas.
Mr Carr’s employment
Mr Keith deposed that Mr Carr was employed by ILSC on 7 November 2016 as a casual VET Trainer and Assessor in the Sydney Business College. In relation to the terms of conditions of his employment, Mr Keith deposed that:
a)Mr Carr’s employment was covered by the Award;
b)for the purposes of calculating his Award entitlements, Mr Carr was classified by ILSC as a level 12 teacher;
c)Mr Carr was initially paid an hourly rate of $57.60. This was increased to $59.50 on 1 July 2017;
d)Mr Carr’s general pattern of work hours was Wednesdays and Thursdays from 2:45pm to 5:45pm, followed by a second session from 6pm to 9pm; and
e)in the period 7 November 2016 to 23 July 2017, Mr Carr normally worked 23 contact hours per week.
Mr Pathik’s employment
Mr Keith deposed that Mr Pathik was employed by ILSC on 25 July 2016 as a casual VET Trainer and Assessor in the Sydney Business College. He deposed that Mr Pathik’s employment was also covered by the Award and that:
a)he was initially classified by ILSC as a level 10 teacher and was paid an hourly rate of $54.75. On 1 July 2017 his hourly rate was increased to $56.56;
b)in October 2017 Mr Pathik was re-classified as a level 11 teacher and was paid an hourly rate of $58.12;
c)Mr Pathik generally worked on Mondays, Tuesdays and Wednesday from 4:45pm [sic] to 5:45pm for tutorials, followed by a lecture from 6pm to 9pm; and
d)in the period 25 July 2016 to 24 November 2017, Mr Pathik normally worked 20 contact hours per week.
Hours and pay as calculated by ILSC
Mr Keith deposed that employees of the Sydney Business College were required to complete and submit timesheets as a record of hours worked and were paid according to the hours recorded in those timesheets.
Mr Keith deposed that Messrs Carr and Pathik’s hours of work were calculated in accordance with cl.21.3(c) of the Award; namely, every hour of completed contact work was taken to include half an hour of preparation and marking work outside the classroom. For example, if Mr Carr or Mr Pathik worked 20 contact hours in one week, they would be taken to have worked an additional 10 hours outside the classroom completing tasks such as lesson preparation, administration and assessment marking. Mr Keith said that payment for that work was built into the casual teacher hourly rate, by adding 50% to (what would otherwise have been) the hourly rate.
Mr Keith deposed that cl.14.5(a) of the Award stipulated that casual teachers were to be paid a daily rate unless they worked an engagement of less than 5 hours, in which case an hourly rate would apply (i.e the daily rate divided by five). Mr Keith deposed that until late November 2017, whenever Mr Carr or Mr Pathik worked an engagement of 6 hours, they were nevertheless paid at the hourly rate and not the daily rate.
Marking allowance
Mr Keith deposed that for marking, Mr Carr and Mr Pathik also received an extra allowance that was not prescribed by the Award. This allowance was introduced in late 2015 or early 2016 to give teachers an incentive to keep up with their marking responsibilities and was paid at the “admin rate” to teachers at the Sydney Business College until 23 January 2017 (when ILSC changed it to the “teaching rate”). The “admin rate” was 66% of the hourly teaching rate (and so set at what would have been the casual hourly rate if the additional 50% had not been included).
Mr Keith deposed that the marking allowance was calculated and paid on the number of assessments actually marked by a teacher. The college kept records of assessments marked by its teachers and each assessment marked counted as an amount of time worked for the purposes of calculating the allowance. Mr Keith deposed that the time taken to mark assessments differed depending on the course. For example, a teacher would receive an additional ten minutes pay for every Certificate II or Certificate III course assessment marked or an additional fifteen minutes pay for every Certificate IV or Diploma course assessment marked. Mr Keith said that ILSC’s marking reports showed that it took roughly 15 minutes to mark an assessment and it was on that basis that the incentive payments for marking were paid.
Mr Keith deposed that in Mr Carr and Mr Pathik’s cases, the marking allowance was calculated and paid based on records of assessments they submitted. If they did not submit a record of assessments marked, no allowance was paid because ILSC took this to mean that their marking had been completed during classroom time. Mr Keith deposed that he had reviewed ILSC’s assessment-marking records and its payroll records and these indicated that ILSC had paid Mr Carr and Mr Pathik a marking allowance for every claim they submitted.
Specifically in relation to Mr Carr, Mr Keith deposed that ILSC’s records indicated that in the period 24 July 2017 to 30 September 2017, Mr Carr was paid:
a)for all teaching hours at the rate of $59.50 for each hour worked; and
b)at the teaching rate of $59.50 for any hours worked marking assessments.
Mr Keith deposed that from May 2017 Mr Pathik did not submit any claims for payment of the marking allowance.
Mr Keith denied saying to Mr Pathik and Mr Carr in about May and July 2017 respectively that they would no longer be paid for assessment marking.
Breaks
Mr Keith said that although the break between the afternoon teaching block and the evening teaching block had been only 15 minutes and trainers were not allowed a 30 minute break (between the two teaching blocks), the existence or absence of a 30 minute meal break for trainers who taught both those blocks on one day had not been raised prior to 14 November 2017. He deposed that the Sydney Business College had always been willing to change the times of the 3 hour teaching blocks so that a 30 minute unpaid break could be taken between the afternoon and evening shifts but his recollection was that aside from Mr Carr, no teacher had insisted on this. Mr Keith deposed that in addition to this, the teachers who worked the afternoon teaching block (i.e from 2:45pm to 5:45pm) generally had a significant amount of “down time”. Teachers, including Mr Carr and Pathik, commonly had no work to do for significant periods during these blocks and were able to have breaks of 30 minutes or more for which they were paid. He also said that teachers had never been prevented from leaving their classrooms if they wanted to take a break and that all that was required was that a message be written on the board so students and others would know where they were.
Proposed changes
Mr Keith deposed that ILSC’s proposed changes to courses, schedules and employment contracts were the subject of consultation with staff from late August to November 2017. Meetings were held with staff on 22 August, 3 October and 23 October and staff feedback resulted in parts of the new employment contract being redrafted.
Mr Keith deposed that one important feature of these changes was the delivery of courses in 6 or 7 hour teaching blocks over two days to replace the shorter blocks of 3 hours over three days. On several occasions during the staff meetings, staff were advised that teachers who signed the new contracts would be allocated the new 6 and 7 hour teaching blocks in priority. He deposed that employees were not told that their hours would be cut if they did not sign the new contracts. However, once the 6 or 7 hour teaching blocks were in operation, there “wasn’t going to be a lot of leftover” in the form of the old style, shorter teaching sessions. Furthermore, all the teachers at the Sydney Business College were casual employees and the business did not guarantee any teacher’s hours of work.
Mr Keith deposed that he had no record of having attended a meeting on 17 October 2017, as asserted by Mr Carr and Mr Pathik, and denied saying at any such meeting words to the effect that he was responsible for deciding on breaks, that he would only allow 30 minute breaks for shifts of 5 hours or longer, or that the weekday shifts were not over 5 hours because they were comprised of two separate shifts commencing at 2:45pm and 6pm.
Reduction of work hours
Mr Keith deposed that he did not have the authority to set work hours on his own. Hours were set by the directors of ILSC Melbourne (Mr Flaming) and ILSC Brisbane (Ms Furstner) in consultation with the COO in Canada (Mr Mediratta).
Mr Keith deposed that he and the other directors, in consultation with the COO, decided to offer Mr Carr and Mr Pathik fewer working hours from 24 November 2017 because at that point neither of them had signed the new employment contracts and to work the longer teaching blocks it was necessary for them to have done so. He deposed that had Mr Carr or Mr Pathik been assigned a full block of teaching under the new schedule, they would have been paid more than the employees who signed the new contracts because they would have been paid an hourly rate (and would have been paid for 7 hours) whereas those on the new contracts would have been paid a daily rate plus one hour (6 hours in total). Mr Keith and the other directors did not consider this to be fair and so decided to offer Mr Carr and Mr Pathik fewer hours. Mr Keith deposed that the decision had had nothing to do with any complaint made by Mr Carr or Mr Pathik; rather, it concerned the introduction of workplace change and, specifically, a new teaching schedule and a desire to treat employees fairly as a whole.
In addition to this, from late November 2017 a drop in student numbers and whole class closures meant that there were fewer hours generally to allocate to teachers. Specifically, the introduction in early November 2017 of a new course, a Certificate IV Business, resulted in fewer enrolments in the college’s Certificate IV course in International Trade, which at the time was being taught by Mr Carr and Mr Pathik.
The applicants signed the contracts in December 2017. Mr Keith rejected the proposition that Mr Carr’s hours had not been reinstated once he signed the contract.According to documents exhibited to Mr Keith when he swore his affidavit, copies of which were included in exhibit R1, in the pay period 8 January 2018 to 20 January 2018 Mr Carr claimed and was paid for 46.5 hours and in the pay period 22 January 2018 to 3 February 2018 he claimed and was paid for 35.75 hours. After Mr Pathik signed the contract, according to documents in exhibit R1, he claimed and was paid for the following hours worked:
Period
Hours worked
22 January 2018 to 3 February 2018
24
5 February 2018 to 18 February 2018
30
19 February 2018 to 3 March 2018
26.25
5 March 2018 to 17 March 2018
35
19 March 2018 to 31 March 2018
40
2 April 2018 to 14 April 2018
38
16 April 2018 to 28 April 2018
45
30 April 2018 to 12 May 2018
72
Exhibit R1 also shows that Mr Pathik claimed to have worked 35 hours during the period 8 January 2018 to 20 January 2018 but no separate pay record for that period appears to have been introduced into evidence. It seems that the pay for that fortnight was included in the payment made on 8 February 2018 for the 22 January 2018 to 3 February 2018 fortnight.
Mr Carr’s termination
Mr Keith deposed that Mr Carr’s assertion that he had not been paid for 19 hours of assessment marking for the period 5 February 2018 to 17 February 2018 meant that Mr Carr was claiming to have marked 76 assessments over a period of two weeks. Mr Keith deposed that he reviewed Mr Carr’s claim against the college’s assessment marking records at the time and found that:
a)Mr Carr had legitimately marked 16 assessments only, for which he was paid 6 extra hours of marking;
b)Mr Carr had provided grades for assessments which had not even been submitted;
c)Mr Carr had copied and pasted his comments; and
d)the time taken by Mr Carr to record his grades and copy his comments averaged 1-2 minutes.
Mr Keith deposed that he became concerned that Mr Carr had submitted a claim to which he had not been entitled. He wanted to discuss these concerns with Mr Carr and decided that he would not allocate further classes to Mr Carr until those discussions had been had. However, despite his efforts over the next six weeks to engage with Mr Carr, Mr Carr refused to come to the college to discuss his marking claims. Mr Keith deposed that by the end of that period, Mr Carr had not explained to his satisfaction his claim for 19 hours of assessment marking. Consequently, he formed the view that Mr Carr’s claim was a false one and so his employment was terminated on 27 March 2018 for that reason.
Mr Pathik’s termination
On 30 January 2018 Mr Pathik was issued with a written warning about a large backlog of unmarked assessments he had accrued. Mr Keith deposed that despite improvements in February and March, Mr Pathik allowed a very large backlog of unmarked assessments to build up again in April 2018. That backlog was the focus of a meeting between Mr Pathik, Mr Keith and Karen Mercier, the National VET Manager, on 9 May 2018. Mr Keith deposed that during that meeting, Mr Pathik said that he had not been marking assessments because he did not agree with ILSC’s payment system. Mr Pathik’s employment was terminated on 10 May 2018.
Christopher Mediratta
Mr Mediratta has been the COO of the ILSC Group since February 2017. He deposed that the directors of ILSC in Brisbane, Sydney and Melbourne – being Ms Furstner, Mr Keith and Mr Fleming respectively – reported to him.
On 28 July 2018 [sic] Mr Mediratta met with Mr Keith, Ms Furstner and Mr Flaming to review and discuss updating the VET Trainer employment contracts. Mr Mediratta deposed that the review was undertaken to link the employment contracts to the Award and to standardise them across the three States. He deposed that the business was also looking to move away from the existing teaching delivery model of 3 hour blocks to two-day, 7 hour intensive sessions and that this change needed to be incorporated into their employment contract.
Mr Mediratta deposed that in about late October 2017 draft employment contracts were circulated to all trainers for feedback and discussion. At the time, and prior to Mr Carr’s email of 14 November 2017, all trainers were advised that priority in assigning hours would be given to those who could commit to the new delivery model.
Mr Mediratta deposed that he became aware through Mr Keith that there were some trainers in Sydney who objected to the implementation of the new employment contracts, including Mr Carr and Mr Pathik, and that they had sent an email on 14 November 2017 stating their objections. He deposed that the decision to reduce the applicants’ teaching hours had not been influenced in any way by their participation in sending that email or because they, or anyone else, had made a complaint. Rather, the allocation of teaching hours to Mr Carr and Mr Pathik had been influenced by the applicants’ decision to reject the new teaching schedules and a concern by ILSC to be fair to those teachers who had adopted them.
Jason Flaming
Mr Flaming is the Director of ILSC Melbourne. Since February 2016 he has also been the Regional Director for ILSC (i.e the first respondent).
Mr Flaming’s affidavits essentially repeated the matters deposed to by Mr Mediratta in his affidavits.
Else Furstner
Ms Furstner is the Director of ILSC Brisbane. Her affidavits also repeated, in materially similar terms, the evidence of Mr Mediratta and Mr Flaming.
CONSIDERATION
Witnesses
I do not place much weight on the fact that the applicants discussed their evidence before reducing it to writing in their affidavits-in-chief. I accept that this evidence will contain an element of reconstruction and perhaps refinement but I note that Mr Duc of counsel appeared for the applicants on a direct brief basis and it was apparent at the hearing that at least that part of the applicants’ affidavits had been prepared by the applicants themselves. Too much should not be made of conduct which, even though legal practitioners would be well aware of its inappropriateness, would be unexceptionable to many lay litigants.
Nonetheless Mr Carr’s denials that he and Mr Pathik had not consulted over their evidence was of concern. His attempts to explain why identical or near-identical passages appeared in each of their affidavits-in-chief, while maintaining they had not conferred over them, were not credible and I consider his evidence on this topic to have been evasive. I also consider this conduct to be more important than the fact that two lay witnesses conferred over events to which they were both witnesses and it has caused me to have concerns regarding Mr Carr’s evidence more generally.
In any event, the applicants’ recollections were shown to be unreliable. An example of this was Mr Carr’s claims concerning his rostering once he signed the new contract. Their complaints also suffered from a lack of attention to detail, which was not limited to their inattention to the evidence filed against them. It seems that their impressions and perceptions were not tested against all the information which was ultimately available to them.
Further in that regard, it is apparent that the applicants have, for some time, had an interpretation of the Award concerning what it provides and requires in connection with casual teachers’ salaries which, for reasons which follow, I find to be incorrect. It appears that this has caused them to understand statements made to them by ILSC managers in a way which has reinforced rather than corrected that misunderstanding. I also conclude that, similarly, the applicants misunderstood the materiality of the practical consequences of not participating in the new arrangements announced at the end of 2017, one of which was that they would be paid more than other teachers for the same work if their rostering was not changed, and so wrongly believed the reduction in their rostered hours was some form of retribution rather than a consequence of the working out of those new arrangements.
For these reasons, where the applicants’ evidence is in conflict with other witnesses’ evidence, I have preferred the evidence of the other witnesses.
Claim One: Adverse Action – s.340 of the Fair Work Act 2009
The parties characterised the first issue which the Court had to decide as follows:
1. By being named as one of 9 authors of an email to the First Applicant [sic] dated 14 November 2017:
(a) did the Applicant make a “complaint” to the First Respondent on 14 November 2017 (within the meaning of s.341(1)(c)(ii) of the Fair Work Act 2009 (Cth) (Complaint)?
(b) did the Applicant exercise a workplace right (within the meaning of s.340(1)(a)(ii) of the Fair Work Act 2009 (Cth)?
2. If so, did the First Respondent:
(a) reduce the Applicant’s hours of work because the Applicant made the Complaint?
(b) thereby take adverse action against the Applicant contrary to s.340 of the Fair Work Act 2009 (Cth)?
…
There seems to have been no argument that the 14 November 2017 email represented the exercise of a workplace right, in the form of making a complaint, which was protected by the FW Act. The respondents also accepted that the applicants had been offered fewer hours of work in the period following ILSC’s receipt of the email. The issue remaining to be determined is whether ILSC reduced the hours offered to the applicants because they had co-authored the email. Because the applicants alleged that their hours had been reduced on account of their exercise of a workplace right, pursuant to s.361 of the FW Act, it will be presumed that that was the case unless ILSC proves that the email was not a “substantial and operative reason” for the reduction in hours offered: Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463 at 501 [109]; Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 at 522-523 [56]-[59]; 535 [104].
In their written submissions the applicants also argued that the termination of Mr Pathik’s employment was relevant adverse action. However, this had not been raised as an issue at any earlier time and should not have been raised so late. Regard will not be had to this argument. The applicants also contended in their address and in their written submissions, again for the first time, that another motivation for the adverse action had been their refusal to sign the new contract. As the relevant workplace right was not identified, the relevance of this argument is far from clear - at least in the way it was presented. In any event, it would be unfair to entertain a contention raised for the first time after the close of evidence, with the consequence that regard will not be had to it either.
Nevertheless, some comment on the latter, new contention seems necessary. It appears that the applicants feel that their refusal to sign the contract and their complaint were the same thing. They were not, although they were plainly related. Most particularly, entry into the contract meant that the signatories would participate in the new rostering arrangements which were introducing large changes to the way classes were rostered. Relevantly for the applicants’ allegation, I am satisfied that ILSC’s concern was not with why the applicants did not sign the contracts but with the fact that they had not signed them: Construction, Forestry, Mining & Energy Union v Endeavour Coal Pty Ltd (2013) 234 IR 190 at 229-230 [173]. The failure to sign simply meant that the applicants were left behind in the restructuring, something which was reversed once they did sign. That conduct does not amount to taking adverse action for a prohibited reason.
More relevantly, no real doubt was cast on the respondents’ evidence that the change in rosters at the end of 2017 was associated with the introduction of the new contracts and the teaching arrangements which they put in place, or that ILSC gave priority to those teachers who, by agreeing to the new arrangements and signing the contracts, supported it. Importantly, three of the four decision-makers, Ms Furstner, Mr Flaming and Mr Mediratta, were not cross examined on their evidence that the allocation of work was determined by teachers’ support for the new arrangements. I accept their evidence, which provides significant corroborative support to Mr Keith’s evidence which I also accept. Even more important for the current allegation is the evidence that the decision to give preference in the allocation of work to employees who signed the contracts was made about three weeks before the 14 November 2017 email was sent, a matter which was in fact referred to in para.2 of that email. That is very persuasive evidence that the email of 14 November 2017 was not the reason why the applicants’ hours were reduced.
Further evidence to this effect is the position taken by ILSC following receipt of the 14 November 2017 email. While correcting and clarifying certain issues, Mr Keith’s letter to the VET trainers of 15 November 2017 was open minded and conciliatory.
Consequently, while it might have appeared to the applicants that they were the victims of some form of retribution following the email, I do not believe that the evidence as a whole supports that view. Even having regard to Mr Keith’s evidence and the uncontested evidence of Ms Furstner, Mr Flaming and Mr Mediratta, the most telling mark against the applicants’ concern being valid is the fact that the applicants’ hours were restored once they signed the contracts. Mr Carr has characterised his failure to get work after he made his final claim for extra hours in February as the alleged prohibited motivation at work but I accept Mr Keith’s evidence that it arose out of concerns regarding Mr Carr’s honesty and unwillingness to discuss his final claim for extra hours.
The fact is that the applicants’ hours were reduced only during the period when they declined to participate in the new rosters and were restored when they did. I find that ILSC has displaced the presumption that adverse action alleged was take for a reason prohibited by the FW Act.
Claim Two: Underpayment – marking/administration
The second issue was:
5. Did the First Respondent fail to pay, or underpay, the Applicant for hours alleged to have been worked from home, marking assessments, preparing for classes and doing general administration work for the Respondents?
…
The applicants alleged that they had spent considerable time on assessments and administration for which they had not been paid. These claims lacked precision and were, in any event, based a false premise. The applicants’ argument was that in the period before the introduction of the new contracts at the end of 2017, they performed six hours of face-to-face teaching duties per day with the result that other, associated work had to be done at other times. Their case was that that work ought to have been paid on the same basis and at the same rate as the teaching hours were paid. This position was mistaken.
Clause 21.3(a) of the Award provides that a teacher’s ordinary hours of work are 38 per week. Clause 14.5 provides that the daily or hourly pay due to casual teachers is determined by a formula based on the annual salary for those positions. It will be recalled that it relevantly provides:
14.5 Casual rates—teachers, tutor/instructors and general staff
(a) A teacher … will be paid a daily rate except where the engagement is for less than five hours when payment will be at the hourly rate. Where an hourly rate is paid, it will be payable for each hour of attendance other than for timetabled tea breaks (in respect of which no more than 15 minutes will be deducted) and timetabled lunch breaks.
(b) Other than as specified above, casual rates for staff will be calculated as follows:
Category
Calculation
…
Teachers
Daily rate: annual salary divided by 261 plus 25%
Hourly rate: daily casual rate divided by 5
…
The daily rate reflects the number of weekdays in a 365 day year. Absent any provision in the Award to the contrary, to which the Court was not taken, it should be concluded that, if a teacher’s ordinary hours of work are 38 per week, a teacher’s ordinary hours of work for a single day are 7.6, being one fifth of 38. That is to say, it should be inferred that the daily rate reflects a working day of 7.6 hours. In such circumstances one would expect that a casual teacher’s hourly rate would be the daily rate divided by 7.6 but, instead, the Award prescribes the hourly rate be the daily rate divided by 5.
The question then arises why 5 hours’ work is treated in the same way as a day of 7.6 hours’ work. The answer lies in cl.21.3 which provides that although a working week’s ordinary hours are 38, each contact hour of teaching by a casual teacher counts as 1.5 hours and includes “administration, assessment and consultation”. The conclusion to be drawn from this provision is that for every hour of contact teaching, a teacher is to undertake half an hour of work of the sort mentioned. Because that associated work can hardly be done during the hour of direct instruction and logically must be done at another time, the teacher is paid for 1.5 hours’ work. From the employer’s perspective there would be no reason to remunerate an hour’s instruction with 1.5 hours’ pay unless some additional work was involved and from the employee’s perspective work necessarily associated with an hour of contact teaching must be paid work. The solution found in the Award is to provide that for every hour’s teaching, half an hour of time is also paid and covers necessary work associated with that hour of face-to-face teaching.
As rehearsed earlier, the applicants contend that for each hour they worked they should have been paid as if they had worked 1.5 hours and were entitled to be paid at that rate for work done outside the classroom as well as in it. Were that contention to be correct, they would have been entitled to over 11 hours’ pay (plus casual loading) for a day’s work of 7.6 hours’ duration. Such an outcome would be absurd and depends on a perverse reading of the Award. Most obviously, it ignores the provision that employers need not pay days of 5 hours or more at any rate other than the daily rate. The structure of the Award enables employers to avoid the outcome advocated by the applicants simply by paying teachers the daily rate, a clear indication that the applicants’ construction is not to be accepted.
For these reasons, I conclude that for every contact hour of teaching in respect of which they were paid for 1.5 hours of work, the applicants were also required to devote half an hour to “administration, assessment and consultation” or similar work.
The applicants did not prove that on any particular day they performed extra, unpaid work in addition to the hour of contact teaching and half hour of associated work for which they were being paid. Annexed to Mr Carr’s first affidavit were various timesheets which he contended were relevant to this issue but pay records he himself put into evidence by annexing them to his affidavit showed that extra marking work he recorded in timesheets from January to April 2017 and in August 2017 had been paid at his full teaching rates applicable at the relevant times. Pay records adduced by ILSC as part of exhibit R1 showed that Mr Carr’s extra marking work recorded in the other timesheets he had annexed to his first affidavit (October 2017) had also been paid at his full teaching rate applicable at the relevant times.
The only unpaid claim for extra marking work concerned the period 5-17 February 2018. That claim was rejected by ILSC because it considered the claim to be fraudulent and it led to Mr Carr being dismissed from his position. Relevantly for present purposes, Mr Carr alleged in his evidence that in the period 5-17 February 2018 he had performed 4.5 hours of face-to-face teaching and 19 hours of “assessment marking work” but had not been paid for the latter. In his timesheet for that period Mr Carr made the claim for 19 hours’ work but the other evidence did not support a conclusion that the marking or assessment tasks which he undertook in that period involved work of 19 hours’ duration. From his cross-examination it emerged that much, albeit not all, of the work in question involved final assessments of students who had failed to submit written work and so had failed their courses, a process which seems to have required little more than quick administrative work from Mr Carr and to have not involved time spent marking written work. Presumably, based on Mr Keith’s affidavit and the guidance note appearing on the relevant timesheet, the figure of 19 hours was reached by treating each assessment as taking or being worth 15 minutes of work even if the actual work involved did not take nearly that long. Whatever may be the true situation, the fact is that Mr Carr did not demonstrate how long the work in question actually took or that it exceeded the 2.25 hours of “administration, assessment and consultation” work included in the casual teaching rate he was paid for the 4.5 hours of face-to-face teaching which ILSC accepted as having been properly claimed for the period in question.
Other claims to have worked other extra hours were not identified or particularised in a way which permitted any serious analysis of or weight to be given to them.
Mr Pathik’s evidence did not go beyond a complaint that he worked unspecified extra hours which he too did not identify or particularise in a way which permitted any serious analysis of or weight to be given to that contention.
For those reasons, the applicants have not made out their claims to underpayment based on breach of cl.14.5 of the Award.
Claim Three: Underpayment – meal breaks
The third issue was:
9. Did the First Respondent require the Applicant to work more than 5 hours on weekdays without an unpaid meal break of 30 minutes?
…
Simply put, the applicants’ submission was that on those days when they worked for six hours straight they should have received, but did not receive, a 30 minute meal break. They pointed in this connection to the evidence of the hours they worked, which can be determined by reference to their payment claims and ILSC’s payroll records, and the rostering arrangements which provided for only a 15 minute break between afternoon classes and evening classes. The evidence satisfies me that the applicants did regularly work an afternoon and an evening roster on the same day. They submitted:
If the Applicant’s [sic] did not get the breaks then the consequence is that the Applicants did not get a thirty minute meal break and where the Applicants worked six hours, but the Award states that each employee should not work for more than five hours without a break. That means the three hours of work was to be paid at double time until the break was taken.
Mr Keith accepted that the Applicant’s [sic] did not get a 30 minute break.
The relevant Award provisions deal with circumstances in which an employee is “required” to work for more than 5 hours without a meal break and so the question posed by the parties for decision is whether ILSC required this of the applicants. Importantly, the question posed by the parties was not whether ILSC should have taken the initiative and provided for breaks or what significance such inaction might have had.
“Required” is an ordinary word used in cl.22.2 of the Award in an ordinary way. It should therefore be understood to have its ordinary English meaning. That is, in the infinitive form of the transitive verb:
a)“to order, instruct, or oblige (a person) to do something”.
(Oxford English Dictionary – on-line version accessed February 2019)
b)“to call on authoritatively, order, or enjoin (a person, etc.) to do something: to require an agent to account for money spent”.
(Macquarie Dictionary – on-line version accessed February 2019)
There is no doubt that the arrangement of afternoon and evening rosters did not provide for a 30 minute meal break between them or that before 27 November 2017 no arrangements were in place so that teachers who worked both teaching blocks in one day could have a longer break at that point. However, there is no evidence that ILSC’s expectations of the applicants amounted to a requirement that they not have a half hour break if they were working both teaching blocks on the same day. Further, given that the afternoon roster involved the teacher being available to students for advice and assistance, or doing administrative tasks if at any particular time no student was in attendance, not face-to-face teaching, it seems unlikely that flexibility was unavailable. That inference is supported by Mr Keith’s response to the 14 November 2017 email in which he said that ILSC was prepared to make necessary adjustments to accommodate 30 minute meal breaks, as it in fact did.
Mr Carr’s evidence on the subject was slight but Mr Pathik had more to say. The difficulty with his evidence on this issue was that the more it was tested in cross-examination, the more supportive detail it accreted. It is fair to say that, when pressed, Mr Pathik claimed to recall events which, if they had occurred, might reasonably be expected to have been included in his affidavit evidence. The fact that those purported events were omitted, and the manner in which they came to light, persuade me that Mr Pathik’s evidence that he had been told that he could not take a meal break was not accurate and I do not accept it. It may well have been that he was taxed on one occasion for not having been in his classroom but even he said that he had not been essaying a dinner break when that occurred.
Given the concerns I have regarding Mr Pathik’s evidence on this issue, I expressly prefer Mr Keith’s evidence that teachers were not prevented from leaving their classrooms and that all that was expected was that a note be left on the board so people would know where they were. Further, apart from what Mr Pathik said, which I have rejected, Mr Keith’s evidence that the question of meal breaks had not been raised before 14 November 2017 was uncontradicted. I found his evidence on this issue to be straightforward and given in a frank way and I accept it.
Rejecting Mr Pathik’s evidence and preferring Mr Keith’s evidence leads me to conclude that ILSC had at no time required teachers to work for more than five hours without taking a meal break, if only because it had never occurred to them that it was an issue. The fact that Mr Carr and Mr Pathik might have felt constrained in their ability to take breaks, in circumstances where they gave no credible evidence of having indicated at any time before 14 November 2017 a desire to have such breaks, points against ILSC ever having required them to work through such breaks.
It seems that the applicants’ understanding, if that is what it was, was no more than an untested and incorrect assumption.
The claims for payments associated with untaken meal breaks are therefore not made out.
Claim Four: Superannuation
As the applicants have not proved that they were underpaid any entitlements, it follows that there was no underpayment of related superannuation contributions on the bases alleged.
Accessorial Liability – Second Respondent
As it has not been found that ILSC contravened the FW Act, it follows that Mr Keith has no liability as an accessory to breaches of that Act.
CONCLUSION
The applicants have not proved the breaches of the FW Act which they alleged.
Consequently, both applications will be dismissed.
I certify that the preceding one-hundred and thirty-one (131) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Date: 28 February 2019
0
4
2