Haileybury Rendall School
[2020] FWC 2245
•7 MAY 2020
| [2020] FWC 2245 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.225—Enterprise agreement
Haileybury Rendall School
(AG2019/3697)
COMMISSIONER SIMPSON | BRISBANE, 7 MAY 2020 |
Application for termination of the Kormilda College Ltd Collective Agreement 2015 - 2018.
[1] On 27 September 2019 Haileybury Rendall School (HRS) made an application under s.225 of the Fair Work Act 2009 (FW Act) for termination of the Kormilda College Ltd Collective Agreement 2015 -2018 (Kormilda Agreement) which nominally expired on 31 December 2018.
[2] The hearing of the matter proceeded in Darwin on 12 and 13 February 2020. HRS was represented by Mr Matthew Follett of Counsel instructed by Herbert Smith Freehills, and the Independent Education Union of Australia – Queensland and Northern Territory Branch (IEUA) was represented by Mr David Quinn of Holding Redlich.
[3] HRS relied upon the evidence of Mr Craig Glass, the Principal of HRS, who provided a witness statement dated 13 December 2019 1, and a supplementary statement dated 6 February 20202 and Ms Christine Knight, the Business Manager at HRS who provided a witness statement3.
[4] The IEUA replied upon the evidence of Mr John Spriggs, the Senior Industrial Officer for the IEUA who provided a witness statement 4 and was not required for cross examination. The IEUA also relied on the statement and evidence of Mr Jengis Osman5, Organiser of the IEUA Queensland and Northern Territory Branch, the statement and evidence of Mr Geoffrey Howells,6 a secondary teacher at HRS and Mr Anthony Ayres, a Youth Worker at HRS.7
BACKGROUND
[5] The Kormilda Agreement currently covers approximately 130 employees of HRS who perform work at the School located in Darwin and covers the IEUA.
[6] HRS was formerly known as Kormilda College. HRS submitted that the Kormilda Agreement, which may have been “fit for purpose” when conceived and agreed, is now fundamentally at odds with the operation and direction in which HRS wishes to take the School. HRS submitted the School is associated with Haileybury Melbourne, one of the most well-recognised and high achieving private schools in Australia. HRS wants to develop a similar reputation.
[7] HRS submitted that the IEUA and employees have demonstrated a resistance to change, in large part influenced by comparing what they have (in the Kormilda Agreement) to what they could have (in any replacement agreement).
[8] The IEUA submitted that HRS has provided no evidence of substance for its application and instead relies upon unsupported opinion and assertions disconnected with the reality of the school, the genuinely held concerns of staff and the conduct of the parties in the bargaining process.
[9] The IEUA submitted that by contrast, its evidence demonstrated that HRS failed to comply with and showed (at best) disdain for its existing obligations, approached the bargaining process as a matter of dictation rather than negotiation, and adopted an industrial strategy which undermines the bargaining framework. The IEUA submitted that HRS failed to engage with employee representatives on critical issues for negotiation, failed to properly engage with employees and failed to even provide employees with the opportunity to express their views on the agreement HRS has insisted is ready to go out to be voted on.
[10] The IEUA submitted that those issues are all relevant to consideration of the public interest as well as the private interests of the relevant parties, and the Fair Work Commission (FWC) can be satisfied on both scores that the HRS application is premature, and that termination of the Kormilda Agreement would be contrary to the public and not appropriate in the circumstances.
EVIDENCE
[11] Mr Glass gave evidence that he has been employed by HRS as its Principal been since 1 January 2018. He commenced employment with Haileybury in Melbourne in 2006 as Assistant Principal, appointed Vice Principal in 2007 and appointed Senior Vice Principal in 2010.
[12] Mr Glass said Haileybury in Melbourne employs staff on common law contracts of employment underpinned by the relevant Awards.
[13] Mr Glass said in 2016, it was public knowledge that Kormilda College was in financial difficulty and in or about April 2017, representatives of Kormilda College approached a number of schools about purchasing the school and to take over its operations. Mr Glass said Haileybury showed interest, motivated by Kormilda College’s strong links with the indigenous population as well as the potential opportunities to open the Territory to Asia.
[14] Mr Glass said both the Northern Territory Government and the Commonwealth Government were supportive of Haileybury purchasing the school, believing having Haileybury in the Territory would encourage industry and business to move to the Northern Territory. The acquisition included the Kormilda College site and all existing facilities including the Indigenous boarding operation and this took effect from 1 January 2018.
[15] Mr Glass said that today, HRS operates an early learning centre, junior, middle and senior schools and boarding house services. For the academic year commencing 1 February 2019, HRS has a total of 487 day students enrolled (excluding boarders). HRS’ day student projected enrolment rate is expected to substantially increase over the coming years. Current enrolment projections for the school are (excluding boarders) set out in the table below.
Day school students | 2019 | 2020 | 2021 | 2022 | 2023 | 2024 |
Early Learning Centre | 44 | 44 | 44 | 44 | 44 | 44 |
Junior School | 223 | 280 | 292 | 296 | 312 | 306 |
Middle school | 138 | 162 | 202 | 220 | 210 | 205 |
Senior School | 82 | 90 | 98 | 121 | 148 | 175 |
Total | 487 | 576 | 636 | 681 | 714 | 730 |
[16] Mr Glass agreed this table excluded boarders. Mr Glass said that in terms of boarding, HRS is one of the Northern Territory’s largest providers of boarding services for Indigenous students in the Territory, currently accommodating approximately 75 boarders and is expecting to grow its boarding capacity over the coming years. The school also has plans to add an international boarding house for 60 students in 2021. Mr Glass agreed this would have a different fee structure to Abstudy and the aim is this for this generate a surplus.
[17] Mr Glass said that Indigenous boarding and educational services at HRS are substantially funded by the Federal Government, however, the funding is insufficient to cover the actual costs and HRS makes a considerable loss on their boarding operations. Mr Glass said that this is consistent with other operators in the industry. Mr Glass said in June 2019, Grant Thornton published the results of a review in relation to the investment in support for Aboriginal and Torres Strait Islander students attending boarding schools and facilities.
[18] Mr Glass said that the main findings of that review (which were consistent with findings of previous reviews) were that the revenue of Aboriginal and Torres Strait Islander boarding providers are insufficient to meet the full costs of boarding for those students, and these significant gaps in funding makes indigenous boarding extremely difficult to maintain long term, and some boarding providers have in the previous three years closed or undergone significant restructures
[19] Mr Glass agreed that for the foreseeable future funding in large measure for boarding positions comes from Government funding, and for the foreseeable future will not generate a surplus. Mr Glass said they were working hard with the Government to get more funding. Mr Glass said maximum funding under Abstudy was approximately $27,000 per student and this was insufficient by $6000 to $14,000.
[20] Mr Glass submitted that one of the matters that sets HRS apart from other schools in the Darwin area is that it has a dedicated teaching and learning methodology called “explicit instruction” that the school delivers to students, and that Haileybury has successfully delivered excellent NAPLAN results in Melbourne using this method, and preliminary results for HRS’ indigenous population are pleasing. Mr Glass said that whilst HRS does not currently offer the Parallel Education Model that is offered by Haileybury in Melbourne, this is something that will be considered when the enrolments grow enough to allow the gender split at economically viable levels.
[21] Mr Glass said approximately 23% of HRS’ enrolment are Indigenous students and 19% of its enrolment have a language background other than English. Mr Glass also spoke of the benefits of the Clontarf Academy and the Stars Foundation programs specifically for Indigenous students.
[22] Mr Glass said that based upon HRS' forecast student enrolment numbers for 2020, it is estimated that total revenue will be approximately $16 million, and academic staff expenses, not including school officers, will be just over $10 million. He said that taking into account all other expenses and all estimated Territory and Federal government funding, HRS is not forecasting sufficient funds to enable significant changes in programs or investment in required infrastructure to sustain HRS as a “tier one” school into the future.
[23] Mr Glass said that HRS’ operating loss environment can only be sustained with the commitment and support of Haileybury’s parent company in Melbourne. Part of this stems from the fact that student fees for HRS are substantially lower than those for Haileybury – for instance, for the 2020 school year, a Year 12 student’s annual fees at HRS are $9,595, compared to $33,560 for Haileybury (approximately 3.5 times more expensive).
[24] Mr Glass said that part of his role as Principal is to change the cultural identity of the old Kormilda College into the new HRS in order to be a “tier one” educational provider in Darwin. He said by "tier one" he means: (a) should have outstanding educational facilities to offer students; (b) attract and retain outstanding and committed staff; and (c) strive for outstanding academic achievements, such as aiming to have 50% of students with ATAR results of 90 or above.
[25] Mr Glass said these goals stem from his belief that the Darwin education sector is missing a tier one educational institution. Mr Glass was asked if he was aware of any schools that strive for mediocre achievements. He said, no but other schools did not strive with the same level of vigour as Haileybury. It was put to him that $33,000 fees with assist with that, and he responded that it depends on how hard the staff and students work.
[26] Ms Christine Knight, the HRS Business Manager since 23 April 2018, gave evidence that before joining HRS, she was previously Northern Territory Regional Manager for Mission Australia between November 2015 and March 2018, and prior to that role, held positions as Executive Director – Business Services at YMCA of the Top End Inc. and HR and Operations Manager at FORWAARD Aboriginal Corporation. Ms Knight agreed that prior commencing at HRS she had not worked in a school, and not studied education.
[27] Ms Knight said she is aware that based upon current fees and student enrolments as well as HRS’ overheads, expenses and labour costs, HRS is not producing a surplus. Ms Knight said she also understood that it is unlikely to do so for a number of years. Ms Knight said enrolments (excluding boarding) increased from approximately 320 in 2018 to 487 in 2019 (as at Term 2). Ms Knight agreed that student numbers had doubled between 2018 and 2020.
[28] It was put to Ms Knight that fee revenue would have doubled between 2018 and 2020 and Ms Knight said she was not sure. Ms Knight said she is not an accountant and so does not fulfil the functions of typical business manager and she consults and confers with the business manager in Melbourne. Ms Knight said she is aware there is improved revenue but the school is not yet making a profit. Ms Knight said the school had enrolment targets and had been well received.
[29] Mr Glass said HRS employs approximately 74 academic staff and 59 school officers. Mr Glass said that HRS also currently has five personnel who are on secondment from Haileybury (being the Head of Junior School, Head of Senior School, Head of Individual Needs, Assistant to the Principal (Operations) and the Explicit Instruction Coach). All of these individuals are employees of Haileybury, not HRS.
[30] Mr Glass said that most academic staff and school officers employed by HRS are covered by the conditions of the Kormilda Agreement which came into operation from 29 May 2015, over two years before Haileybury acquired Kormilda College. Mr Glass said that since the middle of May 2019, staff at HRS have been offered individual flexibility agreements (IFAs), with 27 academic staff and 29 school officers signing an IFA.
[31] Mr Glass said that effective from the 2020 academic year, new staff members who will work at HRS will be employed by Haileybury, not HRS, pursuant to individual contracts of employment underpinned by the relevant Awards. Mr Glass said that this is primarily because the Kormilda Agreement is not consistent with the long term aspirations of HRS and therefore, whilst it remains operational at the school, it is preferable for new staff to be employed through Haileybury pursuant to common law contracts of employment.
Process of bargaining for a new agreement
[32] Mr Glass said that on 3 September 2018, he issued all staff at HRS with an announcement that HRS wished to replace the Kormilda Agreement with a new enterprise agreement. Ms Knight said a Notice of Employee Representational Rights was also issued to employees on this day and attached a copy to her statement. Ms Knight said she was appointed as an employer bargaining representative at this time and the other bargaining representative for HRS is Mr Kim Hodge of SRB Legal.
[33] Ms Knight said in September and October 2018, before bargaining formally commenced, as part of a process of seeking a new, simplified enterprise agreement, she had her HR and Payroll Officer, Ms Vicki Kosonen, determine whether staff were accessing certain Kormilda Agreement entitlements. Ms Knight said on or around October 2018, Ms Kosonen informed her of the analysis that since she started working at HRS in 2017, Ms Kosonen was not aware of any staff member using any of the following entitlements under the Kormilda Agreement:
(a) clause 3.5 and Appendix 6, the deferred salary scheme;
(b) clause 4.6.4, long service leave at half pay;
(c) clause 4.6.8, accelerated long service leave;
(d) clause 3.4.5, non-compulsory uniform allowance;
(e) clause 6.1.4, highly accomplished and leading teacher allowances; or
(f) clause 3.4.2, capability enhancing allowance.
[34] Ms Knight said consequently, HRS sought a new enterprise agreement which did not include these unused clauses. Ms Knight said she recalls that during negotiations towards the end of 2018, the IEUA had said it wanted to retain the highly accomplished and leading teacher allowances clause (clause 6.1.4) despite no staff currently being in receipt of this benefit.
First meeting 27 September 2018
[35] Mr Glass said at the first bargaining meeting he outlined his vision for change. Mr Glass said that he accepted that an enterprise agreement may be preferred tocommon law contracts of employment, but he did not accept that the current complicatedenterprise agreement was suitable. He said the next day, he provided a memorandum to all staff repeating his comments in writing Mr Glass said that Mr Osman of the IEUA was in attendance at the first bargaining meeting, and he produced a Log of Claims. Mr Glass said he found many of the claims in the log to be fanciful and not connected to the direct needs of staff at HRS.
[36] During cross-examination Mr Glass was taken to the union’s log of claims which contained six items. Mr Glass agreed the first four claims were not fanciful. He indicated the fifth claims concerning ‘Employee recognition’ can sometimes he fanciful if decisions need to be made quickly and sometimes consultation is not possible or relevant. He subsequently accepted that asking for consultation in a log of claims is not fanciful. He accepted that seeking clarity of agreement and technical updates in the sixth and final claim was not fanciful.
[37] When Mr Glass was asked why, if he accepted these items on the list were not fanciful, he said in his statement that the log of claims was fanciful. He responded by saying it was by reference to the list underneath the sixth claim knowing what the stance of the union was on those issues. When asked how he would then have known the position of the union he said he had been spoken to by a number of members of staff. He accepted it was not fanciful for the union to ask to clarify those issues.
[38] It was put to Mr Glass that he entered the bargaining process with the frame of mind that the unions claim was fanciful. He said he entered bargaining knowing changes needed to be made. Mr Glass was then asked why he said the union was delaying the process. He said he was told from the committee that there was little movement from the union on some aspects of HRS proposals. Mr Glass was then asked if he was claiming the union failed to bargain and he said he was not in the bargaining process and did not know firsthand.
[39] Mr Glass said that he has not attended another bargaining meeting after the first, however he has been kept informed of issues by the two employer appointed bargaining representatives Ms Knight and Mr Hodge.
[40] Mr Glass said that after about seven bargaining meetings, he was keen to put a proposed new agreement to a vote by employees. Mr Glass said he wanted this to occur before the end of 2018 so that they could start the 2019 school year with a new enterprise agreement. Mr Glass was asked how many enterprise bargaining processes he had managed prior this one and he said zero. It was put to Mr Glass that if he intended to make changes that were not minor he must have been know there would be some resistance. He said they had just taken over a school that had gone broke and he hoped the staff would recognise there was a need for change.
[41] Ms Knight said at the first bargaining meeting, Mr Hodge set out the position of HRS in relation to a new enterprise agreement, including that the main topics that HRS wanted to discuss and consider related to moving to monthly pay, removing the gratuity bonus scheme, modifying the operation of allowances, removing the deferred salary scheme, making changes to the accelerated long service leave scheme, reviewing the Promoted Teacher scales, reviewing camp entitlements and reviewing Time Off In Lieu (TOIL).
[42] Ms Knight said Mr Osman and the other employee bargaining representatives, raised a number of issues for clarification and discussion. Ms Knight provided a copy of the minutes of the meeting with her statement.
[43] Mr Osman gave evidence that he had been an Organiser for two years and prior to that was an English language teacher in New South Wales and in the Northern Territory in the Adult Migrant English Language Program. Mr Osman said he had not worked in a private school before HRS. He said that he accepted that at the start of the process HRS indicated that they wanted a shorter and streamlined agreement and did not propose to keep many clauses in the existing agreement. Mr Osman was asked if removal of certain clauses would lead to a diminution in terms and conditions. He accepted that. It was put to Mr Osman that a claim for no diminution meant most of the existing content would have to stay or be replaced with something of equivalent value and he accepted that.
[44] It was put to Mr Osman that the school was starting from the ground up as if there was no content, and the union was starting from the position of the existing agreement. Mr Osman said the HRS was starting from a draft of the Kormilda Agreement which they put. It was put to Mr Osman that the draft had quite a few changes from the existing agreement and he accepted that.
[45] Mr Osman said the first meeting was attended by himself and IEUA member representatives Geoff Howells, Anthony Ayres and Darlene Finck who was later replaced by Emma Short. He said that he spoke briefly to a few items on the union log of claims, but there was no real substantive discussion of agreement contents that day because they were primarily focussed on process issues. Mr Osman said that during the meeting he stated multiple times that they needed to allow reasonable time to allow all claims to be discussed and stressed how he felt the employers’ timeframe was unrealistic.
16 October 2018 - first draft circulated
[46] Mr Osman said that on 16 October the employer circulated their first proposals for an agreement in an email to the bargaining representatives, attaching an incomplete draft agreement. Mr Osman said that document and various other iterations circulated by HRS used the Kormilda Agreement as its basis but did not have the proposed changes marked-up which made them time consuming to review.
Meeting 18 October 2018
[47] Ms Knight said the second bargaining meeting was held on 18 October 2018. Ms Knight said Mr Hodge noted HRS’ desire to have an agreement concluded by the end of the year and again reiterated that the Kormilda Agreement was lengthy – HRS was likely to accept approximately one-third of the clauses currently contained in the Kormilda Agreement, but the remaining balance would either need to be amended, re-drafted or omitted. Ms Knight said the participants then discussed issues relating to the application and operation of the Kormilda Agreement, with the majority of the meeting discussing potential changes to the hours of work provisions in the Kormilda Agreement.
[48] Mr Osman said that at the second bargaining meeting the agenda drafted on behalf of HRS only allocated 15 minutes for Mr Osman and the other employee bargaining representatives to table and discuss items of concern to them. Mr Osman said that because of the time taken by employer representatives the union representatives did not even get that amount of time to speak.
Letter from Mr Osman to Mr Hodge 19 October 2018
[49] Mr Osman said as a result he wrote to Mr Hodge on 19 October about that issue and sought confirmation about arrangements for future meetings. 8 He said he did not receive a response to that letter.
Mr Glass Memo to staff 22 October 2018
[50] Mr Osman said on 22 October, Mr Glass circulated a memo to staff in which he confirmed his “strong desire” for the agreement making process to be “resolved by the end of 2018 in preparation for 2019.”
Meeting 25 October 2018
[51] Ms Knight said at the 25 October 2018 meeting discussions revolved around superannuation, the Staff Welfare Policy Review Committee, the objectives and definitions section of the Kormilda Agreement, employment categories, hours of work and TOIL.
Meeting 1 November 2018
[52] Ms Knight said at the 1 November 2018 meeting, Mr Klein and Mr Ayres discussed nursing and boarding services respectively. Ms Knight said these included matters relating to wage increases, TOIL and leave entitlements.
Complete Draft circulated 8 November 2018
[53] Mr Osman said a complete draft was circulated by HRS on Thursday 8 November to himself and the other bargaining representatives. Mr Osman said that draft document referred to multiple proposed changes from the Kormilda Agreement which had not yet been the subject of any substantive discussion and, because the document was not a marked-up version and had numbering that did not correspond with the Kormilda Agreement, himself and others were not clear about what had been changed or removed from the Agreement. As a result, Mr Osman said they were not even clear what the employer’s position was on all the issues.
[54] Mr Osman said by this time Mr Hodge had already directly said words to the effect of “take it or leave it” in relation to specific items or items that had not been the subject of bargaining and indirectly by his insistence that the agreement would be put to the vote in December, irrespective of whether any agreement was reached within the bargaining committee.
Letter from IEUA to Mr Hodge 9 November 2018
[55] Mr Osman said he discussed these issues with Mr Spriggs, following which Mr Spriggs wrote to Mr Hodge on 9 November complaining about that issue and again complaining about the time being allocated to deal with issues through the bargaining meetings.
Memo from Mr Glass to staff 12 November 2018
[56] Mr Osman said on Monday 12 November Mr Glass circulated a memo to staff referring to the draft agreement provided to bargaining representatives on Thursday and reiterating his aim for a vote on the Agreement to take place before the end of the 2018 school year.
Meeting 15 November 2018
[57] Ms Knight said at the 15 November 2018 meeting Mr Hodge tabled a proposed replacement enterprise agreement for consideration and the participants discussed a number of key issues including in relation to superannuation contributions, monthly pay, TOIL, camp entitlements, co-curricular activities and leave entitlements.
Meeting 22 November 2018
[58] Ms Knight said at the 22 November 2018 meeting and a number of items were discussed, including leave entitlements, monthly pay, superannuation, allowances and extracurricular activities. Ms Knight said there was also a bit of discussion in relation to hours of duty, including in relation to what would constitute reasonable additional hours and claims from academic staff for remuneration for extracurricular activities.
[59] Mr Osman said at the next meeting (his evidence said was 23 November) Mr Hodge again repeated his and Mr Glass’s earlier statements that HRS would put the proposed agreement to a ballot of employees on 11 or 12 December (before the last day of the school year on 13 December).
[60] Mr Osman said his opinion remained that this was completely unrealistic because they had not been able to even begin addressing some of the major issues yet, let alone reach resolution on them. Mr Osman said his impression from this timetable was that the school was not interested in investigating staff’s concerns about the contentious items or trying to reach agreement that could address everyone’s concerns; instead it just wanted to push through the school’s agenda.
IEUA application for bargaining order and Conference 28 November 2018
[61] Mr Osman said on 26 November the IEUA filed an application with the FWC under s.229 of the Act seeking the proposed agreement not be put to ballot until a reasonable opportunity has been provided for bargaining to occur in relation to all issues in contention between the parties, and that HRS schedule sufficient time for bargaining to occur in relation to all issues in contention between the parties.
[62] Mr Osman said a conciliation conference was held before the FWC on 28 November and the result was that it was agreed Mr Osman was to have all the union’s claims ready by the next meeting, which he said he did. Mr Glass said that following the FWC conference the IEUA submitted over a dozen further clauses they wished to discuss with HRS. Mr Glass said it was decided to resolve the issues with the IEUA over the New Year period and put the replacement agreement to a vote early in 2019. Ms Knight said she was not involved in the conference before the FWC, however she understood that the outcome of the conference was that the IEUA committed to table a number of outstanding claims for discussion.
IEUA provides notice of outstanding matters 29 November 2018
[63] Mr Osman said on 29 November the IEUA provided to the bargaining representatives a notice identifying the outstanding matters. Ms Knight confirmed the IEUA provided notice that they wished to discuss (a) changes that had not been identified as being different when HRS’ proposal was compared to the Kormilda Agreement, including those relating to overtime (property services staff) and notice of resignation, (b) employee claim items that had not been the subject of bargaining, including in relation to public holidays, professional development, and notice of termination; and (c) employee claim items that have been the subject of some bargaining, but in relation to which it was contended that further bargaining may result in an agreed position between the parties, including in relation to hours of work, hours of duty, TOIL arrangements for academic staff, casual conversion, annual leave, buying leave and emergency leave.
3 December 2018 Memo
[64] Mr Glass said that on 3 December 2018, he issued a memorandum to staff expressing his disappointment in being unable to conclude negotiations by the end of 2018. Mr Osman said Mr Glass informed staff in a memo of 3 December that the “Commission had agreed with HRS that good faith bargaining was still ongoing”, that the union’s application had “contributed to some delay” and that “the IEU’s strategy has always been to slow this process down.” Then, despite having insisted for months that it would be put to the vote in December despite the union’s and employee representatives concerns that it was not ready, he told employees “I do not think it is fair to rush this final step” and so the vote would be delayed.
Meeting 6 December 2018
[65] Ms Knight said the seventh bargaining meeting was held on 6 December 2018, and it was noted that the IEUA had tabled a number of further clauses for discussion, but given that HRS staff were preparing for the end of year school break, the bargaining committee decided to resolve the latest dozen bargaining issues with the IEUA over the New Year period. Ms Knight said Mr Hodge stated that once he had finalised a proposed replacement agreement, he would circulate it over the December 2018 to January 2019 period via email with a view to having employees vote on the replacement agreement in February 2019. Mr Osman said a further meeting was held in December, with limited progress made in resolving the outstanding issues.
15 January 2019 Proposed Agreement circulated by HRS
[66] Mr Glass said on 15 January 2019, a proposed replacement agreement was circulated by HRS to all bargaining representatives for their review, with a view to holding a vote in the coming weeks. Mr Osman confirmed this occurred.
Meeting 31 January 2019
[67] On 31 January 2019 a further meeting was held, where Ms Knight said the leading teacher allowances were discussed, as well as whether pay rises would be backdated and a number of further discrete clauses. Ms Knight said at the conclusion of the meeting, the bargaining representatives discussed putting the proposed replacement agreement to vote on 12 February 2019. Mr Osman said by the end of the 31 January meeting the school had not substantially changed its positions on various items from what had been discussed at previous meetings. He said Mr Hodge confirmed it was HRS’ intention to send the draft to a ballot on 12 February despite those outstanding matters. Mr Osman said afterwards he provided to members a comparison document about the parties’ positions on the major issues.
13 February 2019 Proposed Agreement Voted Down
[68] Mr Glass said that staff were then notified that a vote would be held on the proposed replacement agreement on 13 February 2019 and the IEUA campaigned against its approval. Of the 127 eligible voters, 63% (78 individuals) voted on the proposed agreement, with approximately two-thirds voting against it. Ms Knight’s evidence was consistent with Mr Glass on the ballot result.
[69] Ms Knight said following the unsuccessful vote, Mr Hodge suggested that the bargaining representatives take a few weeks to speak with staff members about their reasons for voting against the proposed agreement and then use this information to reconvene as a bargaining committee in March 2019.
[70] Ms Knight was asked if following the vote whether Mr Hodge or herself sought feedback on the reason for the no vote. Ms Knight said she understood Mr Hodge sent correspondence to the bargaining committee asking the members to consider the outcome and think about it and reconvene in a couple of months. It was put to Ms Knight that the school itself did not engage in any consultation process as to why the vote failed. Ms Knight said that was when they met again to get feedback.
[71] Mr Osman said on 14 February, he wrote to Mr Hodge requesting a further meeting to progress the agreement process and proposed some future dates and, after a few weeks delay, they started meeting again.
Meeting 5 March 2019
[72] Ms Knight said at the 5 March 2019 meeting, agreement was reached in relation to payment of superannuation contributions at the rate of 11% for all employees. Ms Knight said boarding staff remained firmly against monthly pay, however, a number of issues remained outstanding, including remuneration for extracurricular activities, payment of allowances and overtime entitlements.
Meeting 22 March 2019
[73] Ms Knight said at the meeting on 22 March 2019 Mr Hodge noted that HRS was prepared to agree to retain fortnightly pay cycles for a period of two years and then move to a monthly pay cycle for all staff in the third year. This would allow employees time to adjust to the notion of being paid monthly and make any necessary financial planning.
[74] Ms Knight said Mr Hodge also confirmed that staff would receive a 2.5% pay increase and 11% employer superannuation contributions if staff voted in favour of a new enterprise agreement. Ms Knight said these represented substantial offers on behalf of HRS. Ms Knight said a number of further matters were also discussed at this meeting, including in relation to travel allowances, extracurricular activities and payment of certain allowances.
[75] Ms Osman said at this meeting Mr Hodge proposed that monthly pay cycles be phased in over two years. He also said words to the effect that apart from that proposal, “nothing else was negotiable” and HRS “had concerns about continuing with the agreement.”
Meeting 5 April 2019
[76] Mr Osman referred to a meeting on 5 April where Mr Hodge complained about the employee representatives wanting to discuss items that had not yet been agreed. Mr Osman said Mr Hodge complained that was “a waste of time” because the school was not going to change its position on any of those items and so they were not up for negotiation.
[77] Mr Osman said at that meeting, he tabled a summary of previously tabled clauses in an attempt to document the history of agreed and disagreed positions and outline what members sought to amend. At the meeting (and afterwards in writing) he said he also requested Mr Glass attend the next bargaining meeting and that the FWC should be involved to help find a resolution to the issue of extracurricular activity. He said Mr Hodge rejected both of those requests.
Meeting 20 May 2019
[78] Ms Knight said at the meeting on 20 May 2019 Mr Hodge confirmed that HRS had offered employees the opportunity to enter into Individual Flexibility Agreements (IFAs), in which they received a 2.5% pay increase and 11% superannuation contributions. Ms Knight said some discussion also took place in relation to allowances and the period of notice for resignation.
Meeting 25 June 2019
[79] Ms Knight said at the 25 June 2019 meeting general discussion was held on a number of clauses of the Kormilda Agreement including academic duties, hours of work, leading teacher allowances, pay frequencies, superannuation, professional development, TOIL and the application of the agreement, Ms Knight said there was also discussion about the state of the Northern Territory economy and the salary market of the education sector.
[80] Mr Osman said he provided an amended summary document, containing further compromises of the union’s previous proposals in an attempt to reach agreement. He said after this meeting the IEUA filed an application to enable the FWC to assist the parties reach a resolution.
19 July 2019 correspondence from Mr Hodge to Bargaining Representatives proposing draft agreement be put to vote
[81] On 19 July 2019 Mr Hodge on behalf of HRS sent correspondence that was attached to the statement of Mr Osman 9 stating among other things that HRS is of the opinion that the proposed agreement should be put to vote. Ms Knight said the document was still in draft at that time, however Ms Knight agreed that the substance was ready to go to vote at that time.
[82] Ms Knight was asked if she was involved in a decision not to put the proposed agreement to a vote and she said she did not recall. Ms Knight was asked if she recalled why the decision was taken not to put it to vote. Ms Knight said her understanding was the school then decided to move to cancel the existing agreement. Ms Knight said she did not recall being involved in any discussions about that.
IEUA Section 240 application 26 July 2019
[83] Ms Knight said on 26 July 2019, the IEUA commenced section 240 proceedings in the FWC where the IEUA contended that the parties remained apart on a number of key issues, fundamentally in relation to backpay of wages, extracurricular work, and monthly pay. Mr Hodge agreed the parties remained significantly apart on a number of issues.
Meeting 29 July 2019
[84] Ms Knight said Mr Hodge captured all of the amendments that were agreed from the meeting held on 25 June 2019 and circulated a letter with a proposed consolidated enterprise agreement for discussion at this meeting before putting the proposed agreement to a vote.
[85] Ms Knight said during the 29 July meeting, the bargaining representatives spent some time discussing the issues raised by the IEUA in its application to the FWC, including relating to extracurricular activities, wage increases (and the date of increases) and monthly pay cycles.
Mr Osman said he provided a summary of agreed and not agreed positions following on from the previous meeting and Mr Hodge repeated in the meeting the statement in his letter of 19 July that the employer felt the agreement was ready to go to ballot.
FWC Conference 28 August 2019
[86] Mr Osman said on 28 August some options were raised by the FWC and the union to address the extracurricular hours issue. He said it was agreed the union would consult with members about options for reaching agreement about extracurricular hours and that the parties would then meet again. Mr Osman said he released a briefing to members after the conference which he provided with his evidence.
[87] Ms Knight said at the conference before Commissioner Booth, the parties appeared to be in consensus that bargaining had reached an impasse. Ms Knight said the Commissioner spent some time exploring issues with the parties, especially in relation to the hours of work contention and the calculation of TOIL. Ms Knight said the Commissioner asked the parties to have further discussions with each other to ascertain whether agreement was possible, or otherwise advise how the FWC could assist bargaining.
16 September 2019 - IEUA proposals extracurricular activities
[88] Mr Osman said on 16 September 2019, after having consulted with members, the IEUA provided proposals for discussion about extracurricular activities to Mr. Hodge and requesting a teleconference on 24 September. Mr Osman said Mr Hodge responded on 20 September, with further exchanges on 24 and 25 September, confirming HRS would apply to terminate the Agreement and rejecting the union’s request for further negotiations.
Issues in negotiations
Extracurricular activities
[89] Mr Glass said at its Melbourne campuses, it is a condition of employment that Haileybury staff regularly perform extracurricular activities with students and it is part of the workplace culture. Mr Glass said that this is not unique to Haileybury and is a characteristic of all tier one schools throughout Australia, but it is not yet a feature of HRS.
[90] Mr Glass said asking Academic staff to complete up to 40 hours per annum of extracurricular activities with students is not as much extracurricular activities work as the Melbourne Academic staff but it is reasonable and appropriate for HRS in Darwin, given its size, the fees that are charged and the restrictions imposed by the seasonal constraints of operating in a tropical environment.
[91] Ms Knight said there is a fundamental difference of opinion that this should be included as part of the annual salaries the teacher receives or if this requires additional compensation for each and every hour worked. Ms Knight said in bargaining meetings the IEUA has been rigid in considering changes to the hours of duty (clause 6.1.1) and the performance of academic staff undertaking extracurricular duties.
[92] Mr Osman said the position of employee representatives has been that if engagement in extracurricular activities was to involve a (minimum) mandatory quantum of hours and the form of activities is ultimately at the direction of the Principal, the arrangements should be clear and should be remunerated in some way.
[93] Mr Osman said it was not a matter the HRS representative seemed to be willing or able to address, and eventually, in May 2019, HRS provided some details about the operation of the proposals, to which Mr Osman said he provided responses in June. Ms Knight agreed Mr Hodge provided details in May 2019. Mr Osman said the union also proposed to involve the FWC in trying to find a resolution on the issue, but HRS steadfastly opposed involving the FWC and so the union filed an application to deal with the dispute and the FWC convened a conference on 28 August.
[94] Mr Osman said after the conference, the union provided compromise proposals for discussion to HRS on 16 September. This included a proposal to agree to mandatory extracurricular activity during the week but to allow weekend work to be voluntary. He said HRS refused to address those proposals or to meet with the union representatives to negotiate about them and instead commenced this application. Ms Knight said she agreed with Mr Osman’s evidence in paragraph 85 of his statement however then said she did not agree that HRS refused to meet, saying HRS has always been clear in its view that of the requirement that the clause be mandatory. Ms Knight said it came up numerous times and each time the response from Mr Glass was the same. It was put to Ms Knight that the schools position was dogmatic or a refusal to compromise and she replied was the position was that it did not agree.
[95] Mr Osman agreed in cross examination that in terms of the differences between the parties that extracurricular activities was the most central issue. Mr Osman agreed HRS was advocating from the beginning that it wanted to see a change on this issue. Mr Osman agreed that the HRS position was that extracurricular activities shouldn’t be separately required to be remunerated for a teacher. Mr Osman said the Union tried to come to a compromise on the issue. Mr Osman agreed that the first time the Union proposed compromising on the issue was after the no vote, and later clarified a position was put in June 2019.
[96] It was put to Mr Osman that the IEUA has never agreed to any time being unpaid. Mr Osman said the final position was to explore alternatives. Mr Osman was taken to the email of Mr Spriggs of 16 September 2019 and asked where it showed the Union had agreed for extracurricular activities to be unpaid. Mr Osman said the document implied that extracurricular activities on a weekend will be voluntary and unpaid. It was put to Mr Osman that would be voluntary and not mandatory. Mr Osman said there was contemplation around less non-contact time.
[97] Mr Osman was taken to a proposal attached to his evidence which was an appendix clause with 20 hours extracurricular position, on a voluntary basis. Mr Osman said the proposal was not voluntary it was mandated but modified by the union. Mr Osman said toward the end of negotiations the IEUA was trying to get further details into the agreement on the issue. Mr Osman was referred to an IEUA proposal document and specifically clause (j) in the proposed appendix. Mr Osman accepted that the proposal was either an exchange for teaching time or if not, to be paid and he accepted that was the position put forward on 25 July 2019.
[98] Mr Osman agreed that the IEUA does not accept extracurricular activities were part and parcel of a teacher’s duties. He said he was not aware of any other school in the Northern Territory that mandated extracurricular activities. Mr Osman referred to workload issues causing stress for teachers and teachers had indicated this concern to him.
[99] It was put to Mr Osman that the parties had reached a stalemate on the extracurricular activities issue and he agreed. Mr Osman was referred to the IEUA Chapter Briefing number 10 10 just after the IEUA filed its s.240 application and where he referred to wage increases, extracurricular activities and monthly pay cycles and on those three issues his position was that the parties were at a stalemate. Mr Osman agreed that was his view.
[100] Mr Osman was asked if he would recommend to the IEUA membership any clause requiring an extracurricular activities clause that did not involve payment and he responded he would have to go back to the membership. It was put to Mr Osman that some change in the bargaining dynamics would be required. Mr Osman said the employer had not agreed to meet since July 2019.
[101] Mr Osman said after the FWC Conference there was discussion around non-payment contingent with employees operating hours and their subject area. It was put to Mr Osman that often the extracurricular hours may have nothing to do with their subject area. Mr Osman said that was something that could be explored but members prefer working in their area of expertise.
[102] Mr Osman later gave evidence that the July Chapter Briefing included that the proposal concerning extracurricular activity said in the last sentence that the position was that any mandated extracurricular activity within school hours be included as instruction time and any time outside school hours be either voluntary or attract additional remuneration. Mr Osman said he expected further feedback from HRS from this position and later positions put.
[103] Mr Osman was asked with regard to the 16 September IEUA proposal what sub paragraph (b) referred to. He said it was members preference for work to be contiguous with their hours of work, so they did not need to go home and come back.
[104] It was put to Mr Osman that the (a) and (b) of the proposal was limited to weekdays and had to be contiguous with school duties. It was put to Mr Osman that it did not refer to it being unpaid. He said it did not mention it specifically, but this was seen as a reset button and there were other parameters that members were willing to negotiate under. It was put to Mr Osman that the email said the IEUA wanted to explore this proposal not some other proposal. Mr Osman said this proposal came out of discussions after the FWC Conference. It was put to Mr Osman the change in position of the IEUA was superficial. Mr Osman said he disagreed.
[105] Mr Osman agreed that a compromise position was put in June 2019 that was not accepted, and a further compromise position was put in July 2019 and this was not accepted, and a further compromise position was put in September and the response from HRS was to make application to terminate the agreement. Mr Osman said in oral evidence the reason for the stalemate is that the IEUA won’t come to table to explore the issues further.
[106] Mr Howells said he is currently engaged as a secondary school teacher as well as being the timetabler and Daily Organiser (DO) for the secondary school. Mr Howells said he is a member of the IEUA and is an employee representative in the enterprise agreement bargaining process since bargaining began in late 2018. He said he has attended most of the bargaining meetings from 2018 through to the last meetings in mid-2019.
[107] Mr Howells gave evidence that he had worked at other private schools including in New South Wales. Mr Howells said he did not support HRS’ application to terminate the Agreement. Mr Howells said in his experience in the bargaining process, HRS has been insistent and inflexible about its requirement for 40 additional hours for extracurricular activities. Staff, in contrast, have been confused and concerned about the proposal because it has never been properly explained or clarified and the employee representatives have tried to find way to come up with workable options.
[108] Mr Howells said for example, it was explained in an update dated 19-07-19 to the EBA negotiating team that it included groups and societies, sports coaching and school events (like plays and concerts), but other things like a homework help, maths help and science help were not considered extracurricular, but boarders homework help was extracurricular. He said It was never clear to him (or in his experience other representatives or employees) what was included.
[109] He said it was not clear whether for Drama or Music staff or staff like the head of ICT and the head of STEM who are contracted to do robotics clubs and science clubs the 40 hours is built into their load (because they get a load adjustment for doing productions/clubs) but for others it is separate. He said staff were also concerned that 40 hours will turn into much more because only direct contact time will be counted and not the significant waiting and travel times that can be involved in out of school activities in NT.
[110] Mr Howells was taken to an attachment to Mr Glasses second statement that identified extracurricular activities. Mr Howells said the document was basic and not detailed. It was put to Mr Howells that the IEUA proposal at (h) identified extracurricular activities similarly to the school but was not limited and he agreed with that.
[111] It was put to Mr Howells that his so-called confusion was a cover for the money and he rejected that. Mr Howells agreed he did not personally know if employees recorded their hours. It was put to Mr Howells that counting the minutes was the mentality he had taken with extracurricular activities. He accepted the Union position was employees should be paid for additional work. Mr Howells agreed the first time the Union put a proposal for extracurricular activities was June 2019.
[112] Mr Howells was taken to the document attached to Mr Osman’s statement which was the appendix A proposal in July 2019 agreed to propositions put to him about the limits of the proposal. Mr Howells agreed other schools he worked at involved extracurricular activity. He said at the moment teachers at HRS are engaged in school productions, basketball and net ball coaching, maths help, science help and chess club. He agreed those activities had been going for years were unpaid and the union had never demanded payment for any of those extracurricular activities. He agreed that the first time the issue of payment for extracurricular activities was raised was in response the HRS’ wanting to regulate the issue.
[113] Mr Glass said in his supplementary statement that the proposed requirement to work additional hours had been communicated to staff and the bargaining representatives on numerous occasions including at staff briefings, a memorandum on 12 November 2018 and a document distributed to staff with examples in November 2018.
[114] Mr Howells said in the minutes of Enterprise Agreement Negotiations meeting 10 on 22-03-2019 Mr Hodge stated ‘there is no trade-off for extracurricular activities’. Mr Howells said Mr Hodge also stated in a meeting held 5th March 2019 in response to Mr Osman suggesting conciliation in the area of extracurricular ‘Kim advised that the school would not be going to conciliation’.
[115] Mr Howells said they need to compare themselves with similar schools in the Darwin area and their conditions, which reflect the costs and challenges of living in an isolated area, the high cost of living, the tropical climate and the isolation - that don’t make it attractive for people to move there or stay there. Mr Howells agreed Mr Glass had said that he did not want HRS to be like other schools in Darwin.
[116] Mr Howells said the issue of climate and isolation are reflected in the results that he sees as DO. He said for example, out of a total academic staff of around 67 teachers, they lost 23 teachers between the end of 2019 and the beginning 2020, a staff turnover of over 34%. He said the actual turnover figure for the year is over 40% if staff who left during the year are also included. He said relatedly, all of the teaching staff and various executive staff who were seconded or recruited to work at HRS from Haileybury Melbourne have left within one or two years (apart from Mr Glass), so that they currently have two new staff starting from Melbourne in 2020 and one remaining Melbourne teacher who has been here 6 months.
[117] Mr Glass said in his supplementary statement that all staff from Haileybury Melbourne came to Darwin on two-year secondments and completed their full secondments. He said that at the conclusion of 2019 five Haileybury Melbourne staff members concluded their secondments and left HRS, and for the 2020 academic year four new staff members have been seconded from Haileybury Melbourne.
Monthly Pays
[118] Mr Glass said monthly pays was an area of misalignment between Darwin and Melbourne staff and Haileybury operates off a monthly pay model. Mr Glass said that monthly pay is permitted by the Relevant Awards. He said he is informed by the Chief Financial Officer of Haileybury HRS could make $120,000 per annum savings in administration costs if it could centralise the monthly pays for the school from Haileybury.
[119] Ms Knight said some of the academic staff and school officers at HRS have been strongly resistant to this proposed change. In particular, the boarding staff have resisted the proposed monthly pay cycle and in spite of numerous discussions over a number of months, no compromise has been agreed upon. Ms Knight said academic staff have also been unwilling to change without further remuneration being offered to them.
[120] Mr Osman said there was continuing negotiations about monthly pay periods for boarding staff because of their continuing concerns, although agreement was reached in April to phase in monthly pays for all other staff. Ms Knight agreed with Mr Osman’s evidence on this point that agreement was reached in about April. Ms Knight agreed the model was two weeks in advance and two weeks in areas.
[121] In relation to the boarding school Ms Knight agreed some of the staff were casual and she was asked how the casual staff would be paid in advance. Ms Knight said it was calculated from the roster. It was put to Ms Knight that if casuals did not end up working those hours they would owe the school money. Ms Knight said now there is some requirement to forecast even with fortnightly pays and there are very few times casuals do not work their shifts. Ms Knight was asked if she accepted that casuals may have genuine concerns about this issue. Ms Knight accepted that but said it would have to be worked through. Ms Knight was asked if this issue was worked through as part of the bargaining and she said she did not recall it being raised.
[122] Mr Howells said fortnightly payment is very common in the Northern Territory as staff, both through their employment at HRS, through their previous work experiences and in conjunction with other family income sources, are used to being paid this way and are used to budgeting this way. He said staff have expressed their concerns about how they will arrange and what the costs in the short term and long term will be if they have to change their loan arrangements to match only being paid monthly, how being paid in advance or in arrears or a combination will work in practice for them and the effect of losing payment of leave loading as the equivalent of Christmas bonus each year to help with end of year expenses.
[123] Mr Howells said HRS has been insistent on this change to “bring us into line with Melbourne” or “are for the benefit of the school” but to his knowledge have never acknowledged that this change is likely to have a direct financial cost for staff. It was put to Mr Howells that from his own language the matters he raises are hypothetical or speculative. He accepted they might be or might not be. Mr Howells said there are cultural issues which you may not see in a budget.
[124] Mr Ayres said the proposed change to monthly pays is a significant issue for some staff. He said he is aware from his discussions with staff of reasons for their concerns including:
• doubling the time period between pays risks staff getting into a financial bind for staff;
• risk for employees falling into a bad credit problem especially for boarding staff (whose wages are lower than teacher salaries), and for one income, single parent and casual employees the length of time between pays may create financial difficulties;
• monthly scheduled payments will not fall 4-weekly cycles, instead may sometimes occur 5-weekly, making budgeting even harder;
• potential costs for employees changing their arrangements from fortnightly to monthly (for example with bank charges or additional interest payments over time);
• employees who identify as Aboriginal and Torres Strait Islander with strong cultural traditions often share their income with extended family, and by doubling the size of their pay in each pay may create increased pressures to share their income and a longer wait until the next comes in to allow the pay for their own living expenses; Often Youth Workers in the boarding program contribute their own money to the cost of activities for students, enabling them to participate in community events, but because of the uncertainty about budgeting and about their personal expenses across a monthly pay cycle, they may be less willing to continue to help students out of their own pockets.
[125] Mr Ayres said he did not know if all of these concerns are justified, but HRS has not provided information or assistance or financial planning help about the proposed changes, so employees’ fears about the change have not been addressed. Mr Ayres accepted that the concerns he raised “may” arise. Mr Ayres said in his own case it would happen.
Time off in lieu for overtime
[126] Mr Glass said that Clause 5.6 of the Kormilda Agreement provides that employees are able to take time off in lieu (TOIL) for work performed outside of normal working hours instead of being paid for overtime. He said that there is no entitlement to overtime pay for additional hours worked, but untaken TOIL is paid at the employee’s ordinary rate of pay where circumstances do not allow for it to be taken, however by contrast, there are times when Haileybury employees work in excess of a 38-hour week to meet student needs, however, they do not receive time off in lieu and receive salaries significantly above award rates of pay.
[127] Mr Glass said however, academic staff in Melbourne perform a far greater variety of extracurricular activities with students, and do not receive additional payments or TOIL for performing additional hours. Mr Glass said that as a result of these provisions, he has to closely manage and monitor HRS staff claiming TOIL due to the educational disruption it can cause to students and the teaching timetable.
[128] Mr Glass said specific parts of the TOIL clause are more problematic then others and referred to clause 5.6.3 that provides that any academic staff who attend school camps or Experiential Learning opportunities (i.e. outdoor education) for five continuous days are entitled to one day of TOIL, in addition to the camp allowance. He said that therefore, if an academic staff member attends a camp for one week, they are entitled to one day TOIL. For those academic staff members that attend many camps, this becomes voluminous – for example, last year, a Year 12 Experiential Learning teacher was required to go on three camps as part of her role, and as a consequence accumulated 3 TOIL days for, in essence, performing an inherent requirement of her role.
[129] Mr Glass also referred to clause 5.6.7 that provides that Experiential learning staff accumulate TOIL for the number of days spent in the field to compensate for the extended time away from home meaning these staff members are not present during part of the academic year because of the operation of these provisions. Mr Glass said that there are a number of other TOIL provisions in the Kormilda Agreement which operate in much the same fashion.
[130] Mr Glass said that put simply, TOIL is not an appropriate system in a school setting such as HRS and is not utilised at any of Haileybury’s campuses in Melbourne. Mr Glass said that rather than granting TOIL during term time, we would prefer to provide academic staff with 12 weeks of paid annual leave per annum and pay them market competitive annual salaries. In relation to non-academic staff, where appropriate, it would often be preferable to pay such employees overtime rather than have to manage TOIL absences.
[131] Ms Knight said she reviewed the TOIL claims that are filed by “experiential learning” officers (outdoor education) pursuant to clauses 5.6 and 5.6.7 of the Kormilda Agreement. These arrangements had been negotiated under the previous employer and, in her opinion, they are not reflective of the needs of HRS or the students moving forward. Ms Knight said the practical result of clause 5.6.7 is that they have had no outdoor education staff available at HRS in Term 4 each year, as the accumulated TOIL entitlements combined with annual leave exceed the remaining available weeks of the school year.
[132] Mr Osman said at his paragraphs 74 to 79 Mr Glass makes various complaints about the TOIL arrangements in the Kormilda Agreement. Mr Osman said agreement about TOIL for academic staff was reached in May/June (to allow for one day of TOIL on the Monday following certain camps). Ms Knight agreed with Mr Osman’s evidence in paragraph 78 of his statement.
[133] Mr Osman said at no time before agreement was reached did HRS’ representatives raise what Mr Glass has identified as his preference of providing 12 weeks of annual leave, rather than TOIL arrangements or academic staff. Mr Osman said he suspected agreement could have been reached months earlier if HRS has proposed what Mr Glass now identifies as the preferred option. Ms Knight was asked if herself or Mr Hodge made any proposals for compromise positions. Ms Knight said she took direction and the TOIL arrangement was not something HRS was flexible on for academic staff but there were compromises for other staff. Ms Knight accepted that the change of wording was to change extra time to overtime and this did not represent a compromise.
[134] Mr Osman said HRS never made any proposals about changing the TOIL arrangements for non-academic staff until the final meeting on 29 July and despite Mr Glass’s assertion that his preference would be to pay overtime rather than provide TOIL for non-academic staff, that proposal was never tabled by the employer representatives in the bargaining process.
[135] Mr Osman said at that meeting, HRS also reneged on the previous agreement reached about the camp allowance in June and removed it from clause 5(b)(i). Mr Osman said the issue of TOIL for non-academic experiential learning staff was first raised by HRS during the 25 June meeting and Mr Osman said he suggested the employer should put forward a proposal for the IEUA to assess. He said they did so at the 29 July meeting (for additional leave rather than TOIL) and it was agreed to at the meeting. Ms Knight agreed that Mr Osman’s evidence on this point was correct and the amendments were included in the last draft of the agreement.
[136] Mr Howells said because of his role, he doesn’t currently go on camps. He said he is aware from previous roles and his day today experience in the school what are the general arrangements for camps and how they affect staff and working hours.
[137] Mr Howells said the only way for academic staff members like himself to accumulate TOIL is by going away on camps. In his time at the college he said he is unaware of any academic staff accumulating TOIL for any other reason, although administrative staff can also accumulate it when they do overtime. In his experience, through his responsibilities as DO and from general involvement in everyday operations, very few academic staff have taken TOIL in the past 2 years. he said if there were numbers of employees taking TOIL he would know, because in his DO role he would have to organise the relief work to cover their absences.
[138] Mr Howells said he is aware through his duties of how the outdoor education program has operated in recent years. He said since he started his current employment with HRS in 2016:
a. in Term 1 no camps have been held due to the hot and wet weather, but Experiential Learning staff do go out to site to prepare for them;
b. in Term 2 there have been camps every week from about week 2 onwards;
c. in Term 3 there have been camps every week;
d. in Term 4 there have been no camps due to the weather.
[139] Mr Howells said HRS is not exceptional in relation to this issue, and he is aware through his long experience in the Northern Territory that the scope for schools in the Darwin area to hold camps and other outdoor education activities in term 4 is very limited because the heat at that time of year makes outdoor education both uncomfortable and dangerous. He said he cannot recall any school in the Northern Territory operating camps in Term 4.
[140] Mr Howells said because the TOIL terms in the Agreement for experiential learning staff reflect that practical reality, in the bargaining process he did not think that was a significant barrier to reaching a new agreement. He said he understood there are different considerations for academic staff TOIL.
[141] Mr Howells said in 2019 for example, the experiential learning team were on TOIL in about the last three to four weeks of Term 4. To the best of his recollection, that has been normal timing for them to depart on TOIL since he re-commenced at the school in 2016. He said at that time of year there are no camps possible because of the weather and students are preparing for or sitting exams, so they are not free to participate in outdoor education activities anyway.
[142] Mr Howells said he is unaware of any proposals from HRS, in planning processes or other communications, that they could increase the volume of outdoor education activity in term 4 at all. He said Term 4 is a busy time for academic staff with Year 12 Exams, Years 7-11 exams, Report writing and Term 1A (new school year starts in week 7 term 4). Experiential learning staff are not academic staff and their absence makes almost no difference to the running of the school – they do not need to be covered.
[143] Mr Howells said he does not take sport, but he knows the common arrangements from discussions with other staff and through regular updates we all receive from the school. He said teachers involved in sport take practices once or twice after school and attend weekly games, including at night. He said no-one gets TOIL for these activities, and in the past when he did sports coaching they were never offered TOIL and he (and others) did not ask for it.
[144] It was put to Mr Howells that he was talking about experiential learning staff and not academic staff and because experiential learning staff TOIL reflects reality it is not as big an issue as for academic staff. Mr Howells agreed with that however said his statement was mainly talking about academic staff. In re-examination he clarified that he meant to say TOIL was a big deal for experiential staff but not for academic staff.
[145] Mr Glass accepted that he had informed the FWC in some circumstances he would prefer to pay overtime rather than TOIL. Mr Glass was asked why he told the FWC that instead of employees as part of the bargaining process. Mr Glass said he spoke to Ms Knight and Mr Hodge about this, but he had never given a direction or made an offer to substitute overtime for TOIL. It was put to Mr Glass that TOIL can only be taken by agreement and he accepted that. It was also put to Mr Glass that HRS was currently entitled to not agree to the taking of TOIL and could pay it out and he agreed.
[146] In relation to experiential learning staff it was put to Mr Glass that TOIL is taken when trips are complete for the year and he agreed. Mr Glass was asked how then those provisions were unviable for general staff if they can only be taken with agreement. Mr Glass said for teachers if they go on camps they can have a week off. It was put to Mr Glass he could refuse to grant TOIL. Mr Glass said the history of the school was that it was an expectation and simply saying no would create an issue. Mr Glass accepted he was not obliged to pay TOIL.
Hours of duty – academic staff
[147] Mr Glass referred to Clause 6.1.1 of the Kormilda Agreement which sets out the ordinary hours of work for Secondary and Primary Academic Staff. He said that this provision specifies the number of hours that can be attributed to “instruction” time, “professional” time and “non-contact hours”, as well as the type of work that constitutes each of these. Mr Glass said that Haileybury does not specify these hours in any degree of detail. He said that such specification is unworkable in an elite private school, and the requirement of a teacher working in such a school is to work a certain number of face to face sessions per week, and then to otherwise fulfil the duties necessary to satisfactorily complete their role as and when required.
[148] Mr Glass said that given the nature of the role, there is no set number of hours or times that can be attributed to many of these tasks, and indeed, they can vary from week to week. He said that as a consequence of these provisions, an unnecessary burden is placed on HRS to ensure that its employees are kept tightly within the bounds of these provisions.
[149] Mr Glass was asked if HRS kept track of times and he answered no. It was put to Mr Glass that this did not place any burden on HRS at all. Mr Glass said he is regularly reminded by staff when they feel they have gone over the hours. Mr Glass said face to face time and yard duty is measured. Mr Glass said meeting time and professional development time were the areas where flexibility is required.
[150] Mr Osman said in Mr Glass’ statement at paragraph 81 he refers to the “prescriptive detail” of hours of work clause for academic staff, and states “Such a specification is unworkable in an elite private school”. He said from the very first version of its proposed agreement, HRS included a clause which contained identical “prescriptive detail” about hours of work and which actually added a further layer complexity by including an additional category of work. Mr Osman said other than through the provision of various timetables identifying regular class times, yard duties and relief times, teachers’ hours are not tracked by HRS under the existing arrangements and HRS made no suggestion during bargaining that the current system was “unworkable” or created an administrative burden.
[151] Mr Osman said the union and employee representatives agreed with HRS proposals about hours in November 2018, other than some minor wording issues and the issue of extracurricular activities. Mr Glass accepted in his supplementary statement that while what Mr Osman said was true this is not to suggest that HRS wanted these provisions and these clauses were included in proposed enterprise agreements because HRS wanted to reach an agreement. Ms Knight said she did not recall discussion about the hours in 2018.
[152] Mr Howells said he was aware that the Kormilda Agreement identifies three components of secondary academic staff’s ordinary hours – instruction time, professional time and non-contact hours. He said since 2016 as the DO he has been responsible for constructing the timetables at the beginning of each term as well as organising the relief timetable during the course of each term.
[153] Mr Howells said he has over 10 years of experience performing those tasks, but it remains a difficult and time-consuming process. He said for example spending about 60 hours in the first and last weeks of his current holidays constructing the roster for Term 1. It was put to Mr Howells it was difficult because of the complexity of splitting hours and he said no.
[154] Mr Howells said Mr Glass and he had been emailing each other regularly (12 emails in total) about the timetable over the holiday period in relation to staffing changes and other information relevant to constructing the timetable. He said he had also fielded and made multiple phone calls to senior staff on the timetable, and since 20 January he has written and received upwards of 50 emails to and from staff on various aspects of the timetabling process.
[155] Mr Howells set out issues about the recording of time in his statement as if he was a staff member providing information to or receiving information from the DO and ignoring that he is currently the DO. Mr Howells said the arrangements he described is consistent with how every school he has worked at operates. He said at HRS that system operates the same way for staff under the Agreement and those not under the Agreement (and those who were told by HRS that they were not under the Agreement but in fact were covered by the Agreement).
[156] Mr Glass said in his supplementary statement that this was true, but it was because HRS had made the conscious decision to not ask those not covered by the Kormilda Agreement to undertake different working patterns or duties to those covered by the Kormilda Agreement until this application is heard and determined. Mr Glass said should this application be unsuccessful, HRS will consider doing this in order to ensure that it can start to achieve the goals that it wants to achieve.
[157] Mr Howells said similar to the process in previous years, in 2018 and 2019 prior to the start of each year HRS provided him with a timetable allocating his contact hours, and this details both when he was required to be in class and his yard duty allocations.
[158] Mr Howells said he would normally only work contact hours more than those in his timetable if someone was late or misread their timetable, and if he performed a significant amount of extra time, he would let the DO know who would take it off his relief time.
[159] Mr Howells said there is no system for tracking his actual contact hours, and his yard duties were allocated to him as part of that timetable. Yard duties require him to be in a certain area at a certain time to ensure students are safe in the playground, and there is no system for tracking yard duties actually worked, but if duties are not being performed (e.g. if someone misread their timetable) word soon gets around and he (or any other teacher similarly) would be likely to receive an email from the DO reminding him about his yard duty times.
[160] Mr Howells said relief work is allocated through the daily bulletin sent to all staff each day by the DO, and in the bulletin the DO classifies reliefs as counted, uncounted (underload) or uncounted (in lieu). He said if a teacher were to relieve a period not on the bulletin (e.g. due to lateness or someone misreading the bulletin) the teacher can inform the DO who would record this extra time.
[161] Mr Howells said as part of putting together the daily bulletin the DO keeps track of reliefs to ensure they are allocated fairly and consistent with employees’ relief obligations. He said other than the processes he described above, there is no monitoring of the hours teachers are engaged in their different types of duties (instructions time, professional time, and noncontact hours), and instead they work according to those allocated timetables for class times, relief times and yard duties, engage in standard amounts of other activities (for example, a 2 hour staff meeting on Wednesdays, parent teacher meetings of about 10 hours every semester and staff collaborations of roughly 30 minutes per week.)
[162] It was put to Mr Howells that the timetable was linked to the hours in the enterprise agreement and he disagreed. It was put to him that the three components of academic hours are instruction time, professional time and non-contact time and he said instruction time and possibly yard duties were the only ones in the timetable. He said yard time was under professional time.
[163] Mr Howells said in his experience it is universally accepted amongst staff that those arrangements match the hours staff are required to work on average over the year – no-one totes up the minutes each day and week to calculate their average hours and complains if they don’t match the averages required by the Agreement.
[164] Mr Howells said in the HRS staff manual it says they are supposed to be at work from 8am until 4pm. However, he didn’t record when he begins and ends each day and nor does anyone else. He said the only time his attendance anywhere is recorded (other than through the timetable and the relief bulletin) is at staff meetings for the purposes of recording professional development hours.
[165] Mr Howells said the way a teacher works is very different from other professions in his experience. He said in 2012, for example, he worked as a geologist both in an office and in the field (this was his original career choice). He said he and his colleagues would have to be at work at a certain time, work hard whilst there, then were allowed to leave at a certain time. He said their times for lunch and what we did at work were overseen and noted by our superiors.
[166] Mr Howells said in teaching, in contrast, technically they only have to be present during class time and yard duties, as well as some common professional and non-contact obligations, to fulfil their basic obligations to the school, but in practice it takes at least as many hours to prepare for class as actually teach the lessons – including planning, marking, meeting and reporting. He said these jobs often fill their evenings and weekends during term time.
[167] Mr Howells said to his knowledge, it is not unusual for teaching staff at HRS (as at Kormilda) to be doing 50-hour weeks or more just to keep up. He said there is no connection between the hours nominally allocated to those responsibilities in formal documents like the Kormilda Agreement and the actual hours worked on those tasks, and as a result, there is no way a staff member can be “counting the minutes” like Mr Glass alleges is the culture HRS is trying to replace and be doing an adequate job as a full-time teacher.
[168] Mr Howells said teachers are never directly compensated for many of those hours and to accuse staff of being “clock watchers” and to rely on that as a justification for termination of the Kormilda Agreement does not reflect the reality of the work teachers do at HRS, their dedication to their students and the school, and the corresponding professional culture that exists at the school.
Working Year
[169] Mr Glass said that Clause 5.2.1 of the Kormilda Agreement prescribes that one week of student free time occurs in September each year and this is inconsistent with HRS’ current operation in which separate days of student free time are allocated throughout each term at the beginning of the academic year and Haileybury also operates in a similar fashion.
[170] Mr Glass said that putting aside one full week in September each year for professional development is impractical and inconsistent with how most schools arrange their professional development. He said it is preferable for both schools and teachers to have these days spread out across the year, rather than completing them in one block of time, in order to disperse the time taken to undertake these activities.
[171] Mr Osman said in response to Mr Glass’s comments at his paragraphs 86 and 87 that this issue was never raised by HRS until the very last bargaining meeting on 29 July 2019. Mr Osman said the employee and union representatives agreed at that meeting to HRS’ proposal to remove it. Ms Knight said she could not recall these discussions.
[172] Mr Glass said that Clause 5.2.1 also mandates that academic staff are required to have six weeks of annual leave between the end of Term 4 one year and the commencement of Term 1 the following year. He said that this is particularly and overly prescriptive and does not necessarily equate to the practical reality of how HRS needs to operate, nor is it prescribed as such under the terms of the Teachers Award. He said on 5 December 2019, the IEUA advised HRS that its proposal of having academic staff finish on Friday, 13 December 2019 and return on Friday, 24 January 2020, meant that such staff members did not receive a full six weeks of annual leave. Consequently, HRS amended the last working day of the year to be Thursday, 12 December 2019.
Section 226(b)(i) Views of employees, HRS and IEUA
Views of Employees
[296] HRS submitted the FWC is required to take into account, among other things, “the views of the employees…covered by the agreement” 17. It is submitted that to take a matter into account is to treat it as a relevant consideration in the Peko-Wallsend sense, in that the FWC is bound to “evaluate it and give it due weight”. The FWC is required to treat “those [views] as a matter of significance in the decision making process”.
[297] HRS submitted that useful evidence as to employee views is sparse. Based on the evidence of Mr Glass and consistent with authority HRS submitted that, “employees had an opportunity to express a view and were fully aware of the issues upon which they were being asked to express a view”. HRS submitted the absence of responses from employees demonstrates at the least that there is a lack of strongly held views one way or another, or a disinterest from employees in relation to the Application. HRS said there is some evidence of employee opposition however HRS did not know how that was collected or what employees were told and of the 127 staff that voted on the last proposed agreement 38 have put their name on a petition which is just over 30%.
[298] The IEUA submitted that HRS has been unable to provide any evidence suggestive of support for its application from employees, nor has it even been able to identify any consultation with employees before or after its premature agreement proposal in February 2019. It said a significant proportion of employees, however, have made plain their opposition to termination. As well, an unknown number of employees may have been unable to express an informed opinion because HRS has been misinforming staff for the last two years as to their entitlements and the relevance of the Kormilda Agreement or of its termination to their entitlements.
[299] The IEUA said Mr Osman was not cross-examined about the petition and that 38 employees, around a third of the staff, had the courage to express their opinion to the FWC about the application. It said the only evidence before the Commission concerning employees’ views is evidence of opposition. The two employee witnesses Mr Howells and Mr Ayres expressed strong opposition based on a range of issues including their concerning about HRS’ likely approach to collective negotiation and consultation with employees if the application is granted.
Views of HRS
[300] HRS submitted that it strongly supports the termination of the Kormilda Agreement and this ought to be taken into account and the IEUA opposition to the termination of the Kormilda Agreement too ought to be taken into account.
Views of IEUA
[301] The IEUA submitted HRS has sought to exclude the union from representing staff through the existing consultative arrangements, has sought to denigrate the role of the union in the bargaining process, has engaged in a stratagem which prevents the union representing workers to HRS who are no longer employees of HRS and has sought to reduce the entitlements of its members. The union opposes termination for the cogent reason that termination would endorse that behaviour and entrench those outcomes.
Conclusion on s.226(b)(i)
[302] The only evidence before the FWC concerning employees’ views is that 38 employees are opposed to the application and there is no evidence of any employees supporting the application. The evidence lends some support to the concerns expressed by Mr Howells and Mr Ayres about HRS preferring to deal directly with employees rather than collectively and a predisposition against consultative structures. There is also evidence that also tends to support the IEUA concern that HRS’ preference is not to continue bargaining with it if the application is granted and to exclude it from consultation forums.
[303] HRS’ views concerning its reasons for termination are rationally based in the sense that its objective is to replicate the success of Haileybury Melbourne however the evidence does not strongly suggest a causal connection between termination and the cultural shift sought.
[304] The evidence concerning the views of the respective parties tells more against than for termination being appropriate.
Section 226(b)(ii) - Circumstances and likely effect on the Employees, HRS and IEUA:
Circumstances and likely effect on employees
[305] HRS submitted that the circumstances of the employees will not materially change if the Kormilda Agreement is terminated. It said in large part, their usual terms and conditions of employment will not greatly vary and those financial aspects of their job (salary, allowances, other payments, etc) will not be negatively affected by reason of the undertaking. The likely effects on the employees will be no different. One possible consequence for employees is the requirement to work an additional 40 hours per year for no extra pay.
[306] HRS further submitted that the termination of the Kormilda Agreement and the consequent success of HRS will likely have some positive impacts on employees and their circumstances, as they will become teachers (and other workers) at an elite private school delivering positive educational outcomes for many children, including in-need Indigenous children, in the Northern Territory.
[307] The IEUA submitted that HRS has confirmed that the undertaking does not extend to payments such as allowances and overtime and most significantly did not attend to the central issues remaining in dispute such as monthly pays and extracurricular activities. It was put that given Mr Glass has said he was waiting for the outcome of this matter before deciding about extending these areas, it is entirely foreseeable and probable that employees will see a reduction in their income and increase in their working hours for no more compensation and this is a relevant consideration.
[308] The IEUA also made submissions going to the impact on employees of a change in the bargaining dynamic if termination were granted, including that HRS’ stratagem undermines the practical and legal capacity for its employees to bargain towards a future agreement or obtain approval of the FWC for any future agreement.
[309] HRS also has conceded it had been erroneously informing its employees for the period of time that overlaps with the entire period of bargaining that any staff who commenced employment with HRS after HRS took over Kormilda College in 2018 were not covered by the Kormilda Agreement.
[310] The unchallenged evidence of Mr Osman was that he had assumed this advice was correct even though it was not. On the evidence this incorrect advice was not corrected until Mr Glass sent a memo to all staff in December 2019.
[311] Mr Osman’s evidence that multiple employees approached him about being confused about their entitlements was unchallenged.
[312] Mr Glass agreed that under IFAs employees had entered into they were required to perform the additional 40 hours extracurricular activity, and he also confirmed that staff were engaged on common law contracts after 2018 and they were engaged on the understanding the Kormilda Agreement did not apply based on advice at the time. Mr Glass also agreed employees who had entered IFA’s or were engaged on contracts received 2.5% wage increases.
[313] The IEUA submitted for almost two years, HRS has knowingly or recklessly ignored its obligations under the Kormilda Agreement to over 60% of the current staff, has ignored its obligations towards the majority of its staff to provide the entitlements it is bound to provide them under the Kormilda Agreement, and in breach of the Act has misrepresented to those employees their entitlements.
[314] The IEUA submitted that as all new workers at HRS will no longer be employees of HRS, will no longer be eligible to be party to any enterprise agreement made by HRS, no longer be able to participate in bargaining with HRS, no longer be able to vote on a proposed enterprise agreement with HRS, or take advantage of the avenues available under the Act to require HRS to bargain with them, this will lock HRS’ directly engaged employees out of the bargaining system.
[315] The IEUA submitted direct employees and labour hire employees performing identical roles and engaging in identical tasks will be working for the benefit of HRS, the only distinguishing feature being whether they were engaged prior to or after HRS instituting its strategy to avoid the Kormilda Agreement.
[316] The IEUA submitted that if the Kormilda Agreement is terminated, as a practical matter of bargaining power it may be impossible for employees currently covered by that agreement to engage in bargaining.
[317] The IEUA submitted that it is highly significant to the FWC’s determination of this application that HRS has confirmed it has embarked upon the avoidance strategy and that, irrespective of the FWC’s determination of its application, HRS has commenced and will continue to engage in a process designed to avoid and undermine the continuing operation of the Kormilda Agreement and the integrity of the bargaining framework established by the Act.
[318] The IEUA submit the removal of the issues of concern to HRS will remove any requirement to bargain and in light of the applicants clearly professed desire to model itself on Haileybury Melbourne will make the likelihood of an agreement being made less likely by the granting of the application.
[319] The IEUA submit that HRS has also made plain its desire to remove its obligation to respect collective representation in the workplace through the union by removing the Staff Consultation Committee from the proposed agreement (with its requirement for union representation) and then even removing its replacement body (the Staff Welfare Review Committee, which had no union representation) from later iterations of the proposed agreement.
Circumstances and likely effect on HRS
[320] HRS submitted that the evidence of Mr Glass demonstrates termination of the Kormilda Agreement will assist HRS transform the school into a “tier one” private educational facility including; aligning the School’s operational and most cultural aspirations and objectives with that of Haileybury; delivering a “tier one” educational service, with the extracurricular activities that entails, in an operationally feasible and cost responsible manner; removing restrictive and not “fit for purpose” entitlements and conditions; removing cultural and legacy “blockers” to the reaching of a new enterprise agreement; and transforming HRS into a prestigious, results-orientated and outstanding school environment, standing alone in Darwin and the Northern Territory.
[321] HRS submitted that the introduction of mandatory extracurricular activities without pay is the only way to change the culture and this will never happen as things stand. HRS described the movements in the IEUA position is that it was tinkering or window dressing.
[322] The IEUA submitted Mr Glass accepted there were no savings to be made in the Indigenous boarding area and there is no clear evidence that the finances of HRS are such that there is a risk that it may cease to provide Indigenous education. To the contrary the Business Manager could not give specific financial evidence but did give evidence that the financial position and enrolments were improving, and no evidence was provided about the impact of termination on the finances of HRS.
[323] Mr Glass also complained that the coverage of the Kormilda Agreement is wider than the Modern Awards and said that given HRS has decided to engage all new staff from 2020 on a labour hire basis from Haileybury this will create administrative complexity.
[324] The IEUA also submitted that the decision of HRS to only employ staff through the parent company on a labour hire basis is a decision taken to avoid the Kormilda Agreement and to pre-empt the decision of the FWC and HRS should not be rewarded for this.
[325] The IEUA submitted that HRS’ evidence concerning operational and cultural issues amount to mere unsubstantiated opinions inconsistent with the reality, while the direct evidence identifies there is no “clock watching” culture that is holding HRS back or that is antithetical to a “tier one” culture. Rather, staff are professionals, dedicated to the welfare of their students and the school. The IEUA said the evidence in relation to culture is non-existent.
Circumstances and likely effect on IEUA
[326] HRS submitted that there is no likely impact or effect of the termination of the Kormilda Agreement on the IEUA, nor any other circumstances relevant to the IEUA. Nor are any such likely impacts or such circumstances readily identifiable and this consideration is neutral.
[327] The IEUA has made considerable submissions concerning the adverse impact termination of the agreement will have on its ability to effectively represent its members. ongoing ability to represent members effectively I have noted the existing consultation and representation rights afforded in the Kormilda Agreement and the loss of those rights in the event of is termination.
Conclusion on 226(b)(ii)
[328] It is likely HRS will seek to implement the additional 40 hours mandatory extracurricular hours and monthly pay cycles, and on the evidence the 40 additional hours will clearly add an additional time burden and increased labour output for no additional remuneration. On the evidence it seems there is a real prospect of potential detrimental impact in connection with monthly pays if those issues are not worked through. The undertaking does not cover these things.
[329] It would also appear on the particular facts of this case given HRS has ceased employing staff under the Kormilda Agreement and is relying solely on labour hire for future employees, and a number of direct employees may have entered IFA’s that include the same flexibilities that remain outstanding, in circumstances where there was general misunderstanding about the application of the Kormilda Agreement, it would appear the termination of the agreement will have a significant impact of the bargaining dynamic in favour of HRS.
[330] The confusion generated by HRS’ admitted incorrect advice on the legal application of the Kormilda Agreement that was allowed to circulate for the entirety of the bargaining period is a circumstance relevant to employees in considering whether to terminate the agreement because HRS erroneous advice to employees has caused employees to be misinformed about their proper entitlements during bargaining. Termination may deny employees an opportunity for bargaining to continue while understanding their existing industrial entitlements as compared to the respective claims of all parties.
[331] It would also appear that termination of the Kormilda Agreement will remove existing consultation requirements which go further than consultation requirements that would otherwise apply.
[332] The evidence has not established that the termination of the Kormilda Agreement will deliver a boost to the financial position of HRS. HRS has submitted cost issues were not the basis on which the application is put in any event. The evidence is the flexibilities will extend managerial prerogative and not generate savings.
[333] Many employers have employees working at their workplaces who are directly employed by another employer on different industrial arrangements. HRS will not be their employer. I am not satisfied that because HRS has chosen to adopt a model of sourcing staff in future on a labour hire basis from Haileybury, that lends support for an application to terminate an agreement that applies to its existing directly engaged employees.
[334] To the extent that HRS’ case rests on an aspiration for culture change the FWC must form some view about the comparison of Haileybury Melbourne with HRS in Darwin, and a connection between terminating the Kormilda Agreement and the desired change in culture. However, the evidence is vague. There could be any number of explanations for differences between the environments at Haileybury Melbourne and HRS in Darwin, including the economic horsepower that $33,000 per student per year fees brings compared to $9,000 at HRS in Darwin.
[335] Mr Glass was clear in his evidence such a fee structure will never be introduced at HRS. I do not dismiss any prospect that termination of the agreement will contribute to the objective, whilst it may be possible I am not convinced it is likely and may not turn out to be the panacea HRS is looking for.
[336] In the event the Kormilda Agreement is terminated the IEUA will likely lose its existing consultative and representation rights under the Agreement.
[337] Taking account of the circumstances of the employees, HRS and the IEUA and the likely effect termination will have on each of them the findings set above overall tell against termination.
Other relevant circumstances
Impasse and whether application premature
[338] HRS submitted that the IEUA’s criticisms of HRS amounts to nothing more than complaints about the terms HRS wants in an agreement and its desire to accelerate endless bargaining when it is obvious the parties are incapable of reaching agreement. HRS submitted that the fact quite a few bargaining issues have been resolved evidences impasse because central issues remain unresolved, rather than the opposite. HRS submitted that the parties are still where they began on the big-ticket items.
[339] The IEUA submitted bargaining did not commence until late 2018 and after an unsuccessful ballot in February the process went into a period of hiatus. Then in the months toward mid 2019 contentious issues such as phasing in monthly pays and TOIL were resolved and proposals were advanced by the IEUA on the outstanding issue. It said while the IEUA was complying with the FWC’s direction to submit a further proposal on that last issue the HRS made its application for termination.
[340] The IEUA submitted that the bargaining process, in short, has consisted of HRS:
a. insisting that the process should be completed and put to a vote within a month of its first draft agreement being circulated to bargaining representatives;
b. when that proved impossible, alleging the union was deliberately slowing down the process and acting against the interests of employees;
c. then putting its proposed agreement to vote without seeking to reach agreement with employee representative on the major issues;
d. persistently refusing or resisting negotiation on fundamental items;
e. asserting the proposed agreement was ready to go to a vote a second time, to resist further negotiation or involvement of the Commission;
f. but failing to provide the agreement to employees for their assessment;
g. launching this application, without consenting to involve the Commission in resolving the outstanding issues, without responding to compromise proposals and after refusing to engage in further bargaining.
[341] The IEUA also submitted that the evidence confirms that the impugned elements of the Kormilda Agreement formed part of the multiple iterations of the proposed agreement which HRS put to employees for approval without any suggestion they were “not viable”, were never identified as issues of significance during the course of bargaining; or have operated in the past and through to the present without creating any operational problems for the school; or are the same or comparable to the working arrangements of other “elite private schools”; or are immaterial to HRS’ operations.
[342] The IEUA submitted that there is no suggestion the parties have bargained to an impasse as claimed by HRS, and instead concessions have been made during bargaining and were continuing to be made right up to the time the termination application was commenced. The IEUA submitted that HRS has presented an agreement to employees only once (prematurely, without reaching any consensus with employees), and notwithstanding a range of further concessions being made in subsequent negotiations, in the face of further proposed concessions, with insistence by HRS that the agreement was ready and would be put to employees, HRS has failed to put the agreement to employees for their consideration, and failed to pursue any other avenue to resolve any remaining issues.
[343] The IEUA said the failure of HRS to respond to and engage with the IEUA’s most recent position is an indication no impasse has been reached. HRS is the only party that has been dogmatic and was unwilling to approach a practical middle ground.
[344] The evidence indicates that Mr Glass did not recall if he was aware of the last proposal from the IEUA regarding extracurricular activities before making this application to terminate the Kormilda Agreement. His evidence was that while he did not recall being told about the proposal, he thought he may have been aware of the correspondence from Mr Spriggs. I find this surprising given the context that he also accepted there had been no further meetings since July because HRS has refused to meet.
[345] Mr Glass may not have been fully aware of the true bargaining position at this critical time when HRS had a sudden change of heart from conducting a second ballot to instead seeking to terminate the Kormilda Agreement. He was not attending the bargaining himself. He said before making the decision to make this application that he was being told by his bargaining representatives of their frustration at a lack of progress. The evidence of Ms Knight, the only employer bargaining representative who attended the bargaining meetings and also gave evidence in this case, catalogued a list of issues that she claimed the parties were apart on. However, the evidence disclosed that HRS’ evidence as put was far from the true position and there are only a few remaining issues between the parties.
[346] In addition to this concern, it also appears to be the case that HRS comes to the FWC seeking termination of the Kormilda Agreement in part because of terms it complains of when it has in fact reached agreement with the IEUA on many of the issues that it complains to the FWC about.
[347] Mr Glass raised issues about elements of the TOIL provisions in this application to terminate that were never raised during the bargaining with the IEUA. HRS witness evidence in chief made much of the issue of TOIL being an issue that supported its application however the evidence established the parties had in fact reached agreement on the issue before this application was filed.
[348] Regarding the issue of hours of duty for academic staff, putting aside the issue of extracurricular activities, despite the complaints of HRS about this issue in their evidentiary case, the evidence establishes that the parties had reached agreement on the relevant clause.
[349] Mr Glass stated concerns about Clause 5.2.1 of the Kormilda Agreement prescribing one week of student free time that occurs in September each year however the evidence establishing the IEUA had agreed to its removal.
[350] The evidence shows that the issue Mr Glass complained about concerning outdoor education camps and relief teaching load was resolved by agreement between the parties at the meeting of 25 June. The changes sought by HRS regarding accelerated long service leave clause were accepted by the IEUA.
[351] Mr Glass complained in his evidence to the Commission about the Promoted Teacher Payment Scales at Clause 6.1.3 however the evidence was that HRS never made any proposed changes beyond renumbering and the clause remained unchanged through to the draft tabled in bargaining by HRS on 19 July 2019.
[352] It also seems from the evidence more likely than not that the HAT and LT classifications were included in early iterations of HRS’ proposed agreement but were removed without explanation in the version that was put to the vote in February 2019.
[353] Mr Glass complained about the Gratuity Bonus Scheme at Clause 3.3 of the Kormilda Agreement however Mr Osman’s evidence supported by Ms Knight was that the IEUA did not object to its removal and an issue was never raised by the union or employee representatives about its removal.
[354] Mr Glass complained in his evidence about the deferred salary scheme at Clause 3.5 (and Appendix 6) of the Kormilda Agreement however the evidence confirmed the parties had reached agreement on the issue at one of the initial meetings in 2018, and HRS had not raised the issue since that time.
[355] Mr Glass complained about clause 5.5.2 of the Kormilda Agreement concerning part-time employees, however the evidence established that the removal of the restrictions on part time employment were agreed to by the IEUA early in the bargaining meetings and the issue was not raised again.
[356] Mr Glass raised a concern in his evidence about Clause 6.3.3 of the Kormilda Agreement in regard to an issue involving boarding stream employees’ hours of work and breaks between shifts. While HRS has raised a concern about whether the work practices comply with the terms of the Kormilda Agreement, on the evidence there appears to be no disagreement over the matter between the parties themselves.
[357] In relation to the issue of backpay the evidence indicates the IEUA relented from its position of backpay to 1 January 2019 to 1 July 2019 however HRS sought payment on commencement of the agreement. It is not hard to imagine this issue could be resolved between the parties in future negotiations.
[358] In relation to pay increases the evidence establishes the parties reached agreement on this issue early in the bargaining process at 2.5%.
[359] Mr Glass said that there are a number of other clauses that are simply superfluous or unnecessary to the operation of HRS referring to the College Mission Statement, Employee Staff Welfare and Students with Disabilities. However, it was uncontested that the IEUA agreed that these clauses were unnecessary and should not to be included in the new agreement from the beginning.
[360] The approach of HRS of raising these issues in its evidentiary case despite the parties having already resolved those issues in the course of bargaining, or the issues being otherwise uncontroversial created an initial impression of the parties being far apart. Once clarified in the course of the hearing it became apparent that the number of matters outstanding between the parties being able to reach agreement is narrow, noting that mandatory extracurricular activities remains one of them.
[361] The IEUA said less than nine months after the Kormilda Agreement had expired the application for termination was made. Further the mandatory additional hours claim was an extraordinary claim as it imposes additional hours including on weekends and evenings and without pay which can be allocated at the discretion or direction of the business. The IEUA submitted the FWC is entitled to consider whether it was reasonable to propose that claim without attempt to explore the issues that arose from employees’ concerns, and without being willing to address in substance those concerns.
[362] HRS submitted that the parties have been negotiating for a replacement agreement for over a year, without any success, in circumstances where those negotiations have reached an impasse over the key clauses which often operate as the driver for the application in the first place.
It is hardly surprising that the claim for additional mandatory hours not linked to additional payment has been resisted given its extension into traditionally non-working times in the evening and weekends. However, I am not satisfied of the HRS claim that the parties are at impasse on the issue. I accept that Mr Osman used the term impasse himself on a number of occasions, however the evidence indicates the IEUA was taking small and tentative steps on the issue and I am satisfied with more effort to further explore the issue an agreement is quite possible.
[363] HRS has proposed reasonably significant change to the existing industry norms in the Northern Territory. The timeframe for the initial ballot was short, and it would appear the parties would be assisted by having more time to engage in bargaining over these reasonably significant changes.
[364] HRS is entitled to engage in hard bargaining for claims that are important to it. However, overall, I am of the view it would be premature to grant the application for termination at this time.
[365] HRS referred to paragraph 133 of Aurizon where it refers to the decision in Tahmoor Coal 18 without disagreement and specifically the observation that one of the effects of termination which should be considered is whether termination will enhance or reduce the prospects of the parties concluding an agreement.
[366] HRS submitted that as things presently stand without some intervening act there is no prospect of an agreement and it is likely that termination of the agreement will assist in reaching a new agreement because it will not operate as an anchor or a crutch. IEUA submit that HRS has submitted a circuit breaker is required however HRS has not engaged with the IEUA since the conference before the FWC in August 2019.
[367] On the issue of monthly pays the issue was resolved for the bulk of employees. Ms Knight accepted that casuals in the boarding schools could have genuine concerns about being paid monthly if they did not end up working projected hours. Ms Knight said the issue would have to be worked through and did not recall it being discussed. It seems sufficiently clear this issue has not been properly explored yet between the parties and the parties should be given an opportunity to do so.
[368] Mr Glass’ own evidence left me with the impression that his preference is to mirror the model at Haileybury Melbourne, however I accept he did not say he was not prepared to go on and reach an enterprise agreement with employees of HRS.
[369] I am inclined to the view that if the application were to be granted it would diminish the likelihood of the conclusion of a new Enterprise Agreement. The uncontested evidence is that HRS is already using IFA’s and labour hire in order to obtain the flexibilities it seeks. Mr Glass also made clear Haileybury Melbourne does not have an enterprise agreement with its employees and instead engaged staff on common law contracts. However, I am inclined to the view that refusing the application will enhance the likelihood of a new EA. This tells against granting the application.
Camp Allowance
[370] Mr Osman’s gave evidence that HRS reneged on an agreement over a camp allowance. This evidence appeared to go unchallenged. This issue also needs to be properly addressed
Conclusion
[371] For the reasons set out above, I do not consider that it is appropriate to terminate the agreement and for that reason the application is dismissed.
COMMISSIONER
Appearances:
Mr M. Follett of Counsel instructed by Herbert Smith Freehills appearing for the Applicant.
Mr David Quinn of Holding Redlich appearing for the Independent Education Union of Australia – Queensland and Northern Territory Branch.
Hearing details:
2020,
Darwin:
February 12, 13
Printed by authority of the Commonwealth Government Printer
<PR718688>
1 Exhibit 1, Statement of Craig Glass dated 13 December 2019.
2 Exhibit 2, Supplementary Statement of Craig Glass dated 6 February 2020.
3 Exhibit 3, Statement of Christine Rosemary Knight dated 13 December 2019.
4 Exhibit 4, Statement of John Spriggs dated 27 January 2020.
5 Exhibit 5, Statement of Jengis Arif Osman dated 23 January 2020.
6 Exhibit 8, Statement of Geoffrey Howells dated 23 January 2020.
7 Exhibit 9. Statement of Anthony Ayres dated 23 January 2020.
8 Exhibit 5, Statement of Jengis Arif Osman attachment JO 7.
9 Exhibit 5, Statement of Jengis Arif Osman attachment JO 29.
10 Exhibit 6 Chapter Briefing Haileybury EBA.
11 Exhibit 5, Statement of Jengis Arif Osman attachment JO 5.
12 Exhibit 5, Statement Jengis Arif Osman at para 41.
13 [2015] FWCFB 540. Affirmed by a Full Court of the Federal Court in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Aurizon Operations Ltd [2015] FCAFC 126.
14 (2005) 139 IR 34 at 40 [23].
15 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Aurizon Operations Ltd [2015] FCAFC 126; (2015) 233 FCR 301 at 310 [25].
16 [2019] FWCA 15.
17 (section 226(b)(i)) of the Fair Work Act 2009.
18 (2010) 204 IR 243; [2010] FWA 6468.
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