Independent Education Union of Australia-New South Wales/Australian Capital Territory Branch v Catholic Education Office, Archdiocese of Canberra & Goulburn - [2013] FWC 146

[2013] FWC 146

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Independent Education Union of Australia-New South Wales/Australian Capital Territory Branch
v
Catholic Education Office, Archdiocese of Canberra & Goulburn
(C2012/4719)

COMMISSIONER DEEGAN

CANBERRA, 9 JANUARY 2013

Dispute resolution - classification in enterprise agreement.

[1] This decision arises from a notification of dispute pursuant to s.739 of the Fair Work Act 2009 (the Act) lodged on 26 July 2012 by the Independent Education Union of Australia (the union). The union is in dispute with the Catholic Education Office, Archdiocese of Canberra and Goulburn (the CEO or the employer) and seeks to resolve the dispute in accordance with the dispute settlement procedure set out in the Teachers and Principals (Archdiocese of Canberra and Goulburn) Catholic Systemic Schools Collective Agreement 2011 - 2014 1 (the Agreement). The dispute relates to clause 9.7, clause 2.7 of Schedule 2 of Part C, and Annexure D to the Agreement.

[2] The matter was listed for a conciliation conference on 16 August 2012. As the matter was not settled at conciliation, directions were issued and the matter was listed for an arbitration hearing on 23 October 2012.

[3] At the hearing, the union was represented by Ms Carol Matthews. Ms Jane Cronan appeared for the employer.

[4] The clauses that are the subject of the dispute relate to the Exemplar Teacher classification in the Agreement. Specifically, the interpretation and application of the clauses insofar as they relate to the conferral or non-conferral of this classification on three year trained teachers. The union contends that in failing to afford one of their members, Mrs Claire Walsh, the opportunity to participate in a discussion with her Principal regarding conferral of the Exemplar Teacher classification on the basis that she was a three year trained teacher, the employer had incorrectly applied the relevant clauses of the Agreement. The employer’s position is that, at the time that Mrs Walsh made her application to participate in a discussion with the Principal, she was ineligible to make an application for the conferral of the Exemplar Teacher classification as she was not a four year trained teacher, and was not currently engaged in study directed to becoming a four year trained teacher.

[5] Clause 9.7 of the Agreement provides:

9.7 Exemplar Teacher

This Agreement introduces an Exemplar Teacher classification for teachers who have been at the top of the salary scale for 12 months and who meet agreed requirements. Details are provided at Schedule 2 of Part C Salary Progression and Annexure D Classroom Teacher Incremental Progression.

[6] Clause 2.7 of Schedule 2 of Part C provides:

2.7 Exemplar Teacher

This Agreement introduces an Exemplar Teacher classification for teachers who have been at the top of the salary scale for 12 months and who meet agreed requirements as set out in Schedule 2 of Part C Salary Progression and Annexure D Classroom Teacher Incremental Progression.

For existing eligible teachers at the making of the agreement

To access the new classification, eligible teachers must make an appointment with their principal or supervisor in Term1 2012 to discuss their professional responsibilities and performance which are outlined in Annexure D. If the teacher meets the requirements for this professional discussion, the increase will be backdated to 1 October 2011. This will provide teachers with an opportunity to engage in professional dialogue with school teachers.

Teachers who became eligible during the life of the agreement or who were eligible but did not apply in Term 1, 2012

Eligible teachers can apply for the Exemplar Teacher classification during the life of this agreement. Eligible teachers should make an appointment with their Principal and if they meet the requirements which are outlined in Annexure D, the increase will be backdated to the date of their written request for professional dialogue with their Principal.

...

Annual Professional Dialogue

The expectation of the performance and professional responsibilities at Annexure D will be used as guidelines for an annual professional discussion between individual classroom teachers and their supervisor and/or principal. This professional discussion will focus on the teacher’s performance, incremental progression, and career plans.

[7] Annexure D to the Agreement is titled Classroom Teacher Incremental Progression. The opening paragraph of the annexure states:

The following expectations of the performance and professional responsibilities of classroom teachers will be used as guidelines for an annual professional discussion between individual classroom teachers and their supervisors and/or principal. This professional discussion will focus on the teacher’s performance, incremental progression, and career plans...

[8] The union submits that the wording of the Agreement is unambiguous, and that if a teacher has been at the top of the salary scale for 12 months and meets the agreed requirements, as described in Schedule 2 of Part C and Annexure D, the teacher satisfies the ‘eligible teacher’ requirement in clause 2.7. Further, the union puts that in accordance with clause 2.7, if the teacher is eligible to make the appointment to discuss their professional responsibilities and performance, the teacher is eligible to have the classification of Exemplar Teacher conferred upon them. The union submits that the discussion itself is not a separate test, rather the eligibility to participate in the discussion, and the discussion itself, is sufficient.

[9] The union filed witness statements of three witnesses in support of its position in relation to the correct interpretation and application of the conferral of the Exemplar Teacher classification. Each witness gave evidence at the hearing and was cross-examined.

[10] In her statement of evidence 2, Mrs Claire Walsh confirmed that she has a three year teaching qualification and thirty-two years full time teaching experience, having taught at her current primary school since 2002. She has been paid at the top of the salary scale for fifteen years. Mrs Walsh was aware that the Exemplar Teacher classification was to be part of the new enterprise agreement and, on 13 April 2012, sent an email to the Principal of her school requesting an interview for the position of Exemplar Teacher. On 24 April 2012, all teachers employed at the school received an email from the Principal regarding the application process, with suggestions on preparation for the meeting and guidance on providing relevant examples to support any claims made against the criteria.

[11] On 7 May 2012, Mrs Walsh received an email from the Principal which indicated that she was ineligible to apply for Exemplar Teacher status as she had not completed a unit of study towards the conversion of her qualification to make her a four year trained teacher. This email referred to advice that the Principal had received from the CEO regarding the requirement for a three year trained teacher to be actively engaged in study before applying for the Exemplar Teacher classification and advised that Mrs Walsh (and others who mirror her situation) could apply for exemplar status next year.

[12] Mrs Walsh provided a number of examples of the roles that she plays in the school, her contributions to committees and her role as a mentor teacher, including the mentoring of teachers who are four year trained. She indicated that it was her belief that she would have met the criteria for appointment as Exemplar Teacher had she attended the interview with her Principal.

[13] Under cross-examination, Mrs Walsh was asked whether it was her understanding that a three year trained teacher would no longer be teaching in the CEO system after 2014. Mrs Walsh indicated that the letter from Mrs Najdecki indicated that it was January 2015, and that it was her understanding that because she was registered with the TQI (Teachers Quality Institute) she would be able to keep teaching past this date. When asked whether the CEO had told her that their position was different to that of the TQI in relation to the ability for a three year trained to continue teaching past 2014, Mrs Walsh agreed. She also agreed that there were four year trained teachers who do the same things that she does in terms of the assessment committees and mentoring of four year trained teachers.

[14] Under re-examination, Mrs Walsh indicated that she had attended a think tank at TQI and that it was explained to her that three year trained teachers who were permanently employed would continue to be registered past 2014, and she was not expecting that she would be required to finish teaching at the end of 2014. Mrs Walsh was asked whether she would be able to ‘build capacity’ now even if she was not employed in 2015. Mrs Walsh replied that she definitely could, and agreed there would be some teachers who had applied for the Exemplar Teacher classification who would not be teaching in 2015 because of retirement or other reasons.

[15] Mrs Bernadette Simpson, an organiser with the union, filed statements of evidence 3 primarily focused on the history of negotiations and correspondence that flowed between the parties in the lead up to the approval of the Agreement by FWA on 19 June 2012.

[16] According to Mrs Simpson’s evidence negotiations for the Agreement commenced in mid-2011 and on 6 September 2011 the union was advised that the CEO was considering the addition of a further ‘step’ at the top of the teachers pay scale. By a letter dated 16 November 2011 Mrs Najdecki outlined the features of the further classification step as follows:

Progression to this new classification will be available to teachers currently at the top increment for 12 months or more and meeting the requirements outlined in clause 131 of the ACT Department of Education and Training Teaching Staff Enterprise Agreement as follows:

The teacher must make an appointment with their Principal or supervisor for a discussion in relation to the teacher’s professional responsibilities and expectations of performance...This discussion will occur in Term 1 2012 and salary progression will be backdated until 31 January 2012... 4

[17] Mrs Simpson, together with other representatives from the union and the CEO attended a meeting on 7 December 2011. After the meeting, Mrs Najdjecki wrote to the union and confirmed that the progression to the new increment (now referred to as the Exemplar Teacher classification) would be available as per her letter dated 16 November 2011, following a professional dialogue in accordance with the terms of the document ‘Classroom Teacher Incremental Progression’(CTIP) which had been tabled at the meeting. Mrs Simpson stated that all persons who were present at that meeting, including those from the CEO understood the CTIP to be ‘recasting the process of a professional dialogue in clause 131 of the DET Agreement...into Catholic terminology.’ 5

[18] Mrs Simpson also stated that at no stage during the meeting did the CEO suggest that the reference in the CTIP to three year trained teachers precluded three year trained teachers from applying for the classification of Exemplar Teacher, and according to her recollection, the reference to three year trained teachers in the CTIP was not discussed at all. She stated specifically that she did not recall Mrs Nadecki making any representation that she did not regard three year trained teachers as Exemplar Teachers.

[19] Following the 7 December letter from Mrs Najdecki, a Joint Statement, signed by the CEO and the union, was prepared and was distributed to all teachers and Principals on 12 December 2011. Attached to the Joint Statement at Attachment A was the CTIP document.

[20] It was Mrs Simpson’s evidence that in February 2012 the union became aware that a document had been prepared by the CEO for the three year trained teachers’ intranet site which stated that, in order to qualify for the classification of Exemplar Teacher, three year trained teachers needed to provide evidence that they have commenced training to become a four year trained teacher. Attached to Mrs Simpson’s statement was an email from the union to the CEO dated 15 February 2012 which stated that neither the Joint Statement nor Appendix A to that statement had made mention of such a requirement, and that it had not been raised as prerequisite during negotiations. 6

[21] Further correspondence flowed between the parties regarding the issue, including an email from Mrs Simpson dated 13 April stating that the union did not agree that a three year trained teacher was prohibited from accessing the Exemplar Teacher increment, and a letter from Mrs Najdecki to the union, dated 15 May, which stated that three year trained teachers were not precluded from applying for classification as an Exemplar Teacher, rather they were considered eligible to apply if they are actively engaged in attaining a four year qualification and can provide evidence to support this. In response to this letter, the union reiterated its position that it did not share the CEO’s view regarding the eligibility of three year trained teachers to apply for the classification.

[22] According to Mrs Simpson, at no time during negotiations did the union agree that three year trained teachers were ineligible to apply for the classification and that the union would not have agreed to three year trained being precluded from applying for this classification without giving the issue serious consideration and informing all its members.

[23] Mrs Simpson also provided evidence about the content of the final agreement. She stated that the version of the Agreement that the CEO intended to send to ballot on 26 April 2012 did not contain the CTIP at Annexure D. It was only at the request of the union that the CTIP was included in the version of the Agreement that was put to the vote.

[24] Mrs Simpson stated that, had this last minute change to the Agreement not been suggested by the union, no part of the Agreement would have contained a reference to three year trained teachers in the same context as the Exemplar Teacher classification. Mrs Simpson noted that in Annexure D the reference to three year trained teachers is included only in the context of it being the first step on the pay scale.

[25] Under cross-examination, Mrs Simpson was asked whether she recalled three year trained and four year trained teachers being discussed at any meetings in 2011. Mrs Simpson indicated that three year trained teachers were discussed in the context of establishing an intranet page to assist three year trained teachers to up-skill and become four year trained, though this was a separate issue to that of the Exemplar Teacher classification. Mrs Simpson was taken to the Joint Statement and agreed that this document contained the text ‘[e]arly in the life of the new agreement the CEO will establish an intranet page which will assist three-year trained teachers to meet their obligations so that they can be classified as four-year trained’. 7 When taken to Attachment A and the text relating to three year trained teachers meeting ‘...four year trained requirements by 1 January 2014’, Mrs Simpson indicated that the union did not take any notice of this text as the union did not see it as relating to the issue in dispute.8

[26] When asked whether she was sure that Mrs Najdecki did not make a statement that three year trained teachers could not be regarded as exemplar, Mrs Simpson stated that she did not recall Mrs Najdecki making that statement at the meeting on 7 December 2011.

[27] Mrs Simpson agreed that, as of 11 April 2012, the union was aware of CEO’s position and that the CEO was also aware of the union’s position with respect to three year trained teachers and their eligibility for the Exemplar Teacher classification. When asked whether she thought the union should have ‘ironed out’ the issue with respect to the Exemplar Teacher classification in the Agreement, prior to the Agreement going to the ballot, Mrs Simpson indicated that she did not believe that they should have because they did not see the issue as being in the Agreement itself.

[28] When re-examined by Ms Matthews, Ms Simpson indicated that under clause 131 of ACT DET Agreement there was no bar to three year trained teachers accessing the top of the pay scale. She also stated that the reason the union did not pursue the differing views regarding the three year trained teachers prior to the Agreement being put to the ballot was because the union was confident there was no bar contained in the Agreement to three year trained teachers accessing the Exemplar Teacher classification.

[29] Ms Jacqueline Groom is an organiser from the union who also participated in the negotiation of the Agreement. In her statement of evidence, 9 Ms Groom’s indicated that she was present at the 7 December 2011 meeting. Ms Groom did not believe that Mrs Najdecki stated at this meeting that three year trained teachers could not be regarded as Exemplar Teachers. She stated that while the need for three year trained teachers to become four year trained teachers was discussed in the meetings relating to the negotiation of the Agreement, it was Ms Groom’s evidence that it was discussed as an ongoing issue not specific to the Agreement.10

[30] Ms Groom also provided evidence regarding the ability of three year trained teachers to continue teaching past 2015. She referred to correspondence she had received from Ms Tooth, Manager Liaison Unit at the ACT Government and Training 11. Referring to this letter, Ms Groom stated that it is a legislative requirement (under the ACT Teachers Quality Institute Act 2010) that all staff employed by a school are to be registered with the TQI, or have a permit to teach. According to Ms Groom, all three year trained teachers employed by the CEO were either registered or received a permit to teach in April 2011. Ms Tooth noted that the letter stated that TQI undertakes an assessment of the teacher’s qualifications as part of the registration process and during registration visits, the panel requests evidence that all teaching staff employed by the school are registered with the TQI or hold a permit to teach. Ms Groom indicated that the qualifications were not reviewed once a teacher had been registered.

[31] Under cross-examination Ms Groom stated that she did not believe Mrs Nadjecki had, at the 7 December meeting, said that three year trained could not be regarded as Exemplar Teachers or words to the effect of ‘experience does not make someone exemplary’. 12 She agreed that there had been discussion around the legislative requirements and pathways for three year trained teachers to become four year trained but stated that these did not occur in the context of discussions relating to the Exemplar Teacher classification.13 She was taken to the CTIP at Annexure A to the Joint Statement, and directed to the first line of the table in that document. She agreed that this line of the table was discussed at the meeting though claimed that this discussion occurred in relation to the legislative requirements, not the Exemplar Teacher classification.14 She agreed that, in relation to incremental progression, three year trained teachers could only move up the salary scale if they become four year trained.15

[32] When taken to Ms Tooth’s letter, Ms Groom conceded that Ms Tooth had not said that the CEO was unable to ask for more from their teachers than the minimum standard. 16She also agreed that the CEO makes decisions about a variety of matters, including such matters as religious education accreditation, about which the TQI is not concerned.

[33] When re-examined by Ms Matthews, Ms Groom indicated that in her evidence she tried to show that while the Joint Statement did deal with the expectation that three year trained teachers would meet the legislative requirements, that part of the of the Joint Statement did not form part of the Exemplar Teacher discussion points. In order to clarify the point, she identified a number of matters contained in the Joint Statement that were unrelated to the Exemplar Teacher discussions.

The CEO Position

[34] It is the CEO position that the provisions of the Agreement, in particular the reference in Appendix D to the expectation that three year trained teachers would meet the four year trained requirement by 1 January 2014, support the CEO imposing a requirement that unless three year trained teachers are actively engaged in study to become four year trained they are ineligible to be classified as Exemplar Teachers.

[35] Two witnesses filed statements of evidence in support of the CEO position, those of Mrs Moira Najdecki and Ms Natasha O’Donoghue.

[36] Mrs Moira Najdecki is the director of the CEO. In her statement 17 she responded to some of the evidence contained in the statements filed by the union witnesses. She noted that while pay parity applies generally to teachers in Catholic and Government schools the position of Exemplar Teacher status was different. In return for a significant wage increase for those at the top of the pay scale the CEO had implement requirements to facilitate employees engaging in professional dialogue and had provided additional ‘agreed requirements’ to attach to the Exemplar Teacher classification.

[37] It was the evidence of Mrs Najdecki that the CEO position was that teachers would be eligible for Exemplar Teacher status if they met the agreed requirements including the requirement to be four year trained by 2014. She claimed that three year trained teachers were to be excluded from the category of Exemplar Teacher unless ‘these teachers undertook a flexible, minimal standard of one-course study towards eligibility as a four year trained teacher.’ 18 Mrs Najdecki relied on the reference in Appendix D to three year trained teachers meeting the obligation to be four year trained by 1 January 2014 to support her view. It was her evidence that the CEO had modified its original position in this respect to enable three year trained teachers who were in the process of upgrading to four year trained to have access to Exemplar Teacher status.

[38] According to the witness, at the meeting held with the union on 7 December 2011 she had commented that three year trained teachers could not be regarded as Exemplar Teachers. She also noted that the Joint Statement which was released after full consideration by the union contained the sentence, ‘early in the life of the new Agreement the CEO will establish an internet site which will assist 3 year trained teachers to meet their obligations so that they can be classified as 4 year trained.’ Mrs Najdecki also referred to the summary 19 of the amendments made to the Exemplar Teacher document on 12 April noting the requirements for Exemplar Teachers.

[39] Mrs Najdecki summarised her position as follows:

Three-year-trained teachers could not meet agreed requirements for the exemplar classification if they were not actively engaging in study. In my view, three-year-trained teachers, not engaging in study could not be regarded under the banner of exemplar teachers because they currently are unable to teach past 2015. These teachers, though valuable to the system, do not meet minimal qualifications such that they are able to teach post 2015. Failure to comply with minimal standards cannot, by definition, be classed as exemplar, and thus the exemplar teacher classification is unavailable ...to this small group. 20

[40] In oral evidence, Mrs Najdecki claimed that it had been the CEO position throughout the Agreement negotiations that the Exemplar Teacher classification was never simply going to be another step on the pay scale. There were to be agreed requirements in terms of what would be an exemplar teacher and part of those agreed requirements were that three-year trained teachers would need to be four-year trained by 1 January 2014. Mrs Nadjecki stated that this had always been her approach to ‘three year trained and exemplar teacher’. She claimed that it ‘had never been about excluding, it had always been about trying to make sure that our teachers could meet the agreed requirements’. 21

[41] It was the witness’ evidence that the CEO had determined that it would not adopt the position of the ACT Department of Education and Training and ‘deem’ three year trained teachers to be four year trained. The CEO had said that ‘three-year trained wasn’t going to be acceptable past 1 January 2015’. 22

[42] When asked about the meeting that occurred on 7 December 2011, Mrs Najdecki confirmed that three year trained teachers were discussed and that she had stated that three-year trained teachers could not be considered Exemplar Teachers because they only had minimal levels of training. She also recalled a response to her statement to the effect that surely experience counted and ‘surely teachers who were at the top of the scale were exemplar teachers’. According to Mrs Najdecki she had replied ‘[n]o, that we would hope that that would be the case that most of them would be but that in fact experience doesn’t make you exemplar’. 23

[43] When asked if it had been her intention to exclude three-year trained teachers from the Exemplar Teacher classification she replied that it had not been, rather it was her intention that all three year trained teachers undertake the necessary study directed towards obtaining the qualifications because it was the CEO’s understanding that they would not be able to teach beyond 2015. She confirmed that that remained her understanding. According to her evidence, Mrs Najdecki believed that the registration manual required teachers in the ACT to be four year trained to teach past 2015 and that if that requirement was changed it was still open to the CEO to set their own standard as it was not required to accept only the minimum.

[44] When cross-examined, Mrs Najdecki agreed that her role as director of the diocese is very much to deal with the big picture issues and that one of her strong concerns was the need or desirability for three year trained teachers to be undertaking further study. Following some extensive cross-examination and perusal of the relevant documents, Mrs Nadjecki claimed that if the Registration Manual did not require teachers to be four year trained by 2015 then the Education Act 2004 and the schools registration manual set that requirement.

[45] When asked if the requirement was, in fact, just CEO policy, Mrs Nadjecki noted that since 2005 the CEO had been informing teachers that they needed to have a four year qualification. The witness conceded that the letter 24 from Ms Tooth to the union suggested that obtaining a four year trained qualification was not a precondition for a three year trained teacher to work in the ACT after 2015, provided the teacher already holds a permit to teach. According to Mrs Najdecki, the CEO had not been notified of any change to the requirement for teachers to be four year trained by 2015.

[46] Ms Matthews directed the witness to the letter from Mr Mark Hogan of the CEO to Ms Groom and put that Mr Hogan appeared to have the understanding that three year trained teachers would be able to continue to teach post-2015. The witness conceded that this appeared to be the case but reiterated her earlier statement that even if that was what the TQI says, the CEO did not necessarily accept that that is the standard for CEO teachers. She agreed that this was a matter of policy. The witness claimed that the reason her witness statement stated that the four year trained qualification was a legislative requirement was because she was basing it on the Education Act. She again conceded that the Registration Manual only required new teachers to be four year trained by 2015.

[47] When asked if the Agreement contained a provision that required three year trained teachers to be four year trained by 2015, Mrs Najdecki conceded that it did not other than in Annexure A which contained the reference to the requirement that three year trained teachers be four year trained by 1 January 2014.

[48] Mrs Najdecki was extensively cross-examined about the manner in which Annexure A is set out. It was put to her that the note about three year trained teachers was not directed at the classification of Exemplar Teacher. When asked to identify the words of the annexure which provided that Exemplar Teachers could not be three year trained Ms Najdecki referred to the Joint Statement which stated that the agreement would include a new classification of Exemplar Teacher and that teachers who have been at the top of the salary scale for 12 months and who met agreed requirements could apply to become Exemplar Teachers. She claimed that one of the agreed requirements was that the teacher meets the academic requirements associated with becoming four year trained by 1 January 2014.

[49] It was put directly to Mrs Najdecki that there is nothing in Attachment A that says in order to be an Exemplar Teacher a teacher must be four year trained. The witness replied that a three year trained teacher must meet the four year trained requirement, that this was an agreed requirement. Therefore, before a teacher can apply for the ‘additional and different classification of exemplar teacher’ they must meet the agreed requirement. When pressed about where that requirement was stated, the witness stated that it was ‘put in terms of the expectation of professional responsibilities and the very first one is that people have to meet four year trained requirements by 1 January 2014’.

[50] Mrs Najdecki then summarised the position of the CEO as follows:

I’m relying - we're relying on the fact that we said they had to meet agreed requirements and one of the agreed requirements, what we agreed to on 7 December was that this Attachment A would be in place and what we listed there we deliberately put in three year trained as the first part of it to say that our three year trained teachers needed to meet the four year trained requirements and in fact to apply for exemplar teacher it wasn't simply incremental, it wasn't simply another step, they actually had to apply for it and they had to have met those expectations of professional responsibilities. 25

[51] Ms Matthews then put a number of questions to Mrs Najdecki about the meaning of ‘agreed requirements’ and how that term had been dealt with in correspondence during negotiations for the Agreement. Having considered the correspondence that led to the in-principle agreement between the parties as to the classification of Exemplar Teacher, Mrs Najdecki conceded that there was nothing in any piece of that correspondence that stated that a teacher had to be four year trained.

[52] Mrs Najdecki made the same concession in relation to the contents of the Joint Statement but claimed that there had been discussions about three year trained teachers meeting the four year trained requirement. She conceded during cross examination that those discussions had been about the desirability of three year trained teachers attaining four year trained qualifications. The witness agreed that those discussions may have been in a ‘separate strand’ to the discussions about the Exemplar Teacher classification but claimed that the strands had come together by the time Attachment A was developed.

[53] When asked about the provenance of information concerning application for Exemplar Teacher status that was posted on the website on the CEO intranet, Mrs Najdecki replied that it was prepared by employees of the CEO some time after February 2012 and that the documents were not agreed with the union but were CEO documents which outlined the way in which the CEO was going to ‘operationalise what was in the draft statement and what was in the Attachment A’. 26 Mrs Najdecki also agreed that there had been a meeting in April 2012 in which there was heated discussion between the CEO and the union about the content of the documents and that it had been clear from that meeting that the union did not agree with the statement that a teacher had to be four year trained in order to access Exemplar Teacher status.

[54] Mrs Najdecki conceded that at the time the website documents were developed, the Agreement was not yet in place and that the matter had not been raised during the drafting of the Agreement.

[55] It was also put to the witness that since the Agreement had been put in place the CEO had changed the advice that it gave three year trained teachers about what the requirements for them to be ‘actively engaged in study to attain four year trained qualifications’ actually meant. Mrs Najdecki agreed that there had been a couple of permutations of that term.

[56] When re-examined by Ms Cronan, the witness claimed that a teacher who would not have a four year trained qualification post-2014 would not currently be able to meet the expectations of professional responsibility required to be an Exemplar Teacher. This was put on the basis that the teacher would be unable to take part in curriculum development etc. if they were not going to be employed by the CEO post-2015.

[57] The CEO’s second witness was Ms Natasha O’Donoghue, Senior Officer for Employment Relations and Legal Issues. Ms O’Donoghue provided a statement of evidence 27 and was cross-examined at the hearing.

[58] Ms O’Donoghue was asked where the term ‘agreed requirements’ in clause 2.7 of Schedule 2 of Part C of the Agreement originated. She advised that it was the terminology used in the ACT government sector in clause 131 of the agreement applying to that sector. She noted that the clause had, however, been ‘contextualised into a Catholic context’.

[59] Ms O’Donoghue gave her understanding of the meaning of Attachment A of the Agreement. She claimed that the attachment clearly stated that the CEO professional expectations were that three year trained teachers would be required to meet the minimum educational qualifications to access the Exemplar Teacher classification. She also claimed that the Attachment relied on the wording of the Joint Statement which provided that to access the Exemplar Teacher classification, a teacher had to meet the agreed requirements. She alleged that one of those agreed requirements was articulated in that first box of the Attachment to the Joint Statement (the CTIP) and that was that three year trained teachers ‘needed to be able to meet the requirements to be four year trained’.

[60] When asked about the meeting held on 7 December 2011, the witness stated that the Exemplar Teacher classification was discussed and that the CEO had tabled the document which became Attachment A to the Joint Statement and had invited comments from the union. There was also some discussion about whether three year trained teachers could apply for exemplar status. Ms O’Donoghue recalled Mrs Najdecki saying that she did not think that three year trained teachers could be called exemplar teachers. The witness could not recall any amendments being made to the tabled document as a result of the 7 December meeting. She recalled that, in April, the union had advised that it was happy for the document to be included in the Agreement.

[61] When asked if there had been a disagreement between the union and the CEO on the question whether the classification of Exemplar Teacher could apply to a three year trained teacher, Ms O’Donoghue stated that she did not believe any such disagreement existed as at 12 December 2011. In April, she became aware that there were issues with the CEO’s implementation of the Exemplar Teacher classification and its impact on three year trained teachers in particular. It was also her evidence that initially the CEO had stated that teachers had to be four year trained to access the exemplar classification but had received feedback from the union and also the principals. The CEO had then said that it would be prepared to allow three year trained teachers who were actively engaged in study to apply.

[62] After templates had been developed by the CEO to guide the participants in the Exemplar Teacher application process, Ms O’Donoghue had received a telephone call from the union expressing some concerns. A meeting was held with the union on 12 April but, according to the witness, that meeting was not focussed on the rights of three year trained teachers. Ms O’Donoghue noted, however, that the union had made her aware of its concerns.

[63] Under cross-examination, Ms O’Donoghue stated that she believed that three year trained teachers had until 1 January 2015 to have the approved standard of teaching qualifications. She ‘assumed’ that was a four year trained qualification. She agreed that a three year trained teacher can be accredited to teach with the ACT Teacher Quality Institute but did not think the position was clear as to the rights of three year trained teachers to teach in the ACT after 1 January 2015.

[64] Ms O’Donoghue was questioned about her evidence that, in the meeting on 7 December 2011, Mrs Najdecki had made a statement that a three year trained teacher could not be an Exemplar Teacher. It was put to her that she had not mentioned this in her written statement of evidence. She conceded that she had not but insisted that she could remember Mrs Najdecki making the comment. She agreed that the matter had come up in the April meeting as well.

[65] Ms O’Donoghue stated that Mrs Najdecki had told her to keep the reference to three year trained teachers ‘having to meet the requirements by 2014’ in the drafting of the agreement but conceded that she had not told her to put a provision in the Agreement which said no three year trained teacher could apply to be an Exemplar Teacher.

[66] According to Ms O’Donoghue the term ‘agreed requirements’ was used throughout the negotiations and it was always intended that ‘we weren't going to just be providing a salary increase at the top of the scale to everyone’. 28 She noted that the Exemplar Teacher status was:

...always going to be something which would be based on a professional dialogue and for standards which were above the minimum and so in that context I assumed that agreed requirements meant that your teaching standard was above the minimum. 29

[67] When taken to the documentation that was prepared during the negotiations, Ms O’Donoghue agreed that there was no reference to any requirement that a teacher be four year trained to access the Exemplar Teacher classification. During further cross-examination, Ms O’Donoghue reiterated her position that the note in Attachment A which stated that three year trained teachers were expected to be four year trained by 2014 was one of the ‘agreed requirements’ for access to the Exemplar Teacher classification. When it was put to her that the union did not agree with such a requirement, the witness noted that the Union had never put that to them in writing and had never stated that they would not go ahead with the agreement if it were not made clear that three year trained teachers could apply for exemplar status.

[68] Ms O’Donoghue agreed that apart from the reference to ‘agreed requirements’ in clause 9.7 of the Agreement there was nothing else in the Agreement dealing with the matter of a prohibition on three year trained teachers applying for Exemplar Teacher status. She reiterated that the CEO was relying on the term ‘agreed requirements’ and the reference to three year trained teachers in Annexure D.

[69] It was then put to Ms O’Donoghue that Annexure D was only included in the Agreement in its present form because the union insisted. The draft Agreement 30 up until 26 April did not include the current Annexure D. The witness agreed that the original annexure that was referred to in clause 9.7 did not have in it the reference to three year trained teachers being expected to be four year trained by 2014. She noted, however, that the term ‘agreed requirement’ would still have been in clause 9.7 of the Agreement. The witness also conceded that she was informed by Mrs Simpson by email,31 on the day after the April meeting with the union, that the union did not agree to any prohibition on three year trained teachers gaining Exemplar Teacher status. Further, she agreed that the union position was clear at that time. The witness denied that she had replied to Mrs Simpson by telephone assuring her that three year trained teachers could apply. It was Ms O’Donoghue’s evidence that she ‘would have said that three year trained teachers were able to apply if they were actively engaged in study towards a fourth year qualification’.32

The Union’s Submissions

[70] The union had filed written submissions 33 and these were summarised and expanded upon at the hearing on the basis of the evidence that had been provided.

[71] It was put that regard must be had to the actual words of the Agreement while the evidence of the intention of the parties in relation to the meaning of a particular phrase is only relevant if it is a mutual intention, and can be seen as part of the objective background to the negotiations and the context of the agreement.

[72] It was the union’s position that the agreement permits a teacher on top of the incremental salary scale to apply for Exemplar Teacher status while the CEO argued that must be read down so as to exclude all except four year trained teachers from obtaining this status. It was submitted that under cross-examination the CEO witnesses were unable to point to any provisions of the Agreement that supported their position. The union noted that the ‘template documents’ which provided for the exclusion of three year trained teachers from the Exemplar Teacher category were not agreed documents and that the union had made that position clear in April 2012.

[73] The union argued that the CEO was relying, for the basis of their submission that three year trained teachers could not apply to be exemplar teachers, on their own internal policy discussions and other documents. It was also noted that the CEO did not have a clear position on which three year trained teachers could apply for exemplar status as the required study obligations had changed on a number of occasions.

[74] The union relied on the evidence of Mrs Walsh to support their position that there was no reason why three year trained teachers could not satisfy the Exemplar Teacher requirements. That evidence included Mrs Walsh’s role as a mentor teacher assisting early career teachers who are four year trained and assisting university students who were in their final year of fourth year training and the support and advice given to those teachers in relation to their professional practice. The evidence also went to the significant role she played within the school community in relation to other elements of the Exemplar Teacher requirement such as contribution to the life of the community of the school and attendance at professional development days.

[75] The relief sought by the union was for Mrs Walsh to be back paid as an Exemplar Teacher from the date that would have applied had she been granted an interview when she originally sought Exemplar Teacher status. The union was also seeking the CEO participate in discussions concerning the positions of about 40 other teachers who had not applied for exemplar status as they were told they were ineligible. It was noted by the union that the union was aware of three year trained teachers employed by the CEO who had applied for, and were granted, Exemplar Teacher status during the course of 2012.

The CEO submissions

[76] The CEO relied on the matters set out in its written submissions and the evidence of its witnesses. It was put that the CEO position was clear and that eligibility for the status of exemplar teacher was based on satisfying the agreed requirements, making the appropriate application and participating in the relevant professional dialogue. It was argued that the union had been on notice as to the CEO position in with respect to the four year trained requirement and had failed to object ‘in a meaningful manner’ during negotiations associated with the making of the agreement. It was submitted that the CEO had stated consistently that all teachers applying for exemplar classification would need to have been at the top of the salary scale for 12 months and meet the agreed requirements that were communicated jointly by the union and the CEO in the Joint Statement released on 12 December 2011 to all teachers and principals. 34 It was put that the Joint Statement made it clear that it was an expectation that all three year trained teachers would need to ‘meet four year trained requirements by 1 January 2014’ and that this was a professional responsibility for a three year trained teacher who would otherwise be precluded from applying for the Exemplar Teacher status.

[77] The CEO submitted that the agreed Joint Statement, issued on 12 December 2011, included the information contained in Attachment A which specifically referred to the requirement that three year trained teacher must be four year trained by 1 January 2014. It was also put that the union knew at that time that the status of three year trained teachers post-January 2015 was contentious and had been raised during negotiations.

[78] It was noted that there were a number of documents in evidence which demonstrated that throughout negotiations for the agreement the CEO policy had consistently been that all three year trained teachers had to meet the four year trained standard by 2014. Further it was noted that, on 13 April 2012, Mrs Simpson had written to Ms O'Donoghue stating that the director had placed a prohibition on three year trained teachers accessing the Exemplar Teacher increment and that the union had not agreed to that.

[79] It was submitted for the CEO that on 15 May, Mrs Najdecki wrote to Mr Shearman of the union advising that the CEO's position was that three year trained teachers ‘are eligible to apply for Exemplar Teacher if they are actively engaged in obtaining a four year qualification and can show evidence to support this’. 35

[80] The CEO asserted that all communications on its behalf stated that if a teacher wished to access the exemplar teacher classification, they needed to be at the top of the salary scale and meet agreed requirements. One of these requirements is that the teacher be four year trained or in the process of actively engaging in study. It was put that this position was derived from the Joint Statement.

[81] It was also noted by the CEO that Mrs Walsh had recently applied for classification of Exemplar Teacher and had been granted an interview. According to the CEO, the only outstanding issue before the tribunal was the question of back pay and its application to Mrs Walsh. In this respect, the CEO’s position was that teachers who become eligible during the life of the agreement, or who were eligible but did not apply in Term 1 2012, will be back dated to their date of application. In the case of Mrs Walsh that appeared to be about 28 September 2012.

Consideration

[82] In determining this matter, I have had regard to the authorities concerning the interpretation of agreements referred to by the parties in submissions. In this regard, I note that the distillation of the law in this regard in the decision of Vice President Lawler in Watson 36 has been considered and approved of by subsequent Full Benches37 of the tribunal and by the Full Court of the Federal Court38 The following extract from the Watson decision is apposite:

[8] There are well established principles under the general law for the construction of contracts. Those principles are generally applicable in the construction of certified agreements. For example, in Telstra Corporation Ltd v CEPU a Full Bench of the Commission was concerned with applications to vary a number of certified agreements and, in the course of its decision, summarised the principles governing the resolution of ambiguity in a certified agreement:

“[33] The judgment of the High Court in Codelfa Construction Pty Ltd v State Rail Authority of NSW established widely accepted principles for resolving ambiguity in contracts. In that case Mason J stated the rule thus:

‘The true rule is that evidence of surrounding circumstance is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed

[34] In BP Australia Pty Ltd v Nyran Pty Ltd, Nicholson J distilled, by reference to Codelfa, the following points of principle for resolving ambiguity in contracts:

• it is necessary firstly to determine whether the contract has a plain meaning or contains an ambiguity;

• if the contract has a plain meaning, evidence of surrounding circumstances will not be admissible to contradict the language of the contract;

• if the language of the contract is ambiguous or susceptible of more than one meaning evidence of surrounding circumstances is admissible to assist in the interpretation of the contract;

• the concept of surrounding circumstances is to be understood to be a reference to the objective framework of facts. It will include:

• evidence of prior negotiations so far as they tend to establish objective background facts known to both parties and the subject matter of the contract;

• facts so notorious that knowledge of them is to be presumed;

• evidence of a matter in common contemplation and constituting a common assumption

[35] After referring to the foregoing points of principle Nicholson J continued as follows:

‘From the evidence of that setting the parties’ presumed intention may be taken into account in determining which of two or more possible meanings is to be given to a contractual provision. What cannot be taken into account is evidence of statements and actions of the parties which are reflective of their actual intentions and expectations. Objective background facts can include statements and actions of the parties which reflect their mutual actual intentions. That is, evidence of the mutual subjective intention of the parties to a contract may be part of the objective framework of facts within which the contract came into existence. It is the mutuality which makes the evidence admissible.’”

[83] I accept that there is some ambiguity in the terms of the Agreement as it concerns references to ‘Exemplar Teacher’. Clause 9.7 of the Agreement which introduces the Exemplar Teacher classification requires an aspirant to that status to meet ‘agreed requirements’. This term is not defined in the Agreement and there is a dispute between the parties as to the meaning. The remainder of that clause provides that ‘(d)etails are provided at Schedule 2 of Part C Salary Progression and Annexure D Classroom teacher incremental progression’.

[84] Clause 2.7 Exemplar Teacher of Part C repeats the wording of clause 9.7 of the Agreement and requires existing eligible teachers to take part in a discussion with their principal about their ‘professional responsibilities and performance which are outlined in Annexure D’. The clause goes on to state that if the teacher ‘meets the requirement for this professional discussion, the increase will be backdated to 1 October 2011’.

[85] In Annexure D in the row titled ‘3 Year Trained’ and under the column heading ‘Expectation of professional responsibilities’, the words ‘Meet 4 Year Trained requirements by 1 January 2014’ appear. It is on the basis of these words on Annexure D that the CEO initially denied that three year trained teachers were eligible to seek Exemplar Teacher status and then modified that position (on more than one occasion) to allow three year trained teachers at various stages of studies toward being accredited as four year trained to make an application.

[86] The CEO puts that its position in this regard was clear as at December 2011 when the CEO and the union issued the Joint Statement, which was the origin of Annexure D. The union deny this claim.

[87] Having considered the evidence of all the witnesses in this matter, I am satisfied that there was at no time any agreement between the union and the CEO that there would be any additional restriction on the ability of three year trained teachers to access the Exemplar Teacher classification. I am also satisfied that the union was not made aware that the CEO had adopted this position until after the Joint Statement was released in December 2011. Nothing in the documentation leading up to the making of the Joint Statement supports the claim by the CEO that their position was clear. I am also satisfied that if Mrs Nadjecki stated at a meeting that it was her view that three year trained teachers could not be exemplar teachers, that view was not put as CEO policy nor agreed by the union.

[88] The CEO has not produced any evidence that there was ever an agreed position between it and the union restricting the rights of three year trained to be classified as Exemplar Teachers. There is nothing in the wording of the Agreement that suggests such a restriction and I do not accept that the words relied on by the CEO concerning three year trained teachers in Annexure D in any way qualify the rights of teachers to apply for Exemplar Teacher status. The Exemplar Teacher classification is dealt with in a separate part of that Annexure and makes no reference to three year trained teachers being ineligible to apply or needing to have reached some point in study towards a four year trained qualification to apply.

[89] I am reinforced in my decision that there was no ‘agreed’ position concerning a restriction on the rights of three year trained teachers to seek Exemplar Teacher status by the evidence which indicated that the CEO position concerning such a restriction was altered on a number of occasions. The CEO’s own evidence was that initially its position was that three year trained teachers could not apply, this was then altered to provide that three year trained teachers who had reached a certain point in their studies could apply and then further modified to provide that three year trained teachers who had commenced studying for four year trained qualifications were eligible. It is hard to accept that in such circumstances there was an agreed position prior to the approval of the Agreement. The evidence was that the union had disputed the suggestion of a restriction as early as February 2012 and had very clearly taken issue with the imposition of such a restriction in April 2012. The first unambiguous statement by the CEO concerning its position was contained in a letter to Mr Shearman dated 15 May 2012, the voting on the Agreement having already commenced.

[90] There was no ‘agreement’ in relation to a restriction concerning the ability of three year trained teachers to be classified as Exemplar Teachers and the agreed requirements referred to in clause 9.7 of the Agreement, and clause 2.7 of Part C are those in the box headed ‘Exemplar Teacher’ in Annexure D.

[91] The relief sought by the union is granted. The CEO appeared to concede that, apart from the fact that she was three year trained, Mrs Walsh met the requirements for the discussion leading to Exemplar Teacher status when she first initially requested the meeting with her principal in the first term of 2012. In the circumstances once Mrs Walsh has had the required discussion with her principal, her reclassification to Exemplar Teacher should be backdated to 1 October 2011.

[92] I make no determination in relation to other three year trained teachers who may have wished to have been considered for Exemplar Teacher status. Each case will depend on its facts. I do recommend, however, that the union and the CEO enter into discussions about any teachers whose position may be affected by the decision with a view to reaching agreement about those cases.

COMMISSIONER

Appearances:

Ms C Matthews from the Independent Education Union of Australia

Ms J Cronan from the Catholic Education Office, Archdiocese of Canberra & Goulburn

Hearing details:

2012.

Canberra:

October 23.

1 PR525355

2 Exhibit IEU 3

3 Exhibit IEU 6; Exhibit IEU 7; Exhibit IEU 8

4 Exhibit IEU 6 at Annexure 6

5 Exhibit IEU 7 at Paragraph 7

6 Exhibit IEU 6 at Annexure 13

7 Transcript PN 378

8 Transcript PN 379

9 Exhibit IEU 9

10 Transcript PN579

11 Exhibit CEO 1 at Annexure 30

12 Transcript PN597

13 Transcript PN598

14 Transcript PN609

15 Transcript PN621

16 Transcript PN639

17 Exhibit CEO 3

18 Exhibit CEO 3 at Paragraph 6

19 Exhibit CEO 3 at Annexure 40

20 Exhibit CEO 3 at Paragraph 13.

21 Transcript PN745

22 Transcript PN753

23 Transcript PN756

24 Transcript PN846

25 Transcript PN905

26 Transcript PN962

27 Exhibit CEO4

28 Transcript PN1146

29 Transcript PN1146

30 Exhibit IEU10

31 Exhibit IEU6 at Annexure 17

32 Transcript PN1155

33 Exhibit IEU2

34 Exhibit CEO 2 at Annexure 12

35 Exhibit CEO 2 at Annexure 22

36 Kenneth Watson & Ors v ACT Department of Disability Housing and Community Services [2008]AIRC 291

37 The Australian Workers Union - Western Australia Branch v Co-Operative Bulk Handling Limited[2010] FWAFB 4801

38 Ansett Australia Limited v Australian Licensed Aircraft Engineers’ Association [2003] FCAFC 209

Printed by authority of the Commonwealth Government Printer