Independent Education Union of Australia v Australian International Academy of Education Inc - [2016] FCA 140

FEDERAL COURT OF AUSTRALIA
Independent Education Union of Australia v Australian International Academy of Education Inc [2016] FCA 140

File number: VID 1114 of 2012

Judge: JESSUP J

Date of judgment: 25 February 2016

Catchwords:
INDUSTRIAL LAW – Award requirement that letter appointing fixed‑term employee state reason – Whether letters did state reason – Degree of particularity required – Award restriction on circumstances in which person may be employed on fixed‑term basis – Whether employees replacing others absence on account of leave or temporary duties.

INDUSTRIAL LAW – Right of entry – Right to inspect and copy “non-member records” – Fair Work Australia order permitting such inspection – Whether validly made – Relationship of records to permit‑holders’ suspicions in relation to members – Requirements of permit‑holders when on premises – Whether within power – Whether documents on premises where work performed – Whether requirement validly extended to pages of records recently removed – Extent of obligation to comply with requirement to produce contracts of employment – Whether permit‑holders entitled to require inspection of records in electronic form.

INDUSTRIAL LAW – Right of entry – Whether permit‑holders hindered or obstructed – Employer with advance notice of intention to enter – Whether documents manipulated to avoid inspection – Whether amounted to hindrance or obstruction – Employer refusal to allow inspection of records on computers – Extent of permit‑holders’ right to inspect – Whether hindrance and obstruction was intentioned.

Legislation:
Acts Interpretation Act 1901 (Cth)

Associations Reform Act 2012 (Vic)

Fair Work Act 2009 (Cth) ss 12, 45, 481, 482, 483AA, 487, 502, 519, 545, 708

Fair Work Australia Rules 2010 (Cth)

Fair Work (Registered Organisations) Act 2009 (Cth)

Industrial Relations Act 1988 (Cth) s 286

Workplace Relations Act 1996 (Cth) ss 285B, 286

Workplace Relations Amendment (Work Choices) Act 2005 (Cth) ss 747, 748

Cases cited: Australasian Meat Industry Employees’ Union v Fair Work Australia (2012) 203 FCR 389

Date of hearing: 14-18, 21-23 September, 15 October 2015

Registry: Victoria

Division: Fair Work

National Practice Area: Employment and Industrial Relations

Category: Catchwords

Number of paragraphs: 331

Counsel for the Applicants: Mr E White with Mr Y Bakri

Solicitor for the Applicants: Maurice Blackburn

Counsel for the Respondents: Mr W Alstergren QC with Mr M Follett and Mr A Denton

Solicitor for the Respondents: Gadens Lawyers

ORDERS

VID 1114 of 2012

BETWEEN:
INDEPENDENT EDUCATION UNION OF AUSTRALIA
First Applicant

GEORGIA BUTTERS‑CAIN
Second Applicant

AND:
AUSTRALIAN INTERNATIONAL ACADEMY OF EDUCATION INC.
First Respondent

SALAH HAMED SALMAN
Second Respondent

ABDUL KARIM GALEA
Third Respondent

JUDGE:

JESSUP J

DATE OF ORDER:

25 February 2016

THE COURT ORDERS THAT:
1.The proceeding be listed at 9:30 am on 4 March 2016 to receive the parties’ submissions on the form of the orders appropriate to give effect to the reasons of the court published this day.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
INTRODUCTION

In this proceeding the applicants, Independent Education Union of Australia (“the applicant”), an organisation registered pursuant to the provisions of the Fair Work (Registered Organisations) Act 2009 (Cth), and Georgia Butters‑Cain allege that the first respondent, Australian International Academy of Education Inc. (“the respondent”), contravened –
·s 45 of the Fair Work Act 2009 (Cth) (“the FW Act”) by contravening cll 10.2 and 10.6 of the Educational Services (Teachers) Award 2010 (“the award”) in 2012;
·s 482(3) of the FW Act on two occasions in November and December 2012; and
·s 502(1) of the FW Act on two occasions in November and December 2012.
The applicants also allege that the second respondent, Salah Hamed Salman, and the third respondent, Abdul Karim Galea, contravened s 502(1) of the FW Act on 17 December 2012.
The respondent is an association incorporated pursuant to the Associations Incorporation Reform Act 2012 (Vic). It operates a school in Coburg, with a secondary campus at 56 Bakers Road, North Coburg, (“the secondary campus”) and a primary campus at 653 Sydney Road, Coburg (“the primary campus”). Mr Salman (the second respondent) is the Academy Head and Director General, the secretary of the Academy Board (“the Board”), and the secretary and trustee of the Board of Trustees, of the respondent. He is responsible for the operation of the respondent. It is he who makes decisions on whether to offer employment to someone, and on the terms on which employment is offered. Until he recently retired, Mr Galea (the third respondent) was employed by the respondent as Head of the secondary campus and was a member of the Board.
In respect of the 2011 and 2012 school years, Ms Butters-Cain (the second applicant) was employed by the respondent as a teacher. She worked as a “primary generalist” teacher at the primary campus.
There are three broad areas of controversy in this proceeding. The first arises under cl 10.2 of the award, and involves the question whether the letters of appointment provided to certain teachers by the respondent contained the particulars required by that clause. The second arises under cl 10.6 of the award, and involves the question whether, in the 2012 school year, the respondent employed more teachers on a “fixed‑term” basis than that clause allowed. The third arises under Pt 3-4 of the FW Act, and involves the questions whether the respondent contravened requirements made by officers of the applicant under s 482(1)(c) of the FW Act when they entered the secondary campus to inspect certain records and whether the respondent, Mr Salman and Mr Galea intentionally hindered or obstructed those officers in the exercise of the rights given to them under that Part.
THE PROVISIONS UNDER WHICH THE APPLICANTS PROCEED
Clause 10 of the award is headed, “Types of employment” and, to the extent presently relevant, provides as follows:
10.1Employees under this award will be employed in one of the following categories:
(a)       full-time employment;
(b)       part-time employment;
(c)       casual employment; or
(d)       fixed term employment.
10.2     Terms of engagement
(a)On appointment, the employer will provide the employee (other than a casual employee) with a letter of appointment stating the classification and rate of salary applicable on commencement, the employee’s face-to-face teaching load and details of their extra curricular commitment.
(b)In the case of a part-time employee, the letter of appointment will include the employee’s teaching load expressed as a percentage of a full-time load in the school and that their extra curricular commitment will generally be, on balance, in the same proportion to their teaching load as that of a full-time teacher.
(c)Where the employer engages the employee on a fixed term basis, the letter of appointment will inform the employee of the reason the employment is fixed term, the date of commencement and the period of the employment.
10.3     Full-time employment
A full-time employee is an employee engaged to work an average of 38 ordinary hours per week.
10.4     Part-time employment
(a)A part-time employee is an employee who is engaged to work on a regular basis for less than, but not more than 90% of, the hours of a full-time employee in the school, children’s service or early childhood education service. If the hours of a part-time employee rise above 90%, the employee will be considered to be full-time
….
10.5     Casual employment
….
10.6     Fixed term employment
An employee may be employed for a fixed period of time for a period of at least four weeks but no more than 12 months on either a full-time or part-time basis to:
(a)undertake a specified project for which funding has been made available;
(b)       undertake a specified task which has a limited period of operation; or
(c)replace an employee who is on leave, performing other duties temporarily or whose employment has terminated after the commencement of the school year. Provided that where the replacement arrangement extends beyond 12 months, the fixed term employment may be extended for up to a further 12 months.
Turning to the relevant provisions of the FW Act itself, s 45 is the standard prohibition on the contravention of a term of a modern award, which the award is. Nothing further needs to be said about that provision.
Insofar as provisions of the legislation are presently contentious, those provisions are to be found in Pt 3-4 of the FW Act. At the times that were relevant, s 481 provided as follows:
(1)A permit holder may enter premises and exercise a right under section 482 or 483 for the purpose of investigating a suspected contravention of this Act, or a term of a fair work instrument, that relates to, or affects, a member of the permit holder’s organisation:
(a)whose industrial interests the organisation is entitled to represent; and
(b) who performs work on the premises.
(2) The fair work instrument must apply or have applied to the member.
(3)The permit holder must reasonably suspect that the contravention has occurred, or is occurring. The burden of proving that the suspicion is reasonable lies on the person asserting that fact.
The presently relevant provisions of s 482 were the following:
(1)      While on the premises, the permit holder may do the following:
…
(c)require the occupier or an affected employer to allow the permit holder to inspect, and make copies of, any record or document (other than a non‑member record or document) that is directly relevant to the suspected contravention and that:
(i)        is kept on the premises; or
(ii)       is accessible from a computer that is kept on the premises.
…
(2A)     A non‑member record or document is a record or document that:
(a)relates to the employment of a person who is not a member of the permit holder’s organisation; and
(b)does not also substantially relate to the employment of a person who is a member of the permit holder’s organisation;
but does not include a record or document that relates only to a person or persons who are not members of the permit holder’s organisation if the person or persons have consented in writing to the record or document being inspected or copied by the permit holder.
…
(3)An occupier or affected employer must not contravene a requirement under paragraph (1)(c).
The presently relevant provisions of s 483AA were the following:
(1)The permit holder may apply to FWA for an order allowing the permit holder to do either or both of the following:
(a)require the occupier or an affected employer to allow the permit holder to inspect, and make copies of, specified non‑member records or documents (or parts of such records or documents) under paragraph 482(1)(c);
(b)require an affected employer to produce, or provide access to, specified non‑member records or documents (or parts of such records or documents) under subsection 483(1).
(2)FWA may make the order if it is satisfied that the order is necessary to investigate the suspected contravention. Before doing so, FWA must have regard to any conditions imposed on the permit holder’s entry permit.
(3) If FWA makes the order, this Subdivision has effect accordingly.
…
In this section, “FWA” was Fair Work Australia (“FWA”).
The scheme of these provisions was that, subject to compliance with the requirements of Subdiv C, a permit‑holder had a right of entry to premises under s 481 and could exercise the rights given by s 482. It was not necessary for him or her to secure any kind of ad hoc authority to proceed in this way. But those rights were confined to purposes, inquiries and requirements that related to members of the permit‑holder’s organisation. The right to inspect documents, for example, given by s 482(1)(c), did not extend to a “non-member record or document”, a term defined in s 482(2A). If the permit‑holder desired to inspect documents or records that related to employees who were not members of his or her organisation, it was necessary to obtain an order from FWA in that behalf under s 483AA. Whether the making of such an order produced the result that the provisions of ss 481 and 482 applied to documents and records that related to non-members, as well as to members, of the permit‑holder’s organisation is a matter to which I shall have to give consideration in due course.
Section 502 relevantly provided as follows:
(1)A person must not intentionally hinder or obstruct a permit holder exercising rights in accordance with this Part.
…
(3)Without limiting subsection (1), that subsection extends to hindering or obstructing that occurs after an entry notice is given but before a permit holder enters premises.
THE RESPONDENT’S STANDARD EMPLOYMENT DOCUMENTATION
There are certain standard form documents which the respondent used at various stages in the employment of teachers. To a greater or lesser extent, they appeared regularly in the evidence in this case. Mr Salman’s personal assistant, Soraya El-Leissy, had precedents of them on the word processor on her computer, and used them as the occasion required. I shall commence by laying out the relevant terms of these documents.
The form used to offer employment to a teacher was a three-page letter, to which I shall hereafter refer as the “appointment letter”, and which commenced as follows:
APPOINTMENT OFFER
SCHOOL YEAR 20xx
FULL NAME:
ADDRESS:
Dear Ms …
You are offered the following … as per the conditions set out below:
[Identification of teaching position]
1. TENURE:
2. DATE OF COMMENCEMENT OF DUTY:
3. TIME FRACTION (FULL TIME / PART TIME):
The “tenure” section of the appointment letter lies at the centre of the applicants’ case under ss 482(1)(c) and 502(1) of the FW Act.
The appointment letter contained five further items (numbered 4-8) setting out matters which were specific to the individual being appointed, namely, working hours, salary, allowance, classification/status and leave entitlement. The next section of the letter contained what were described as “General Conditions”, and applied to all teachers – that is to say, they did not vary as between the appointment offers made to different individuals. Then the letter contained what were described as “Specific Conditions”, but, so far as appears in the evidence, they too were generic in the sense that they applied to all teachers appointed in a particular capacity (eg classroom teacher). None of the matters covered in this paragraph of my reasons was controversial in the present case.
After the setting out of the specific conditions in the appointment letter, there was the following instruction: “Appointees must sign the attached Statement”. Under that instruction, there was provision for the letter to be signed by Mr Salman. So far as appears in the evidence, all such letters were signed personally by him. This appeared at the foot of the second page of the letter.
The third page of the appointment letter was a pro-forma to be executed by the teacher being offered employment, as follows:
ACCEPTING AN EMPLOYMENT OFFER
I accept the offer for the above mentioned Position ……………..… on the terms and conditions set out above. I understand and accept that any breach of Terms or Conditions of this Contract could lead to the termination of my employment with the Academy.
Name: …………………………………..
Signature: ………………………….. Date: ………………………..
Witness’s Name: ……………………….
Witness’s Signature: ………………………….. Date: ……………………….
So far as the evidence discloses, the respondent’s practice with respect to the “tenure” item in the appointment letter was to use the word “replacement” as an indication that the teacher concerned was being employed for a fixed term under cl 10.1(d) of the award, often accompanied by some brief elaboration, such as a reference to the period of the engagement. In all of the instances in which teachers whose circumstances featured in the evidence were offered employment of this kind, it was until the expiration of the current, or, in the case of an offer made towards the end of the year, the following, school year.
As curious as it may seem in the light of the third item on the front page of the respondent’s standard-form appointment letter, and although the subject was not free of controversy in respects to which I shall turn, the respondent’s practice appears to have been to describe the “tenure” of a teacher employed on an ongoing basis as “Full time”. It was the use of this description for the tenure of a number of teachers on the copies of their appointment letters held on file by the respondent that led to the applicants’ case under Pt 3-4 of the FW Act.
At, or towards, the end of a period of replacement employment, one of three things might have occurred. First, the teacher might have been offered a further year of fixed‑term, or “replacement”, employment. In such a case, the teacher would be sent a letter, to which I shall hereafter refer as the “extension letter”, in the following terms:
RE: EXTENDING THE REPLACEMENT PERIOD OF APPOINTMENT
I write this letter to inform you that there is a replacement vacancy available next year. As a result, your Replacement Period of appointment at the Academy will be extended until the end of 20xx School Year, on the same terms and conditions of your Appointment Notice. If you are entitled for an annual increment, your salary will be adjusted and the amended payment will be made into your account on the due date of your anniversary.
The replacement position will be reviewed before the end of the extended period and on the basis of the availability of positions, I shall advise you accordingly.
If you have different plans and you do not wish to continue with the Academy in 20xx, I request you to let me know as soon as possible.
Finally, I wish you a very successful and rewarding year at the Academy.
Secondly, the teacher might have been offered ongoing employment, that is to say, employment which was not for a fixed term. In such a case, the teacher would be sent a letter, to which I shall hereafter refer as the “confirmation letter”, in the following terms:
RE: COMPLETING THE REPLACEMENT PERIOD OF APPOINTMENT
I write this letter to inform you that your replacement period of appointment at the Academy will be completed by the end of 20xx School year.
On the basis of the evidence available to me to this date I shall recommend to the Campus Board to confirm your position and to offer you an ongoing employment as from the start of the 20xx school year.
If you have different plans and you do not intend to continue with Academy in 20xx, could you please let me know as soon as possible.
Finally, I would like to thank you for your dedicated services to the Academy and I wish you a challenging and rewarding year in 20xx.
Thirdly, the teacher might have been offered no further employment beyond the expiration of the current fixed term for which he or she was employed. In such a case, the teacher would be sent a letter, to which I shall hereafter refer as the “completion letter”, in the following terms:
Re: End of your Replacement Tenure
By the end of Term 4, 20xx, your replacement tenure will be completed.
However, if any suitable position for 20xx appears before the end of term 4 this year, the office will inform you of the available position for your consideration.
On behalf of the AIA family, I would like to thank you for your valuable services during the replacement period and I wish you the best of luck to find a suitable and rewarding position.

The evidence also suggests – again, controversially, in respects to which I shall turn – that the respondent used a form of notification described as a “Change of Status Notice”. The suggestion is that this form was used to notify a teacher that his or her “status” had been changed from “replacement” to “ongoing”. The pro-forma was in the following terms:
CHANGE OF STATUS NOTICE
FULL NAME:
ADDRESS:
Ms …
As there is an ongoing vacancy available at the Academy, you are advised that the following change(s) to your status has been made:
CURRENT CLASS: …
NEW STATUS: …
EFFECTIVE FROM:
SALARY ADJUSTMENT:
OTHER DETAILS:
ŸAll conditions of the “Appointment Notice” still apply, except for the circumstances stated above.
ŸYour case will be submitted to the Academy Board to approve your ongoing appointment in the due course.
There was another form of appointment letter which appeared, or was referred to, in the evidence in relation to four of the teachers with whose circumstances the case is concerned, and I shall refer to it as a “Professional Class letter”. Mr Salman explained in his affidavit that the respondent had several promotional classes of appointment, namely, “Professional Class”, “Advanced Professional Class”, and “Advanced Professional Class A1”. The Professional Class letter commenced as follows:
APPOINTMENT OFFER
Professional Class
PC
20xx SCHOOL YEAR
FULL NAME: …
ADDRESS: …
Dear Ms …
I am pleased to inform you that the Academy Board has approved your promotion to the Prestigious Professional Class according to the conditions stated below:
What followed was a setting-out of the conditions which attached to such an appointment. At the foot of the second page of the letter, above the place for Mr Salman’s signature on behalf of the respondent, was an instruction to the appointee to sign the acceptance form which, as in the case of the appointment letter, was on the third page. By signing that acceptance, the appointee stated that he or she had “read the Promotion Offer made to [him or her] for the appointment to the Professional Class”, that he or she understood “all conditions stated in [the] offer and [was] aware of the requirements of the new Class”.
THE TEACHERS WITH WHOSE CIRCUMSTANCES THIS CASE IS CONCERNED
Under one or more of the award and statutory provisions under which the applicants proceed, there are a total of 14 teachers whose circumstances are contentious in the case. In this part of my reasons, I shall introduce those teachers, and lay out their employment histories, to the extent that they are uncontentious. It will be necessary to return to their circumstances when I reach that part of the case in which the applicants make allegations about them which are not accepted by the respondent.
Alison Burns, who worked for the respondent as a primary generalist teacher, received an appointment letter for the 2011 school year, in which it was stated that her tenure was “Replacement 2011 School Year”. She accepted the respondent’s offer by completing the third page of the letter on 19 November 2010. She received a further appointment letter in respect of 2012, in which it was stated that her tenure was “Replacement 2012 School Year”. She accepted that offer by completing the third page of the letter on 31 January 2012. On 22 October 2012 or thereabouts, she received a completion letter from the respondent.
Anastasia (or “Anna”) Milionis had been employed by the respondent in the past, but the events which are presently relevant commenced when she was re-employed to teach a prep class in term 4, 2011. She was told that the position was available because another teacher had resigned. On 13 October 2011, she signed the third page of an appointment letter in which it was stated that her tenure was “Replacement Term 4, 2011 School Year”. She was subsequently invited to continue as a prep teacher the following year. On 12 December 2011, she received a further appointment letter in which it was stated that her tenure was “Replacement 2012 School Year”. She accepted that offer by completing the third page of the letter on that day. At this point, there was some discussion about the salary for which this contract provided, and that may have explained the receipt by Ms Milionis, on 6 February 2012 or thereabouts, of an offer of an appointment (or promotion, a controversial issue to which I shall return) to the respondent’s Professional Class. She received a Professional Class letter, and signed her acceptance of the offer on that day. On 22 October 2012, Ms Milionis received an extension letter, but the extension offered to her was until June 2013 only. Taking the view that she was already employed on an ongoing basis by the respondent, she disputed its right to proceed in this way. That dispute had not been resolved by 31 October 2012, the date by which the respondent required Ms Milionis to accept the offer contained in the extension letter, and the offer lapsed. On 12 November 2012, Mr Salman wrote to Ms Milionis stating that the position upon which the offer was based had been offered to someone else. Ms Milionis was not, in the circumstances, employed beyond the end of the 2012 school year.
Ms Butters‑Cain, who worked for the respondent as a primary generalist teacher, received an appointment letter for the 2011 school year, in which it was stated that her tenure was “Replacement 2011 School Year”. She accepted the respondent’s offer by completing the third page of the letter on 4 February 2011. She received an extension letter dated 4 November 2011 which related to the 2012 school year. On 22 October 2012 or thereabouts, she received a completion letter from the respondent.
Haidi Badawi did not give evidence (I was told that, rather than complying with the applicants’ subpoena, she went overseas), but an affidavit, redacted to remove prejudicial parts, sworn by her on 2 December 2014 was admitted into evidence. What follows is based on that and, at least in this paragraph, is established by photocopied documents which she exhibited to her affidavit or were otherwise uncontroversial. She initially worked for the respondent as a teacher aide, receiving an appointment letter for the 2010 school year, in which it was stated that her tenure was “Replacement for 2010”. She accepted the respondent’s offer by completing the third page of the letter on 12 April 2010. Her date of commencement of duty was the following day, 13 April 2010. On 18 May 2010, she commenced work as an Arabic teacher, the contract for which was not immediately attended to on account, she said, of Mr Salman’s temporary absence. The contractual position was formalised on 18 June 2010, when Ms Badawi received an appointment letter in respect of that position, under which her duty was to have commenced on 17 May 2010 and her tenure was said to be “Replacement till end of 2010 School Year”. She accepted that offer on the same day. She received an extension letter dated 20 October 2010 which related to the 2011 school year. She received a confirmation letter dated 4 November 2011, operative from the commencement of the 2012 school year. Very shortly thereafter, she received a Professional Class letter, and she accepted the offer set out in it on 7 December 2011. About a year later, she received a similar letter, this time offering her a position in the Advanced Professional Class, which she accepted on 18 December 2012.
Sumeyye Borova, who worked for the respondent as a primary generalist teacher, received an appointment letter for the 2011 school year, in which it was stated that her tenure was “Replacement 2011 School Year”. She accepted the respondent’s offer by completing the third page of the letter on 21 September 2010. She received an extension letter dated 4 November 2011 which related to the 2012 school year. She received a confirmation letter dated 14 November 2012, operative from the commencement of the 2013 school year.
Clair Sheehan, who worked for the respondent as a primary generalist teacher, received an appointment letter for the 2011 school year, in which it was stated that her tenure was “Replacement 2011 School Year”. She accepted the respondent’s offer by completing the third page of the letter on 6 December 2010. She received an extension letter dated 4 November 2011 which related to the 2012 school year. She received a confirmation letter dated 14 November 2012, operative from the commencement of the 2013 school year. In his report to the Board meeting held on 22 November 2012, Mr Salman recommended that Ms Sheehan be offered an ongoing position and, at the meeting, that recommendation was endorsed.
Derya Onder, who worked for the respondent as a primary generalist teacher, received an appointment letter for the 2011 school year, in which it was stated that her tenure was “Replacement 2011 School Year”. She accepted the respondent’s offer by completing the third page of the letter on 3 November 2010. She received an extension letter dated 4 November 2011 which related to the 2012 school year. In November 2012, she received an offer of ongoing employment from the respondent, but the offer itself could not be located, and was not placed into evidence by any party. Nonetheless, Ms Onder said, without objection or cross-examination on the point, that she was told by Ms Borova that she received the same letter, in which circumstances I am prepared to infer that this was a confirmation letter sent by the respondent to Ms Onder. In his report to the Board meeting held on 22 November 2012, Mr Salman recommended that Ms Onder be offered an ongoing position and, at the meeting, that recommendation was endorsed.
Filiz Cansiz, who worked for the respondent as a primary generalist teacher, received an appointment letter for the 2011 school year, in which it was stated that her tenure was “Replacement 2011 School Year”. She accepted the respondent’s offer by completing the third page of the letter on 22 November 2010. There is no further uncontroversial documentation as to her employment until her signed acceptance, on 18 November 2012, of an offer contained in a Professional Class letter from the respondent. When she gave evidence in this case on 15 September 2015, she remained in the respondent’s employ as a teacher at the primary campus.
Nour Awari, who worked for the respondent as a primary Quran Kareem teacher, received an appointment letter for the 2011 school year for employment, commencing only on 18 July 2011, on a time fraction of 0.8. She accepted the respondent’s offer by completing the third page of the letter on 21 July 2011. In February 2012, her time fraction was increased to a full-time load, and remained so for that year. She received a confirmation letter dated 14 November 2012, operative from the commencement of the 2013 school year. By email dated 26 November 2012, Ms Awari referred to that letter, which she described as “offering me an ongoing position in the Academy”, and accepted the offer contained in it.
Sarah Oz, who worked for the respondent as a primary generalist teacher, received an appointment letter for the 2011 school year for employment commencing only on 31 October 2011. She accepted the respondent’s offer by completing the third page of the letter on 2 November 2011. Ms Oz did not give evidence – I was told by counsel for the applicants that she was overseas at the time of the trial – but the form of this letter which was an exhibit to Mr Salman’s affidavit affirmed on 9 November 2012 in proceeding MLG 222/12 in the Federal Magistrates Court of Australia showed Ms Oz’s “tenure” as “Replacement Term 4, 2011 School Year”. In a report for a meeting of the Board of the respondent held on 22 November 2012, Mr Salman recommended that Ms Oz be offered an ongoing position. That recommendation was accepted.
Nicole Daniel, who worked for the respondent as a primary generalist teacher, received an appointment letter for the 2012 school year. She accepted the respondent’s offer by completing the third page of the letter on 8 November 2011. On Ms Daniel’s personnel file maintained by the respondent, there was a confirmation letter dated 22 October 2012, addressed to her and operative from the commencement of the 2013 school year. The respondent’s evidence is that this letter was not sent, and Ms Daniel did not give evidence that it was received. Indeed, she did give evidence that, at the end of 2013 or the start of 2014, she was offered “an ongoing contract”, which coincided with her promotion to the professional class. Consistently with that, in the report to the Board meeting on 22 November 2012 referred to in the previous paragraph, Ms Daniel was one of four teachers who, according to the report, were “offered extensions on their replacement contracts for 2013”.
Rehab Chaarani, who worked for the respondent as a primary generalist teacher, received an appointment letter for the 2012 school year. She accepted the respondent’s offer by completing the third page of the letter on 9 December 2011. There is a question, to which I shall return, whether Ms Chaarani received a confirmation letter dated 22 October 2012, addressed to her and operative from the commencement of the 2013 school year. What can be said, however, is that she was, along with Ms Daniel, one of the four teachers to be offered an extension in Mr Salman’s report to the Board of 22 November 2012.
Hanan Ahmed did not give evidence (she did not, I was told, attend court pursuant to the subpoena served on her). It is uncontroversial, however, that she commenced working for the respondent on 27 January 2011 as a part-time (0.6 fraction) teacher of Arabic and French. Although there is some confusion in the respondent’s documentary records in relation to Ms Ahmed (a matter to which I shall return), it seems tolerably clear that she signed an appointment letter on that day. In September 2011, Mr Salman approved some staffing adjustments that had the effect that Ms Ahmed’s time fraction moved from 0.6 to full time. Subject again to the documentary confusion referred to, Ms Ahmed received another appointment letter for a full‑time position as an Arabic teacher commencing on 3 February 2012, and she signed the third page on 9 February 2012. In the report by Mr Salman, as Academy Head, to the respondent’s Board on 22 November 2012, it was recommended that Ms Ahmed be offered an ongoing position. At the meeting of the Board that day, that recommendation was endorsed.
Sawsan Alshakshir, who worked for the respondent as an Islamic studies and Arabic support teacher, received an appointment letter for the 2009 school year for employment, commencing only on 19 October 2009. She accepted the respondent’s offer by completing the third page of the letter on that date. She remains employed by the respondent (and has been so employed, full time, since October 2009), but no other documentation of present relevance was placed into evidence (nor, according to the unchallenged evidence of Mr Salman, was any such documentation to be found in Ms Alshakshir’s personnel file).
THE APPLICANTS’ CASE UNDER CL 10.2 OF THE AWARD
It is established on the pleadings that, at the commencement of the 2012 school year, Ms Burns, Ms Milionis and Ms Butters-Cain were employed at the primary campus on a fixed-term basis. The applicants contend that the respondent did not provide any of these teachers with a letter of appointment stating the reason for the fixed-term basis of her employment. They contend that, in each case, there was an appointment letter (complying to that extent with cl 10.2(a) of the award): indeed, they tie their case to the terms of the letters which they identify. But they say that none of the letters informed the employee concerned of the reason why her employment was on a fixed-term basis, in contravention of cl 10.2(c). In the case of the letter addressed to Ms Burns, the respondent says that it did state the reason why her employment was on a fixed-term basis. In the case of Ms Milionis and Ms Butters‑Cain, the respondent’s position is that the letters identified by the applicants were not letters of appointment within the meaning of cl 10.2 at all.
Commencing with Ms Burns, the question is whether the words “Replacement 2012 School Year” (see para 25 above) stated “the reason the employment is fixed term” within the meaning of cl 10.2(c) of the award. The respondent contends that they did. The applicants contend that they did not, because they did not identify which of the circumstances specified in cl 10.6(c) was relevant. They say that Ms Burns ought to have been informed whether the employee whom she was replacing was on leave, was performing other duties temporarily or had had his or her employment terminated after the commencement of the school year. As I shall address presently, the applicants go further than this in the content that, they contend, should be read into the provision under consideration, but, in the case of Ms Burns, it is sufficient for them to submit that it was not enough for the respondent to have told her that the reason for her fixed-term employment was “replacement”.
Grammatically, the constructions of cl 10.2(c) proffered by the applicants and the respondent both make sense. That she was replacing another teacher – effectively what is conveyed by the shorthand term “replacement” – was the “reason” that Ms Burns was employed on a fixed term basis. Likewise, the situation of that other teacher – on leave etc – could also be regarded as such a “reason”. Neither party assisted the court with any evidence of the antecedents of this provision in the award, or of the facts and circumstances which surrounded its making. The court is thus confronted with the task of construction by reference only to the language, and apparent purposes, of the provision itself.
It was submitted on behalf of the applicants that the construction for which they contended served two purposes: first, to provide “an accountability measure” in relation to the lawfulness of the employment of a particular teacher on a fixed-term basis; and secondly, to enable such a teacher to evaluate whether he or she was likely to be re-employed at the expiration of the fixed term. I should say at once that I do not consider there to be anything in the second of these submissions. There is nothing in the terms of cl 10.2, either with or without some assistance from cl 10.6, to perceive a purpose of the kind suggested. It may be that a teacher employed on a fixed term might be interested to know whether another offer of employment is likely to be made, but a fixed-term appointment is just that. It would not, in my view, be permissible to see these provisions as having the secondary purpose of facilitating a teacher’s contemplation of some subsequent, different, engagement.
With respect to the first of the purposes contended for by the applicants, the submission goes a deal further than would be legitimate if the purpose of cl 10.2(c) were to reflect only the circumstance giving rise to the need for the employment of a replacement teacher within the categories in cl 10.6(c) of the award. It was submitted that, to comply with cl 10.2(c), the respondent had to specify also the facts and events which led to the other teacher being on leave, or performing other duties, for example. The reason or justification for the leave, or the nature of the other duties, would have to be specified. I accept the sense of perceiving in cl 10.2(c) a purpose at least somewhat along these lines, but, in relation to a provision which carries penal consequences if contravened, it would be doing more than construing the provision as such were the court to hold that it imposed obligations at that level of detail: it would, in effect, be adding content which the award-maker did not include.
The respondent concedes the existence of a relation between cl 10.2(c) and cl 10.6, but submits that being employed as a replacement teacher is, of itself, a sufficient statement of “reason” for the purposes of the former. That approach, in my view, places too much emphasis upon the internal layout of cl 10.6. In substance, if not in form, cl 10.6(c) identifies the reasons that would justify the employment of a replacement teacher on a fixed-term basis as threefold. That those reasons were grouped together in a single subclause was no more than the grammatical choice of the draftsman.

In my view, to have informed Ms Burns that the reason that she was employed on a fixed‑term basis was “replacement” did not amount to compliance with cl 10.2(c) of the award. Under that provision, she was entitled to be told also whether her replacement status was by reason of an employee being on leave, an employee performing other duties temporarily or the employment of an employee having been terminated after the commencement of the school year. In this respect, the respondent did contravene cl 10.2(c).
With respect to Ms Milionis, it was submitted on behalf of the respondent that the respondent’s letter of 6 February 2012 (see para 26 above) was not a “letter of appointment” within the terms of cl 10.2(a) of the award and was not, therefore, subject to the requirements of cl 10.2(c). The applicants’ submission was that the letter was a letter of appointment because of its heading and because it provided the contractual basis for the balance of Ms Milionis’ employment with the respondent.
In favour of the respondent’s submission is the undoubted fact that this was a promotion rather than a new appointment off the street, as it were. Also, at the time when Ms Milionis accepted this offer, she and the respondent were contracted for the 2012 school year. On one view, therefore, the “fixed term” for which she was engaged did not depend on this letter. There were, however, terms in the letter that made it clear that this was a new contract in substance as well as form, albeit in place of the contract that had been entered into on 12 December 2011. One of the “conditions” set out in the letter was: “Appointment to PC is not an Award appointment, rather it is a special promotion by the Academy.” The salary package for which the letter provided was said to be “inclusive and no additional allowances will be given.” In my view, the contract amounted to an “appointment” within the terms of cl 10.2(a).
There was no suggestion on behalf of the respondent that the letter of 6 February 2012 complied with cl 10.2(c) of the award. There was, therefore, a contravention of that provision.
With respect to Ms Butters-Cain, it was submitted on behalf of the respondent that the respondent’s letter of 4 November 2011 (see para 27 above) was not an appointment, but an extension of the previous appointment. I do not accept that submission. Here the applicants’ case is stronger than it was in relation to Ms Milionis, in that Ms Butters-Cain was not already contracted for the 2012 school year. It is of the nature of a fixed term of employment that it comes to an end at the expiration of the term. Although described as an “extension”, what happened here was the re-appointment of Ms Butters-Cain to another, separate, term of employment. The letter of 4 November 2011 did, in my view, amount to an “appointment” within the terms of cl 10.2(a).
There was no suggestion on behalf of the respondent that the letter of 4 November 2011 complied with cl 10.2(c) of the award. There was, in the circumstances, a contravention of that provision.
It follows that I uphold the applicants’ case under cl 10.2(c) of the award in relation to the letters which the respondent sent to Ms Burns, Ms Milionis and Ms Butters-Cain. In each instance, there was a contravention of cl 10.2(c) of the award.
THE APPLICANTS’ CASE UNDER CL 10.6 OF THE AWARD
The approach which the applicants took to establishing that there had, in the 2012 school year, been contraventions of cl 10.6 of the award was to identify the teachers who were employed for fixed periods in that year, to concede the teachers known to them to have been on leave, and to contend that the excess of the former over the latter constituted the number of contraventions of the clause committed by the respondent. Broadly, the respondent was content to engage with the applicants at this level. That is to say, save with respect to Ms Awari, it made no attempt to match every fixed-term teacher with a specific instance of another teacher having been on leave or affected by one of the other circumstances mentioned in cl 10.6(c).
Taking this approach, the first task is to identify the teachers who, in 2012, were employed for fixed periods. At trial it was, and it remains, common ground that nine teachers – Ms Burns, Ms Milionis, Ms Butters-Cain, Zena Heblas, Iman Hafza, Ms Borova, Ms Sheehan, Ms Onder and Ms Cansiz – were so employed. The applicants allege that an additional five teachers – Ms Awari, Ms Oz, Ms Daniel, Ms Chaarani and Ms Ahmed – were also so employed. It is to the circumstances of the teachers in the latter group, therefore, that I must next turn.
I have summarised the circumstances of Ms Awari’s employment at para 33 above. In her oral evidence, Ms Awari said that she was originally employed as a part-time teacher to replace another part-time teacher who was absent on maternity leave. With respect to the period after February 2012, Ms Awari described her situation as “full-time within the replacement … category”. At some point in 2012, the teacher on maternity leave resigned. That led to the receipt by Ms Awari of the confirmation letter dated 14 November 2012.
If this were the extent of the evidence, I would find that Ms Awari was employed on a fixed-term basis in 2012. The respondent, however, relied on the terms of the appointment letter signed by Ms Awari on 21 July 2011 to which I have referred above. There Ms Awari’s “tenure” was recorded as “Full time”, notwithstanding that the letter also recorded her “time fraction” as “Part time 0.8”. In the most satisfactory form that the document was placed into evidence, it was exhibited to an affidavit affirmed by Mr Salman. With respect to that document, Mr Salman said that “full time” meant that the employee concerned was employed in an ongoing, as distinct from a “replacement”, capacity (I refer in more depth to this distinction later in these reasons). Giving primacy to the document of July 2011, the respondent submitted that the confirmation letter to Ms Awari of 14 November 2012, and her email of 26 November 2012 “could not be found to be anything other than mistakes or administrative errors”.
The respondent’s approach to the circumstances of Ms Awari is problematic in a number of respects. First, I refer to paras 264-266 below, where I find that the letter upon which the respondent relied to contend that Ms Awari was employed on an ongoing basis had been altered by Ms El-Leissy on 23 November 2012, and, on the matter of tenure, did not reflect the appointment letter that Ms Awari had signed.
Secondly, under cross-examination she was not challenged on any of the evidence she had given in chief: the cross-examination was limited to having her confirm that she commenced in July 2011 on a 0.8 fractional load and moved to a full-time load in February 2012, and that the three documents mentioned in her evidence (the document of July 2011, Mr Salman’s letter of 14 November 2012 and her email of 26 November 2012) had been in her possession and produced by her pursuant to subpoena. The respondent did not engage with Ms Awari’s evidence that she replaced a teacher absent on maternity leave. Neither was there any challenge to her evidence that she had received the confirmation letter dated 14 November 2012.
Thirdly, there was no evidence-in-chief on behalf of the respondent which might have disputed that evidence. Ms Awari was a specialist teacher at primary level. Her evidence that she replaced a teacher in that specialised area who took maternity leave in 2011 was very specific, and could readily have been disputed if it were without foundation. Had there never been such a teacher, or had the teacher in that area not taken maternity leave at the time in question, it would, I consider, have been a simple matter for the respondent to have led evidence to that effect from its records; or if, as in a number of other respects I have been invited by the respondent to find, its records were deficient, to have led evidence that that was the case.
Fourthly, Mr Salman’s Academy Head Report dated 24 July 2011, exhibited to his affidavit, listed Ms Awari as one of the “new replacement staff” who had recently been appointed.
Fifthly, the evidence given by Mr Salman under cross-examination effectively left no scope for the submission now made on behalf of the respondent. Shown his letter to Ms Awari dated 14 November 2012, he recognised his signature and said that it should be the case that the contents of the letter were true. He accepted that Ms Awari was employed in the 2012 year as a replacement teacher.
On the strength of the evidence, and considerations, to which I have referred, I reject the respondent’s contention that, in 2012, Ms Awari was employed on an ongoing basis.
I have summarised the circumstances of Ms Oz’s employment at para 34 above. In respects to which I shall return, there are questions about the authenticity of two versions of Ms Oz’s appointment letter signed on 2 November 2012, additional to that upon which my findings in para 34 were based, but it is sufficient for present purposes to say that I have no hesitation in making those findings. I need add only that, in para 26 of Mr Salman’s affidavit in the Federal Magistrates Court to which I have referred, he stated that Ms Oz had been employed as a replacement teacher. As mentioned, he exhibited a copy of the offer of employment which she had accepted. That offer stated that she was a replacement teacher. In submissions made on its behalf in this proceeding, the respondent said nothing about this affidavit, or exhibit. In my view, they provide quite unequivocal evidence that Ms Oz was, as at 9 November 2012, employed as a replacement – that is, as a fixed-term – teacher. Indeed, under cross‑examination, Mr Salman accepted that she had been employed as a replacement teacher both for the remaining weeks of 2011 and for the 2012 school year.
What I have said will sustain the conclusion, which I draw, that Ms Oz was employed on a fixed-term basis in the 2012 school year.
I have summarised the circumstances of Ms Daniel’s employment at para 35 above. In her affidavit in this proceeding, she said that she had been “employed on a replacement basis for the 2012 school year.” In his oral evidence, Mr Salman confirmed the correctness of that statement. In his affidavit, Mr Salman said that his report, as Academy Head, to the meeting of the Board on 1 December 2011 “records that Ms Daniel was to be appointed as an ongoing employee from the commencement of the 2012 school year.” That was wrong. The relevant item in the report went no further, under the heading “Staffing”, than to note that four persons, including Ms Daniel, “have been appointed for 2012” at the primary campus. Indeed, Mr Salman’s report to the meeting of the Board on 23 February 2012 noted that Ms Daniel was one of the “new replacement staff members”. He accepted that the contract that Ms Daniel would have signed would have listed her tenure as “replacement”. With respect to the confirmation letter of 22 October 2012 to which I referred in para 35, the significance of it was not that it was sent or received, nor even that it provided the basis for a new contractual arrangement between the respondent and Ms Daniel, but that it contained an acknowledgement that Ms Daniel was, as she said in her evidence, employed on a replacement basis in 2012. From what appears in Mr Salman’s report to the Board meeting on 22 November 2012, it may be inferred that, although Mr Salman signed a letter on 22 October 2012 which, if sent, would have offered Ms Daniel ongoing employment, at some point over the following month or so he changed his mind and offered her only an extension on her replacement contract.
The evidence, and considerations, to which I have referred sustain the conclusion, which I draw, that Ms Daniel was employed on a fixed-term basis in 2012.
I have summarised the circumstances of Ms Chaarani’s employment at para 36 above. They have much in common with the circumstances of Ms Daniel. In her evidence-in-chief, Ms Chaarani said that she was engaged as a replacement teacher and that her original contract stated that her tenure was “replacement”. In his oral evidence, Mr Salman confirmed the correctness of these statements. His report, as Academy Head, to the meeting of the Board of the respondent on 23 February 2012 noted that Ms Chaarani was one of the “new replacement staff members”.
Notwithstanding that evidence of Ms Chaarani and Mr Salman, there was no appointment letter recording Ms Chaarani’s tenure as “replacement” in evidence. There were two versions which found their way into the evidence, and each recorded her tenure as “Full time”. I shall return to the controversy about that endorsement below. There was also, as I mentioned above, a controversy as to whether Ms Chaarani received a confirmation letter from the respondent dated 22 October 2012. In her own evidence, Mr Chaarani said that she had. What had the appearance of being the original of the letter, however, was tendered, without objection, by the respondent during the evidence-in-chief of Mr Salman. He said no more about it than to identify it as a letter from him to Ms Chaarani, and to identify his handwriting on a yellow note stuck to it which said, “Not to be sent”. However, the significance of this letter (to the matters presently under discussion) was not that it was sent or received, nor even that it provided the basis for a new contractual arrangement between the respondent and Ms Chaarani, but that it contained an acknowledgement that Ms Chaarani was, as she said in her evidence, employed on a replacement basis in 2012. Even if the respondent’s case that the confirmation letter was not sent be accepted, like Ms Daniel, Ms Chaarani was one of four teachers who, according to Mr Salman’s report to the Board meeting of 22 November 2012, were “offered extensions on their replacement contracts for 2013”. At best for the respondent, therefore, it may be inferred that, although Mr Salman signed a letter on 22 October 2012 which would have offered her ongoing employment, at some point over the following month or so he changed his mind and offered her only an extension on her replacement contract.
The evidence, and considerations, to which I have referred sustain the conclusion, which I draw, that Ms Chaarani was employed on a fixed-term basis in 2012.
I have summarised the circumstances of Ms Ahmed’s employment at para 37 above. In an affidavit affirmed on 9 November 2012 in proceeding MLG 222/12 in the Federal Magistrates Court, Mr Salman said that, in September 2011, Ms Ahmed was working as a replacement teacher on a 0.6 teaching load. He said that, in that month, Ms Ahmed “was not required to sign a new contract as she was already on a replacement, fixed-term contract for the duration of 2011 ….” Cross-examined in the present case about this evidence, Mr Salman confirmed that, if he did give this evidence in the Federal Magistrates Court, it would have been correct. Further, in his evidence in this case, when shown the terms of his report to the Board on 22 November 2012, Mr Salman accepted that, in 2012, Ms Ahmed was employed as a replacement teacher.
From the whole of this evidence, it is, I would hold, established on the probabilities that Ms Ahmed was employed as a replacement – ie as a fixed-term – teacher in 2012.
Thus I accept the applicants’ case that, in 2012, the respondent employed a total of 14 teachers for fixed periods at the primary campus. It remains to consider whether it was entitled to do so under the terms of cl 10.6(c) of the award.
It is established on the pleadings that, at the start of the 2012 school year, there were three teachers on leave from their work at the primary campus. Additionally, the respondent contends that Ganime Ocal was on leave and that Angela Florio and Rania Gouda were performing other duties temporarily.
Ms Ocal was a primary generalist teacher employed on an ongoing basis in 2011. On 29 January 2012, she sent an email to the respondent indicating that, due to the necessity for her to attend a family funeral in Turkey, she would not be returning to work until 29 February 2012. On 23 February 2012, the Board of the respondent made a decision in relation to Ms Ocal that was recorded in the minutes as follows: “Termination of tenure. She can reapply upon her return to Australia.” In his affidavit, Mr Salman described this as a termination of Ms Ocal’s contract. The respondent’s position is that Ms Ocal was “on unauthorised leave, but leave nonetheless”. The applicants’ position is that Ms Ocal had abandoned her employment.
To be “on leave” is to be absent from one’s place of work by permission. Thus “leave” is such an absence. When the FW Act refers to an employee’s entitlement to leave, this is a reference to his or her entitlement to be absent from work with permission. That is to say, the employer must give permission. The more general concept of absence as such is also referred to, for example in s 352, which applies in the case of an absence whether or not permitted by the employer.
To say that Ms Ocal was, at the start of the 2012 school year, on “unauthorised leave” is a contradiction in terms. She was absent from work, but had not been given leave to be absent. She was not “on leave” within the meaning of cl 10.6(c) of the award.
Ms Florio had been employed as a primary generalist teacher at the primary campus since 1986. It was Mr Salman’s evidence that, since “at least” 2010, Ms Florio had “taken on additional responsibilities” as an assistant head at the primary campus. Then, by letter to her dated 25 November 2010, she was relieved of her classroom duties for the 2011 school year to head the International Baccalaureate PYP Taskforce. In November/December 2011, Ms Florio’s task would be “reviewed”. By letter dated 30 November 2011, Ms Florio was informed that she was relieved of her classroom duties for the 2012 school year “to work with the National Curriculum Committee to review our Primary School Curriculum within the parameter of the International Baccalaureate PYP philosophy and guidelines.” She was to continue carrying out her duty as assistant to the head of campus for the tasks and duties that the head of campus allocated to her. In final submissions, it was put on behalf of the applicants that this letter of 30 November 2011 was not authentic, but a copy of the letter was exhibited to the affidavit of the author, Mr Salman, affirmed 17 months before the commencement of the trial, and no suggestion of inauthenticity was put to him under cross-examination. In those circumstances, I could not accept this submission.
On the evidence to which I have referred, I find that Ms Florio was, in the 2012 school year, performing other duties temporarily such as to engage the operation of cl 10.6(c) of the award.
It was submitted on behalf of the applicants, however, that Ms Florio’s engagement on these other duties was such that she was no longer covered by the award at all, and thus not an “employee” within the meaning of cl 10.6(c). Under the award, an “employee” was “a person employed as a teacher in the school education industry or children’s services and early childhood education industry ….” The word “teacher” was not itself defined in the award, but the applicants submitted that, in 2012, Ms Florio did not teach and was not, therefore, a teacher.
The premise which underlies this aspect of the applicants’ case – that someone allocated non‑teaching duties on a temporary basis, and who does not, for the period of that allocation, perform teaching work, would not be “employed as a teacher” within the meaning of the award – should not be accepted. In my view, cl 10.6(c) applies in the case of a teacher performing any other duties, so long as the situation might be described as “temporary”. It was not suggested that the underlying basis of Ms Florio’s employment was otherwise than as a teacher. Her allocation to duties associated with the National Curriculum Committee in 2012 was by way of a direction given by her employer generally within the scope of her employment. The nature of her engagement by the respondent did not change.

Thus I hold that, in the 2012 school year, the respondent was entitled to treat Ms Florio as an employee performing other duties temporarily for the purposes of cl 10.6(c) of the award.
Ms Gouda was employed as an arts/generalist teacher at the primary campus. She took art classes there in 2011. By letter dated 30 November 2011, she was informed by Mr Salman that she was appointed as Assistant Director of the respondent’s Academic Affairs Council for the 2012 school year. She was “relieved from [her] classroom duties, except for a very small allotment for 2012”. In my view, this amounted to the allocation to Ms Gouda of other duties temporarily within the meaning of cl 10.6(c) of the award. In final submissions, it was put on behalf of the applicants that Mr Salman’s letter of 30 November 2011 was not authentic, but a copy of the letter was exhibited to his affidavit to which I have referred in the context of Ms Florio. As there, so too here, no suggestion of inauthenticity was put to him under cross-examination. In those circumstances, I could not accept this submission.
Thus I hold that, in the 2012 school year, the respondent was entitled to treat Ms Gouda as an employee performing other duties temporarily for the purposes of cl 10.6(c) of the award.
The end position reached as a result of the respondent’s admissions and these low-level findings is that, in relation to the 2012 school year, there were five employees (three on leave and two performing other duties temporarily) in place of whom the respondent was entitled to employ replacement teachers for fixed periods under cl 10.6(c) of the award. There were, therefore, nine teachers engaged in that year in contravention of that subclause.
COMPENSATION
The applicants contend that Ms Butters-Cain is entitled to compensation under s 545(2)(b) of the FW Act in respect of the respondent’s contravention of cl 10.6 of the award and therefore of s 45 of that Act. Here the question is: what loss did Ms Butters-Cain suffer because of that contravention? The applicants’ case is that, absent the contravention, Ms Butters-Cain would have been employed on an ongoing basis in the 2012 school year, and that her employment would not have been terminated at the end of that year.
As noted above, Ms Butters-Cain was a replacement teacher at the primary campus in the 2011 school year. In her affidavit, Ms Leyla Mohamoud, the Head of the primary campus, said that the respondent “needed to retain the teaching load of several replacement teachers for the 2012 school year”. She decided that Ms Butters-Cain should continue as a replacement teacher in 2012, again as a Grade 2 teacher. She spoke to Mr Salman about this, and he approved of her decision. This part of Ms Mohamoud’s evidence was confirmed by Mr Salman. Neither of them was cross-examined about it. Neither of them was tested as to what the respondent would probably have done in October 2011 had it confronted the reality that it was limited to the employment of five teachers on fixed-term contracts.
The applicants’ difficulty is that the employment of Ms Butters-Cain on an ongoing basis did not represent the respondent’s award obligation. Thus the counterfactual under which the contravention would not have occurred is not that Ms Butters-Cain would have been so employed. Rather, the award obligation was not to employ more than five fixed-term teachers. The counterfactual is no more favourable to the applicants’ case than that the respondent would not have employed more than five fixed-term teachers. How they would have covered the Grade 2 vacancy was not teased out when Mr Salman and Ms Mohamoud were giving evidence. The universe of possibilities is that Ms Butters-Cain would have been employed as one of no more than five fixed-term teachers, that she would have been employed as an ongoing teacher, and that someone else would have been employed in that position, with Ms Butters-Cain not being employed at all. The possibility that would open the gate to a consideration of compensation for Ms Butters-Cain is one only of these three. There is nothing in the evidence that would enable the court to rate that possibility as the most likely of the three.
For those reasons, Ms Butters-Cain’s claim for compensation must be rejected.
THE FIRST ORDER UNDER S 483AA OF THE FW ACT
By letter to the respondent dated 29 October 2012, the solicitors for the applicants stated that they acted for the applicant in respect of its members Ms Burns, Ms Butters‑Cain (ie the second applicant), Rita Ioannou, Ms Milionis and Nabiha Merhi. They alleged contraventions of cll 10.2 and 10.6 of the award in respect of those teachers, stating, amongst other things, that these teachers were “employed on an ongoing basis”. By letter dated 2 November 2012, Mr Salman replied, stating that these five teachers “were offered limited tenure contracts for replacement purposes”.
On 9 November 2012, using Form F43 under the Fair Work Australia Rules 2010 (Cth), Messrs Matson and Schmidt, both permit-holders within the meaning of Subdiv A of Div 2 of Pt 3-4 of the FW Act, applied for the making of an order under s 483AA of that Act. They specified the primary campus and the secondary campus as the “premises to be entered”. They identified s 45 of the FW Act as the provision of which they suspected a contravention.
The non-member records to which access was sought were identified as follows:
For the purpose of this application “Records” includes but is not limited to contracts of employment, letters of offer, applications for leave, letters approving leave, letters of resignation and letters of termination and letters of resignation.
For the purpose of this application “Teachers” means all employees or prospective employees of AIA who are engaged as teachers or AIA is seeking to engage as teachers at either the Coburg or North Coburg campuses of AIA.
The Applicants seek access to Records that evidence the number of Teachers:
a)        employed on a fixed-term basis during the 2011 school year;
b)        employed on a fixed-term basis during the 2012 school year;
c)        offered fixed-term employment for the 2013 school year or part of it;
d)that have accepted an offer of fixed-term employment for the 2013 school year or part of it;
e)        on leave for one school term or more
a.        of the 2011 school year;
b.        of the 2012 school year;
f)who have applied for leave for one school term or more of the 2013 school year;
g)who have been approved by the Employer to take leave for one school term or more of the 2013 school year; or
h)        whose employment terminated after the commencement of
a.        the 2011 school year;
b.        the 2012 school year.
In their grounds for that application, Messrs Matson and Schmidt referred to the relevant provisions of the award and continued:
3.The Award applies to and covers all teachers employed by the Employer at its campuses in Coburg and North Coburg.
4.The IEUA is entitled to represent the industrial interests of all teachers employed by the Employer at its campuses in Coburg and North Coburg.
5. The Applicants are officers of the IEUA.
6.Since 2009, officers of the IEUA have met with members and non-members employed by the AIA as teachers. During these visits employees have raised concerns that they had purportedly been engaged on a “replacement” (fixed-term) basis where there is no ground to do so under Clause 10.6 of the Award.
7.On 23 October 2012, the IEUA was contacted by three members who had been advised that their “replacement” contracts would not be renewed in 2013.
8.Of the three members referred to above two of them were engaged purportedly on a ‘replacement basis’ for both the 2011 and 2012 school year.
9.In addition to the above three members the IEUA has been contacted by another two members who have been offered an extension of their “replacement period of employment” for part of the 2013 school year.
10.Members who approached the IEUA were from both the Coburg and North Coburg campuses of the Employer.
Breach of cl 10.2(c)
11.On 26 October 2012, Mr Matson (the First Applicant) met with IEUA members who provided documentation as to the status of their employment. The documentation in respect of each indicated that the AIA considered each to be employed on a fixed-term basis.
12.The letters of appointment and other documentation shown to Mr Matson do not indicate who the employees were engaged to replace or the reason for the replacement arrangement. On this basis the Applicants reasonably suspect that the Employer has engaged in breaches of clause 10.2(c) of the Award and therefore s 45 of the Fair Work Act 2009.
Breach of cl 10.6
13.Each of the Employees [sic] contracts of employment or letters of offer and the letters advising of the extension or termination of their employment, assert that the position is a “replacement” position.
14.The IEUA has been advised by members that there are more than 10 teachers employed on fixed term contracts by the Employer and only one teacher on extended leave.
15.One member, who commenced employment in term 2, was told verbally that she was replacing an employee on maternity leave. The same member was subsequently told by other members that she was replacing an employee who had ceased employment with the Employer.
16.Another member who commenced employment in term 1 of 2011 was not told anything by the Employer about who she was replacing. After commencing employment other staff told her that she was replacing a teacher who had ceased employment prior to the commencement of term 1.
17.Two members have advised the IEUA that, since commencing employment with the Employer, other teachers have told them that they were employed to replace teachers whose employment had terminated prior to the commencement of the school year.
18.One member has advised the IEUA that other staff have told her that the Employer tells new staff that they are filling maternity leave positions regardless of whether this is in fact the case.
19.One member’s letter of appointment does not refer to the members position being a “replacement” or “fixed term.” The member understood that she was employed on a full-time ongoing basis. However, on 22 October 2012, the Employer gave the member a letter offering to “extend the replacement period of appointment” up to June 2013.
20.None of the letters of appointment provided by the Employer state the reason for the replacement arrangement or nominate the teacher that the members were employed to replace.
21.On the bases of the above, the Applicants reasonably suspect that the Employer has breached cl 10.6 of the Award and therefore s 45 of the Fair Work Act 2009.
Need for Records
22.The Employer has stated that members of the IEUA employed on a fixed term basis were employed to replace employees on leave. However the Employer has not set this out in the letters of appointment given to the employees.
23.The Employer has not specified the employee on leave that each employee has allegedly been employed to replace.
24.The Applicants reasonably suspect that the number of employees purportedly employed on a fixed term basis exceeds the number of employees on leave.
25.The Applicants reasonably suspect that the Employer has engaged employees on a fixed term basis to replace employees who have left before the commencement of the school year.
26.The Applicants reasonably suspect that the Employer is employing teachers on a fixed term basis other than in accordance with clause 10.6 of the Award.
27.Accordingly, to investigate the suspected breaches it will be necessary to have access to records sufficient to show:
oWhich teachers have taken extended leave (including maternity or long service leave of one school term or more) and the periods of such leave;
oWhich teachers are or have been engaged on a fixed-term basis, the commencement and termination dates of each term of engagement and the purported reason for each such engagement;
oWhich teachers have ceased to be employed by the AIA at the two Coburg campuses, the dates of the cessation of employment and how each has been replaced;
oThe identity of each newly appointed teacher and the position to which they were appointed.
Messrs Matson and Schmidt supported that application with statements of facts known to them which, amongst other things, identified the teachers referred to by name. In his statement, Mr Matson said that the three teachers referred to in para 7 of the grounds were Ms Burns, Ms Butters-Cain and Ms Ioannou, all primary teachers. The two referred to in para 8 were Ms Burns and Ms Butters-Cain. The two referred to in para 9 were Ms Milionis and another teacher who did not want her name to be revealed. All of the teachers referred to in paras 7, 8 and 9 were members of the applicant. The members referred to in paras 15 and 16 were Ms Ioannou and Ms Butters-Cain respectively. The members referred to in para 17 were Ms Burns and Ms Milionis. The member referred to in para 18 was Ms Ioannou. The member referred to in para 18 was Ms Milionis. In his statement, Mr Matson concluded:
17.By reason of the above I reasonably suspect that there are more employees engaged on fixed term contracts than those for whom we have the details, including non members. Further, I reasonably believe, given the terms of the contract for the members that we have, that the contracts or the letters of appointment of other employees do not set out the reasons specifically for the purpose of engagement in terms provided by clause 10.1 of the award.
18.I reasonably believe that, on the basis of information in relation the number of employees engaged on fixed term contracts and the number of employees on leave that the respondent is employing persons contrary to the provisions of clause 10.6 of the award.
In his statement, Mr Schmidt said that he had attended two meetings with members of the applicant at each of the respondent’s campuses, at each of which he spoke both to members of the applicant and to non-members. At a meeting on 6 June 2012, Mr Schmidt was told that there was a large number of people on fixed-term contracts who were concerned about their position. At a meeting on 7 August 2012, Mr Schmidt was told that there was a number of people on rolling fixed-term contracts without having been given any reason therefor. In his statement, he continued:
On 23 October 2012 I was contacted by a member both on her behalf and on behalf of two other members employed by the respondent. I had been in contact with this member throughout October. She had earlier raised with me concerns about fixed term employment.
The date on which the member contacted me was also the date on which 6 persons employed by the respondent were told the contracts would not be renewed. I was also told that new staff had been employed in substantially similar roles.
In addition to the persons in respect of whom the member communicated to me on 23 October 2012 I am aware that the IEUA has been contacted by another two members who have been offered an extension of their “replacement period of employment for part of the 2013 school year.
Mr Schmidt’s statement concluded:
I am aware of the documents to which Denis Mattson refers. On the basis of the documents, my conversations with members and non-members employed by the respondent I reasonably suspect that contraventions have occurred of clause 10 of the award binding the respondent in that the contracts of employment do not refer to the reason for the engagement as a fixed term employee and, further, that the circumstances set out in clause 10.6 of the award which would otherwise just permit the employment of fixed term employees do not exist.
In what the FWA member who heard the application for a s 483AA order considered to be a departure from normal practice, the respondent had, it seems, been notified (by FWA itself, not by the applicant) of the making of that application, and was represented by its solicitor when the application was listed on 22 November 2012. In the result, Mr Matson, who gave evidence (as did Mr Schmidt), was cross-examined in the proceeding in FWA.
In chief, Mr Matson referred to his statement and clarified that, since about 2009, he had met with members and non-members employed as teachers by the respondent who worked at each of the respondent’s campuses, and that he had “spoken to members employed at the primary campus and members employed at the secondary campus who [had] expressed concerns about fixed term contracts”. He said that, of the 10 teachers referred to in para 14 of the grounds, he had been advised that at least six were employed at the secondary campus.
Under cross-examination, Mr Matson said that the five teachers referred to in the applicant’s solicitors’ letter to the respondent dated 29 October 2012 had been “raised … as examples of [the applicant’s] concerns”. Those five teachers were about to have their employments terminated, and were prepared to identify themselves.
In submissions made in support of the making of a s 483AA order, counsel for the applicants said:
The first submission I make is that demands made in respect of named employees for whom evidence is in possession of the lEU should not be confused with the holding of reasonable suspicion in respect of others. That is, the fact that the lEU holds evidence in respect of its members in the circumstances described in the submission give rise to the reasonable suspicion that the breach as alleged by the lEU is happening more widely than members but also given the evidence that Mr Matson gave orally also in respect of both primary and secondary school campuses.
….
First of all what needs to be established is the number of persons on fixed term contracts. Secondly the number of persons who are on the relevant type of leave as provided in clause 10.6 and that includes both primary and secondary campus.
The respondent’s solicitor submitted that the correspondence of 29 October 2012 demonstrated that the permit-holders’ suspicions related only to five named members of the applicant, all of whom were primary teachers, and that “any orders that are made in relation to access to documents must be confined to the suspected contraventions that affect those members.” In response to this submission, counsel for the applicant put Mr Schmidt in the witness box, and he clarified that one of the teachers to whom he had referred in his statement was a secondary teacher.
It was apparent from the observations made in the running by the member of the FWA that she was satisfied within the terms of s 483AA(2) of the FW Act, and that she well understood, that the nature of the suspicions held by Messrs Matson and Schmidt travelled well beyond the teachers to whom they had spoken and related both to primary and to secondary teachers and both to members of the applicant and to non-members. The metaphor was not used, but is clear that the case being put to FWA by Messrs Matson and Schmidt, and accepted by FWA, was that they suspected that the circumstances of the teachers to whom they had spoken may have been the tip of the iceberg.
At the end of the hearing on 22 November 2012, FWA made an order under s 483AA in the following terms:
1.The order applies to non-member Records or Documents held by the Australian International Academy of Education Inc (AIA) in respect of Teachers whose employment falls or would fall within the coverage of the Educational Services (Teachers) Award 2010.
2.The specified non-member Records or Documents are those Records or Documents that:
a.        evidence the number of Teachers:
i.        employed on a fixed-term basis during the 2011 school year;
ii.        employed on a fixed-term basis during the 2012 school year;
iii.offered fixed-term employment for the 2013 school year or part of it;
iv.that have accepted an offer of fixed-term employment for the 2013 school year or part of it;
v.        on leave for one school term or more
1.        of the 2011 school year; or
2.        of the 2012 school year;
vi.who have applied for leave for one school term or more of the 2013 school year;
vii.who have been approved by the Employer to take leave for one school term or more of the 2013 school year; or
viii.     whose employment terminated after the commencement of
1.        the 2011 school year; or
2.        the 2012 school year;
b.insofar as any of the Records or Documents referred to in paragraph 2(a) relate to the commencement or cessation of employment of a Teacher, Records or Documents that evidence:
i.the dates of the commencement and cessation of employment of the Teacher;
ii.the name of the Teacher and the position to which they were appointed; or
iii.the campus the Teacher worked at or was offered employment at.
3.        For the purpose of this Order:
a.“Records or Documents” include but is not limited to contracts of employment, letters of offer, applications for leave, letters approving leave, letters of resignation and letters of termination; and
b.“Teachers” means all employees or prospective employees of AIA who are engaged as teachers or AIA is seeking to engage as teachers at either the Coburg or North Coburg campuses of AIA.
4.        The nominated permit holders are allowed to:
· Require AIA to allow them to inspect, and make copies of, the non-member records or documents (or parts of such records or documents) under s.482(1)(c) of the Act; and
· Require AIA to produce, or provide access to, the non-member records or documents (or parts of such records or documents) under s.483(1) of the Act.

The significance of the matter just discussed, of course, is this. The fact that Ms Chaarani returned a version of her appointment letter that gave her tenure as “Full time” does not resolve adversely to the applicants the question whether, when it was executed on 9 December 2011 and thereafter until at least 23 November 2012, the letter was so endorsed.
I would extend the findings I made in para 254 above to Ms Chaarani’s circumstances.
Dealing finally with category (c) referred to in para 177 above, I commence with Ms Alshakshir. I have touched upon her circumstances in para 38 above. She gave evidence that the appointment letter she signed on 19 October 2009 bore the original logo. She was shown the version of that letter provided to Messrs Matson and Schmidt on 27 November 2012, and said that the version she signed did not bear the new logo. The first time she had seen a version of the letter with the new logo was some time in 2012, when Mr Salman called her into his office and told her that, because the school had changed its logo, “they were giving the staff a contract with the new logo.” The version with the new logo was the only one in evidence.
Although it described Ms Alshakshir’s tenure as “Full time”, the letter inspected by Messrs Matson and Schmidt opened with the following introduction (immediately after the greeting): “You are offered the following Replacement Appointment as per the conditions set out below:”. Of that inconsistency, Mr Salman said, in his affidavit, that the respondent had at all times regarded Ms Alshakshir as “a permanent, ongoing employee”. That aspect of his evidence was not challenged by the applicants in cross-examination. But Mr Salman’s affidavit continued that the reference to “Replacement Appointment” appeared to have been an “administrative error”. That was, I would hold, nothing more than surmise on Mr Salman’s part. In the light of Ms Alshakshir’s own evidence about the letter she originally signed, it is apparent that the front page of the letter was replaced at some stage. The inconsistency between this opening passage and the description of her tenure as “Full time” cannot, therefore, be resolved on the basis that the former amounted to an administrative error. Given the terms of that passage, and in the light of the respondent’s practices disclosed in the evidence which relates to other teachers, I would hold it to be probable that Ms Alshakshir’s original appointment letter described her tenure as “replacement”.
But that is not sufficient to bring me to the same conclusions as I reached in relation to the teachers already dealt with in these reasons. A major difference in Ms Alshakshir’s case is that it is not alleged that she was on a fixed-term engagement in 2012. There are no extension letters or confirmation letters which relate to her. She was not the subject of any recommendation to, or resolution of, the Board on 22 November 2012. It is true that the electronic properties of the Word file for her appointment letter disclose that the letter was accessed by Ms El-Leissy on 23 November 2012, and that might have been the occasion when the tenure entry was altered, but the circumstances generally are devoid of any indications that, prior to that day, the respondent regarded her employment as a fixed term one. Absent indications of that kind, and although the respondents said nothing on the subject, the evidentiary gap is just too wide to make the connection for which the applicants contend.
In the case of Ms Alshakshir, I am not satisfied that her appointment letter was altered by Ms El-Leissy on 23 November 2012.
I consider finally Ms Badawi. I have touched upon her circumstances in para 28 above. As exhibited to her affidavit, the appointment letters which she signed on 12 April 2010 and 18 June 2010 and the extension letter dated 20 October 2010 were all on the respondent’s old letterhead, bearing the original logo. The confirmation letter of 4 November 2011, and subsequent correspondence, were on the new letterhead, bearing the new logo. As provided to Messrs Matson and Schmidt at the secondary campus on 17 December 2012, however, while the appointment letter of 12 April 2010 and the extension letter of 20 October 2010 were on the old letterhead, the appointment letter ostensibly signed by Ms Badawi on 18 June 2010 was on the new letterhead. The inference that, at some point, someone on the staff of the respondent had changed the first page of the letter is irresistible.
In his affidavit affirmed on 4 April 2014, Mr Salman referred to, and exhibited, his report, as Academy Head, to the Board meeting to be held on 20 April 2010. Under the agenda item headed “Staffing. (Board Endorsement)”, it was noted that four teachers had been offered positions, one of whom was Ms Badawi. The relevant entry read as follows:
Haidi Badawi, Arabic Language Teacher, as from 17/5/10 (Ongoing)
Her present teaching aide replacement position to be offered to another applicant.
In the minutes of the relevant Board meeting as exhibited to that affidavit, it was reported that the Board approved the appointment of Ms Badawi in the following terms:
Haidi Badawi – Arabic Language Teacher as from 15/5/10.
To vacate her position as a replacement teacher aide.
The absence of the parenthetical reference to Ms Badawi’s tenure in her new position should be noted.
During the course of discovery for this proceeding, however, it transpired that there was, in the respondent’s possession, another version of the minutes of the Board meeting on 20 April 2010. In that version, there was no reference to any teachers having been offered positions. This was the version that had been distributed to Board members by Ms El‑Leissy as an attachment to her email of 11 May 2010. Under cross‑examination, Mr Salman accepted that the minutes had been changed at some point by the insertion of the item relating to the appointment of teachers, including Ms Badawi. He treated it as the uncontroversial correction of minutes which had originally omitted an item of importance, but he made it clear that he had absolutely no recollection of the events concerned. Neither did Ms El‑Leissy, who said under cross-examination, “I could have sent them and then realised there was a mistake in them, so I’ve changed them very quickly.” That was, I would have to say, a matter of rationalisation, rather than of recollection, on Ms El-Leissy’s part. So to observe is not necessarily to criticise her: had the distribution of replacement minutes to correct an omission from the minutes as originally distributed been benign as the respondents contended, Ms El-Leissy need not have had any recollection of it five years later, particularly if, as she said in her evidence, corrections of that kind did happen from time to time. But the fact remains that the respondents were unable to point to any objective evidence – nor even the actual recollection of any witness – which would place a time on when the replacement was made.
Noting the differences between the version of the appointment letter signed by Ms Badawi on 18 June 2010 returned by her under subpoena – which was the same as that exhibited to her affidavit, as referred to above – and the version of the same letter provided to Messrs Matson and Schmidt on 17 December 2012 – which was the same as that held on Ms Badawi’s personnel file on that date – Mr Salman said that those differences “may be explainable” by a change of status notice held by the respondent only electronically (and therefore never on that file) in the following terms:
Mrs Badawi
As there is a Full time vacancy for Arabic Language Position, and as you are a qualified registered teacher with VIT, you are advised that the following change(s) in your classification has been made
CURRENT CLASS:     Arabic Language Teacher Aide (Replacement)
NEW STATUS:          LOTE Arabic Language Teacher
EFFECTIVE FROM:    17/5/2010
SALARY ADJUSTMENT:      $53,000 Per Annum ($1,015.71 Per Week)
OTHER DETAILS:
ŸYour position has become an ongoing position as from the above date
ŸAll conditions of the “Appointment Notice” of 17/5/2010 still apply, except for the changes stated above .
ŸYour new salary is effective as from 17/05/2010
As with other such ostensible notices placed into evidence by the respondents, the legitimacy of this change of status notice was strenuously contested by the applicants.
I do not accept Mr Salman’s surmise that this notice explained the difference between the letter as signed by Ms Badawi on 18 June 2010 and the letter produced to Messrs Matson and Schmidt on 17 December 2012. There is no suggestion that the notice ever had a reality outside the electronic media on which it was stored. To the extent that it had a date at all, that was approximately co-extensive with the production of the appointment letter itself, in which it was stated unambiguously that Ms Badawi’s engagement was by way of replacement. At the end of that year, she received an extension letter only, and this was followed by a confirmation letter dated 4 November 2011. These facts are consistent only with the conclusion, which I reach, that the appointment letter which she signed on 18 June 2010 identified her tenure as replacement at least until the end of 2011.
Moving forward from there, it seems clear that, as a matter of contract, Ms Badawi was engaged on an ongoing basis from the start of the 2012 year. Although not directly relevant to the matter of tenure, the contemporaneous receipt by her of a Professional Class letter was consistent with that. But there is no suggestion that her appointment letter was altered to reflect these changes – as it need not have been and, on one view, it ought not to have been. It was not until 23 November 2012 that the evidence provides any basis for the supposition that that letter was altered, and then the evidence is clear. Whatever reservations the respondents might have expressed as to the use to which the electronic properties of various appointment letters might be put, the properties which related to Ms Badawi’s admit of no debate: the document was created on 18 June 2010 and last modified (ie the file was saved) and printed on 23 November 2012.
I am satisfied that, on 23 November 2012, Ms El-Leissy accessed the file for Ms Badawi’s appointment letter, altered it to state that Ms Badawi’s tenure was “Full time”, and printed the resulting document. In so proceeding, Ms El-Leissy was not causing the document to misrepresent the nature of Ms Badawi’s employment in 2012, but she was causing the document to state, contrary to the fact, that Ms Badawi’s employment had been “Full time” from the outset. Absent the apprehended visit of Messrs Matson and Schmidt, there is nothing in the evidence that would suggest any reason for Mr Salman to instruct Ms El‑Leissy to make this alteration. Ms Badawi had been uncontroversially an ongoing employee for the previous year, and was about to be elevated to the Advanced Professional Class. That Mr Salman would take it upon himself to instruct Ms El-Leissy – and the latter made it quite clear that she would make these sort of changes only when instructed by the former – to alter Ms Badawi’s appointment letter at this time strikes me as particularly odd, unless, of course, the circumstances are understood in the context of the imminent arrival of the applicant’s permit-holders.
Although Ms Badawi’s circumstances differ in a number of respects from those of other teachers mentioned in these reasons, ultimately I am satisfied that the applicants have made out their factual case in respect of her. I would extend the findings I made in para 254 above to her circumstances.
THE APPLICANTS’ CASE UNDER S 482(3) OF THE FW ACT
It is established that, on 27 November 2012, Messrs Matson and Schmidt required the respondent to allow them to inspect the contracts of employment of the teachers referred to in para 130 above. For reasons which are not apparent, the applicants’ case under s 482(3) in relation to 27 November 2012 does not include Ms Chaarani’s contract, which leaves nine teachers whose contracts were required for inspection and copying under s 482(1)(c). The applicants submit that, insofar as the documents produced did not reflect what were then the true contracts of the teachers concerned, those requirements were not complied with. Subject to the specific arguments advanced on behalf of the respondents to which I refer below, I accept that submission. I also accept the further submission advanced on behalf of the applicants that the extension letters and confirmation letters referred to in paras 158-159 and 161-166 above were contractual, and should have been produced in response to the permit-holders’ requirement. They were not.
The respondents argued first that s 482(1)(c)(i) is concerned only with records and documents which are in fact kept on the premises entered by the permit-holder. Whether or not the document which contains the terms of a teacher’s contract was altered or manipulated, even with a view to making things appear as they should not, under this provision the employer or occupier was under no obligation other than to produce the documents which existed on the premises at the time. At the conceptual level, I accept that submission.
In the context of the facts of the present case, however, I reject the submission. The question is whether the records and documents which constituted the contracts of the teachers referred to in para 130 above were on the premises at the secondary campus on 27 November 2012. The physical separation of the front pages of these contracts from their other pages would not conclude that question in the negative. If the relevant front pages remained on the premises, the position would be that the records and documents which constituted the contracts were still kept on the premises. The resolution of this issue of fact commences with the circumstances that the true front pages were on the premises on the morning of 23 November 2012. From there, it was, in my view, the respondents who bore the evidentiary onus of proving that those front pages were no longer on the premises four days later (or two business days only). Although they fiercely resisted the applicants’ case that Ms El-Leissy had replaced the front pages on these documents, the respondents have known for a long time that that was the case which the applicants proposed to run. It was not enough, in my view, for the respondents to content themselves with Ms El-Leissy’s evidence that the old front page would usually be discarded. Ms El-Leissy did not say when it would be discarded. The respondents called no evidence about the timing or detail of such waste disposal, or recycling, practices as it had in its office at the secondary campus in November 2012. This was an area of the evidence to which the applicants could make no contribution. The respondents may not have been able to establish that one course or another was definitely followed, but they have chosen not to call any evidence from which the court might have been able to make an informed assessment of the probabilities.
I find, therefore, that the old front pages of these contracts were kept on the premises at the secondary campus when Messrs Matson and Schmidt made their requirements under s 482(1)(c) on 27 November 2012. I accept the applicants’ case that the documents which these permit-holders required the respondent to allow them to inspect and to copy were on the premises at the secondary campus.
The respondents next argue that the right of entry under s 481(1) is confined to premises upon which the presumptive member to whom the suspected contravention relates, or whom it affects, “performs work”. They then say that the rights given by s 482(1) may be exercised by the permit-holder only “while on the premises”, namely, the premises upon which the member performs work. They say that there were and are two geographically and functionally distinct campuses. Primary teachers in the employ of the respondent did not perform work at the secondary campus within the meaning of s 481(1)(b). They led evidence, which was not challenged by the applicants, that there was no crossover, in the performance of teaching duties, for teachers in the primary and secondary campuses: a teacher employed at one campus taught there only, and did not undertake teaching at the other. It followed, the respondents submitted, that the contract of a primary teacher could never be relevant, much less “directly relevant”, to any suspicion held by Messrs Matson and Schmidt that a particular secondary teacher was being employed on a fixed-term basis beyond the scope permitted by cl 10.6.
Within the framework which I laid out in para 118 above, the respondents start with the premise that teacher A must perform work on the premises entered: s 481(1)(b). Conceptually, teacher C need not (it not being C in relation to whom the contravention was suspected). But, on the facts of the case, unless C were a secondary teacher, it could never be the same teacher – B – whom both A and C replaced. If A were a secondary teacher – as he or she had to be, due to the requirement of performing work on the secondary campus – then B would likewise have to be a secondary teacher, and could never be replaced by someone who was not also a secondary teacher. Thus C too had to be a secondary teacher. It follows, according to the respondents, that, on 27 November 2012, Messrs Matson and Schmidt had no right to require the respondent to allow them to inspect the employment contract of any primary teacher.
On the premises (1) that the teacher in relation to whom the permit-holders’ suspicions existed had to be a secondary teacher, and (2) that there was no crossover in the performance of teaching duties as between the primary campus and the secondary campus, it seems to me that this argument advanced on behalf of the respondents must be accepted. The requirement of direct relevance in s 482(1)(c) is an objective one, it not being sufficient that the permit‑holder, in the conduct of his or her investigation, believed that a particular record or document would or might be directly relevant. Put another way, in a proceeding for contravention such as the present one, it will always be open to a respondent to defend its refusal to allow inspection or copying of a particular record or document on the ground that it was not, objectively, directly relevant to the suspected contravention.
But the first of the premises referred to in the previous paragraph was challenged by the applicants. In point of fact, Messrs Matson and Schmidt suspected that the respondent was contravening cl 10.6 of the award in respects which related to, or affected, both primary and secondary teachers. The applicants reject the respondents’ proposition that, on the facts of the present case, primary teachers, including those in relation to whom the suspicions of the permit-holders were held, did not perform work at the premises where the records and documents were kept. They put this in two ways.
They said first that the school operated by the respondent was a single entity, such that the primary and secondary campuses were to be regarded as a single premises. It was submitted that the definition of “premises” in s 12 of the FW Act, whereby the term includes “any land, building, structure, mine, mine working, aircraft, ship, vessel, vehicle or place”, was a broad, inclusive one, and that “the different campuses of the school operated by the first respondent form part of the school’s premises”. I agree that the definition is an inclusive one, but I do not agree that the term, either in its ordinary meaning or as inclusively defined, would treat as a single premises two suburban locations about 1.5 km apart on separate landholdings.

Secondly, the applicants submitted that primary teachers employed by the respondent did perform work at the secondary campus. For that submission, the applicants relied on essentially uncontested evidence given by a number of primary teachers that, once or twice a term, they were required to attend meetings of the teaching staff of the whole school at the secondary campus. The respondents’ response to this was not to take issue with that evidence, but to contend that a practice of this kind would not be sufficient to warrant the conclusion that the teachers concerned performed work at the secondary campus within the meaning of s 481(1)(b) of the FW Act.
As a matter of construction, “performs work” cannot be limited to a situation in which the employee of interest is physically present and performing work at the time of the permit‑holder’s entry. The section must extend to a situation in which the employee is off-shift that day, absent on leave, or on temporary assignment to a department located elsewhere, for example. There are some employees who, because of the nature of their jobs, work in different premises from day to day: a maintenance carpenter employed on the staff of a company with numerous retail outlets, for example. On the other hand, one must be careful to avoid collapsing the distinction between s 481 and s 708: under the former, it is obviously not enough that there are, on the premises, records or documents that are relevant to compliance purposes.
In my view, if, under the terms of his or her employment, an employee may be required to work at particular premises, he or she should be regarded as performing work on those premises, whether or not he or she is physically present there at the time of the permit‑holder’s entry. Counsel for the respondents resisted any such construction of s 481, citing the example of a major bank, any one of whose branches, which may number in the thousands, a permit-holder would have a right to enter if the construction were correct. For myself, however, I cannot see any violence being done to the apparent purpose of Subdiv A if s 481 were construed to cover a situation in which the employee of interest could be required to work on premises on which the permit‑holder had grounds to exercise the rights referred to in s 482.
I would hold therefore, that, whilst Messrs Matson and Schmidt were present at the secondary campus on 27 November 2012, the documents of which they were entitled to require inspection were not confined to documents which related to secondary teachers.
For the reasons given above, I hold that, on 27 November 2012, the respondent contravened the requirements of Messrs Matson and Schmidt to allow them to inspect and to copy the contracts of Ms Borova, Ms Onder, Ms Cansiz, Ms Sheehan, Ms Ahmed, Ms Awari, Ms Oz and Ms Daniel. By so doing, the respondent contravened s 482(3) of the FW Act. This holding does not extend to Ms Alshakshir’s contract because I am not satisfied that the document produced on 27 November 2012 was not genuine. It does not extend to Ms Chaarani’s contract because that contract was not part of the applicants’ case in relation to this occasion.
Turning next to the second inspection visit to the secondary campus by Messrs Matson, Schmidt and McMullin on 17 December 2012, it is established that, on that date, these permit-holders required the respondent to allow them to inspect the contracts of employment of Ms Chaarani and Ms Badawi. Save as specifically mentioned hereunder, the parties made the same submissions in this area of the case as they had in relation to the first order and the first inspection. Likewise, the various findings and rulings set out above are, subject to what follows, repeated.
In relation to the contracts of Ms Chaarani and Ms Badawi, the situation which arose on 17 December 2012 differed from that which had arisen on 27 November 2012 in one significant respect: it was about three weeks after the day on which Ms El-Leissy replaced the front pages of those contracts. As a result, the pragmatic considerations by reference to which I found that the original front pages of the contracts of the original nine teachers were still “kept on the premises” when Messrs Matson and Schmidt undertook their first inspection are less persuasive when applied to an occasion about three weeks later. As will already be apparent, however, I take the view that it was for the respondents to establish that these front pages, which I have held were kept on the premises on 23 November 2012, were no longer so on 17 December 2012. It has not done so.
For the reasons given above, I hold that, on 17 December 2012, the respondent contravened the requirements of Messrs Matson, Schmidt and McMullin to allow them to inspect and to copy the contracts of Ms Chaarani and Ms Badawi. By so doing, the respondent contravened s 482(3) of the FW Act.
The bigger issue with respect to the visit of Messrs Matson, Schmidt and McMullin to the secondary campus on 17 December 2012 is whether the respondent contravened s 482(3) by its refusal to allow them access to records and documents held in electronic form. The first question is, what did they require? I would not regard Mr Matson’s statement to Ms Saleh (see para 142 above) that he and Mr Schmidt were there to inspect records on computers and files as a requirement. It was no more than a general statement of purpose made, no doubt, so that Ms Saleh might direct the permit-holders to the appropriate responsible officer of the respondent. There followed a lengthy interregnum, during which Mr Galea at least apprehended that a requirement would be made. Eventually, when he spoke to Messrs Matson and Schmidt, Mr Matson told him that he and Mr Schmidt wanted to access all hard copy and electronic copies of contracts of employment and employment documents.
It was submitted on behalf of the respondent that a requirement in these terms went beyond the scope of s 482(1)(c) in that it was not limited to electronic documents that were directly relevant to the contravention of cl 10.6 of the award that the permit-holders suspected. Even had those suspicions been the same as were entertained by Messrs Matson and Schmidt on 27 November 2012, I would hold that they provided a basis for them to inspect the contracts of all teachers. It must be remembered that the notion of “relevance” in s 482 is not the kind of relevance against which the admissibility of a document in a court proceeding, for instance, is measured. Under Subdiv A, the context is that of an investigation, not of litigation. It is presumed that the investigator’s knowledge, rising no higher than a suspicion as it does, is imperfect. Messrs Matson and Schmidt were in no position to say which contracts would demonstrate the occurrence of a contravention of cl 10.6. To find this out was the point of their visit to the secondary campus. On the information which they had, including the unsatisfactory response which the respondent had made to their requirements on 27 November 2012, it appeared that, at both campuses, there were fixed-term teachers whose engagements did not correspond with the absences of other teachers on leave etc, but they did not know who they were. The requirement which they made on 17 December 2012 was, in my view, amply justified as a necessary step in their investigation; and the records and documents which they sought to inspect were directly relevant to their suspicions of contravention.
But, on 17 December 2012, Messrs Matson and Schmidt had another line of suspicion which enlivened their right to make requirements under s 482(1)(c): they suspected contraventions of s 502(1) of the FW Act, constituted by the wholesale manipulation of the written form of contracts of employment held on the files of the respondent. Although the respondent’s evidence in this case has cast a more benign light on to the matter of the use, before October 2011, of the new logo on its letterhead, that was not known to Messrs Matson and Schmidt in December 2012. That matter, and the inconsistency of the terms of the appointment letters produced by the respondent on 27 November 2012 with the terms of corresponding letters available to them, provided reasonable, if not strong, grounds for a suspicion that the file copies of teachers’ contracts held by the respondent had been altered with a view to frustrating the permit-holders’ investigation. Once the hares were running on this issue, as it were, there was no point, short of examining the electronic forms of all contracts of employment, where it could be said that artefacts of this kind were not directly relevant to the suspicions which the permit-holders entertained.
Thus I hold that the requirement for contracts in electronic form to be produced made by Messrs Matson, Schmidt and McMullin on 17 December 2012 was authorised by s 482(1)(c) of the FW Act. On any view, that requirement was not complied with. It follows that, on that occasion, the respondent contravened s 482(3) of the FW Act.
THE APPLICANTS’ CASE UNDER S 502 OF THE FW ACT
Under s 502(1) of the FW Act, the applicants submit that, on 23 November 2012, the respondent altered the records of the contracts of Ms Alshakshir, Ms Awari, Ms Ahmed, Ms Onder, Ms Borova, Ms Cansiz, Ms Sheehan, Ms Oz and Ms Daniel after Messrs Matson and Schmidt sought to inspect those contracts, thereby intentionally hindering or obstructing those permit-holders exercising rights in accordance with Part 3-4 of the FW Act. No allegation is made under s 502 against the individual respondents in relation to that day, or to 27 November 2012. Save for the contract of Ms Alshakshir, I have found that Ms El-Leissy, on the instruction of Mr Salman, did alter the records of these contracts on 23 November 2012. That act was, self-evidently, the act of the respondent; and it is equally clear that, on the findings set out above, it was an intentional one. Subject to what follows below, the respondents accepted that, if I should make findings of fact along these lines, there would have been a contravention of s 502 on the part of the respondent.
But the respondent made two contentions as to why these findings did not produce the result that it was relevantly in breach of s 502. The first concerned subs (3). It was said that the notice under s 487 had been given at 9:30 am on 23 November 2012, by which time Ms El‑Leissy had altered all of the presently relevant contracts except those which related to Ms Onder and Ms Sheehan. So far as the printing and saving of the relevant Word files is concerned, that may be accepted. But, in the absence of any evidentiary assistance from the respondent in this department of the case, I would not be prepared to find that Ms El‑Leissy had, by 9.30 am, completed her task of re-collating, stapling and filing all, or any, of the other appointment letters. In fact, I consider it more likely that she had not. In the context of a civil remedy provision such as s 502(1), I take the view that Ms El-Leissy was engaged on a single course of conduct, some of the activities in which overlapped with the period when subs (3) would have operation (in which I include, of course, the actual alterations of the contracts of Ms Oz and Ms Sheehan).
It is also clear from the opening words of s 502(3) that the terms of that subsection are not limiting apropos the operation of subs (1). Whether or not the respondent had received the permit-holders’ notices under s 487, it was in what appears to have been the unusual situation of knowing that the permit-holders would be arriving, and of knowing the nature of the documents of which inspection would be sought. That knowledge was, of course, a critical ingredient in the finding I have made that the respondent acted intentionally when Mr Salman instructed Ms El-Leissy to alter the appointment letters, and when she followed that instruction. I would hold that the respondent’s actions on the morning of 23 November 2012 amounted to hindrance and obstruction within the meaning of s 502(1), without taking any account of subs (3).
The other contention made by the respondent under s 502 is that, relevantly to the respects in which Mr Salman and Ms El-Leissy did hinder and obstruct, Messrs Matson and Schmidt were not exercising rights in accordance with Pt 3-4. Conformably with the conclusions which I have reached under Subdiv A, that contention must be rejected.
In the result, insofar as the applicants’ case under s 502 relates to the entry of Messrs Matson and Schmidt on 27 November 2012, that case must be upheld.
The applicants next submit that, on 17 December 2012, the respondent and Mr Galea contravened s 502(1) by refusing to permit Messrs Matson, Schmidt and McMullin to inspect the electronic form of documents and records held on the respondent’s computers, and that the respondent and Mr Salman contravened this provision when he instructed Mr Galea to that effect. It is uncontroversial that Mr Salman did give such an instruction and did so intentionally. Subject to two submissions which they made, I do not understand it to be suggested by the respondents that the respondent, Mr Salman and Mr Galea did not thereby hinder and obstruct the permit‑holders in exercising that entitlement. Those submissions were, first, that Mr Salman and Mr Galea, and therefore the respondent, did not intend to hinder and to obstruct the permit‑holders in the exercise of their rights under Pt 3-4 and, secondly, that, because the FWA order of 13 December 2012 was invalid, there were in fact no such rights.
On the matter of intention, the respondents relied on passages in Mr Salman’s affidavit to the effect that he did not believe or understand that the FWA order obliged the respondent to allow the permit-holders the access to the electronic form of the documents which they sought. He believed that he was acting lawfully because he had been given legal advice not to allow the permit-holders to have general access to the respondent’s computers to inspect electronic records, and that to do so involved risks to the respondent in terms of disclosing irrelevant private and confidential information. Mr Galea’s evidence-in-chief on this aspect was almost identical to that of Mr Salman.
I do not accept this defence. On any view, the actions of Messrs Salman and Galea on 17 December 2012 were intentional: they intentionally stood in the way of Messrs Matson, Schmidt and McMullin inspecting appointment letters and other contractual documents held on the secondary campus in an electronic form. They believed that their actions were lawful, but that raises a different dimension of the problem, one that might be relevant on a plea, for example.
As to whether the permit-holders were exercising rights in accordance with Pt 3-4, it follows from my reasons above that they were. Insofar as the applicants’ case under s 502 relates to the entry of Messrs Matson, Schmidt and McMullin on 17 December 2012, that case must be upheld.
DISPOSITION OF THE PROCEEDING
I shall hear the parties with respect to the orders proper to be made in light of the findings of contraventions of ss 45, 482(3) and 502(1) of the FW Act which I have made in these reasons.

I certify that the preceding three hundred and thirty-one (331) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.
Associate:
Dated: 25 February 2016

File number:	VID 1114 of 2012
Judge:	JESSUP J
Date of judgment:	25 February 2016
Catchwords:	INDUSTRIAL LAW – Award requirement that letter appointing fixed‑term employee state reason – Whether letters did state reason – Degree of particularity required – Award restriction on circumstances in which person may be employed on fixed‑term basis – Whether employees replacing others absence on account of leave or temporary duties. INDUSTRIAL LAW – Right of entry – Right to inspect and copy “non-member records” – Fair Work Australia order permitting such inspection – Whether validly made – Relationship of records to permit‑holders’ suspicions in relation to members – Requirements of permit‑holders when on premises – Whether within power – Whether documents on premises where work performed – Whether requirement validly extended to pages of records recently removed – Extent of obligation to comply with requirement to produce contracts of employment – Whether permit‑holders entitled to require inspection of records in electronic form. INDUSTRIAL LAW – Right of entry – Whether permit‑holders hindered or obstructed – Employer with advance notice of intention to enter – Whether documents manipulated to avoid inspection – Whether amounted to hindrance or obstruction – Employer refusal to allow inspection of records on computers – Extent of permit‑holders’ right to inspect – Whether hindrance and obstruction was intentioned.
Legislation:	Acts Interpretation Act 1901 (Cth) Associations Reform Act 2012 (Vic) Fair Work Act 2009 (Cth) ss 12, 45, 481, 482, 483AA, 487, 502, 519, 545, 708 Fair Work Australia Rules 2010 (Cth) Fair Work (Registered Organisations) Act 2009 (Cth) Industrial Relations Act 1988 (Cth) s 286 Workplace Relations Act 1996 (Cth) ss 285B, 286 Workplace Relations Amendment (Work Choices) Act 2005 (Cth) ss 747, 748
Cases cited:	Australasian Meat Industry Employees’ Union v Fair Work Australia (2012) 203 FCR 389
Date of hearing:	14-18, 21-23 September, 15 October 2015
Registry:	Victoria
Division:	Fair Work
National Practice Area:	Employment and Industrial Relations
Category:	Catchwords
Number of paragraphs:	331
Counsel for the Applicants:	Mr E White with Mr Y Bakri
Solicitor for the Applicants:	Maurice Blackburn
Counsel for the Respondents:	Mr W Alstergren QC with Mr M Follett and Mr A Denton
Solicitor for the Respondents:	Gadens Lawyers

ORDERS
VID 1114 of 2012
BETWEEN:	INDEPENDENT EDUCATION UNION OF AUSTRALIA First Applicant GEORGIA BUTTERS‑CAIN Second Applicant
AND:	AUSTRALIAN INTERNATIONAL ACADEMY OF EDUCATION INC. First Respondent SALAH HAMED SALMAN Second Respondent ABDUL KARIM GALEA Third Respondent

JUDGE:	JESSUP J
DATE OF ORDER:	25 February 2016