Independent Education Union of Australia v Methodist Ladies' College

[2023] FWC 2388

[2023] FWC 2388

FAIR WORK COMMISSION

OPINION

Fair Work Act 2009

s.739—Dispute resolution

Independent Education Union of Australia

v

Methodist Ladies’ College

(C2022/5523)

COMMISSIONER SCHNEIDER PERTH, 15 SEPTEMBER 2023

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]

1. On 8 August 2022, the Independent Education Union of Australia WA Branch (IEUWA) (the Applicant) lodged a dispute with the Fair Work Commission (the Commission) under section 739 of the Fair Work Act 2009 (Cth) (the Act). The dispute relates to the hours of work currently undertaken by two members (the Members or the Impacted Employees) of the Applicant. The Members are employed by Methodist Ladies’ College (MLC) (the Respondent).

1. The parties attended the Commission and were unable to resolve the dispute through conciliation.

1. The parties have agreed that the Commission assist the resolution of the dispute by way of the expressing an opinion.

1. The parties agree that the question they are seeking an opinion from the Commission on is as follows:

“Can the College require Education Assistants to work in excess of 32.5 hours per week on an ongoing basis having regard to Annex B, Clause 1 of the Agreement?”

1. The relevant section of the Agreement reads as follows:

“ANNEX B

This Annex will apply to those employees employed as education assistants.

1.        Working Hours and Span of Hours

The ordinary hours of duty will normally be thirty-two and one half per week, but could be up to thirty-eight (ordinary hours of work), according to the needs of the College. For new staff appointed after 1 January 2018 the hours of work shall be 37.5 hours per week and can be worked from Monday to Friday between the hours of 8.00am and 6.00pm.

The parties recognise that there is no intention on behalf of the College to have employees work more than their prescribed hours on a regular basis.

Education Assistants are not generally required to attend for periods of time (non-term
weeks) when students are not present, subject to the needs of the employer with regard to professional development, student free days and other activities requiring Education Assistant’s attendance.”

Applicant’s Submissions & Reply Submissions

1. The Members are engaged as Education Assistants and the terms and conditions of their employment are outlined in the Methodist Ladies’ College Operations Staff Agreement 2018-2020 (the Agreement).[1]

1. The Applicant submits that Education Assistants at the Respondent have historically worked been required to work 32.5 hours per week on a consistent and regular basis since at least 2008.

1. The Applicant submits that Clause 3 of the Agreement states “ordinary hours of work” is “the number of hours an employee would usually work during a specific period according to their employment status”.

1. The Applicant submits that Annex B of the agreement applies to Education Assistants and states the following “the ordinary hours of duty will normally be 32.5 per week, but could be up to thirty-eight”.

1. The Applicant submits that, consistent with the “ordinary hours of work” definition, and the wording in Annex B, the number of hours worked by Education Assistants, engaged prior to 1 January 2018, is 32.5 hours per week.

1. The Applicant also submits that the Respondent can seek the Impacted Employees to work greater than 32.5 hours per week on occasion however not on an on-going or regular basis. The Applicant submits that this is further outlined in Annex B as “there is no intention on behalf of the College to have employees work more than their prescribed hours on a regular basis”.

1. The Applicant submits that, on 25 November 2022, the Respondent wrote to the Impacted Employees and advised that the Members’ “regular” work hours would be increased from 32.5 hours per week to 37.5 hours per week.

1. The Applicant disagrees with the Respondent’s position that the intent of Annex B Clause 1 is to provide flexibility for the Respondent to roster Education Assistants for more than 32.5 hours per week on a regular basis.

1. Rather, in the Applicant’s opinion, the correct interpretation is to assert that the regular hours for an Education Assistant, employed prior to 1 January 2018, are 32.5 hours per week and can be increased to up to 38 hours per week dependant on operational requirements, as required, rather than consistently increasing hours on a regular basis.

1. The Applicant submits that the “normal” for an Education Assistant is to work for 32.5 hours per week and, on occasions, when it is required to work for up to 38 hours per week.

1. The Applicant submits that the plain reading of Annex B Clause 1 does not provide for circumstances whereby the Respondent seeks to consistently roster Education Assistants (employed prior to 1 January 2018) for more than 32.5 hours per week. 

Respondent Submissions

1. The Respondent submits that the interpretation of Annex B allows for the Respondent to have flexibility to direct Education Assistants (employed prior to 1 January 2018) to work, between 32.5 hours and 38 hours per week, according to the needs of the Respondent.

1. The Respondent submits that the proper construction of the first sentence of Annex B states:

“The ordinary hours of duty will normally be thirty-two and one half per week, but could be up to thirty-eight (ordinary hours of work), according to the needs of the College”.

1. The Respondent submits that the plain reading of the above clause leads to the conclusion that Education Assistants’ ordinary hours of duty may be between 32.5 hours and 38 hours per week according to the needs of the Respondent.

1. The Respondent submits the reference to “normally” in the sentence can be given its ordinary meaning of “usually”. However, the Respondent submits, it cannot be read in isolation and must be considered in the context of the sentence as a whole.

1. The Respondent submits that, in this context, the reference to “normally” makes clear that, in the absence of the Respondent having operational requirements requiring a higher amount, the ordinary hours per week is 32.5 hours.

1. The Respondent submits that it is left up to the Respondent to determine the operational requirements of the business and that if the operational requirements require up to 38 hours per week from the Education Assistants, it is permitted under Annex B to roster accordingly.

1. The Respondent disagrees with the submission of the Applicant, that Clause 3 of Annex B means the Education Assistants’ (engaged prior to 1 January 2018) ordinary hours of work are fixed at 32.5 hours per week. The Respondent submits that this is inconsistent with the plain reading of Annex B Clause 1 of the Agreement.

1. The Respondent also disagrees with the Applicant that Annex B Clause 1 does not allow for the Respondent to require an Education Assistant to work more than 32.5 hours per week on a regular basis.

1. The Respondent also submits that the Clause 30.1 Ordinary Hours of Work also places no such limitation or restriction on Education Assistants’ hours of work.

Opinion

1. In relation to the question put forward by the parties, it is the position of the Commission that the answer to the question is NO. My reasons are as outlined below.

1. The principles for interpretation of enterprise agreements have been well established by the Commission and Courts. The matter at hand requires the interpretation of the proper construction of the relevant cause under the Agreement as dictated by these principles. The principles, as outlined in Berri,[2] that relate to ambiguity, have been helpfully summarised by the Full Bench:

“The task of construing an industrial instrument begins with a consideration of the ordinary meaning of the words, read in context, and taking into account the evident purpose of the provisions or expressions being construed.  Relevant context will include the provisions of the industrial instrument as a whole and the place and arrangement of disputed terms in the instrument. The underlying statutory framework may also provide relevant context, as might prior instrument(s)from which a particular term has been derived. Regard may also be had to relevant surrounding circumstances, for the purpose of determining whether there is any ambiguity in a provision of an industrial instrument.” [3]

1. It is my opinion, and that of the parties, that the Clause in question is not ambiguous and may be interpreted through the ordinary meaning of the words.

1. The Clause in question clearly concerns itself with hours to be worked by the Impacted Employees and seeks to clarify circumstances in which there is variation, and the intention of the parties to the Agreement in relation, to the range of those ordinary hours of work.

1. I agree with the Applicant in relation to the interpretation of the term “normally” in the context of the Clause. The term, construed in its ordinary meaning, its attributed the definition of “in normal circumstances”. It would follow, as put by the Applicant, that an increase in hours from 32.5 would occur outside the “normal circumstances”.

1. The terms “but” and “could” reinforce this reading of “normally”. Turning to “but”, on a plain reading of the text, this suggests what follows is a qualifier to the text immediately preceding it. The inclusion of “could” then suggests a possibility that the text following may occur in qualification of the first half of the sentence. In this regard, I agree with the Applicant, that normally the Ordinary Hours are the lower 32.5 figure.

1. The Clause in question provides for a range in the Ordinary Hours the Impacted Employees can be required to work. And, as submitted by the Applicant, the possibility of a higher allocation of Ordinary Hours does not alter the meaning of “normally” and the hours associated with that term (being 32.5).

1. Following this, I turn to the words “according to the needs”. This phrase, in my opinion, provides for the circumstances that must exist for the Impacted Employees to be rostered a higher range of Ordinary Hours.

1. Bringing attention back to the term “normally” in the Clause, it is my opinion that the circumstances in which the College needs to allocate the higher span of Ordinary Hours to the Impacted Employees should differ from the circumstances in which they are allocated the lower span of Ordinary Hours. It follows that the needs of the College requiring the rostering of the higher span should not be “in the normal circumstances” and instead outside of normal circumstances.

1. My interpretation for the basis of this opinion is having formed the view that Annex B Clause 1 of the Agreement provides for that, for Education Assistants engaged prior to 1 January 2018, the normal hours of duty will be 32.5 hours per week, but could be up to 38 hours per week, according to the needs of the College given that those needs are outside of the normal circumstances.

1. It is my opinion that the inclusion of the word “could” means that the intention of the clause is the standard hours per week is 32.5 hours, however, could be increased based on the operational needs of the Respondent. However, it is not my opinion that this operates as a mechanism to require Education Assistants to work an additional 5 hours per week every week, or consistently.

1. If the Impacted Employees are rostered the higher span of Ordinary Hours on an ongoing basis for an extended period of time, it would follow that the circumstances are then not outside of normal circumstances, and the higher span of Ordinary Hours should only be allocated on the condition that the needs of the College are outside of the normal circumstances.

1. Accordingly, it is not reasonable for the Impacted Employees to regularly or for any extended ongoing period be rostered the higher span of the Ordinary Hours.

1. It is also my opinion that the inclusion of the following wording “the parties recognise that there is no intention on behalf of the College to have employees work more than their prescribed hours on a regular basis”, at Annex B Clause 1 of the Agreement, is to act as a safeguard against regular and unexpected increases in the Ordinary Hours already allocated to the Impacted Employees in a particular rostering period.

1. It is my opinion that the correct interpretation and intention of Annex B Clause 1 of the Agreement is that Education Assistants employed prior to 1 January 2018 would normally be required to work 32.5 hours per week and, on an as required basis, could be required to work a maximum of 38 hours in any one week on the condition that the needs of the College are at such a level that it could be considered outside of the normal circumstances.

1. However, in my opinion, this wording was included to ensure these circumstances are the exception rather than the norm and should not allow for any extended ongoing allocation of the higher span of Ordinary Hours.

1. My answer to the questioned proposed, as stated above, is No. However, I believe it could prove helpful to phrase a statement consistent with my interpretation of the Agreement. Accordingly, in my Opinion, the College can require Education Assistants to work in excess of 32.5 hours per week on the condition that the operational needs of the College are outside the normal circumstances.

COMMISSIONER

[1] [AE505777]; [PR713472].

[2] [2017] FWCFB 3005.

[3] [2023] FWCFB 87, [35].

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<AE505777  PR766290>