[2018] FWC 6110

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Independent Education Union of Australia
v
Reverend James Puppady, President of the Association of Canonical Administrators for Saint Ignatius College T/A Saint Ignatius College Geelong
(C2017/6555)

Educational services
COMMISSIONER BISSETT	MELBOURNE, 9 OCTOBER 2018

Alleged dispute about any matters arising under the enterprise agreement – grounds for fixed-term employment – if terms met – whether an employee working part-time on return from parental leave is still on parental leave – parties to confer.

[1] The Independent Education Union of Australia (IEU) has made an application for the Fair Work Commission (Commission) to deal with a dispute pursuant to s.739 of the Fair Work Act 2009 (FW Act) and in accordance with the dispute settlement procedure of the Victorian Catholic Education Multi Enterprise Agreement 2013 1 (2013 Agreement). The dispute relates to the basis of the employment of its member Ms Sarah Purnell with Reverend James Puppady, President of the Association of Canonical Administrators for Saint Ignatius College T/A Saint Ignatius College (the College) and whether the College had complied with the notification obligations to Ms Purcell under the 2013 Agreement.

[2] Ms Purnell is a teacher who has been engaged on a series of fixed-term contracts from 2012 to 2018 by the College. The IEU contends that Ms Purcell was, in fact, engaged as an ongoing employee despite the terms of the fixed-term contracts.

DETAILS OF THE MATTER IN DISPUTE

[3] In its dispute notification the IEU states:

(1) The dispute concerns the proper basis of employment of IEU member Sarah Purnell (clause 11), the failure to provide the true reason for fixed-term employment (clause 12) and the failure to give notification of termination (clause 11.2(f)).

(2) The employer asserts that Ms Purnell is employed as a “fixed-term” employee engaged to replace an employee on approved parental leave under clause 11.2(a)(iii).

(3) The union asserts that Ms Purnell is an ongoing employee under clause 11.1(a) and that no genuine reason exists for the employment to be fixed-term.

(4) The employer failed to give notice of termination as required by clause 11.2(f).

[4] At hearing the IEU advised that it no longer pressed (4) above in respect of any remedy although maintains that appropriate notice was not given.

[5] In its response to the dispute notification the College maintains that:

a. The proper basis for employment [of Ms Purcell] is to cover employees on parental leave and approved leave in accordance with Clause 9.3 VCEMEA 2008 and Clause 11.2(a)(iii) [of the 2013 Agreement];

b. A true reason for fixed term employment was provided in every letter of appointment in accordance with Clause 12 [of the 2013 Agreement];

c. Ms Purnell was provided with notification of termination of fixed term appointment in accordance with Clause 11.2(f) and an offer of employment for 2018 which she accepted;

d. Ms Purnell has been employed on fixed term contracts to cover employees on parental leave.

[6] The College maintains that the dispute broadly raises two contentions in relation to Ms Purnell’s engagement since 2012 by the College:

1. The proper basis of the employment of Ms Purnell; and

2. The proper form of the letters of appointment.

[7] The College therefore says that the questions to be answered by the Commission are:

(a) Proper Basis of Employment

(i) Is Ms Purnell engaged as a fixed term or ongoing Employee pursuant to clauses 9 and 11 of the 2008 and 2013 EAs respectively?

(ii) Does ‘approved leave’ in the abovementioned clauses include circumstances in which an Employee has returned from parental leave to work a part-time fraction of their ongoing employment contract?

(b) Proper Form of Appointment Letters

(i) What must be contained in an appointment letter to satisfy the requirements in clause 12.1(d) of the 2013 EA? Specifically, does:

i. the requirement to stipulate the ‘relevant circumstances’ in clause 12.1(d)(ii); and

ii. the requirement to stipulate the ‘rights’ of the Employee being replaced in clause 12.1(d)(iv), envisage the provision of ‘relevant circumstances’ and ‘rights’ particular to the specific employee on approved leave?

JURISDICTION

The 2013 Agreement

[8] I am satisfied that the requirements of the dispute settlement procedure of the 2013 Agreement have been met such that the dispute is properly notified to the Commission.

[9] Prior to determining jurisdiction it is necessary to properly characterise the dispute before me.

[10] I am satisfied that the dispute before me can be characterised as relating to the proper basis of the employment of Ms Purnell and whether her fixed-term contracts of employment with the College has been in a form allowed for under the 2013 Agreement.

[11] I am satisfied that the dispute is in relation to matters arising under the 2013 Agreement.

[12] I am therefore satisfied the Commission has jurisdiction to deal with the dispute.

[13] The resolution of the dispute will require consideration of the terms of the 2013 Agreement as they relate to “specified period” (fixed-term) employment, the status of employees who return to work on a part-time basis following a period of parental leave and the rights of employees on parental leave.

The Victorian Catholic Education Multi Employer Agreement 2008

[14] The IEU also seeks a resolution from the Commission as to whether Ms Purnell was properly engaged under the Victorian Catholic Education Multi Employer Agreement 2008 (2008 Agreement) (which applied to Ms Purnell’s employment in 2012 and 2013). The 2008 Agreement contained, with one exception, the same terms and conditions in relation to fixed-term employment as the 2013 Agreement.

[15] Whilst I may express a view as to the status of Ms Purnell in 2012 and 2013, I am not satisfied that I have the power under the 2013 Agreement to make a determination in relation to Ms Purnell’s employment prior to the 2013 Agreement operating. This is because the dispute settlement procedure of the 2013 Agreement limits the Commission’s powers to the resolution of disputes arising under the 2013 Agreement. Further, there is no apparent provision in the 2013 Agreement that would allow me to determine matters in relation to Ms Purnell’s employment under the 2008 Agreement.

[16] Nothing was put to me to suggest that the 2008 Agreement continued to operate after the commencement of the 2013 Agreement commenced on 20 November 2013 and there is no claim that a dispute was notified whilst the 2008 Agreement was in operation.

[17] For these reasons I am not satisfied that I have jurisdiction to resolve a dispute in relation to the 2008 Agreement.

INTERPRETATION OF THE AGREEMENT

[18] The principles relevant to the interpretation of the 2013 Agreement are agreed between the parties as those set out in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited 2 (Berri) where the Full Bench of the Commission stated:

[114] The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:

1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:

(i) the text of the agreement viewed as a whole;

(ii) the disputed provision’s place and arrangement in the agreement;

(iii) the legislative context under which the agreement was made and in which it operates.

2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.

3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.

4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.

5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.

6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.

7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.

8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.

11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.

12. Evidence of objective background facts will include:

(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

(ii) notorious facts of which knowledge is to be presumed; and

(iii) evidence of matters in common contemplation and constituting a common assumption.

13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.

14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.

15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.

[19] The terms of the 2013 Agreement relevant to the matter in dispute are:

11. Types of employment (ongoing, fixed term, casual relieving, emergency teachers and casual)

11.1 General provisions

(a) Employment under this Agreement shall be of an ongoing nature, except as provided under this agreement for:

(i) Employment for a specified period of time;

(ii) Casual Relieving Employees;

(iii) Emergency Teachers; or

(iv) Casual Education Support, School Services Officers or CEO Employees (Casual Employees).

11.2 Employment for a specified period of time

(a) Employment for a specified period of time will only occur:

…

(iii) when the Employee is employed for a specified period of time, being not less than 11 weeks, to replace an Employee who is absent on approved leave;…

12. Letters of Appointment

12.1 Letter of appointment

(a) Upon engagement, each Employee (other than a Casual Employee) shall be given a letter of appointment…

(d) Where employment is for a specified period of time, the letter must also specify:

(i) the reason for the employment being of fixed term duration by reference to clause 11.2(a);

(ii) the relevant circumstances that give rise to that reason;

(iii) the date of commencement of employment and the date of cessation of employment; and

(iv) where the employment is for a specified period of time for the reason specified in sub-clause 11.2(a)(iii), the rights under this Agreement of the Employee being replaced…

[20] Issues associated with part-time employment on return from parental leave have also arisen during proceedings. Appendix 1 of the 2013 Agreement deals with “Parental Leave and Related Entitlements”. Section D of Appendix 1 deals with “Returning to Work” and covers “Timing of the return” (clause 19), “Changing the end date of leave” (clause 20), “Return to work guarantee” (clause 21) and “Notice of return to work” (clause 22). Section D of Appendix 1 also contains the following provisions in relation to part-time work:

D) RETURNING TO WORK

…

23. Return to work part-time

1) Subject to this clause 23, an Employee returning to work from parental leave may work part-time in one or more periods at any time from their return to work until the child reaches school age.

Request for part-time work

2) An Employee who is returning to work from a period of parental leave is eligible to make a request to the Employer for part-time work if the Employee has a child under school age.

3) The request for part-time work must:

a) be in writing;

b) be made as soon as practicable but not less than eight weeks, wholly within a school term, prior to the Employee’s intended return to work date (where practicable, Employees are encouraged to give one term’s notice of the request for part time work);

c) set out details of the nature of part-time work sought;

d) specify the start and end dates of the period of part-time work sought.

Response to the request

4) The Employer must give the Employee a written response to the request for part-time work within 21 days of the request, stating whether the Employer grants or refuses the request.

5) The Employer must consider the request to work part-time having regard to the Employee’s circumstances and, provided the request is genuinely based on the Employee’s parental responsibilities, may only refuse to permit the Employee part-time work on reasonable grounds related to the effect of the change on the workplace or the Employer’s business. If the Employer refuses the request for part-time work, the written response must include details of the reasons for the refusal.

6) Without limiting what are reasonable grounds related to the effect of the change on the workplace or the Employer’s business in paragraph (5), such grounds include the following:

a) that the new working arrangements requested by the Employee would be too costly for the Employer;

b) that there is no capacity to change the working arrangements of other Employees to accommodate the new working arrangements requested by the Employee;

c) that it would be impractical to change the working arrangements of other Employees, or recruit new Employees, to accommodate the new working arrangements requested by the Employee;

d) that the new working arrangements requested by the Employee would be likely to result in a significant loss in efficiency or productivity;

e) that the new working arrangements requested by the Employee would be likely to have a significant negative impact on customer service.

7) The work to be performed part-time need not be the work performed by the Employee in his or her former position but must be work commensurate with the Employee’s qualifications and experience.

Part-time work agreement

8) Before commencing part-time work under this Appendix, the Employer and Employee must enter into a part-time work agreement that contains the following information:

a) that the part-time work agreement constitutes a temporary variation of the Employee’s ongoing position;

b) details of the part-time work (including hours to be worked, days of work and commencing times for work for the specific period of the part-time work agreement);

c) the start and end dates of the period of part-time work; and

d) that the part-time work agreement may be varied by consent.

9) The terms of the part-time work agreement and any variation to it shall be in writing and retained by the Employer. A copy of the part-time work agreement and any variation to it shall be provided to the Employee by the Employer.

Subsequent periods of part-time work

10) If an Employee continues to be eligible under paragraph (2), the Employee may request a subsequent period or periods of part-time work. This clause 23 applies to any such subsequent requests as though they were an initial request for part-time work.

End of part-time work

11) In this clause 23, the former position means the permanent position held by an Employee prior to a period or periods of part-time work. If the Employee enters into a part-time work agreement upon their return to work from parental leave, the former position will be the permanent pre-parental leave position.

12) At the expiration of the part-time work agreement, if the Employer and Employee have not entered into a subsequent part-time work agreement, the Employee is entitled to return to

a) the Employee’s former position; or

b) if that position no longer exists-a commensurate position for which the Employee is qualified and suited nearest in status and pay to the former position.

[21] Neither party has put to me that there is any ambiguity or uncertainty in the clauses of the 2013 Agreement subject to dispute. Neither party therefore suggest that I need to have regard to evidence of any surrounding circumstances. Rather, the parties propose an orthodox textual analysis and an identification of the “common intention of the parties…identified objectively” 3.

[22] The IEU submits that I can have regard to the Report into Fixed-Term Employment in Victorian Catholic Schools, (the Fixed-term Report), an initiative between the IEU and the Catholic Education Commission of Victoria (CECV) under clause 11.2(g) of the 2013 Agreement. As such the IEU says the Fixed-term Report is evidence of “subsequent conduct” of the parties relevant to the interpretation of the Agreement.

[23] The College contends that I should also have regard to the Guide to Fixed-Term and Casual Employment by Catholic Education Commission of Victoria (Fixed-term Guide). The IEU says that I should not have regard to the Fixed-term Guide as it is a document prepared by the CECV alone and hence could not be evidence of subsequent conduct of the parties that could be relied on.

[24] I have considered the Fixed-term Report and the Fixed-term Guide further below.

BACKGROUND

[25] The factual circumstances surrounding Ms Purnell’s employment at the College are not in dispute and are summarised below. Ms Purnell is a teacher. She has been employed to work at the College in that role (teaching variously mathematics, IT, VCAL and science and teaching duties such as homeroom and supervision) on a series of fixed-term contracts since 2012. In each of the years from 2012 to 2018 Ms Purnell has been required to sign a letter of appointment. Each of those letters 4 provided a reason (or reasons) for her appointment on a fixed-term basis.

[26] The following factual information relates to employment by the College in relation to mathematics, science and physical education only.

The 2012 school year contract

[27] The 2012 contract is dated 19 December 2011. The contract was entered into at the time the 2008 Agreement applied to Ms Purnell’s employment. The provisions of the 2008 Agreement vary little from the 2013 Agreement save that the 2008 Agreement does not require that the letter of appointment specify the circumstances giving rise to the reason for the fixed-term employment.

[28] The 2012 contract gives two reasons which give rise to Ms Purnell being on a fixed-term contract – to replace an employee on approved leave and to replace an employee who ostensibly left after the school year commenced where there is no ongoing need beyond the end of the school year. The contract does not specify the rights of the employee on leave in circumstances where Ms Purnell was engaged to replace an employee on parental leave (see clause 1.5.8(b) of Appendix 1 – Parental Leave and Related Entitlements in the 2008 Agreement). The contract does not identify any specific person Ms Purnell was replacing.

[29] The College says that Ms Purnell was engaged on a fixed-term basis to replace a subject area gap of qualified teachers in mathematics, science and physical education created by approved parental leave and personal leave during the 2012 year and a return to work from parental leave on a part-time basis.

[30] Ms Purnell and two others were engaged on a fixed-term basis in 2012.

The 2013 school year contract

[31] The 2013 contract is dated 18 December 2012 and was signed by Ms Purnell on 24 December 2012. This contract was also entered into pursuant to the 2008 Agreement. The contract provides two reasons for Ms Purnell being fixed-term – to replace an employee whose employment has been terminated (clause 9.3.1(d)) and to undertake a specific task with a limited period of operation (clause 9.3.1(b)) 5. The contract again does not specify the rights of the employee who is on leave and did not specify any particular person she was replacing. To the extent that Ms Purnell was replacing an employee on parental leave the contract does not specify the extent of the rights of that employee.

[32] The College says that Ms Purnell was specifically engaged to “replace a subject-area gap” of qualified teachers in mathematics, science and physical education created by approved leave of absences including staff on parental leave and staff returning from parental leave by working part-time.

[33] Ms Purnell and three others were engaged on a fixed-term basis for the 2013 school year.

The 2014 school year contract

[34] The 2014 contract is dated 11 December 2013 and was signed by Ms Purnell on 13 December 2013. The contract was entered into pursuant to the 2013 Agreement. The contract specified that Ms Purnell was employed to replace a teacher on approved leave, her employment was temporary, and the employee she was replacing had a right to return to their position at the end of the period of leave. To the extent that Ms Purnell was replacing an employee on parental leave the contract does not specify the full extent of the rights of that employee. The contract does not identify a specific person Ms Purnell is replacing.

[35] The College again says that Ms Purnell was specifically engaged to “replace a subject-area gap” of qualified teachers in mathematics, science and physical education created by approved leave of absences including staff on parental leave and staff returning from parental leave by working part-time.

[36] Ms Purnell and one other teacher were employed on a fixed-term basis during the 2014 school year.

The 2015 school year contract

[37] The 2015 contract was dated 3 December 2014 and signed by Ms Purnell on 22 January 2015. The contract specified that that the reason for the engagement related to approved leave of another employee and that the engagement was temporary and the replaced employee had the right to return to their position at the cessation of leave. The contract does not identify the specific employee Ms Purnell was replacing.

[38] The College again says that Ms Purnell was specifically engaged to “replace a subject-area gap” of qualified teachers in mathematics, science and physical education created by approved leave of absences including staff on parental leave and staff returning from parental leave by working part-time.

[39] Ms Purnell and two other teachers were employed on a fixed-term basis during the 2015 school year.

The 2016 school year contract

[40] The 2016 contract was dated 18 December 2015 and signed by Ms Purnell on 27 January 2016. The contract specified that the reasons for the engagement related to approved leave of another employee and set out the rights of such an employee to return to the pre-leave position on return to work. The contract also specifies that the employee may have rights to return to work prior to the end date of the contract. To the extent Ms Purnell was replacing an employee on parental leave the contract does specify, in reasonable detail, the full rights of the employee to return to their position.

[41] The College again says that Ms Purnell was specifically engaged to “replace a subject-area gap” of qualified teachers in mathematics, science and physical education created by approved leave of absences of staff who had returned to work from parental leave on a part-time basis.

[42] Ms Purnell and one other teacher were employed on a fixed-term basis during the 2016 school year.

The 2017 school year contract

[43] The 2017 contract was dated 13 October 2016 and signed by Ms Purnell on 28 October 2016. The contract was for the period 30 January 2017 until 11 December 2017. The contract specified that Ms Purnell was engaged on a fixed-term basis to replace an employee on approved parental leave (and set out the rights of such a person in relation to returning to work) and/or that she was engaged on a fixed-term basis due to projected enrolments and “it not being appropriate…to engage an employee beyond the end of the 2017 school year.”

[44] The College says Ms Purnell was engaged on a fixed-term basis to replace a teacher absent on approved leave and to avoid a redundancy situation arising from projected decreases in VCAL enrolments. Staff on approved leave included those on parental leave and staff returning from parental leave on a part-time basis.

[45] Ms Purnell and two other teachers were employed on a fixed-term basis during the 2017 school year.

The 2018 school year contract

[46] The 2018 contract was dated 29 November 2017. It specified that Ms Purnell would be replacing an employee on approved parental leave and set out the rights of such an employee with respect to returning to work.

[47] The College again says that Ms Purnell was specifically engaged to “replace a subject-area gap” of qualified teachers in mathematics, science and physical education created by approved leave of absences including staff on parental leave and staff returning from parental leave by working part-time.

[48] Ms Purnell and two other teachers were employed on a fixed-term basis during the 2018 school year.

General observation

[49] Of each of the contracts entered into by Ms Purnell and the College:

• None identified a specific teacher that Ms Purnell was engaged to replace in circumstances where she was engaged to replace an employee on approved leave under the contract; and

• The College relied in part, or in full in 2016, on staff returning to work part-time from parental leave as a reason for the fixed-term employment of Ms Purnell.

SUBMISSIONS

The IEU

[50] The IEU submits that the default form of employment under the 2013 (and 2008) Agreement is permanent employment and that if Ms Purnell was not properly engaged as a fixed-term employee then she must be a permanent employee. Further, it submits that if, on her first engagement for the 2012 school year, Ms Purnell was not properly engaged as a fixed-term employee then she must have been a permanent employee. If she was, in fact, a permanent employee in 2012 then she must still be a permanent employee as she would not have been employed subsequently on a fixed-term basis.

[51] The IEU says that the default status of permanency is a matter agreed by the parties.

[52] The IEU submits that the College is in breach of the provisions of the 2013 Agreement as it did not employ Ms Purnell to replace a particular identified individual and this is evident by the contracts of employment entered into by the College and Ms Purnell.

[53] The IEU says that the Fixed-term Report acknowledges the dangers and pitfalls inherent in fixed-term employment. As the Fixed-term Report was jointly sponsored by the IEU and CECV and conducted pursuant to clause 11.2(g) of the 2013 Agreement, the IEU submits that it is “post-agreement conduct” evidencing a “meeting of minds, a consensus” 6 such that it can be relied on by the Commission to aid the interpretation of the 2013 Agreement.

[54] The IEU says that the Fixed-term Guide is not a joint document and is not evidence of post-agreement conduct that could demonstrate a meeting of the minds. The IEU says that it was not engaged in developing the document and has not endorsed or given agreement to the content of the document.

[55] The IEU says that, if the Commission agrees with its interpretation of the 2013 Agreement then that is the end of the matter and no more need be considered. It says that only if the Commission does not agree with its view on the interpretation of the 2013 Agreement do I need to consider the manipulations of the full-time equivalent (FTE) staffing figures put forward in the case of the College.

[56] As to the 2013 Agreement, the IEU submits that clause 11.2(a)(iii) is clear, uses plain language and is not susceptible to more than one meaning. It submits that the phrase “to replace an Employee who is absent on approved leave” indicates a clear intention that the employee to be replaced be identifiable. The IEU says that the object of the verb “replace” must be identifiable. That is, the employee on leave must be identified. It says this did not occur and therefore Ms Purnell was not properly employed as a fixed-term employee.

[57] The IEU says that the plain meaning it contends for is supported by considering the clause in the context of the 2013 Agreement. In particular the IEU says that clause 12.1(d), which requires that the reason for the duration of the fixed-term employment be given by reference to clause 11.2(a) 7 and the circumstances that give rise to that reason,8 supports the proposition that the circumstances must be referable to a particular employee on leave. This is strengthened by the requirement in clause 12.1(d)(iv) that where the employment on fixed-term is for the reason specified in clause 11.2(a)(iii) (that is to replace an employee who is absent on approved leave), the fixed-term employee must be advised of the rights of the employee being replaced.

[58] The IEU also submits that regard should also be had to Appendix 1 of the 2013 Agreement (Parental Leave and Related Entitlements) and, in particular clause 17 which deals with replacement employees. That clause requires the replacement employee be advised of the rights of the employee taking parental leave.

[59] The IEU submits that this context supports its proposition that clause 11.2(a)(iii) of the 2013 Agreement is clear and unambiguous that “an Employee” being replaced must be identifiable. It says that if there is no identified individual there is no right to employ someone fixed-term and, absent the existence of the exception in clause 11.2(a)(iii) of the 2013 Agreement in this case there is no entitlement to employ a person on a fixed-term contract.

[60] The IEU submits that, considering the context of the Agreement as a whole, “absent the existence of a specified, identifiable individual there is no right [under clause 11] to employ someone on a fixed-term contract (where the other circumstances set out in sub-clause 11.2 don’t exist).” That is, it is necessary to identify the employee on leave to enliven the rights under clause 11.2 of the 2013 Agreement.

[61] The IEU says that its construction of the clause does not mean that a single fixed-term employee cannot replace two teachers on leave but just that the fixed-term employee must have identifiable employees they are replacing and the rights of those persons being replaced. The IEU says however, that it is not necessary to know what proportion of the work of the teacher on leave is being undertaken by the fixed-term replacement employee.

[62] The IEU says that its submission that the 2013 Agreement requires that the employee being replaced be identifiable is consistent with the Fixed-term Report which acknowledges that naming a position as fixed-term does not make it so.

[63] The IEU rejects the proposition of the College that a person who works part-time on return to work from a period of parental leave is on leave such that clause11.2(a)(iii) of the 2013 Agreement forms a proper basis for employment of a fixed-term employee to cover the “gap”. It says that there is no support for such a proposition in Appendix 1 of the 2013 Agreement and the Fixed-term Report and Fixed-term Guide cannot be used to suggest that there is some consensus around that view.

[64] The IEU says that if its position is not supported an analysis of the FTE gap caused by the absence of specific employees or by reference to the gap in teaching hours identified by the College demonstrates that there is, in some years, no basis on which it could be said there is any sound basis for the employment of Ms Purnell. In making this submission however the IEU says that it does not claim that the College has engaged more fixed-term employees than allowed under the 2013 Agreement.

[65] The IEU submits that, given the College has failed to identify the individuals that Ms Purnell replaced each time she was engaged on a fixed-term basis, the Commission cannot conclude that Ms Purnell was properly engaged on a fixed-term basis. Having regard to the default position established by clause 11.1 of the 2013 Agreement the IEU says Ms Purnell was actually engaged on an ongoing basis from 2012.

The College

[66] The College concurs with the submission of the IEU that the default employment arrangement under clause 11.1 of the 2013 Agreement is ongoing employment. It further agrees that, absent any proper basis for employment pursuant to clause 11.2(a), clause 11.1 operates to deem the employment as ongoing.

[67] Taking into account the ordinary meaning of the words in clause 11.2(a)(iii) of the 2013 Agreement the College submits that a person is properly engaged as a fixed-term employee if the purpose of the engagement is to substitute for any person employed to perform work so described under the 2013 Agreement. The College rejects the proposition of the IEU that the words of clause 11.2(a)(iii), however viewed, require that any particular employee be identified as being replaced by the fixed-term employee.

[68] The College submits, therefore, that the question for the Commission is if there is a valid reason under clause 11.2(a)(iii) of the 2013 Agreement for the fixed-term arrangement of Ms Purnell to be in place. It says that the Commission only needs to be satisfied that there were employees on approved leave resulting in an FTE availability such that Ms Purnell may be employed.

[69] The College explained that each year it embarks on a process of timetabling and allocation of ongoing staff to the timetable based on the preferences of students and ongoing teachers. It is only at the end of this process that it determines gaps in teacher requirements that may be filled by the employment of fixed-term employees. Because of this process the College says it is not necessary (or possible) to directly align a fixed-term employee directly with a teacher who has gone on leave.

[70] The College rejects any suggestion that there cannot be more than one reason for the employment of any fixed-term employee under a variety of the provisions in clause 11.2(a) of the 2013 Agreement or that there cannot be more than one employee away to justify the employment of one person on a fixed-term basis. It says that there is no reason a fixed-term employee cannot be utilised to replace multiple employees at any one time.

[71] The College further submits that there is nothing in clause 12.1(d) of the 2013 Agreement that suggests that the employer is required to identify the specific individual being replaced by the fixed-term employee. In each year that Ms Purnell was engaged the College says that the engagement occurred following the timetabling process and allocation of ongoing employees to that timetable. The gaps in the timetable which required teaching allocation were then filled by the use of fixed-term employees such as Ms Purnell. Ms Purnell was engaged, the College says, because of gaps in teacher needs caused by employees being on approved leave and following the allocation of classes to ongoing employees.

[72] The College further submits that an employee who returns from parental leave and works part-time in accordance with Appendix 1 of the 2013 Agreement is still on a form of approved leave such that a fixed-term employee may be engaged because of that leave pursuant to clause 11.2(a)(iii) of the 2013 Agreement. In this regard the College says that while clause 23 of Appendix 1 recognises a return to work from parental leave, it does so only to the extent that the employee resumes work on a part-time basis and that the employee otherwise remains on parental leave. If the employee had exhausted all of the parental leave available (156 weeks) the College submits the employee would be on other approved leave at the grace of the College.

[73] The College suggests that Part D of Appendix 1 to the 2013 Agreement contains clauses in which parental leave continues alongside a return to work on a part-time basis. The College submits that Part D of Appendix 1 is headed “Returning to Work” and not “ending parental leave”. Further, Appendix 1 contains all matters in relation to parental leave, those arising prior to parental leave, those arising during parental leave and those arising on return to work. It says that this adds contextual support to its submission.
[74] The College relies on the decision of the Federal Court in Independent Education Union of Australia v Australian International Academy of Education Inc 9 (International Academy of Education) in which Jessup J held:

74. 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.

[75] The College says that the uncontested evidence of Mr Bernard Lowes, Director of Infrastructure and Operations, confirms that leave was approved in each instance where an employee returned from parental leave and worked on a part-time basis.

[76] The College submits that the letters of appointment, to the extent that they require that the circumstances giving rise to the reason for the fixed-term engagement be set out, 10 cannot be read as requiring that the specific person on leave be identified. This, it says, would require the Commission to read words into clause 12.1(d)(ii) of the 2013 Agreement that are not supported by the text. Rather, the College submits that the “relevant circumstances” giving rise to the reason for fixed-term employment is, in the case of a reason of approved leave, the type of leave approved. This, it says still gives clause 12.1(d)(ii) work to do.

[77] The College rejects any notion that the engagement of a fixed-term employee to replace an employee on approved leave must be on a “like for like” exchange or that it contemplates the identification of a single staff member the fixed-term employee is replacing. Rather, it says the words “replace an employee” connotes the replacement of the employee on leave by a person engaged under the appropriate classification with the requisite skills and experience.

[78] The College submits that if it was required to identify the particular employee on leave being replaced by a fixed-term employee it would be forced to meet exactly the FTE and subject mix of the employee on leave. This would remove flexibility in timetabling and in meeting student and teacher preferences.

[79] The College has provided detailed information that it says shows that (a) there were staff on approved leave, and that demonstrates the FTE gap caused by the leave and (b) the FTE gap in the teaching allocation that Ms Purnell was engaged to fill for each year she was employed on a fixed-term basis.

The Fixed-term Report

[80] I am satisfied that the Fixed-term Report is evidence of a shared view of the parties to the 2013 Agreement as to the need to properly understand the use of fixed-term employment within the coverage of the 2013 Agreement. The study leading to the Fixed-term Report was carried out jointly by the IEU and CECV and arose from a specific provision of the 2013 Agreement.

[81] The Fixed-term Report reinforces issues with inappropriate or overuse of fixed-term employment and reinforces the provisions of the 2013 Agreement as to the circumstances when fixed-term employment may be used. The Fixed-term Report further restates that the position under the 2013 Agreement that the default form of employment is ongoing. It acknowledges the use and misuse of fixed-term employment. It recognises fixed-term employment as a form of insecure work.

[82] The Fixed-term Report identifies trends in the use of fixed-term employment. It also sets out case studies as to the use of fixed-term employment from the school principals’ and the fixed-term employees’ perspective. The Fixed-term Report acknowledges that the management of fixed-term contracts is difficult and that the needs across schools differ. It outlines the benefits to schools of reducing the number of staff working on a fixed-term basis.

[83] To the extent that the Fixed-term Report underscores a shared view of the parties that minimising the use of fixed-term employment is of benefit to both the College and the employees, it adds some context to the provisions of the 2013 Agreement. However, the Fixed-term Report does not establish any clear guidance on how the provisions of the 2013 Agreement should be read and does not suggest any overlay beyond the words in the 2013 Agreement.

[84] The Fixed-term Report does not detract from the submissions of either party. To the extent that either party rely on quotes from school principals as to how or why they may use fixed-term employment, this does not assist in the task before me.

The Fixed-term Guide

[85] The Fixed-term Guide is not a joint enterprise of the IEU and CECV. For this reason the IEU reject reliance on the Fixed-term Guide and distinguish it from the Fixed-term Report.

[86] I am satisfied that the Fixed-term Guide is the product of the CECV only. To this extent it is a different category of post agreement conduct to the Fixed-term Report.

[87] The College relies on the Fixed-term Guide in particular to support its contention that an employee who returns to work from parental leave on a part-time basis is still on leave. To the extent that this may be the advice given to the College (and other schools) by the CECV or the practice within schools or the College specifically does not add any support to the submissions that it has put on this issue. It does not show any meeting of the minds and the submissions before me would indicate that, at least on this issue there is no such meeting.

[88] For these reasons I have not relied on or given any weight to the Fixed-term Guide.

[89] To the extent that the College might complain that the IEU have not complained of the content of the Fixed-term Guide or suggested that it is misleading I do not attach any weight to this. That a party has not identified a misapplication of a provision of an Agreement cannot be taken as tacit acceptance of the practice. 11

CONSIDERATION

[90] I have applied the principles in Berri in deciding the matter before me.

[91] I consider it uncontroversial that one of the purposes of the letter of appointment as it relates to a fixed-term employee is to alert the employee to the quite specific terms that attach to their engagement.

Clause 11.2 of the 2013 Agreement

[92] I accept that the primary form of employment under the 2013 Agreement (and 2008 Agreement) is ongoing employment. This is not a matter disputed by the parties and is further supported by the statements in the Fixed-term Report.

[93] It is apparent on its words that clause 11.2 of the 2013 Agreement does no more than specify the circumstances that must be met to vary from the default position and hence permission to employ a person on a fixed-term basis enlivened.

[94] In these circumstances I am satisfied that the College only need demonstrate that it had employees on leave (to the extent it relies on clause 11.2(a)(iii)) such that the provisions of clause 11.2 were available to it.

[95] I do not accept that there is anything in clause 11.2(a)(iii) which suggests that an employer is required to specify the particular person on leave who the fixed-term employee is replacing. However, the employer must be able to show that there is a gap that is being filled by the fixed-term employee and that the “gap” is caused by an employee being on leave. So much is clear from the use of the term “to replace an employee who is on leave”. It is interesting to observe in this respect that there is no minimum period the employee must be on leave, the only restriction being that the fixed-term employee be engaged for no less than 11 weeks.

[96] “Employee” is defined in the 2013 Agreement.

[97] Grammatically, “an” is an indefinite article. The indefinite article is used when attached to something non-specific. The use of the term “an employee” can only mean a person who fits the definition of “employee” in the 2013 Agreement. It can be no more precise than that. It cannot mean a particular employee.

[98] The parties have used the expression “the employee” in a number of places in the 2013 Agreement and “an employee” in others. As such they must have considered the term “an employee” as different to “the employee” and decided to use the indefinite term of “an employee” in this instance. 12

[99] To suggest that “an Employee” as used in clause 11.2(a)(iii) requires specification of the particular employee would require a broad reading of “an employee” that is not otherwise supported by the clause. If the IEU was correct this would result in some absurd outcomes. For example, it cannot be that a fixed-term employee should be advised of the name of the teacher whose employment was terminated during the school year (clause 11.2(a)(iv)) for the fixed-term engagement to be valid. Further, such a reading of “an employee” is not necessary to give the clause work to do or a plain meaning.

[100] Whether there was, in fact “an employee” on leave such that Ms Purnell was properly employed on a fixed-term basis is a matter of fact and considered later in this decision.

Clause 12.1 of the 2013 Agreement

[101] If the requirements in clause 11.2 have been met such that a fixed-term employee may be engaged, clause 12.1 sets out information that must be included in the letter of appointment. Clauses 12.1(a)-(b) specify information that must be included in all letters of appointment. Clause 12.1(c) sets out additional information if the employee is part-time and clause 12.1(d) sets out the specific information to be included in the letter of appointment of a fixed-term employee.

[102] Clause 12.1(d)(i) requires that the reason for the fixed-term engagement be provided by reference to those matters set out in clauses 11.2(a)(i)-(vii) which permit the engagement of fixed-term employees. This is not controversial.

[103] Clause 12.1(d)(ii) requires that the circumstances be set out. I agree that the circumstances must contain some level of specificity additional to the reason in clause 11.2(a)(iii), otherwise the requirement to specify the circumstances would make no sense. The circumstances are the specific detail giving rise to the reason. For example, specification of the actual project or task (clauses 11.2(a)(i) and (ii)) or the specific position to which the employee is appointed (clause 11.2(a)(vi)).

[104] In cases where the fixed-term employment is because an employee is on approved leave, the “circumstances” is the type of leave being taken by the employee being replaced. If the “circumstances” did not include the type of leave being taken then clause 12.1(d)(iv) would be meaningless, or at best, difficult to understand.

[105] Clause 12.1(d)(iii) is self-explanatory and not controversial.

[106] Clause 12.1(d) however needs to be considered as a whole and in context. The circumstances giving rise to the reason for the fixed-term employment has implications for the information required to be provided in relation to the rights of “the Employee” being replaced (clause 12.1(d)(iv)). The formulation here uses the definite article “the” compared to “an” as used in clause 11.2(a)(iii).

[107] Clause 12.1(d)(iv) establishes additional information to be provided to a fixed-term employee where they are employed to replace an employee on leave. Clause 12.1(d)(iv) states:

where the employment is for a specified period of time for the reason specified in sub-clause 11.2(a)(iii), the rights under this Agreement of the Employee being replaced.

[emphasis added]

[108] The obligations placed on the employer by this clause must be considered in context of the type of leave being taken as the specific rights of an employee will vary, depending on the leave.

[109] Where the employee on leave is taking parental leave that employee has specific rights (as does the employer) that may affect the employment of the fixed-term employee. The rights of an employee on parental (and the employer) are found in Appendix 1 of the 2013 Agreement. This context should not be ignored. Clause 17 of Appendix 1 is headed “Replacement Employees” and states, in part:

17. Replacement Employees

1) Before an Employer engages an Employee to perform the work of another Employee who is taking parental leave, the Employer must notify the replacement Employee:

a) that the engagement to perform that work is temporary;

b) of the rights the Employer and the Employee taking parental leave have to cancel the leave if the pregnancy ends other than by the birth of a living child or if the child dies after birth; and

c) of the rights the Employee taking parental leave has to end the leave early if the pregnancy ends other than by the birth of a living child or if the child dies after birth; and

d) of the right of the Employee taking parental leave to return to the Employee's pre parental leave position at the end of the leave; and

e) of the right of the Employer to require the Employee taking parental leave to return to work if the Employee ceases to have any responsibility for the care of the child...

[110] Clause 17 is specific and refers to the rights of the employee taking leave. The employee is specific. The use of the definite article (“the”) before “employee” “conveys to the reader that what follows is familiar or specified”. 13 The wording in clause 17 of Appendix 1 (and clause 12.1(d)(iv)) in this respect can also be contrasted with the use of “an employee” in clause 11.2(a)(iii).

[111] The information required to be provided to the replacement employee (who is, in this case, fixed-term) is referable only to the employee taking parental leave, not to some generic, non-specified employee on non-specified leave.

[112] To the extent that the replacement employee needs to know the name of the employee on parental leave is open, it is difficult to know what harm comes of this. At the least the fixed-term employment needs to be referable to an identifiable employee on leave where that leave is parental leave. If it is not the case it is unclear how clause 17 of Appendix 1 should be read. It appears that without knowing which employee on parental is being replaced by a fixed-term employee leaves the replacement employee in the dark as to the impact on their employment should the employee on parental leave return to work early.

[113] Considered in context I am satisfied that clause 12.1(d)(iv) does require that the employee on leave be identifiable where the leave is parental leave. I make no findings with respect to other types of leave. As is apparent from the above it is the context that determines the information or circumstances required to be provided.

[114] The IEU suggests that if “the employee” on leave must be identified to give effect to clause 12.1(d) then that employee must be the employee referred to in clause 11.2(a)(iii) who has taken leave and, contextually, should be identified to enliven the right of an employer (the College) to utilise fixed-term employment under this provision.

[115] For the reasons given above in relation to clause 11.2 I do not agree with this reasoning of the IEU. It is not necessary and does not flow from an analysis of the context to leave generally.

[116] My conclusion does not limit the capacity of the College to timetable as it currently does or decide the mix of teaching subject areas it seeks in a fixed-term employee, nor does it imply that the fixed-term employees can only be engaged to replace an employee on approved leave on a like for like basis (in terms of FTE and/or subjects taught). What it does require, at least in relation to the engagement of a fixed-term employee to replace an employee on parental leave, is that the employee on parental leave is identifiable. It is only with this knowledge that a fixed-term employee is properly aware of the extent of their engagement and the circumstances that may lead to an early termination of the engagement than otherwise indicated in the letter of appointment.

[117] The issue is well illustrated if the circumstances of the 2013 school year are considered (putting aside the issue of part-time work on return from parental leave and the 2008 Agreement). In 2013 Ms Purnell was engaged to work on a fixed-term basis, as were Ms L, Ms N and Ms Sn to cover the approved parental leave of Ms Sp and Ms T. Another two teachers were working part-time on return from parental leave. Given the fixed-term employees were all engaged for the same purpose it can reasonably be assumed that their letters of appointment were the same as Ms Purnell’s, that is they did not indicate which employee they had been employed to replace. Had either Ms N or Ms Sp returned to work early under any of the circumstances provided for in Appendix 1 of the 2013 Agreement none of the fixed-term employees would know if they were the fixed-term employee who might receive early notice. This means the employer would decide, post engagement, which fixed-term employee had been engaged to replace the employee who returned from leave early. This would appear to be out of step with the recognition given in the Fixed-term Report of the precarious nature of fixed-term employment.

Conclusion as to clauses 11.2 and 12.1 of the 2013 Agreement

[118] For these reasons I am satisfied that, in engaging an employee on a fixed-term employment to replace an employee on parental leave (I make no findings of other leave), it is necessary pursuant to clause 12.1(d)(iv) for the College to identify the employee on parental leave being replaced by the fixed-term employee.

Are employees working part-time on return from parental leave still on “leave”?

[119] I have not agreed with the IEU’s interpretation of clause 11.2(a)(iii). It is therefore necessary to consider if employees working part-time on return from parental leave in accordance with Appendix 1 of the 2013 Agreement are “on leave” as put by the College, such that clause 11.2(a)(iii) applies 14 and fixed-term employees may be engaged for such “leave”.

[120] The issue of part-time employment for employees returning from parental leave was argued and Ms Purnell was engaged in some years on a fixed-term basis to replace employees working part-time on return from parental leave.

[121] Appendix 1 of the 2013 Agreement is headed “Parental leave and Related Entitlements”. Section D deals with “Returning to Work” including “Return to work part-time”.

[122] The College put that an employee who returns to work from parental leave on a part-time basis is still “on leave” for that time when they are not at work (the non-attendance time). The College says that the “leave” does not end until the employee returns to work at their pre-parental leave time fraction. On this basis the College submits that it is entitled under clause 11.2(a)(iii) of the 2013 Agreement to engage an employee on a fixed-term basis to replace a person who is working part-time under the provisions of Appendix 1 of the 2013 Agreement.

[123] I reject the submissions of the College on this matter. That it has, historically, indicated that an employee returning from parental leave who works part-time is on “leave” is not material relevant to interpreting the provisions of Appendix 1.

[124] I do note that Appendix 1 is not limited to parental leave alone but includes, by its heading, related entitlements. Section A deals with general matters, Section B deals with circumstances before leave, Section C deals with the period during leave and Section D is headed “Returning to Work”. Appendix 1 therefore cannot be said to only deal with leave such that part-time work under Appendix 1 should, contextually, be considered as leave.

[125] Clause 23 “Return to work part-time” occurs within Section D of Appendix 1. There are, in my view, provisions of clause 23 which weigh against the interpretation sought by the College. Firstly, clause 23(1) of Appendix 1 states that an employee returning to work from parental leave may work part-time at any time from their return to work until the child reaches school age. On the College’s submission this would mean that an employee could return to work on an ongoing basis and then, sometime later, apply for and take parental leave by virtue of working part-time under the provisions of Appendix 1.

[126] Second, clause 15 of Appendix 1 provides that an employee may undertake paid work with their employer on a fixed-term or casual basis whilst on parental leave but that this is the exception to the rule that the Employee must take leave in a single continuous period. Whilst clause 15 might be argued to support the proposition put by the College it could be presumed that, had it been intended that an employee could return from parental leave to their pre-parental leave position but then, at some later date but before the child reaches school age, access parental leave again by virtue of working part-time this exception in relation to working during parental leave would be repeated in the section in relation to part-time work (as it is in relation to other work in clause 15) on return from parental leave. It is not.

[127] Third, clause 23(3)(b) of Appendix 1 requires that an application for part-time work be made prior to the intended return to work date. If approved, and prior to commencing part-time work, it is necessary that the employer and employee enter into a part-time work agreement that specifies that it is a temporary variation to the employee’s ongoing position (clause 23(8)). If it was that the employee was on leave during the period in which he or she worked part-time there would be no need to vary the employee’s ongoing position but only to approve a certain period of leave. This is not what clause 23 requires.

[128] Fourth, clause 3(1) of Appendix 1 limits the amount of parental leave to 156 weeks. While the College suggests that an employee working part-time is on parental leave for the period they do not attend for work, there is no requirement in the part-time work provisions to account for non-attendance time whilst working part-time towards the 156 week limit on parental leave nor any mention of what is to occur when the 156 week limit is reached. No evidence of accounting for the non-attendance time as contributing to the 156 week cap was before the Commission.

[129] In reaching my conclusion on this point I have also taken into account the provisions of clause 3 of Appendix 1 that states, in part:

3. Period of leave

…

3) The maximum of 156 weeks of leave includes the following periods taken by the Employee:

a) unpaid parental leave;

b) paid parental leave (clause 4);

c) paid leave taken in conjunction with parental leave (clause 5);

d) if applicable, required leave (clause 12);

e) paid work with a relevant Employer during the period of parental leave (clause 15);

f) keeping in touch days (clause 15).

4) An Employee’s entitlement to 156 weeks of leave is further reduced by any parental leave (with the exception of concurrent leave) taken by the Employee’s spouse in relation to the child.

5) The period of 156 weeks of leave may be extended where Employees accessing more than 104 weeks of parental leave are subject to a return to work at the commencement of a school year only (as per paragraph 9), unless otherwise agreed…

[130] Nothing in these provisions suggests that a period of non-attendance whilst working part-time on a return to work counts towards the 156 week cap for parental leave. Whilst the list above is not exhaustive it is inexplicable that such a well-known entitlement would not be mentioned.

[131] The submission of the College that it is reasonable to accept that an employee having exceeded the 156 week cap for parental leave would then be on leave without pay approved by the College is convenient but has no merit.

[132] I do not accept that the decision in International Academy of Education means that an employee is either at work on a full-time basis or on leave for non-attendance times if working part-time. The passage relied on by the College relates to unapproved absences from work. The factual scenario leading to that finding related to an employee absent without permission and a consideration if such an absence constituted leave (so that it as unauthorised leave). The decision is readily distinguishable on a factual basis from the matter before me. In the matter before me employees are working part-time with the agreement of the employer. There is no sense on which they are on unauthorised leave. Part-time work on return from parental leave under the 2013 Agreement entails a variation to the employee’s ongoing position. The employee, having entered into a written agreement for such a variation cannot be considered to be required to be at work for the periods of non-attendance.

[133] For these reasons I must reject the submissions of the College that, during a period of part-time work on return from parental leave an employee is “on leave”. In these circumstances there is no capacity for the College to engage a fixed-term employee pursuant to clause 11.2 of the 2013 Agreement because an employee is working part-time in accordance with the provisions of Appendix 1.

[134] I am further fortified in this conclusion by the quite conscious decision of the parties to enumerate the circumstances under which fixed-term employment may be utilised. An employee working part-time is not a circumstance where such permission is granted.

[135] In reaching this conclusion I make no comment about any apparent limitation of the 2013 Agreement. It is not my role to re-write the 2013 Agreement or read things into the Agreement that are not there and I do not do so.

CONCLUSION

[136] Substantial information has been put before me as to the employees on leave at any time, including those working on a part-time basis following parental leave. The information from the College shows the level of equivalent FTE on leave and the teaching load that was left to be filled (also, confusingly, measured in FTE) each year.

Was the engagement of Ms Purnell in accordance with the 2013 Agreement?

[137] Whilst the letters of appointment may have been deficient I am satisfied that there were employees on approved leave in 2012, 2013, 2014, 2015, 2017 and 2018 such that the College could engage employees on a fixed-term basis.

[138] However, in 2016, on the evidence before me, there was no employee on leave such that the clause 11.2(a)(iii) of the 2013 Agreement would enliven the right of the College to engage employees on a fixed-term basis.

Are the letters of appointment valid?

[139] As is evidence from my findings above the letters of appointment do not appear to meet the requirements of the 2013 Agreement. This however does not mean the fixed-term employment is not valid. As this matter was not subject to submissions I make no findings as to this matter.

Conclusion

[140] The IEU, in its written submissions, proposed that, once my findings are made the parties should confer in light of those findings with liberty to apply to the Commission for further assistance.

[141] I agree with this course of action.

[142] Either party may seek to have the matter re-listed for conference or mention.

COMMISSIONER

Appearances:

E. White of counsel for the Applicant.

A. Kelly of counsel for the Respondent.

Hearing details:

2018.

Melbourne:

June 15, 18.

September 20.

Sydney and Melbourne (video link):

July 11.

Printed by authority of the Commonwealth Government Printer

1 AE405326.

2 [2017] FWCFB 3005.

3 Berri at [114].

4 See exhibit A3, appendices 1-7.

5 Mr Lowes, in his statement, corrects these reasons.

6 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v BerriPty Limited [2017] FWCFB 3005 at [114], point 15.

7 2013 Agreement, clause 12.1(d)(i).

8 2013 Agreement, clause 12.1(d)(ii).

9 [2016] FCA 140.

10 AE405326, clause 12.1(d)(ii).

11 See Printing & Kindred Industries Union & Anor v Davies Bros Ltd (1986) 18 IR 444 at 452.

12 See, for example, in the definition of “Ordinary rate of pay” of the 2013 Agreement it says that “where an employee elects to access salary packaging…the employee’s ordinary rate of pay…” (emphasis added) suggesting a deliberate shift between the indefinite and definite (“the”) article as considered necessary by the parties. See also clause 9.1(a) & (b), clause 13.1(b) and clause 13.2(b).

13 Energy Australia Yallourn Pty Ltd T/A Energy Australia v Construction, Forestry, Mining and Energy Union[2017] FWCFB 3574 at [63].

14 No claim is made by the College that part-time work under any other provision of the 2013 Agreement should be considered “leave”.

Independent Education Union of Australia v Reverend James Puppady, President of the Association of Canonical Administrators for Saint Ignatius College T/A Saint Ignatius College Geelong