Independent Education Union of Australia v The Presbyterian and Methodist Schools' Association

[2013] FWC 1605

[2013] FWC 1605

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Independent Education Union of Australia
v
The Presbyterian and Methodist Schools' Association
(C2012/158)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 15 MARCH 2013

Dispute concerning appropriate criteria for allowance - interpretation of terms of agreement - private arbitration under dispute resolution procedure - discretion to settle dispute.

Introduction

[1] On 22 February 2012 the Independent Education Union of Australia (IEUA) applied to Fair Work Australia, now the Fair Work Commission (FWC), pursuant to section 739 of the Fair Work Act 2009 (the Act), for the Commission to deal with a dispute between the IEUA and the Presbyterian and Methodist Schools’ Association (PMSA). The dispute relates to clauses 3.1.1(2)(b)(iii) and (iv) of the Presbyterian and Methodist Schools Association Enterprise Agreement 2010 (Agreement). 1 The Procedures for Preventing and Settling Disputes are set out in Part 2.3 of the Agreement. This clause is set out below:

“2.3 Procedures for Preventing and Settling disputes

The parties to this agreement have a genuine desire to resolve through the process of negotiation and settlement grievances or complaints related to the working environment, pay and conditions of service, including issues arising from this agreement.

.........

2.3.3 Reference to Fair Work Australia:

(a) Each party retains the right to refer a matter to Fair Work Australia and while this process is being pursued, and except in relation to termination, normal work is to be made available and performed, without prejudicing the outcome.

(b) So as to remove doubt Fair Work Australia may exercise its conciliation and arbitration powers, subject to the provisions of the Fair Work Act 2009, to settle any matter in dispute and in relation to arbitration any order or determination (subject to the right of appeal under the Act) will be final and binding.”

[2] The dispute concerns the appropriate criteria to be adopted and applied to the Accomplished Classroom Teacher Allowance (ACT Allowance) in the relevant clauses. Both parties agree the criteria should comply and be consistent with the terms of the Agreement.

[3] The affected employees are currently bound by the Agreement. The Agreement came into effect on 20 January 2011 and has a nominal expiry date of 31 March 2013. 2

[4] This application is related to an application previously lodged by the IEUA on 15 September 2011. 3 In that application the current dispute was the subject of conciliation before Commissioner Spencer. The conciliation was unsuccessful in resolving the dispute between the parties but Commissioner Spencer issued a Recommendation dated 24 April 2012 urging the PMSA to “...immediately halt the process of continuing to invite and/or process applications for ‘Lead Teacher Recognition’ in PMSA Schools until the matter is determined by arbitration”.4

[5] The Commissioner issued a further Statement on 27 April 2012 which said in part that the “...PMSA agreed to suspend the implementation of the ‘Lead Teacher Recognition’ process in PMSA Schools pending the outcome of the arbitration of this application”. 5

[6] The IEUA submits that the PMSA has breached this undertaking and seeks an Order that the PMSA comply with the undertaking. The Order sought is the subject of a third related application lodged by the IEUA with the Commission on 1 May 2012. 6

Relief sought

[7] The parties agree that the question to be arbitrated is: “Does the published intention of the PMSA to implement a ‘Lead Teacher’ comply with the requirements of paragraphs 3.1.1(2)(b)(iii) and (iv) of the Agreement?”

[8] In the event that the answer to the question identified above is answered in the affirmative no further intervention is sought by the IEUA.

[9] In the event that the answer to the question identified above is answered in the negative the IEUA seeks the following:

• An Order that the PMSA negotiate with the IEUA for the purpose of producing an outcome which satisfies the requirements of clause 3.1.1(2)(b)(iii) and (iv) of the Agreement. If necessary, and/or appropriate, such negotiations be chaired by the Commission;



• If the negotiations between the PMSA and the IEUA do not produce an agreed outcome then the “Accomplished Classroom Teacher (ACT) classification”, and all ancillary provisions to ensure the appropriate operation of the “classification”, be determined by the Commission.

[10] In the event that the answer to the question identified above is answered in the affirmative, then no further intervention would be sought by the PMSA.

[11] In the event that the answer to the question identified above is answered in the negative, the PMSA states its position in the following terms:

• The PMSA rejects the relief sought by the IEUA on the basis that any Order of the Commission must be in accordance with the provisions of the Agreement. There is no provision within the Agreement which requires or even considers a negotiated outcome on the implementation of the Accomplished Classroom Teacher classification.



• The PMSA should be ordered to implement the classification in accordance with the terms of the Agreement.

Terms of the Agreement

[12] Clauses 3.1.1(2)(b)(iii) and (iv) of the Agreement state:

“iii. In addition, teachers will be able to access a new position of a merit based Accomplished Classroom Teacher (ACT) classification with a total annual remuneration of $83,820 (consisting of Band 3/4 salary plus an ACT Allowance of $6,000 p.a.). Teachers receiving this ACT Allowance would not be entitled to the SCT Allowance.

iv. Appointment criteria for the ACT Allowance will be comparable with those of similar roles in other independent Christian school sectors, including a selection panel, defined term and regular review, portability across PMSA schools and a requirement to demonstrate commitment to the mission and culture of the PMSA and school.”

(My emphasis)

[13] According to the terms of the Agreement the ACT Allowance was payable from 1 April 2011.

[14] Both parties referred to a document entitled “PMSA Accomplished Classroom Teacher 2011-Proposed Allowance Structure” and submit that the appointment criteria for an Accomplished Classroom Teacher should be consistent with the terms of this document as well (Supplementary Document). 7 Several versions of the Supplementary Document exist and one or more of those versions are attached to the various witness statements or affidavits tendered before me, as well as the IEUA’s initial application (C2011/743) and the IEUA’s Outline of Submissions.

[15] The Supplementary Document dated 26 September 2011 appears to be the latest version of this document. It is attached to the Affidavit of Mr Kenneth Walter Symonds 8 and to the Affidavit of Mr Michael James Willis.9 It is identical to the version of the Supplementary Document dated 10 May 2011 which is attached to the initial application10, to the Witness Statement of Mr Christopher Russell Seymour11 and to the Witness Statement of Mr Steve Mann.12

[16] The version of the Supplementary Document dated 19 November 2010 appears to be different to the more recent versions identified above. In particular, clause 2. Selection Criteria is missing the dash points which are visible in the later versions. This different version appears in the IEUA’s Outline of Submissions, 13 in the Witness Statement of Mr Christopher Russell Seymour14 and in the Witness Statement of Mr Steve Mann.15

[17] The PMSA submitted that this discrepancy arose as the result of a printing or clerical error. 16 It submitted that this explanation is supported by the fact that an even earlier version of the Supplementary Document dated 17 November 2010 contains the relevant dash points. This earlier version appears in the Affidavit of Mr Michael James Willis17, in the Witness Statement of Mr Christopher Russell Seymour18 and in the Witness Statement of Mr Steve Mann.19 I do not consider it necessary to resolve how the discrepancy arose.

IEUA’s submissions and evidence

[18] In its initial application (C2011/743) the IEUA had sought an order that the PMSA provide it with an appropriate proposal for a set of criteria for consideration and negotiation as the Agreement envisaged that the criteria would be jointly developed.

[19] The PMSA eventually provided the IEUA with a proposal. According to the IEUA “...that proposal was not consistent with the level of the position of Accomplished Teacher which was subject to the Enterprise Agreement”. 20 “Specifically, the employer proposal addressed a level of ‘Lead Teacher’ instead of ‘Accomplished Teacher’.”21 The PMSA Proposal appears in the IEUA’s outline of submissions22 and in the Witness Statement of Michael James Willis.23

[20] In its second application (C2012/158), the application now before me, the IEUA seeks an order that the PMSA consider and respond to its counter proposal (IEUA Proposal). The IEUA Proposal appears as Attachment E to this application.

[21] The IEUA also submits that the PMSA Proposal is inconsistent with the terms of the Agreement and Supplementary Document because the appointment criteria proposed for the ACT Allowance are too stringent. It submits that “....the overarching impression from employees in PMSA schools is that the employer is attempting to impose an inappropriate model.” 24

[22] It further submits that the PMSA Proposal entitled “PMSA Lead Teacher” is “...based on and arises out of the AITSL National Professional Standards for a Lead Teacher” and “....mimics, to some extent, the Exemplary Teacher step in the Anglican sector”. 25 The IEUA is referring to the Australian Professional Standards for Teachers (Teaching Standards) developed by the Australian Institute for Teaching and School Leadership (AITSL), in particular the standards for a Lead Teacher.

[23] The IEUA also refers to the Exemplary Teacher classification in The Corporation of the Synod of the Diocese of Brisbane Workplace Agreement 2009 (Anglican Agreement). 26 It submits that “...it is illogical for the PMSA to action the Lead Teacher classification which identifies generally with management and co-ordination of curriculum delivery in the absence of developing the Accomplished Teacher classification which aligns to excellent classroom practice, the sequential pathway stage prior to Lead Teacher.”27

[24] According to the IEUA the selection criteria in the Supplementary Document is “...consistent with the descriptors for Accomplished Teacher published by the Australian Institute for Teaching and School Leadership (AITSL)” 28 and is “...broadly consistent with the criteria which must be met, for example, by an ‘Experienced Teacher 6’ in the Catholic system.”29 The IEUA again refers to the Teaching Standards, in particular the standards for a Highly Accomplished Teacher. It also refers to the Experienced Teacher 6 classification in the Catholic Employing Authorities Single Enterprise Collective Agreement - Diocesan Schools of Queensland 2010 (Catholic Agreement).30The IEUA makes note that “Catholic schools represent over 60% of the Christian school sector in Queensland” and therefore believes “...that the PMSA Lead Teacher proposal is inconsistent with the model which exists in the majority of Christian schools in Queensland”.31 The PMSA Proposal is also “...inconsistent with the AITSL Standards for Accomplished Teacher.”32

[25] It is the IEUA’s position that “...employees accepted the PMSA’s draft Accomplished Teacher Classification outline within the Enterprise Agreement with a clear expectation that the final classification would mirror that of Accomplished Classroom Teacher as outlined within the AITSL draft teaching standards”. 33 It does not believe “...that the Lead Teacher proposal finally offered by the employer in November 2011 is consistent with the position agreed in principle about twelve months earlier.”34

[26] The IEUA further submits that the criteria in the PMSA Proposal are “...an entirely new construction which has been based on the AITSL material and not on the earlier iterations of any employer document.” 35

[27] According to the IEUA the “...PMSA used the descriptor of ‘Accomplished Teacher’ from August 2010 until October 2011” but then “...unilaterally decided to change the descriptor” to “Lead Teacher”. 36 The Agreement “...does not bestow on the PMSA the right to determine the final complexion of the Accomplished Teacher classification”37 and “...that the final proposal would be the subject of negotiation between the parties.”38

[28] The PMSA disagrees with this and submits “...there is no provision within the Agreement which requires or even considers a negotiated outcome on the implementation of the Accomplished Classroom Teacher classification.” 39

[29] Finally the IEUA submits that “...by drawing on the Lead Teacher standards and not the Accomplished Teacher standards (as was promoted to employees in 2010) the PMSA is, employees believe, in contravention of the Enterprise Agreement.” 40

PMSA’s submissions and evidence

[30] The PMSA submits “...that the Agreement had been negotiated over 2009-10 when the term ‘Accomplished Classroom Teacher’ was one of a number of generic terms used at the time.” 41 During this period “...there was no national model established and no agreed set of standards.”42 The term “Accomplished Classroom Teacher” as it appears in the Agreement did not carry any specific definition nor was it aligned or tied to any term in the Teaching Standards, or any draft Teaching Standards, during negotiations.

[31] Further, no direct reference is made to the Teaching Standards (or any draft Teaching Standards) in any versions of the Supplementary Document as contended by the PMSA. 43 It was put to the IEUA “...that if the PMSA had intended that their accomplished classroom teacher was the equivalent of the highly accomplished teacher definition [in the Teaching Standards], it would have said so.”

[32] According to the PMSA it was important “...to develop a model of genuine quality teaching that recognised ‘outstanding teachers’ in PMSA schools, ‘...as demonstrated by broad-based excellence’”. 44 Outstanding teachers and broad-based excellence are just some of the terms used in the Supplementary Document. The PMSA contends that excellence and outstanding are clearly descriptors of the highest standard.”45 Considering that ‘Lead Teacher’ is the top or highest Teaching Standard, it was appropriate “...that the name of the PMSA Accomplished Classroom Teacher should be changed to PMSA Lead Teacher.”46

[33] The PMSA contends that a similar name change occurred in Queensland Anglican Schools where “...the Anglican terminology of Accomplished Classroom Teacher was subsequently discarded and the term ‘Exemplary Teacher’ adopted.” 47 However the PMSA conceded that the allowance for an Exemplary Teacher is $2,000.00 more than the ACT Allowance in the Agreement.48 The PMSA further contended that, “...like the Anglican ‘Exemplary Teacher’ structure, the PMSA ACT document [the Supplementary Document] clearly outlined expectations of excellence and leadership, was only for outstanding teachers and required demonstration of broad based excellence in various aspects of teaching.”49

[34] The PMSA submitted that there is little to suggest the IEUA Proposal “...is aimed at genuine quality teaching, excellence or outstanding practice” and is “...more a description of a good, committed classroom teacher’s role.” 50 The IEUA has “...misrepresented the intention of the PMSA Agreement to initiate a genuine teaching excellence model that recognizes and rewards outstanding teachers”51 and is instead “...seeking to equate the PMSA ACT accreditation from the PMSA agreement with a standard that was defined after the PMSA Agreement was executed, on the basis of one common word in the title, rather than on the substance of the agreed documents.”52

[35] It is the position of the PMSA that the definitions of Lead Teacher in the Teaching Standards and Exemplary Teacher in the Anglican Agreement are comparable to the requirements specified in the Supplementary Document and the relevant provisions of the Agreement and that the PMSA Proposal was prepared on that basis. 53

IEUA response

[36] Whilst the IEUA admitted it did not specifically refer to the Teaching Standards (or any draft Teaching Standards) during the negotiation phase, 54 it argued “...that there was no need to refer because it was in such common parlance”55 and “...teachers in schools understood what was being talked about in relation to accomplished classroom teacher.”56

[37] The IEUA response to the PMSA submission was that if the accomplished classroom teacher was intended to be equivalent to a highly accomplished teacher definition then the IEUA would have said so; “...what we’re talking about is a classroom-based position around accomplished teacher.” 57

[38] The IEUA responded that there is no material difference between the ACT Allowance and the allowance for an Experienced Teacher 6 in the Catholic Agreement. 58

Conclusion

[39] It ought not to be necessary to state the obvious to such an extent but in regard to this application it cannot be avoided.

[40] The name given to the particular classification is not determinative. It is the substance of the classification that matters and I am satisfied that what was intended to be encompassed by the Accomplished Classroom Teacher classification was a role focused on classroom teaching. Having heard the submissions of the parties I am convinced that the PMSA has not focused on the classroom aspect of the position which it developed as Lead Teacher.

[41] I do not intend to revisit the submissions of the parties. Having considered the two proposals, in particular the evidence of the witnesses and the stated “Aims of PMSA Lead Teacher Classification,” I have concluded that the emphasis of the Lead Teacher classification put forward by the PMSA is too focused on a leadership role rather than a classroom role.

[42] When examining leadership roles and classroom roles it is not a case of “...never the twain shall meet”. It is certainly the case that leadership and other positive management qualities are to be looked for in an accomplished classroom teacher. Despite this, when developing the criteria for classroom teaching roles it is clear on its face that there is a different emphasis.

[43] I have concluded that, whatever the PMSA was doing in creating its proposed Lead Teacher classification, it was not implementing the Accomplished Classroom Teacher classification referred to in clause 3.1.1 (2) (b) (iii) in accordance with its obligations under the Agreement and, to the extent that the PMSA is continuing to implement its proposal in relation to the Lead Teacher Classification, it is in breach of the undertaking given to Commissioner Spencer on 27 April 2012.

[44] The question before me was:

“Does the published intention of the PMSA to implement a ‘Lead Teacher’ comply with the requirements of paragraphs 3.1.1(2)(b)(iii) and (iv) of the Agreement?” I am satisfied and find that it does not comply with the requirements referred to.

[45] I am satisfied and find that the Lead Teacher classification advanced by the PMSA is not a classification which could be comfortably compared to the relevant comparable roles in other Christian independent schools.

[46] I now have to consider what outcome should flow from my determination of this question.

[47] Having considered the alternatives I have decided to accept the PMSA’s submission that the appropriate outcome is that the PMSA comply with clause 3.1.1 (2) (b) (iii) and (iv) in light of implementing my findings and I so determine.

[48] I have also determined that the parties would benefit from further conciliation. To that end I have referred the application to Commissioner Simpson for it to be listed in Brisbane before him for further conference.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr J. Spriggs for Independent Education Union of Australia

Mr J.R. Jones from Jones Ross for the Presbyterian and Methodist Schools’ Association

Hearing details:

Melbourne

15 and 16 October

2012

 1   AE883493

 2   [2011] FWAA 250 at para [4].

 3   C2011/743.

 4 Recommendation of Commissioner Spencer dated 24 April 2012 in relation to C2012/158 at para [5].

 5 Statement of Commissioner Spencer dated 27 April 2012 in relation to C2012/158 at para [3].

 6   C2012/436.

 7   See Transcript for hearing 15 October 2012, PN180 and PN185. See also Transcript for hearing 16 October 2012, PN951and PN978.

 8   Exhibit PMSA 2, annexure 2

 9   Exhibit PMSA 3, annexure 15

 10   C2011/743, attachment G

 11   Exhibit IEUA 2, annexure G

 12   Exhibit IEUA 3, annexure F

 13   Attachment G

 14   Exhibit IEUA 2, annexure F

 15   Exhibit IEUA 3, annexure E

 16   Transcript for hearing dated 16 October 2012, PN980 and PN981.

 17   Exhibit PMSA 3, annexure 14

 18   Exhibit IEUA 2, annexure K

 19   Exhibit IEUA 3, annexure J

 20   Application dated 22 February 2012 (C2012/158), cl. 4(5).

 21   Ibid.

 22   Attachment R

 23   PMSA 3, annexure 3

 24   Witness Statement of Christopher Russell Seymour, cl. 48.

 25   Ibid, cl. 30.

 26 AC326909.

 27   Witness statement of Steve Mann, cl. 39(d).

 28   Outline of submissions by union, cl. 5.8. It should be noted the union refers to that version of the Supplementary Document dated 19 November 2010 in this particular clause and clause 8.3 indentified below (this version appears as Attachment G to the outline of submissions) (see paragraphs [7] - [11] of this Decision).

 29   Ibid, cl. 8.3.

 30   AE879755.

 31   Witness Statement of Christopher Russell Seymour, cl. 33.

 32   Ibid, cl. 49(c).

 33   Witness Statement of Steve Mann, cl. 29.

 34   Ibid, cl. 26.

 35   Outline of submissions by union, cl. 8.8.

 36   Ibid, cl. 4.10.

 37   Ibid, cl. 1.3.

 38   Witness Statement of Steve Mann, cl. 24.

 39   Exhibit PMSA-1, para 2.1.

 40   Witness Statement of Steve Mann, cl. 35.

 41   Affidavit of Kenneth Walter Symonds, cl. 20.

 42   Ibid, cl. 6. According to the PMSA an agreed set of standards had not been released until February 2011 (see cl. 22 of the Affidavit of Kenneth Walter Symonds). However, the union says various drafts of these standards and the concept of Accomplished Classroom Teacher have existed since 2003 (see Outline of submissions by union, cls. 2.1-2.10).

 43   Affidavit of Michael James Willis, cl. 24.

 44   Affidavit of Kenneth Walter Symonds, cl.18.

 45   Ibid, cl. 24.

 46   Ibid, cl. 22.

 47   Affidavit of Michael James Willis, cl. 30.

 48   See Transcript for hearing 16 October 2012, PN637.

 49   Affidavit of Michael James Willis, cl. 29.2.

 50   Affidavit of Kenneth Walter Symonds, cl. 32.

 51   Ibid, cl. 36.

 52   Affidavit of Michael James Willis, cl. 37.

 53   Transcript for hearing on 16 October 2012, PN987-PN990.

 54   Transcript for hearing on 15 October 2012, PPN88.

 55   Ibid, PN241.

 56   Ibid.

 57   Transcript for hearing on 15 October 2012, PN299.

 58   Ibid, PN930.

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