Ms Candy Zoccoli v Department of Education and Training
[2022] FWC 2202
•19 AUGUST 2022
| [2022] FWC 2202 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Ms Candy Zoccoli
v
Department of Education and Training
(C2022/1813)
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 19 AUGUST 2022 |
Alleged dispute about a matter arising under an enterprise agreement – jurisdictional objection.
On 16 March 2022, Ms Candy Zoccoli filed an application under s.739 of the Fair Work Act 2009 (the Act) for the Commission to deal with a dispute relating to annual leave entitlements and school holiday provisions. Ms Zoccoli is aggrieved at what she alleges has been a failure by the Victorian Department of Education and Training (DET) to pay her annual leave entitlements under the Agreement. Ms Zoccoli is also aggrieved at changes she alleges DET has made in its approach to “school holiday provisions” and its manner of communication in relation to them.
On 23 March 2022, the dispute was the subject of a conference before Deputy President Mansini, as she then was. On 14 April 2022, the matter was allocated to me for determination. When I conducted a conference on 29 April 2022 the matter did not resolve so I issued directions for the filing and service of material and the matter was listed for a hearing on 29 June 2022 to determine a jurisdictional objection raised by DET.
Ms Zoccoli made her application in relation to her grievances with DET pursuant to clause 28 of the Victorian Government Schools Agreement 2017 (the Agreement).[1] Clause 28 of the Agreement states as follows:
“Dispute Resolution Procedures
28 (1) Unless otherwise provided for in this agreement, a dispute or grievance about a matter arising under this agreement or in relation to matters covered by the National Employment Standards, other than termination of employment, must be dealt with in accordance with this clause.
…
Unresolved Disputes
(14) If a dispute in relation to a matter arising under the agreement is unable to be resolved at the workplace, and the steps set out in sub clauses (1) to (13) have been taken, the dispute may be referred to the Fair Work Commission for resolution by mediation and/or conciliation and, where the matter in dispute remains unresolved, arbitration. If arbitration is necessary the Fair Work Commission may exercise the procedural powers in relation to hearings, witnesses, evidence and submissions which are necessary to make the arbitration effective.
(15) The decision of the Fair Work Commission will bind the parties, subject to either party exercising a right of appeal against the decision to a Full Bench.”
(my emphasis)
DET submits the Commission is required to ascertain the character of Ms Zoccoli’s dispute in order to determine whether it can properly be described as a dispute falling within the confines of clause 28 of the Agreement.[2] DET’s objection to Ms Zoccoli’s application is that the alleged dispute is not about a matter arising under the Agreement and nor is it in relation to matters covered by the National Employment Standards (NES) and as such, the Commission lacks the jurisdiction to hear and determine it.
On the question of whether the dispute raised by Ms Zoccoli can properly be described as a dispute falling within the confines of clause 28 of the Agreement, DET referred to National Tertiary Education Union v Victoria University[3], in which Ryan J considered ‘matters arising’ in the following manner:
“In common with similar provisions in other industrial instruments, cl 63 is concerned to provide a mechanism for the settlement of disputes about “matters” arising under the Agreement itself. Although I accept that the word “matters” is capable of having a wide connotation, it is confined, in this context, to controversies between parties to the agreement or award about the proper application of the instrument itself. It does not extend to controversies which have been resolved by the making of the award or agreement or new disputes between the same parties which have arisen subsequently.”[4]
DET also relied on the decision of Senior Deputy President Watson in AMWU v Thiess Degremont Joint Venture,[5] in which the Senior Deputy President:
a)considered the meaning of ‘matters arising’ and held that a ‘matter arising in relation to an agreement’ is a phrase of wide, but not unlimited import; and
b)stated that the operation of such a dispute resolution clause will only be attracted if the dispute can be linked to ‘the application or interpretation’ of the agreement.
In NTEIU v University of Newcastle,[6] Deputy President Saunders outlined:
“[25] In characterising the nature of a dispute the Commission is not confined to the application filed to deal with the dispute. The entire factual background is relevant, and may be ascertained from the submissions advanced by the parties on the question of jurisdiction. Further, a dispute may evolve during proceedings in the Commission. It may therefore be necessary in some cases when ascertaining the character of a dispute to have regard to both the nature of the dispute alleged in an originating application and the factual circumstances as they evolve.
[26] It is also important to note that the character of the dispute is distinguishable from any relief which may be sought, or granted, following an arbitration of the dispute. However, the relief sought may cast light on the true nature of the dispute in some cases.”
(references omitted)
When answering the question at 2.1 of the Form F10 – Application for the Commission to deal with a dispute in accordance with a dispute settlement procedure (Form F10), which asks what the dispute is about, Ms Zoccoli outlined, inter alia, that employees covered by the Agreement are entitled to a certain amount of annual leave that accrues progressively during a year of service and alleged that DET had refused to pay teaching staff their annual leave entitlements that accrued before the DET vaccine mandate came into effect on 26 October 2021.
DET submitted that despite the reference to annual leave entitlements under the Agreement, it is apparent from Ms Zoccoli’s Form F10 that her grievance lies with the decision to forfeit her pay for the 2021 Term 4 school holiday period. DET argues that this dispute relates to the application of the Ministerial Order 1038 - Teaching Service (Employment Conditions, Salaries, Allowances, Selection and Conduct) Order 2017 (MO 1038) and is not a dispute about a matter arising under the Agreement, nor in relation to matters covered by the NES. Accordingly, DET argues clause 28 does not apply to this dispute and the appropriate avenue to resolve it is for Ms Zoccoli to lodge a personal grievance with the Merit Protection Boards.
Clause 26 of the Agreement deals with various forms of leave. In respect of annual leave, it provides:
“Annual leave
(1) (a) An employee is entitled to 152 hours (20 days for a full time employee) annual leave in respect of each twelve months of service and accrues progressively during a year of service according to the employee’s ordinary hours of work.
(b) In addition to annual leave accrued under sub clause (1)(a) an education support class employee is entitled to additional paid leave of 228 hours (30 days). This entitlement is reduced by any leave purchased under sub clause 20(8).
(c) Employees will take annual leave at such times as the Employer determines provided that the wishes of the employee concerned will be taken into consideration as far as practicable.
(2) An employee who becomes ill or injured during a period of leave under sub clause (1), and subject to satisfying the requirements of sub clause (3), may be granted personal leave and have the relevant period re-credited to their entitlement under sub clause (1).”
As Ms Zoccoli was not engaged as an ‘education support class employee’, her entitlement to annual leave under the Agreement is 152 hours or 20 days (clause 26(1)(a)) to be taken at times determined by her employer, provided that Ms Zoccoli’s wishes are to be taken into consideration as far as practicable (clause 26(1)(c)).
DET outlined its practice regarding payments made to teachers during school holidays, disclosing that although teachers are only entitled to 20 days of annual leave per annum, they are generally not required to attend for work or perform duties during the school holiday periods. DET indicated that given this practice, teachers are required to take annual leave and additional paid leave at such times as the Secretary to the Department of Education and Training (Secretary) determines, provided that the wishes of the employee concerned are taken into account as far as practicable.
The approach to the taking of leave and the payment of teachers during school holiday periods is set out in in the MO 1038 which is a legislative instrument made by the Victorian Minister for Education and Training pursuant to the enabling provisions of the Education and Training Reform Act 2006 (Vic). In particular, clause 6.1.1(2) of MO 1038 provides:
“Employees must take annual leave and additional paid leave at such times as the Secretary determines provided that the wishes of the employee concerned are taken into consideration as far as practicable.” (my emphasis)
DET outlined that the combined effect of this is that teachers take their 20 days of annual leave during school holiday periods, unless otherwise approved, and receive approximately 32 additional days of paid time during school holiday periods over the course of the calendar year, during which they are generally not required to attend for work or perform duties.
DET says that over the course of the 2021 calendar year, Ms Zoccoli’s 20 days of annual leave entitlements under the Agreement were acquitted prior to the commencement of the Term 4 school holiday period, the period in respect of which she complains that she has not been paid. In this regard, DET argues that by 25 October 2021, when Ms Zoccoli commenced a period of leave without pay, she had been the beneficiary of approximately 44 paid days during school holidays upon which she was not required to attend for work or perform duties. Based on this, DET submits Ms Zoccoli has not been denied any portion of her annual leave entitlement under the Agreement.
For her part, Ms Zoccoli acknowledges teaching staff are paid over the school holidays, but argues that it has not been specified whether what she was paid fell under accrued annual leave, or the regular salary DET pays employees during off-site work periods. She therefore seeks clarification as to how calculations have been made in regard to her annual leave entitlements, contending the Agreement does not specify exactly when annual leave is released. In particular, Ms Zoccoli wants to know whether DET’s position is that they pre-emptively pay out annual leave entitlements before they “have been earned across the year”.
While DET has objected to Ms Zoccoli’s application on the basis that the dispute she seeks to agitate is not about a matter arising under the Agreement, it has nonetheless noted that in the Form F10, the purported dispute Ms Zoccoli seeks to agitate includes an alleged failure by DET to pay her annual leave entitlements under the Agreement.
In its reply submissions, DET argued:
a)Ms Zoccoli’s entitlement to annual leave under the Agreement as a full-time teacher is 20 days per year of service;[7]
b)The Agreement provides that annual leave accrues progressively during a year of service according to the employee’s ordinary hours of work, and is to be taken at times determined by the employer provided that the wishes of the employee will be taken into consideration as far as practicable;[8]
c)Annual leave is acquitted by the employee’s paid absences during school holiday periods, where they are not required to attend for work or perform duties; and
d)Ms Zoccoli does not appear to dispute that she was paid during school holiday periods prior to the 2021 Term 4 school holidays.
Consideration
The Commission’s power to deal with a dispute, including by way of arbitration, only arises if, and to the extent that, the dispute resolution clause in the Agreement requires or allows the Commission to deal with the dispute.
DET’s position is that the Commission lacks jurisdiction to deal with the dispute raised by Ms Zoccoli because the Commission’s jurisdiction is relevantly confined, pursuant to clause 28(1) of the Agreement, to a dispute or grievance about a matter arising under the Agreement; or in relation to matters covered by the NES but the dispute that Ms Zoccoli seeks to agitate does not fall under either of these heads.
I accept that Ms Zoccoli has grievances that in the main relate to the application of “school holiday provisions” in MO 1038, an alleged change of approach in respect of “school holiday provisions” and a failure by DET to respond in a timely way to her communications regarding the alleged change of approach. However, these are not matters arising under the Agreement and nor are they matters covered by the NES and accordingly, I am satisfied the Commission lacks jurisdiction to deal them.
Ms Zoccoli has also raised a dispute or grievance about her entitlement to, and accrual of, annual leave, which I am satisfied are about matters arising under clause 26(1) of the Agreement and/or in relation to a matter covered by the NES. In essence, Ms Zoccoli’s dispute about (or in relation to) annual leave is that she has not been paid her entitlement to 152 hours/20 days annual leave for her service during 2021. In asserting this, Ms Zoccoli appears to rely on the operation of clause 26(1) of the Agreement insofar as it provides that annual leave accrues progressively during a year of service and further, she suggests there was no payment of annual leave that accrued prior to the DET vaccine mandate coming into effect on 26 October 2021.
I have noted that the material filed by DET has addressed the payment of annual leave and moreover, included the assertion that over the course the 2021 calendar year, Ms Zoccoli’s 20 days of annual leave entitlements under the Agreement were acquitted prior to the commencement of the 2021 Term 4 school holiday period. DET sought to illustrate this in the following table,[9] as follows:
This assertion can only mean that the position of DET is that Ms Zoccoli had been paid her 20 days’ annual leave prior to commencing a period of leave without pay on 25 October 2021 and in practical terms, that she was paid it across the various school holidays periods in 2021, concluding with the Term 3 school holidays which ended on 3 October 2021. It is not altogether clear how this is reconcilable with the statement in clause 26(1)(a) of the Agreement suggesting that annual leave “accrues progressively during a year of service”. However, noting that annual leave does not accrue during periods of unpaid leave[10] and the table supplied by DET, Ms Zoccoli would not have accrued annual leave on and from 25 October 2021 until at least 17 December 2021. It would seem therefore, that while it is arguable that some annual leave may have accrued during the period from 4 October – 24 October 2021 (inclusive) and then possibly also from 18 December – 31 December 2021 inclusive, the potential annual leave accrual that may not have been paid is likely to have been minimal.
Next steps
As regards her range of grievances relating to the application of the “school holiday provisions”, my recommendation to Ms Zoccoli is that because the Commission lacks the jurisdiction to deal with these, she should take up the option outlined by DET and make a personal grievance application to the Senior Chairperson of the Merit Protection Boards as provided for under Part 5 of MO 1038, noting that DET will support any request by her for an extension of time to make that application.
As regards the annual leave grievance, noting that DET has advised that to the extent Ms Zoccoli can identify any failure to pay an annual leave entitlement arising under the Agreement, it would be prepared to look at this and address it,[11] and having regard to my preliminary observation that the failure (if any) to pay accrued annual leave is likely to have been minimal, I would recommend the parties have further discussions and explore whether any issues relating to Ms Zoccoli’s annual leave for 2021 can be resolved by agreement. In this regard, I will list the matter for a further conference by telephone at 9.30am on Friday 9 September 2022, at which time I will require an update and then determine what further steps the Commission is required to take.
DEPUTY PRESIDENT
Appearances:
C Zoccoli on her own behalf.
C O’Grady QC for the Department of Education and Training.
Hearing details:
2022.
Melbourne.
29 June.
[1] AE425147 PR595324.
[2] MUA v Australian Plant Services Print PR908236 at [57]; SDA v Big W Discount Department Stores Print PR 924554 at [20]; ANF v Minister for Health Western Australia Print PR918916 at [27]. See also AMOU v DMS Maritime Pty Limited [2017] FWC 5201 at [49]-[52].
[3] [2008] FCA 1630.
[4] Applied by Sams DP in AMWU v Sydney Water Corporation[2011] FWA 1894 at [39].
[5] (2012) 226 IR 390.
[6] [2021] FWC 5150
[7] Clause 26(1)(a) of the Victorian Government Schools Agreement 2017.
[8] Clauses 26(1)(a) and 26(1)(c) of the Victorian Government Schools Agreement 2017. See also clause 6.1.1(2) of Ministerial Order 1038 – Teaching Service (Employment Conditions, Salaries, Allowances, Selection and Conduct) Order 2017.
[9] DET’s Submissions in Reply, DCB 48.
[10] See s.87(2) and s.22(2)(b) the Fair Work Act 2009.
[11] DET’s Submissions in Support of the Jurisdictional Objection, DCB 46 at [29].
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