United Voice, Industrial Union of Employees, Queensland v State of Queensland (Department of Education, Training and Employment)
[2014] QIRC 107
•23 June 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION:
United Voice, Industrial Union of Employees, Queensland v State of Queensland (Department of Education, Training and Employment) [2014] QIRC 107
PARTIES:
United Voice, Industrial Union of Employees, Queensland
(Applicant)v
State of Queensland (Department of Education, Training and Employment)
(Respondent)CASE NO:
D/2012/265 PROCEEDING:
Notice of Industrial Dispute DELIVERED ON:
23 June 2014 HEARING DATE:
13 March 2014 MEMBER:
Industrial Commissioner Neate ORDER:
Andrew Staunton, a member of the United Voice, Industrial Union of Employees, Queensland, is not entitled to be paid the virtual school setting allowance under clause 41.6 of the Department of Education and Training Teacher Aides' Certified Agreement 2011 (CA/2011/361).
CATCHWORDS: INDUSTRIAL LAW - INDUSTRAL DISPUTE - Interpretation of Certified Agreement - Whether teacher aide entitled to be paid the virtual schooling allowance under cl. 41.6 of the Department of Education and Training Teacher Aides' Certified Agreement 2011 (CA/2011/361) - Eight questions in relation to cl. 41.6 referred to the Commission - Meaning of Virtual School Setting - Whether the Learning Engagement Online (LEO) Program is a Virtual School Setting - Whether teacher aide was supervising students without a teacher during LEO Program - Whether teacher aide was supervising students during delivery of lessons in LEO Program - Whether payment of virtual schooling allowance reflected the intentions of the parties in relation to cl 41.6, historically and presently - Whether other factors would prevent payment of the allowance.
CASES: Industrial Relations Act 1999, s 230
Australian Workers' Union of Employees, Queensland v James Hardie Australia Pty Ltd [2001] 167 QGIG 280
Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337
Commonwealth of Australia v Introvigne (1982) 150 CLR 258
Introvigne v Commonwealth (1980) 48 FLR 161; 32 ALR 251
Kucks v CSR Ltd (1996) 66 IR 182
Ramsay v Larsen (1964) 111 CLR 16
Roman Catholic Church Trustees for the Diocese of Canberra and Goulburn v Hadba (2005) 221 CLR 161
Short v F W Hercus Pty Ltd (1993) 40 FCR 511United Firefighters' Union of Australia, Union of Employees Queensland v Department of Community Safety - Queensland Fire and Rescue Service (D/2013/84) - Decision <
APPEARANCES: Mr S. Ong, representative of the Applicant, United Voice, Industrial Union of Employees, Queensland
Ms A. Seeto, representative of the Respondent instructed by Ms F. Bridget of the Department of Training, Education and Employment
Decision
[1]This case involves an industrial dispute between United Voice, Industrial Union of Employees, Queensland ("the Applicant") and the Department of Education, Training and Employment ("the Respondent") in relation to the meaning and operation of clause 41.6(c) of the Department of Education and Training Teacher Aides' Certified Agreement 2011 (CA/2011/361) ("the Certified Agreement").
[2]The issue is whether a flat allowance of $60 per day (or part day thereof) is payable, in addition to all other entitlements including hours worked, to a teacher's aide delivering the Learning Engagement Online ("LEO") Program.
Background
[3]The dispute arises, in effect, from the claim of Andrew Staunton, a teacher aide, for payment for work done by him in delivering the LEO Program at the Upper Coomera State College ("UCSC"). Mr Staunton is a member of the Applicant, and the Applicant submits that he is entitled to payment of the virtual schooling allowance in accordance with cl. 46.1(c) of the Certified Agreement.
[4]Mr Staunton is a permanent Teacher Aide (Operational Office Level 3) ("TA003") at the UCSC. He commenced employment with the Respondent in July 1999 as a teacher aide at Oxenford State School, and commenced at the UCSC in January 2005. During 2010 to 2012, as part of his role at the UCSC, Mr Staunton performed duties associated with a LEO mentor as part of the school's LEO Program.
[5]Various stages of a grievance process were followed in relation to Mr Staunton's claim that he is eligible to receive the virtual schooling allowance. The matter was not resolved and the Respondent's Director, Workforce Relations wrote to the General Secretary of the Applicant on 20 September 2012 advising of his decision that Mr Staunton does not meet the requirements to be eligible for the virtual schooling allowance and setting out reasons why he had so determined.
[6]The matter was not resolved during the course of conciliation by the Queensland Industrial Relations Commission ("the Commission") and the matter was referred to arbitration by the Commission on 22 June 2013.
Agreed approach to resolving the dispute
[7]Although the focus of these proceedings is on cl. 41.6(c) of the Certified Agreement, it is appropriate to set out all of cl 41.6, which provides:
"41.6 Supervision Allowance for Remote Schools and Virtual School Settings
a) Introduction
i. The parties agree that greater flexibility in the way learning occurs and in how education services are delivered in schools may enhance learning outcomes for students.
ii. For the purposes of this Agreement, where the Department and the UVQ agree, teacher aide supervision of students, can be implemented as a method of exploring alternative models of service delivery for students located in remote and regional communities, and for students participating in the Virtual School Settings.
b) Remote and rural communities:
i.This sub-clause shall have application to one and two teacher schools that are outlined in Schedule 2 of this Agreement, or other schools as may from time to time be agreed between the Department and the UVQ. Because of the variable nature of the enrolments (and staffing based on enrolment) the schedule is indicative and may vary during the life of this Agreement.
ii.In circumstances where a teacher is absent from duty for up to and including three consecutive school days and no replacement teacher is immediately available, the Department may arrange for a teacher aide to supervise pre-set learning activities for the students.
iii.The decision with regard to the appointment of a teacher aide shall be made at the district level.
iv.The intention of this sub-clause is to provide continuity to student learning where a teacher's absence is related to emergent or sudden circumstances. Unplanned short-term sick leave shall be included in this category.
v.Although a teacher aide may not be directed to perform such duties, teacher aides will be given first preference to perform the duties where there is no local registered teacher available
c) Virtual School Setting
i.This sub-clause shall have application to all Virtual School Services operated by the Department.
ii.The parties agree that the Department may arrange for a teacher aide to supervise students, without a teacher being present, during the delivery of lessons in a virtual school setting. These arrangements shall be made at the local level.
iii.Although a teacher aide may not be directed to perform such duties, teacher aides will be given first preference to perform the duties where there is no local registered teacher available.
(d) Allowance Amount
For the purpose of this clause a flat allowance of $60 per day (or part day thereof) shall be paid in addition to all other entitlements including hours worked."
[8]In order to resolve the issue, the parties agreed to ask the Commission to take a staged approach to the interpretation of that clause and the assessment of whether it operates in relation to Mr Staunton's work in delivering the LEO Program. That approach is meant to enable the Commission to determine whether Mr Staunton is eligible to receive payment and whether payment is appropriate.
[9]The questions agreed by the parties are as follows:
Stage 1:
(Questions to determine the parameters of the clause on an abstract basis)
Q1. What is the definition of a Virtual School Setting?
Q2. What constitutes supervision of students without a teacher?
Q3. What constitutes supervision of students during the delivery of lessons?
Stage 2:
(Based on the outcomes of Stage 1, questions applied directly to the factual scenario)
Q4. Based on Q1, is the LEO program a Virtual School Setting?
Q5. If yes, based on Q2, was the member supervising students without a teacher?
Q6. If yes, based on Q3, was the member supervising students during the delivery of lessons?
Stage 3:
(If it is determined at Stage 2 that there is an entitlement, the Commission to consider the following questions)
Q7. Does payment of the allowance in these circumstances reflect the intentions of the parties in relation to the clause, historically and presently?
Q8. If yes, by reference to the objects of the Act, are there other factors which the Commission must consider which would prevent the payment of the allowance?"
[10]The Respondent submitted that if the Commission were to answer "No" to any of Questions 4 to 7, then that would be the end of the matter in the sense that the Applicant could not succeed. It would be unnecessary to answer the subsequent questions. The Applicant acknowledged that to be the case.
[11]However, the Respondent urged the Commission to answer every question, even if the answer to one or more of them is "No," on the basis that the parties would benefit from the Commission's thinking in relation to those questions. Furthermore, if a party were to appeal against the decision on the basis that an answer was wrong, it might assist the parties and the court to have the Commission's findings in respect of all questions, not just those on which the Commission's decision is founded. For that reason, the Applicant's preferred view was also that each question be answered, even if some answers were not in the Applicant's favour.
[12]The response to those submissions might be influenced by the perceived significance of the ultimate decision in this case, in particular, whether the proceeding can be characterised as a "test case" and whether many people might be affected by the decision. On that issue it is difficult to imagine parties being further apart than the Applicant and the Respondent. At the hearing:
(a)Mr Ong for the Applicant advised the Commission that, although the dispute has been ongoing for some two years and the Applicant had been trying to ascertain whether any other teacher aides were in the same position as Mr Staunton, no one in an identical position to Mr Staunton had come forward;
(b)Ms Seeto for the Respondent submitted, in effect, that a decision in favour of the Applicant would apply to all teacher aides into the future and potentially with back payments each working day in the past six years.
[13]Although it is not part of the Commission's role in this case to award a sum of money to Mr Staunton if the Applicant succeeds, the estimated financial consequences of a decision in favour of the Applicant also illustrate how far apart the parties are. Mr Staunton is seeking some $7860 in back pay. The Respondent contends that a decision in favour of the Applicant could make the State of Queensland liable to pay teacher aides a total amount of $1.1 billion.
[14]The Respondent provided the following evidence (Exhibit 9).
(a)In the 2012-2013 financial year, the Respondent paid the supervision allowance for remote schools and Virtual School Settings to 10 teacher aides at a total cost of $32,492.28.
(b)If every teacher aide (permanent, temporary and casual) were to receive the allowance of $60 for every school day on which they are rostered, that would cost the State of Queensland up to $162.4 million per annum. If that amount were to be back paid for six years that would cost $972 million, leading to a total cost of some $1.1 billion.
(c)If every teacher aide were to receive the allowance on two of the five school days, the potential cost per annum would be up to $65 million, and the potential cost of back pay for six years could be up to $390 million, a total cost of approximately $454 million.
[15]In his affidavit, Adam Black, the Respondent's Chief Finance Officer and Assistant Director-General, Finance, confirmed that there is no funding available within the current budget of the Respondent to meet the costs of the scenarios outlined in (b) and (c).
[16]On that basis, the Respondent submitted that, even if the Commission found in favour of the Applicant in relation to Questions 1 to 7, the Commission should decide that there are "other factors" which would prevent the payment of the allowance.
[17]At the Commission's request, the Respondent provided the following information to the Commission after the hearing:
"Departmental records identify 18 schools running the LEO Program and that the LEO Mentor arrangements are eight chaplains, three volunteer parents and seven teacher aides."
[18]Having regard to that information, and if the answers to the Questions apply only to teacher aides who deliver the LEO Program, the amount potentially payable would be near the lower end of the range of estimates.
[19]Nevertheless, for reasons which will be apparent from the way in which they are answered, I have decided to answer each of the Questions 1 to 8.
Relevant legal principles
[20]The Respondent referred to the following decisions of the Commission, the Industrial Relations Court of Australia, and the Federal Court of Australia to inform the approach that the Commission should take to answering the questions: Kucks v CSR Ltd,[1] Short v F W Hercus Pty Ltd,[2] Australian Workers' Union of Employees, Queensland v James Hardie Australia Pty Ltd,[3] and United Firefighters' Union of Australia, Union of Employees Queensland v Department of Community Safety - Queensland Fire and Rescue Service.[4]
[1] Kucks v CSR Ltd (1996) 66 IR 182.
[2] Short v F W Hercus Pty Ltd (1993) 40 FCR 511.
[3] Australian Workers' Union of Employees, Queensland v James Hardie Australia Pty Ltd [2001] 167 QGIG 280.
[4] United Firefighters' Union of Australia, Union of Employees Queensland v Department of Community Safety - Queensland Fire and Rescue Service (D/2013/84) - Decision < propositions relevant to this case that emerge from those authorities are, in summary:
(a)deciding what an existing award means is a process quite different from deciding what might fairly be put into an award;[5]
[5] Kucks v CSR Limited (1996) 66 IR 182, 184 (Madgwick J).
(b)narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely to be of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon;[6]
[6] Kucks v CSR Limited (1996) 66 IR 182, 184 (Madgwick J).
(c)ordinary or well-understood words are in general to be accorded their ordinary or usual meaning;[7]
[7] Kucks v CSR Limited (1996) 66 IR 182, 184 (Madgwick J).
(d)such meaning may be found in a reputable dictionary;[8]
(e)extrinsic materials may be used in the interpretation of a certified agreement to resolve an ambiguity in the meaning of a clause[9] or if the language is susceptible of more than one meaning;[10]
(f)evidence of prior negotiations to establish objective background facts which were known to both parties and the subject matter of the agreement is admissible;[11]
(g)evidence consisting of statements and actions of the parties which are reflective of their actual intentions and expectations is not receivable.[12]
[8] Kucks v CSR Limited (1996) 66 IR 182, 185 (Madgwick J), including reference to the "estimable" Macquarie Dictionary.
[9] Australian Workers' Union of Employees, Queensland v James Hardie Australia Pty Ltd [2001] 167 QGIG 280, 281 (Hall P).
[10] Short v F W Hercus Pty Ltd (1993) 40 FCR 511, 519 (Burchett J); Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337, 352 (Mason J); United Firefighters' Union of Australia, Union of Employees Queensland v Department of Community Safety - Queensland Fire and Rescue Service (D/2013/84) - Decision < [42], [91]-[93] (Industrial Commissioner Thompson).
[11] Australian Workers' Union of Employees, Queensland v James Hardie Australia Pty Ltd [2001] 167 QGIG 280, 281 (Hall P), quoting Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337, 352 (Mason J); see also Short v F W Hercus Pty Ltd (1993) 40 FCR 511, 518, 520 (Burchett J); United Firefighters' Union of Australia, Union of Employees Queensland v Department of Community Safety - Queensland Fire and Rescue Service (D/2013/84) - Decision < [70]-[71] (Industrial Commissioner Thompson).
[12] Australian Workers' Union of Employees, Queensland v James Hardie Australia Pty Ltd [2001] 167 QGIG 280, 281 (Hall P), quoting Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337, 352 (Mason J); United Firefighters' Union of Australia, Union of Employees Queensland v Department of Community Safety - Queensland Fire and Rescue Service (D/2013/84) - Decision < [70]-[71] (Industrial Commissioner Thompson).
Evidence
[22]Oral and affidavit evidence was given by the following witnesses:
(a)Andrew Staunton;
(b)Christopher John Knowlman, former Virtual School System Teacher and current Head of Department at the Brisbane School of Distance Education ("BSDE");
(c)Kelly Ann Maree Ready, the former Deputy Principal at UCSC from June 2009 to January 2013;
(d)Karen Ellen Lindsay, Executive Principal at UCSC;
(e)Christopher William Redler, Program Manager, Learning Engagement Online;
(f)Darryl Honor, Principal Industrial Officer, Workforce Relations, Department of Education, Training and Employment; and
(g)Adam Black, Assistant Director-General and Chief Finance Officer, Department of Education, Training and Employment.
[23]Mr Staunton's affidavit (Exhibit 1) was admitted into evidence despite the objections of the Respondent to specified paragraphs on the basis of relevance, opinion or hearsay. I have borne these objections in mind when considering that affidavit.
Question 1. What is the definition of a Virtual School Setting?
[24]The question is framed in abstract terms and suggests that there is one answer to it, i.e. "the" definition. As will become apparent, it would be incorrect to proceed on that basis in this case.
[25]The term "Virtual School Setting" is not defined in the Certified Agreement. The Applicant contends, therefore, that reference should be made to extrinsic materials (i.e, dictionaries) to ascertain the common meaning of the phrase "virtual school setting."
[26]The Applicant refers to a dictionary definition of a "virtual classroom" as "a mode of computer based education whereby the teacher interacts with students, via video-conferencing, Internet broadcast, or email,"[13] and to another definition of virtual classrooms as "a teaching and learning environment located within a computer-mediated communication system."[14]
[13] Dictionary.com, Virtual Classroom, (20 September 2013, Dictionary.com, < S.R. Hiltz, The Virtual Classroom: Learning Without Limits via Computer Networks (Intellect Books, 1st ed, 1994).
[27]There appear to be two difficulties with that submission. First, the phrase "Virtual School Setting" is the phrase to be defined, not "virtual classroom." No dictionary definition of the subject phrase was provided to or located by the Commission.
[28]Second, although Question 1 refers to "a Virtual School Setting":
(a)the Certified Agreement refers to "the Virtual School Settings" (cl. 41.6(a)(ii)); and
(b)although cl. 46.1(c) is headed "Virtual School Setting" it applies to "all Virtual School Services operated by the Department" (a distinction to which I refer in the answer to Question 4).
[29]In my view, for the purpose of resolving the issues in this case, Question 1 should not be answered only in abstract terms based on dictionary definitions and absent any factual context. Rather it needs to be answered bearing in mind (although not necessarily limited to) features of the Virtual School Setting referred to but not defined in the Certified Agreement ("the VSS").
[30]It is appropriate, however, to start with the words in the subject phrase. As a matter of ordinary English usage, I note that dictionaries define "virtual" in relation to computers to mean:
(a)"of or relating to an environment, object, etc, which exists only as a computer representation, as opposed to a physical existence" (examples of which are a virtual bookshop, or a virtual classroom);[15]
[15] S. Butler (ed), Macquarie Dictionary, (Macquarie Dictionary Publishers Pty Ltd, 5th ed, 2009).
(b)"not physically existing as such but made by software to appear to do so" and "carried out, accessed or stored by means of a computer, especially over a network: a virtual library virtual learning;"[16]
[16] Oxford University Press, Virtual: definition of virtual in Oxford Dictionary (British and World English) (Oxford University Press, < or occurring on computers or on the Internet;"[17]
(d)"something that can be done or seen using a computer and therefore without going anywhere or talking to anyone: virtual shopping."[18]
[17] Merriam-Webster Incorporated, Virtual (Merriam-Webster Incorporated, Colin McIntosh (ed), Cambridge Advanced Learner's Dictionary & Thesaurus (Cambridge University Press, 4th ed, 2013).
[31]As a matter of ordinary English construction of the phrase "virtual school setting," the adjective "virtual" applies to the "school setting." If that construction is adopted, the phrase "virtual school setting" could be understood as a school setting that does not exist physically but exists only as a computer representation, or that is accessed only by means of a computer, especially over a network. It would not necessarily require the involvement of a human teacher, or any interaction between a teacher and students in real time.
[32]For the purposes of this case, it is useful to test whether such a construction is appropriate having regard to evidence about "the" VSS. That approach involves consideration of:
(a)the purpose of the VSS;
(b)the content of the VSS teaching;
(c)the method used to deliver the VSS;
(d)the students to whom the VSS was directed; and
(e)the history of the establishment and expansion of the VSS.
[33]Affidavit and oral evidence in relation to the VSS was given by Mr Knowlman. The following summary is drawn from Mr Knowlman's evidence and attachments to his affidavit (Exhibit 4) including:
·a memorandum dated 12 July 2002 from the General Manager, Accessed, Workforce Development Learning and Performance to the Assistant Director-General, Workforce Development Learning and Performance, "Interim Implementation Strategy for Virtual Schooling Service (VSS) in 2002-2003;"
·Submission for Action: Director-General of Education dated 21 November 2002, "Enrolment Procedure for the Virtual Schooling Service (VSS);"
·Guidelines to Support the Continued Implementation of the VSS i-School Strand During the 2003 and 2004 School Years, State of Queensland, Department of Education, 2003;
·Confirmation and enrolment agreement, VSS-i-school, 2004;
·Operating Protocol for VSS - i-school including the recording of results in Board Subjects on the 2003 senior certificate;
·Submission for Action: Minister for Education dated 12 March 2004, "Proposal for Changes to Distance Education Provision;"
·Submission for Action: Deputy Director-General Office of Education Queensland dated 7 September 2004, "Integration of Virtual Schooling Service with the Brisbane School of Distance Education;"
·2013 Handbook: School Based Learners, BSDE ("2013 Handbook").
[34]It is not necessary to quote at length from those documents. The oral and documentary evidence is drawn on to the extent necessary to deal with the matters listed in [32].
[35]Purpose of the VSS: The original purpose of the VSS was to provide educational opportunities for senior students (Years 11 and 12) to study Overall Position subjects which could not be offered at their schools. It was subsequently extended to students in Years 8, 9 and 10.
[36]Content of VSS teaching: The subjects taught using the VSS were approved by the Board of Senior Secondary Studies ("BSSS"). The first subjects in 2000 were Mathematics C, Economics, Japanese and Computer Studies (Certificate Level II in Information Technology).
[37]In 2004, the subjects being offered by the VSS were Economics, Mathematics C, Physics, Modern History, Japanese, German, Dance, and Information Processing and Technology ("IPT"). Legal Studies was approved as a new subject to be offered by the VSS in 2005.
[38]Mr Knowlman taught IPT. He was required to create a work program and deliver lessons for the IPT subject to Queensland high school students who were registered (enrolled) in that subject through the VSS.
[39]In subsequent years the range and number of subjects increased. The 2013 Handbook listed 31 subjects - most of which were offered to Year 11 and Year 12 students, and some of which were offered to Year 8, Year 9 and/or Year 10 students. The subjects included English and seven other language subjects, three science subjects, three mathematics subjects, six visual and performing arts subjects, three history subjects, accounting, business, civics, economics, geography, IPT, legal studies, and philosophy and reason.
[40]On 1 July 2002, the Queensland Studies Authority replaced the BSSS. Mr Knowlman confirmed that all the subjects offered online by the BSDE are Queensland Studies Authority approved syllabus subjects that a student could study at a local school face-to-face.
[41]Method used to deliver the VSS: When Mr Knowlman was engaged as a VSS teacher, the delivery of the curriculum (academic course material) involved the use of a software conferencing program called NetMeeting, part of the Microsoft Office 95 suite, a PC based application which allowed one-to-one communication between PCs using voiceover IP protocols. Students connected to a remote server in order to connect with the teacher who was based in a "delivery" centre. At the time, teleconferencing facilities utilised a "bridge" to deliver audio content.
[42]That program is no longer used. It was replaced about 2008 or 2009 with Illuminate, and then with Collaborate, which are web-based (rather than PC based) applications.
[43]VSS delivery centres were located at various times and for particular subjects at AccessEd (now Coorparoo Education precinct), Elanora State High School, Kenmore State High School, Stanthorpe State High School, Heatley Secondary College, Brisbane State High School and later Cavendish Road State High School, Pimlico State High School and BSDE. The transition of the VSS to BSDE commenced in 2005 and was completed at the end of 2011.
[44]Mr Knowlman described the BSDE as "a leader in the innovative delivery of curriculum using global technologies" which provides a "flexible curriculum to meet student needs in an active e-learning environment" (Exhibit 4, para 18). He explained that the curriculum is flexible in the sense that students are able to access resources online and work at their own pace, and submit to their teachers at their own pace.
[45]The 2013 Handbook stressed the importance of students:
(a)engaging fully with the learning e.g. by participating in scheduled lessons, web-conferencing and blackboard courses; regularly completing learning tasks and returning diagnostic tasks or units of work; communicating with their teacher by phone or email about their learning; and
(b)attending the learning program course (at least 80 percent attendance was required to qualify for credit in that unit) and BSDE activities.
[46]According to the 2013 Handbook, the BSDE strives to achieve "the best educational outcomes possible for our students." That involves assessment linked to the teaching and learning processes in a course. Students who fail to submit work regularly are placed on a student inactivity list. Senior students who do not complete exams or assignments are not given credit (i.e., they are "Not Rated"). Students who are Not Rated:
(a)in up to 50 per cent of their courses in any semester will be removed from those subjects and required to renegotiate their course of study;
(b)in more than 50 per cent of their courses in any semester will have their enrolment cancelled, subject to appeal.
[47]Students who use the VSS: The students who were to benefit from VSS were those at schools where the subjects were not able to be offered because of:
(a)a lack of qualified teachers at the school; or
(b)a small number of students wishing to study the subject, making it economically unviable for the school to offer the subject.
[48]During the pilot phase of the VSS, it was agreed with the BSSS that students (other than students enrolled in the BSDE) could not enrol with VSS for a subject that is offered at their school. Thus, a student who was unable to take a subject of their choice because of a timetable clash within their school could enrol in the subject via distance education but not through the VSS. In 2002, the VSS Implementation Steering Committee supported the approval of dual cohorts in VSS receiving schools and proposed that Education Queensland advise the Queensland Statutory Authority (which replaced the BSSS) of this position and negotiate the necessary changes to existing procedures.
[49]Eligibility to enrol with the BSDE program expanded subsequently, and the 2013 Handbook stated that, subject to places being available:
(a)for Years 8, 9 and 10 - a student enrolled at another school could study a subject through a BSDE provided that the student was unable to study the subject at the base school because:
· the school did not offer the subject
· the student had transferred to the school and the school's timetable did not allow the student to continue studying the subject from the previous school
(b)for Years 11 and 12, a student enrolled at another school could study an Authority or Authority-registered subject through the BSDE provided that the student was unable to study the subject at the base school because:
· the school did not offer the subject (and the school allowed (enrolled) the student to study the subject through the BSDE)
· the school's timetable did not allow the student to study the subject at the base school (and such students were deemed to be dual cohort students).
[50]When i-school commenced there was a condition that a maximum of eight students could enrol in an i-school subject from one school. BSSS indicated that if there was a class of more than eight students the school should provide a face-to-face teacher. Following a two year review of the i-school, a recommendation was made to the Director-General of Education that student numbers for each online class group be limited to 10, with a maximum of eight students for Languages Other Than English subjects. The 2013 Handbook, however, stated that "up to" eight students per school per subject per year level may be enrolled at BSDE.
[51]History of the VSS: The VSS commenced in January 2000 as a trial, with 98 Year 11 students in 26 schools. Plans were made that year to expand the VSS in 2001 with regard to subjects approved by the BSSS. The cohort of Year 11 students undertaking studies in Mathematics C, Economics and Japanese in 2000 were to continue with the VSS into Year 12. Instruction was to continue to be delivered from AccessED, Woolloongabba by the VSS teachers under the terms of the agreement between AccessED, the BSSS and the base schools.
[52]In 2002 there was a proposal to move the VSS from a trial project to fully implemented delivery model with an expanded curriculum. There were discussions about aligning the VSS with BSDE services at that time.
[53]An "Interim Implementation Strategy to Virtual Schooling Service (VSS) in 2002-2003" included recommendations in relation to specific matters for 2003 including the continuing secondment of teachers to the VSS, the addition of Year 11 German as a VSS delivery subject for 2003 and the nomination of certain schools to be invited to be VSS delivery schools. The document also recommended that the VSS be:
"extended to include student support services from 2005 in a staged program to include: career guidance and education services; literacy and numeracy for suspended and excluded students in primary school and secondary support and education programs for students at risk."
[54]The document explained that representations had been made to AccessEd regarding:
"the use of current VSS infrastructure to deliver career education and guidance and services to students in rural and remote schools and to deliver short courses and support to primary and secondary students who are experiencing disruptions to their education through exclusions/suspensions or who are at risk of leaving school."
[55]It proposed that VSS teaching numbers for 2003 include two additional positions to establish VSS student support services and deliver them from AccessEd. One of those positions would work closely with the VSS student support teachers to identify the appropriate mix of district-based and systemic online services.
[56]The VSS was moved from a trial project to implementation as a "core service" from the commencement of the 2003 school year.
[57]By 2004, the number of students enrolled in the VSS had increased to 580. The projected enrolment for 2007 was estimated at 720.
[58]The approved implementation strategy included the extension of the VSS through the inclusion of student support services ("i-support") to provide:
(a)career guidance and education services;
(b)literacy and numeracy for suspended and excluded students in primary schools; and
(c)secondary support and education programs for students at risk.
[59]Of the 22 full time equivalent ("FTE") teachers allocated to the VSS, 20 were used to deliver the i-school component of the VSS, and two resourced the i-support strategy.
[60]In May 2004, the Minister for Education and the Arts approved the integration of the i-school component of the VSS within the BSDE.
[61]The Submission for Action to the Deputy Director-General Office of Education dated 7 September 2004 referred to Action 10 of the "Education and Training Reforms for the Future" White Paper (2002) which indicated that the Queensland Government will:
·continue to expand the VSS to increase the subject range and deliver a range of support services, such as guidance counselling online and alternative programs;
·expand online support services in vocational education and training to include learning support, career guidance, mentoring and counselling.
[62]The Submission for Action noted that the VSS i-support program was staffed by two teacher FTEs and that, to meet the commitment to continue the operations of the i-support program, the ongoing funding of two teacher FTEs from the centralised staffing allocation would need to continue. The teachers would continue to be based at Coorparoo Education Precinct working with the ICTs and Learning Branch. The submission recommended accordingly.
[63]In his oral evidence, Mr Knowlman gave the following concise description of the VSS:
"The Virtual Schooling Service was basically an online delivery of curriculum to secondary State high school students, in particular academic programs, and it was delivered from selected state high schools around Queensland."
[64]The evidence quoted or summarised in [53] to [55] and [58] to [62] indicates that the VSS was extended to include student support services beyond the delivery of instruction in curriculum based subjects. Neither party referred to that evidence in their submissions. It is not clear whether the i-support strategy within the VSS includes support for primary school students of the type provided by the LEO Program.
[65]Applicant's submission: As noted earlier, the Applicant quoted dictionary definitions of "virtual classroom" to provide the answer to Question 1. In his oral submissions, Mr Ong stated that a virtual school setting is an abstract concept which encompasses many means of flexible delivery of educational outcomes. That much is apparent from the definitions quoted earlier.
[66]Respondent's submission: The Respondent's written and oral submission did not address the definitional issue by reference to the meaning of the words that comprise the phrase, but went directly and exclusively to the evidence of Mr Knowlman to describe the main features and history of "the" VSS, and the transition of the VSS to the BSDE.
[67]Conclusion: Despite the fact that the terms of Questions 1 to 8 were agreed by the parties, and the Questions are arranged in a logical sequence, the divergent approaches taken to the way in which Question 1 should be answered point to a fundamental issue about the approach that the Commission should take when answering these questions, particularly Questions 1 to 4.
[68]Having regard to the real issue in this case (to which the answers to these questions are said to be addressed), it seems artificial and impractical to confine my answers to those questions. I am concerned that if I do no more than formulate something in the nature of a definition of what "a" Virtual School Setting is and proceed to answer the other questions from that starting point, I will not necessarily deal directly or correctly with the main issue, namely whether Mr Staunton (and perhaps other LEO mentors) is entitled to the virtual schooling allowance payable in accordance with cl. 46.1(c) of the Certified Agreement.
[69]Consequently, I will answer the questions as formulated and, where appropriate, express my conclusion in relation to "the" VSS.
[70]As noted earlier, I approached Question 1 on the basis that it should not be answered only in abstract terms based on dictionary definitions and absent any factual context, but by bearing in mind (although not necessarily being limited to) features of the VSS. The evidence in these proceedings demonstrate that the VSS developed and delivered by the Respondent is not something which exists only as a computer representation. Rather, the teaching delivered to those participating in the VSS is carried out and accessed on-line by means of a computer, but it is delivered in real time by a real person to students in a bricks and mortar setting. That is consistent with the definitions of virtual classroom provided by the Applicant and quoted earlier, namely "a mode of computer based education whereby the teacher interacts with students via video-conferencing, Internet broadcast and email" and "a teaching and learning environment located within a computer-mediated communication system."
[71]By reference to both the dictionary definitions quoted earlier and the evidence in relation to the VSS, I conclude that a Virtual School Setting is a mode of computer-mediated on-line education by which a teacher at one venue delivers, in real time, lessons to a student or students at another venue or venues.
[72]Having regard to the evidence in this case, I conclude that the VSS is a mode of computer-mediated on-line education by which a teacher at one venue delivers, in real time, lessons about subjects approved by the relevant Board or Authority to high school students (in Years 8 to 12) at another venue (or venues) who cannot be taught the subject or subjects at their local school (because each subject is not taught at all or at that time at that school).
Question 2. What constitutes supervision of students without a teacher?
[73]The question set out above is in the form contained the referral of the matter to the Commission for arbitration (which was what the parties agreed) and as set out in the Respondent's submission. The Applicant, however, states that the question is "What constitutes supervision of students without a teacher being present?" The words "being present" are implicit in the form of the question set out above and are the words used in cl. 41.6(c)(ii), so I will proceed on that basis and hence will consider the Applicant's submission in relation to "being present."
[74]The meaning of "supervision:" The threshold issue here is the meaning of "supervision."
[75]The Certified Agreement defines “Supervision of students” to mean:
“the general supervision of students in eating areas, playgrounds, computer rooms or libraries during the morning recess or lunch breaks; bus supervision and in some cases classrooms. Bus supervision refers to the supervision of students from the time of arrival of the buses in the morning and the beginning of classes, and from the cessation of classes to the departure of buses in the afternoon. Supervision duties are to be clearly indicated to teacher aides after appropriate consultation.” (clause 9.0)
[76]It is apparent from the way in which clause 9.0 is worded that it describes where and when supervision of students occurs, but does not define what "supervision" is in this context. In the absence of such a definition in the Certified Agreement it is appropriate to look elsewhere for its meaning.
[77]The origin of the word "supervise" dates back to the late 15th century (in the sense of "survey, peruse"). The word comes from medieval Latin supervis- "surveyed, supervised", from supervidere, from super- "over" and videre "to see".[19]
[19] Oxford University Press, Supervise: definition of supervise in Oxford Dictionary (British and World English) (Oxford University Press, the ordinary English meaning of “supervise” includes “to oversee (a process, work, workers, etc.) during execution or performance; superintend; have the oversight and direction of” and “supervision” is “the act or function of supervising; oversight; superintendence.”[20]
[20] S. Butler (ed), Macquarie Dictionary, (Macquarie Dictionary Publishers Pty Ltd, 5th ed, 2009).
[79]The Shorter Oxford English Dictionary on Historical Principles[21] includes two definitions, the second of which seems apposite to this context:
"2. To oversee, have the oversight of, superintend the execution or performance of (a thing), the movements or work of (a person)."
[21] Angus Stevenson (ed), Shorter Oxford English Dictionary on Historical Principles (Oxford University Press, 3rd edition, 1975).
[80]"Supervision" is defined to mean:
"The action or function of supervising; oversight, superintendence."
[81]It is apparent from those definitions that supervision involves more than merely observing, looking over or inspecting people. It involves at least the potential for some intervention on the part of the person doing the supervising, e.g. by giving direction to someone to do or refrain from doing some action.
[82]That conclusion about the meaning of "supervision" is supported by the references in cl 41.6 of the Certified Agreement to:
(a)the purpose of teacher aide supervision of students (i.e., a method of exploring alternative models of service delivery for certain categories of students: cl 41.6(a)(ii));
(b)what is to be supervised (i.e., pre-set learning activities for the students: cl 41.6(b)(ii); and the delivery of lessons in a virtual school setting: cl 41.6(c)(ii)); and
(c)supervision as a duty (see cl 46.1(b)(v) and 46.1(c)(iii)).
[83]That interpretation is consistent with the first definition of "supervisor" in the Shorter Oxford Dictionary on Historical Principles:
"1. A person who exercises general direction or control over a business, a body of workmen, etc; one who inspects and directs the work of others"
rather than:
"2. An onlooker, spectator, observer;" or
"3. One who reads over, esp. for the purpose of correction; a reviser."
[84]As with the approach to answering the previous question it is appropriate to check whether those dictionary definitions are consistent with the evidence in this case concerning supervision.
[85]The Role Description for a TA003 (Exhibit 2) states that a teacher aide “will contribute to the provision of a quality educational service by assisting and supporting teachers, students and parents with learning activities and administrative duties in a supportive school environment.” The non-exhaustive list of duties of a teacher aide includes:
·“Supervision of small groups of students, undertaking specific learning activities designed by a teacher, when the teacher is not in the room but is available to be called on if needed.
…
·Providing support to teachers in behaviour management programs, learning support programs and to students requiring specific therapy programs, working with students on a regular basis where teachers/specialists are available only at intervals for reporting and review.”
[86]Ms Lindsay and Ms Ready gave examples of the types of supervision carried out by teacher aides and the context and content of such supervision.
[87]Ms Lindsay described the role of teacher aides, in the context of the duty of care owed to students, as "supervising" students.
"So for a teacher aide, it might be the duty of care looking after a small group of children on behalf of a teacher, either in the class or outside of the class. It might be duty of care in terms of looking after children in the playground or on rostered duty times in the library or on bus duty."
Such supervision occurs on a day-to day basis.
[88]Ms Ready described the role of a teacher aide working within a program or directive from a relevant person, e.g. a classroom teacher, a line manager, a deputy principal or a principal. Her evidence was that the usual work of a teacher aide is "working with" a small group (between one and 10 students during class time) in a classroom or outdoor setting, "overseeing" structured learning episodes or intervention, always arranged by a teacher and in an accompanying manner with students. Examples of structured learning episodes programmed and undertaken by teacher aides in the normal course of their duties include reading support set by the teacher or behavioural interventions as set by the Deputy Principal. "Monitoring and accompanying" small groups of students falls within a teacher aide's normal role. In the course of performing these duties, teacher aides operate under the instruction of the supervising teacher, who is readily available for contact by the teacher aide. Teacher aides "oversee" small groups of students for periods of time at a short distance away from the classroom teacher in an adjoining room or in outside areas under cover. Teacher aides who are rostered to perform bus or playground duty will "supervise" a large number of students (Exhibit 5).
[89]Ms Ready said that there was "very little" difference in a practical sense between "oversee" and "supervise" as those words were used in her affidavit. Ms Ready gave evidence that she and other colleagues in the same role use "oversee" when discussing what teacher aides do in relation to children, whether in a class or playground. She suggested that "supervise" might have a different meaning for people outside the school context and for people involved with schools. Ms Ready continued:
"If I'm saying that someone is supervising on a playground duty, it doesn't mean that they are running the entire playground or have devised the rules that are in there. It's likewise with an aide. If I'm saying they're supervising a small group, it means that they are facilitating or fulfilling the instructions that they have been given. So I would say … there's not a huge difference between those terms in the context that we apply them in a school, but I could see where other people would see that differently."
[90]When asked the difference in practical terms between between "escorting" and "supervising" children, Ms Ready said that, in the context of a school, there would be "very little difference". She continued:
"Escorting a student to a location is something that teacher aides do on a regular basis. And during that capacity, their job is to ensure duty of care of that student to the location that they are going to. And, again, my context of supervision is certainly more defined than what I would suggest people working outside of the school field would be. And supervision to me is ensuring that that duty of care is applied and those students are there, the instructions are followed and the students are escorted back to their rooms."
[91]Ms Ready gave evidence that, on a daily basis and in every school in Queensland, a teacher aide would be expected to perform supervision without a teacher being physically present. Teacher aides supervise children for learning episodes by themselves under the direction of a teacher or one of the other line managers, and when on playground duty can supervise between 20 and more than 150 students for periods of 15 minutes to an hour without a teacher present.
[92]Ms Lindsay gave an example of the circumstances in which a teacher aide assists and supports a teacher in the delivery of the curriculum but operates without a teacher present. A teacher might ask the teacher aide to go with a group of students to another room to assist them either, in the case of students who are struggling with their work, by re-asking questions and redirecting the students or, in the case of very bright students, to do an activity planned by the teacher. In those circumstances, the teacher aide does not plan the curriculum or assess the students. Although the teacher is not present they are in close proximity to the room used by the teacher aide and students.
[93]In essence, the evidence summarised above demonstrates that:
(a)teacher aides may be asked to perform a range of supervisory roles in various circumstances at a school;
(b)the content of what teacher aides do will be determined or directed by, or will be under the instruction of, an appropriate other person (e.g. activities or pre-set lessons planned by a teacher, and behavioural interventions as set by the Deputy Principal); and
(c)at least some of the supervisory work will be undertaken in places where no teacher is physically present, although a teacher should be in relatively close proximity to a teacher aide.
[94]As the summary of their evidence also demonstrates, Ms Lindsay and Ms Ready linked the supervisory function of a teacher or teacher aide to the duty of care that a school authority owes to its pupils, that is, the duty to ensure that reasonable care is taken of those pupils whilst they are on the school premises during school hours when the school is open for attendance.[22] The primary duty of care, so far as it requires supervision of the pupils, will ordinarily fall to be discharged by the teachers at a school.[23]
[22] See e.g. Commonwealth of Australia v Introvigne (1982) 150 CLR 258, 269-271 (Mason J); Ramsay v Larsen (1964) 111 CLR 16.
[23] See Commonwealth of Australia v Introvigne (1982) 150 CLR 258, 279 (Brennan J).
[95]Leading cases about children injured at school demonstrate that supervision is not a passive activity, or at least that the presence of a supervising person will influence the behaviour of those being supervised. So, for example, judges have stated that:
(a)the "foreseeable folly of youthful exuberance made supervision … necessary if the boys were to be safeguarded from the risk of injury";[24]
(b)"Experience of the behaviour of young school children teaches that, when a supervising teacher leaves the classroom or the playground, there is a real risk that one or more of the children is or are likely to misbehave. … A child bent on mischief is unlikely to miss the opportunity presented when the supervising teacher's back is turned."[25]
(c)when supervising teachers were at a meeting away from a playground, there were "no teachers nearby to stop" boys acting in a way which led to an injury to one of them;[26]
(d)"it is more probably than not that the accident would not have occurred if proper supervision had been exercised over the pupils".[27]
[24] Commonwealth of Australia v Introvigne (1982) 150 CLR 258, 280 (Brennan J).
[25] Roman Catholic Church Trustees for the Diocese of Canberra and Goulburn v Hadba (2005) 221 CLR 161, 174 (McHugh J).
[26] Commonwealth of Australia v Introvigne (1982) 150 CLR 258, 277 (Brennan J).
[27] Introvigne v Commonwealth (1980) 48 FLR 161, 175; 32 ALR 251 (Bowen CJ, Connor and Lockhart JJ).
[96]The extent and duration of necessary supervision may be influenced by the number and age of the students being supervised and the activities in which they are participating. For example, between five and 20 teachers might be appropriate to supervise a recreation area where hundreds of pupils are present, "it being notorious that school pupils in large numbers, if left to their own devices in a recreation area, will on occasions engage in activities involving some risk of personal injury."[28] If the system does not provide for sufficient staff to exercise proper supervision over children in the playground, a court may hold that a student's injuries were due to the inadequate system of supervision and care.[29]
[28] Commonwealth of Australia v Introvigne (1982) 150 CLR 258, 266 (Mason J), 277 (Brennan J).
[29] Commonwealth of Australia v Introvigne (1982) 150 CLR 258, 275 (Murphy J).
[97]In determining the probability of the occurrence of an injury, the vulnerability of the person at risk is a critical factor. A risk may have a high probability of occurring when the person at risk is a small child, but a low probability where the person is a mature adult of ordinary intelligence. So action on the part of the risk maker that is reasonably required in one situation might not be required in a different situation. Hence, negligence doctrine will generally impose a higher standard of care on a person who is responsible for a risk of injury to a school child than it will impose in respect of many other persons. On the spectrum of school child maturity, Year 3 children are more vulnerable to injury from their own or class members' activities than Year 6 children, and that is relevant to the amount of supervision which is appropriate.[30]
[30] Roman Catholic Church Trustees for the Diocese of Canberra and Goulburn v Hadba (2005) 221 CLR 161, 175-176 (McHugh J).
[98]Where the school has a system under which particular teachers have specific duties of supervision, those teachers are also expected to minimise dangers of kinds other than those to which their specific duties relate, and so might be unable to continue the constant supervision of their specified area in order to intervene elsewhere.[31]
[31] Roman Catholic Church Trustees for the Diocese of Canberra and Goulburn v Hadba (2005) 221 CLR 161, 170 (Gleeson CJ, Hayne, Callinan and Heydon JJ), see also 172 (McHugh J).
[99]This is not a comprehensive review of the judicial authorities, as such a review is not required in this case. However it is worth noting that the High Court has also stated that it is not reasonable:
"to have a system in which children are observed during particular activities for every single moment of time - it is damaging to the teacher-pupil relationships by removing even the slightest element of trust; it is likely to retard the development of responsibility in children, and it is likely to call for a great increase in the number of supervising teachers and in the costs of providing them."[32]
[32] Roman Catholic Church Trustees for the Diocese of Canberra and Goulburn v Hadba (2005) 221 CLR 161, 170 (Gleeson CJ, Hayne, Callinan and Heydon JJ).
[100]The other word that is integral to answering Question 2 is "present". Its origin is in Middle English via Old French from Latin praesent - "being at hand". The current ordinary English meanings of "present" that apply in this context include:
(a)"being in the place in question"[33]
(b)"4. being with one or others, or in the specified or understood place (opposed to absent) to be present at a wedding. 5. being here or there, rather than elsewhere. 6. existing in a place … 7. being actually here …"[34]
The word denotes a physical, rather than virtual, presence at a location such as a classroom.
[33] G Turner (ed), The Australian Concise Oxford Dictionary (Oxford University Press Melbourne, 7th ed, 1987).
[34] S Butler (ed), Macquarie Dictionary, (Macquarie Dictionary Publishers Pty Ltd, 5th ed, 2009).
[101]Applicant's submissions: The Applicant submits that, because the Certified Agreement does not clearly specify circumstances which are considered to be "supervision", reference should be made to extrinsic materials to ascertain the common meaning of the term. Those materials comprised a policy statement headed "Warrnambool College - Supervision of Students." The provenance of the document was not described to the Commission. The document refers to that part of the Victorian Government's Schools Guide dealing with "Specific duty of care." The paragraphs illustrate the view of, or approach to, supervision of students by teachers taken by one educational institution in another state. The following statement from the document is consistent with the judicial decisions cited and quoted above:
"A teacher on yard duty must be alert and vigilant and must intervene immediately if potentially dangerous behaviour is observed in the playground. The teacher should enforce College behaviour standards and logical consequences of playground safety rules, and should keep moving during supervision in order to cover the full assigned area."
[102]Elsewhere, in the section headed "Unsupervised Activities," the document states:
"To insist on direct teacher supervision of all activities would severely inhibit the development of many valuable school programs where students are encouraged to undertake activities outside the school either individually or in small groups. The degree of supervision will vary according to the nature and environment of the activity, the age and maturity of the students and the size of the group. The Principal/head teacher may decide:
· That direct teacher supervision is needed.
· That adequate supervision can be exercised by a single teacher, or by a number of teachers, or by a teacher assisted by other adults."
[103]By reference to that material, the Applicant contends that supervision in a school environment must occur both in traditional classroom settings and also while "unsupervised activities" are undertaken.
[218]In the context of the 2003 certified agreement negotiations, the VSS clause was a way to reward some of the higher performing teacher aides because at that stage there were no classifications for teacher aides higher than 002 and 003, the technology was fairly new, and the responsibilities were similar to those people providing preset learning, whether on a computer screen or in paper format.
[219]Mr Honor gave oral evidence that the VSS clause was negotiated "around quite a unique situation" involving the supervision and other responsibilities that go with the supervision of students unattended by a teacher, where the students were undertaking curriculum learning. According to Mr Honor, it has not been part of the discussions that the allowance be paid to any teacher aide using any computer for part of the classroom process.
[220]Ms Lindsay gave evidence that the $60 allowance would be paid to teacher aides in circumstances (such as natural disaster or widespread illness) where no teacher (including supply or contract teachers) was available to ensure continuity of learning, and the teacher aide would be responsible to implement the curriculum by supervising students in relation to pre-set learning material prepared by a teacher. Although that evidence apparently relates to cl. 41.6(b) rather than cl. 41.6(c), it supports a conclusion that the virtual schooling allowance is payable where a teacher aide has some substantive role in relation to the delivery of learning that is additional to the generic role of a TA003 teacher aide as set out in Exhibit 2.
[221]Applicant's submissions: The Applicant submits that the interpretation of the relevant clause in the Applicant's favour is wholly consistent with the intentions of the parties when the Certified Agreement was made, even though the intentions of the parties cannot be readily ascertained because the clause has not been the subject of negotiations in relation to the past three Certified Agreements. The Applicant also contends that the evidence surrounding the negotiations of the 2003 Certified Agreement does not establish the shared intention of the parties for other than that agreement.
[222]In essence, as I understand it, the Applicant's submission relies on the plain meaning of the words used in the clause, which clause should not be read down to apply only to services which are nominated or decreed by the Respondent.
[223]Respondent's submissions: The Respondent submits that the payment of the allowance to Mr Staunton in the current circumstances does not in any way reflect the intention of the clause, either historically or presently.
[224]The Respondent summarised the circumstances surrounding the negotiation of the VSS clause in 2003 as follows:
(a)the clause was negotiated when the VSS was expanding to provide greater access to more BSSS approved subjects;
(b)the Department considered alternative staffing arrangements which involved teacher aides supervising students in VSS approved subjects (to meet the needs of the program);
(c)the Department put forward an initiative within the context of negotiations (2002/2003) to facilitate this program;
(d)the parties agreed that there needed to be more flexibility in the way learning occurs and provision of education services delivered in schools;
(e)the parties agreed that, in recognition of the additional responsibility the teacher aide was undertaking, an allowance of $60 per day should be paid to teacher aides;
(f)the clause in its entirety has been replicated in all replacement teacher aide certified agreements and was not the subject of subsequent negotiations; and
(g)complementary arrangements were negotiated with the Queensland Teachers' Union.
[225]The Respondent also states that the intent of an allowance is to compensate for an additional responsibility/impost, i.e., a skill or imposition above and beyond what is expected in a role. The additional responsibility/skill at the time when the clause was negotiated involved teacher aides providing sole supervision in facilitation of a VSS, BSSS approved subject.
[226]In the Respondent's submission, Mr Staunton did not take on any additional responsibility or skill. The duties that he performed were in line with the Position Description for the TA003 position to which he is appointed.
[227]Conclusion: The only evidence in these proceedings about the intentions of the parties in relation to the VSS clause:
(a)describes the historical circumstances in which the clause was negotiated in 2002-2003; and
(b)is that the substance of the VSS clause has been replicated in successive certified agreements in 2005, 2008 and 2011, but that the clause was not the subject of the negotiations that led to those certified agreements.
[228]In those circumstances, and bearing in mind the particular reason for including the VSS clause and the additional responsibilities of a teacher aide in supervising students undertaking VSS approved subjects, the changes in technology since 2003, the extensive adoption of on-line and other technology based modes of teaching in Queensland state schools in that period, the fact that the LEO Program commenced in 2004 (after the 2003 Certified Agreement), and the absence of any evidence about what the parties intended when the VSS clause was repeated in successive certified agreements after 2003, there is no basis for concluding that the parties historically intended or presently intend that the VSS clause applies to teacher aides involved in the LEO Program.
[229]On the evidence before the Commission, I conclude that:
(a)the parties to the 2003 certified agreement could not have intended, and did not intend, that the virtual schooling allowance be paid to teacher aides who are mentors in the LEO Program; and
(b)there is no evidence that the parties to successive certified agreements (and hence presently) intended that the virtual schooling allowance be paid to teacher aides who are mentors in the LEO Program.
[230]There is a suggestion in the Applicant's written and oral submissions that the VSS clause has been left to sit idle while technological changes have occurred, and that the clause has not kept up with those changes. If that is correct, the matter might be addressed by the parties in the course of negotiations of the next certified agreement. The current Certified Agreement has a nominal expiry date of 31 August 2014 (cl. 4.0). It might be that the nature of these proceedings and these reasons for decision could assist the parties to those negotiations.
Question 8. By reference to the objects of the Act, are there other factors which the Commission must consider which would prevent the payment of the allowance?
[231]The only "other factor" about which submissions were made concerns the cost to the State of findings in favour of the Applicant in the answers to Questions 1 to 7.
[232]In their submissions, both the Applicant and the Respondent referred to s 3(p)(i) of the Industrial Relations Act 1999 which states:
"The principal object of this Act is to provide a framework for industrial relations that supports economic prosperity and social justice by - …
(p) ensuring that, when wages and employment conditions are determined by arbitration, the following are taken into account -
(i) for a matter involving the public sector - the financial position of the State and the relevant public sector entity, and the State's fiscal strategy …"
[233]Respondent's submissions: The Respondent's submission was predicated on Questions 1 to 7 being answered in favour of the Applicant, and the effect of such answers being that many, and possibly all, teacher aides would be entitled to be paid the allowance referred to in cl. 46.1(d) of the Certified Agreement. In particular, the Respondent provided evidence (Exhibit 9) that the Respondent currently engages approximately 14,000 teacher aides across approximately 1297 schools each school day. As every school in Queensland incorporates ICT based learning into the school day, payment of the allowance could apply to every teacher aide. On that assumption, and given that payment of the allowance would effectively increase their salary by $60 per day, the cost of extending the allowance to all ICT based learning activities across the Respondent could cost it in the order of $162 million per annum. If an order were to be made for the back payment of the allowance for six years, the potential cost to the State would be approximately $972 million. There is no funding available within the current budget of the Respondent to meet such costs.
[234]Applicant's submissions: In reply, the Applicant contended that s 3(p)(i) of the Act should present no barrier to the payment of the allowance in the manner sought. In the Applicant's submission, the answers to Questions 1 to 7 in its favour would benefit one or few of its members. In essence the submission was that:
(a)the claim is an individual claim;
(b)Mr Staunton is almost unique in his skills, qualifications and experience, and it was for these reasons that he was chosen to participate in the LEO Program, whereas ordinarily teacher aides would not have been called upon to perform this role;
(c)the amount sought is negligible in its impact to the State and the Department;
(d)although the Applicant has close to 8,000 members who are teacher aides, it has not received (since this dispute commenced in mid-2012) any meaningful complaints from other members who believe they are entitled to the allowance and have not been paid it; and
(e)hence there appears to be no risk of the "floodgates" being opened as a result of this arbitration.
[235]Conclusion: At the request of the Commission, the Respondent provided statistics about how many teachers aides are currently involved in the delivery of the LEO Program. In a letter dated 20 March 2014 the Respondent advised that:
(a)Departmental records identify 18 schools running the LEO Program and that the LEO mentor arrangements are eight chaplains, three volunteer parents and seven teacher aides; and
(b)Mr Ong had stated that United Voice was in no position to contradict those numbers and was content with the number being provided to the Commission unquestioned.
[236]Although it is unnecessary to answer Question 8, I observe that the answers to Questions 4 to 7 were prepared in respect only of teacher aides who deliver the LEO Program. On that basis, and if I am wrong in the answer to Question 7 and (having regard to the qualifications to the answers to some of the other questions) it were to be held that those teacher aides are entitled to the virtual schooling allowance, the total amount that might be payable by the State of Queensland would be near the lower end of the range of estimates provided by the parties. Consequently, that would not be a factor that would prevent the payment of the virtual schooling allowance.
Conclusions
[237]The answers to Questions 1 to 8 were provided earlier, together with detailed reasons for them. It is convenient at this stage to consolidate all the answers in a set. However, they should be read by reference to those reasons.
[238]The Questions and my answers are as follows:
Q1. What is the definition of a Virtual School Setting?
Answer:
(a)A Virtual School Setting is a mode of computer-mediated on-line education by which a teacher at one venue delivers, in real time, lessons to a student or students at another venue or venues.
(b)The VSS is a mode of computer-mediated on-line education by which a teacher at one venue delivers, in real time, lessons about subjects approved by the relevant Board or Authority to high school students (in Years 8 to 12) at another venue (or venues) who cannot be taught the subject or subjects at their local school (because each subject is not taught at all or at that time at that school).
Q2. What constitutes supervision of students without a teacher?
Answer:
(a)The supervision of students involves the oversight of students and, where necessary or appropriate, taking action to assist or direct them or otherwise manage their behaviour. The nature and level of responsibility of a person (other than a teacher) supervising the students may be prescribed by the person with greater or ultimate responsibility to ensure that the duty of care to students is discharged (e.g., the school principal). Those prescriptions might be found in documents such as a certified agreement or other statement of duties, and could include the regulation or limitation of the supervisor's role (e.g., by requiring the supervisor to ask a teacher for assistance in specified circumstances).
The supervision of students without a teacher by a person or persons other than a teacher (including, as appropriate, a teacher aide) will occur when a school teacher is not present physically at the location where the students are (e.g., when students are being escorted from their classroom to another room).
Where a teacher is participating in real time by way of a computer-mediated on-line system using a webcam, and can see, hear and speak with the students, they are supervising the students. However, it would be correct to say that another person (e.g. a teacher aide) who is in the same room as the students and is supervising them, is supervising without a teacher being present. The other person is sharing the supervisory duties. Unless some different arrangement has been entered into with the other person, the teacher has oversight of the students and should be directing the students in their work. The teacher will be relying on the other person to reinforce those directions, or assist the students in ways that the teacher cannot (e.g., by physically assisting, directing or otherwise managing the students), or assist in other ways as instructed (e.g., with the completion of pre-set lesson materials or activities). The nature and extent of the other person's supervisory duties may vary during the period when the teacher is participating (e.g., if there is a technical malfunction a consequence of which is that the teacher cannot see, hear or speak with the students).
(b)That reading of the phrase "without a teacher being present" is consistent with the relevant paragraph of the Certified Agreement (cl 41.6(c) ii) which provides that arrangements may be made for "a teacher aide to supervise students, without a teacher being present, during the delivery of lessons in a virtual school setting". There is no suggestion that the lessons would be delivered by anyone other than a teacher. If cl 41.6(c) ii is read on that basis, then it would follow that "without a teacher being present" refers to times when a teacher from the local school is not physically present during the delivery of lessons by the VSS teacher, and a teacher aide is supervising the students.
Q3. What constitutes supervision of students during the delivery of lessons?
Answer:
Supervision of students during the delivery of lessons involves the oversight of students and, where necessary or appropriate, taking action to assist or direct them or manage their behaviour.
Although the primary responsibility for supervision rests with the teacher, aspects of that supervision, or the supervision of some students, may be exercised by another person (including a teacher aide) by arrangement with and at the direction of the teacher.
Aspects of, and responsibilities for, supervision might change from time to time during the delivery of a lesson.
Q4. Based on Q1, is the Learning Engagement Online (LEO) program a VSS?
Answer:
(a)On the basis that:
· a VSS is a mode of computer-mediated on-line education by which a teacher in one venue delivers, in real time, lessons to a student or students at another venue or venues; and
· a "lesson" means something to be learned or studied,
the LEO Program could be characterised as a VSS.
(b)In light of the comparison of key features of the VSS and the LEO Program, the LEO Program is not part of the VSS.
Q5. If yes, based on Q2, was the member supervising students without a teacher?
Answer:
Mr Staunton was supervising the students in the LEO Program at all times from escorting them from their classroom to the LEO room, and escorting them back to their classroom. At times other than when lessons were being delivered on-line by Ms Lee, Mr Staunton was supervising those students without a teacher. During the delivery of lessons on-line, he was supervising the students without a teacher being present, but it would be incorrect to say that he was supervising without the involvement of a teacher.
Q6. If yes, based on Q3, was the member supervising students during the delivery of lessons?
Answer:
Mr Staunton was supervising students during the delivery of lessons by the LEO on-line teacher, Ms Lee.
Q7. Does payment of the allowance in these circumstances reflect the intentions of the parties in relation to the clause, historically and presently?
Answer:
On the evidence before the Commission:
(a)the parties to the 2003 certified agreement could not have intended and did not intend that the virtual schooling allowance be paid to teacher aides who are mentors in the LEO Program; and
(b)there is no evidence that the parties to successive certified agreements (and hence presently) intended that the virtual schooling allowance be paid to teacher aides who are mentors in the LEO Program.
Q8. If yes, by reference to the objects of the Act, are there other factors which the Commission must consider which would prevent the payment of the allowance?"
Answer:
It is unnecessary to answer Question 8. However, I observe that the answers to Questions 4 to 7 were prepared in respect only of teacher aides who deliver the LEO Program. On that basis, and if I am wrong in the answer to Question 7 and (having regard to the qualifications to the answers to some of the other questions) it were to be held that those teacher aides are entitled to the virtual schooling allowance, the total amount that might be payable by the State of Queensland would be near the lower end of the range of estimates provided by the parties. Consequently, that would not be a factor that would prevent the payment of the virtual schooling allowance.
[239]In light of the answers to Questions 1 to 8, I determine that Andrew Staunton, a member of the United Voice, Industrial Union of Employees, Queensland, is not entitled to be paid the virtual schooling allowance under clause 41.6 of the Department of Education and Training Teacher Aides' Certified Agreement 2011 (CA/2011/361).
[240]Order accordingly.
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