DECISION

Fair Work Act 2009
s.472 - Application for an order relating to certain partial work bans

Independent Education Union (South Australia) Incorporated
v
Catholic Schools Endowment Society Incorporated (Catholic Education Office)
(B2016/265)

Application for an order relating to certain partial work bans – decision issued on substantive matter – further hearing conducted – whether proposed reductions reasonable and consistent with the statutory scheme – whether sufficient account taken of other work being performed during partial work bans – refusal to attend meetings or undertake curriculum extension activities – refusal to undertake relief teaching – nature of bans and context of enterprise agreement considered – impact of approach to the assessment of the period of the bans and the normal working day taken into account – proposed reductions unfair in relation to relief teaching – Order issued modifying certain reductions – undertaking noted in relation to notices issued to non-teachers – application granted in part.

1. The initial decision and the remaining issues

[1] This decision deals further with an application made by the Independent Education Union (South Australia) Incorporated (IEU) under s.472 of the Fair Work Act 2009 (the FW Act) for an order relating to certain partial work bans at six Catholic schools in South Australia. These schools are being represented by the Catholic Schools Endowment Society Incorporated, which is known as the Catholic Education Office.

[2] This application was substantially dealt with in a decision issued on 15 February 2016 Independent Education Union (South Australia) Incorporated v Catholic Schools Endowment Society Incorporated (Catholic Education Office) [2016] FWC 892 (the initial decision). The context of the dispute is outlined in the initial decision and what follows should be read in conjunction with that decision.

[3] Without detracting from the detailed consideration and findings in the initial decision, the context for this matter is that all but one of the employers at the six schools have given notice to the employees of a reduction in salary that they propose to implement as a result of the partial work bans. The IEU sought through the initial application to reduce those salary reductions to zero on the basis that the notices were not valid under the FW Act. In the alternative, the IEU has sought a significant decrease in the salary reductions on the basis that the employers’ proposals are not consistent with the legislation and are unfair.

[4] The relevant Teachers and other employees working at the Catholic schools referred to in this application are covered by the South Australian Catholic Schools Enterprise Agreement 2013 (the Enterprise Agreement). 1 The Enterprise Agreement has a nominal expiry date of 31 July 2015 and since March 2015, the parties have been negotiating a proposed new enterprise agreement under the terms of the FW Act.

[5] IEU members at six Catholic schools took protected industrial action from 1 February to 5 February 2016. The employers at five of the Catholic schools issued notices to the relevant staff pursuant to s.471(1)(c) of the FW Act. These notices contained an explanation of the proposed industrial action and the effect of the partial work bans, and notified all staff that participation in some of the partial work bans would result in a percentage reduction in their salaries. Further, the notices detailed the basis upon which the reductions would operate.

[6] The validity of the s.471 notices, the “formula” adopted by the employer to calculate the proposed reductions, and the fairness of these proposals are in dispute and were comprehensively considered as part of the initial decision.

[7] In the initial decision, I concluded as follows:

“[74] I have found, on balance, that the s.471 notices are valid and have been provided in accordance with the FW Act and the FW Regulations.

[75] I have also found that the employers’ approach to the calculation of the proposed reductions is fundamentally compliant with the legislative scheme and subject to one aspect, capable of operating fairly.

[76] Given the nature of the outstanding issues that I have identified, the relative novelty of the issues, the natural justice considerations, and the on-going importance of the matter, I consider that I should provide an opportunity to the parties to be further heard on those issues. These considerations outweigh the delay in the finalisation of the matter and the consequential uncertainty.

[77] Accordingly, I will expeditiously relist this matter to hear further from the parties on the issues that have been outlined at paragraphs [70], [71] and [72] above and any issues that directly flow from those matters. I will also grant liberty to both parties to provide further evidence and submissions on the issue of the Education Support Officers (and other non-teaching employees) in the event that s.471 notices have been provided to them and the employers intend to make, or have made, deductions in respect to these employees.”

[8] The outstanding issues that were outlined in the initial decision, and required further contributions from the parties, were as follows:

“[70] The calculation of the reduction by reference to the time during which the partial ban has meant that the relevant (banned) work was not being performed, is a rational and reasonable approach consistent with earlier decisions of the Commission.

[71] However, the formula and approach adopted by the employers involves, in effect, a full reduction for the time of the banned work. That is, because the “usual time” includes the actual period of the industrial action, there is no identifiable allowance made for any (other) meaningful work that might be undertaken by the employee during that time. There is limited factual material before the Commission on this aspect; however, it is common ground that the bans being dealt with in this application are partial work bans. If no other work is being performed during the period of these bans, it may on the contrary, be reasonable to assume that these would be work stoppages and not partial work bans. In this case, it may be appropriate to proceed on the basis that at least some other work is being performed during what has been agreed to be partial work bans.

[72] I have not heard from the parties on this element or the implications of such for the overall fairness of the calculation and the matter more generally. This includes whether some (additional) allowance for the partial nature of the bans should be made. That assessment must, of course, also take into account the rounding down of the results to 7 per cent and the other factors discussed above. I will return to this aspect shortly.”

[9] The reference to the non-teaching staff concerns the following issue as set out in the initial decision:

“[19] To the extent that Education Support Officers (or other non-teaching employees) have participated in the bans on attending meetings or briefings, it would be evident that the s.471 notices are not directed to their circumstances. That is, the approach evident in the proposed reductions is based upon arrangements applying to Teachers. This may mean that if any notices have been issued to the non-teaching employees in the form provided to the Commission, these notices are likely to be deficient to that extent. I grant liberty to both parties to provide further evidence and submissions on that issue. I will however otherwise deal with this matter on the basis that the s.471 notices apply to Teachers.”

[10] This decision deals with all of the outstanding issues and the conclusion of the application more generally.

2. The contentions of the parties

2.1 The Independent Education Union

[11] The IEU notes that the partial work bans cover the three regulated components of work; being, Student Contact Time (SCT), Other Professional Activities (OPA) and Curriculum Extension Activities (CEA). 2 The IEU submits that when these three components are not being performed because of a partial work ban, the Teacher concerned is undertaking professional commitments, which are not regulated, as described in Appendix G.4.2.3 of the Enterprise Agreement.

[12] That is, if a Teacher is not performing SCT (due to partial ban on relief lessons) the Teacher will continue with their normal Non-Contact Time activities, including the performance of professional commitments, which is unregulated, but still required work. Furthermore, if Teacher is not performing OPA (due to a partial ban on attendance at meetings/briefings), or a Teacher is not performing CEA (due to a partial ban on attendance at a CEA activity), then the Teacher undertakes other (unregulated) professional commitments that are required of them.

[13] As an example, the IEU contends as follows in relation to relief lessons:

● A relief lesson is defined as a lesson or activity undertaken by a Teacher in lieu of the Teacher that is usually assigned to that lesson or activity;
● A relief lesson will be taken at the direction of the employer instead of usual work and professional commitments;
● A Teacher can only be assigned a relief lesson if they are undertaking Non-Contact Time, which is defined as the amount of time provided during timetabled time where the Teacher is self-directed in the undertaking of professional commitments in the support of their teaching or pastoral care;
● Professional commitments include required activities that are not regulated, such as, marking, course/subject preparation, moderation, report writing and religious observances and spiritual activities;
● Professional commitments are required, non-optional work that must be performed;
● Professional commitments and other unregulated work are a major component of a Teachers’ work and constitutes the second largest component of work after SCT, and is greater than OPA or CEA;
● Therefore, if a Teacher is directed to conduct a relief lesson and refuses, they will still be doing normal work at the normal time and in the normal place such as marking, assessing, programming and preparation; and
● As a result it is unreasonable and unfair for a full salary deduction to apply to the partial ban on relief teaching.

[14] The IEU also submits that the employers consider that the undertaking relief lessons does not involve the full extent of work undertaken by other Teachers, and point to the basis of the payments to casual 3 and part-time4 Teachers under the Enterprise Agreement.

[15] The IEU contends that whilst professional commitments and other unregulated work are acknowledged as a component of Teacher’s work, they do not feature within the formula used by the employers to determine the salary deductions for the partial work ban. The IEU speculated that if these are not taken into consideration, future protected action ballot orders would need to be lodged in relation to bans or partial bans on marking, report writing and other non-regulated work. Furthermore, such bans or partial bans should only attract a zero reduction in salary based on the employers’ approach.

[16] On that basis, the IEU submits that to exclude the unregulated and professional commitments work of Teachers from the formula to determine what salary reduction should apply, means that the formula is flawed. Additionally, the formula does not take into account the required, regulated Professional Development of Teachers, which is 5 days per year.

[17] The IEU fundamentally contends that a full salary deduction should only occur where a full stoppage/work ban occurs so as to distinguish between the two types of bans. Further, the formula does not differentiate between the different actions of a Teacher or the meaningful work done by the Teacher.

[18] In addition, the IEU submits that relief teachers, who undertake five or less consecutive days of work in the school, are paid at Band 1 Step 3 annual salary 5 regardless of their actual classification. This, the Union suggests, is due to the fact that a relief teacher is not required to perform the unregulated work associated with the lesson. The relief teacher can be required to undertake some OPA, for example, yard duties; however, meetings are optional if they occurred on the day in which they work.

[19] The IEU contends that to deduct a full salary for a partial work ban related to relief lessons, and for the other partial work bans, is unreasonable and unfair. To make the reduction fair it must be a fraction of the proposed amount, otherwise there is the potential for the employer to benefit in two ways; being the full retention of part of the salary and the usual work still being done.

[20] Additionally, the IEU raises the concern that if an employee activates a partial work ban but only by refusing to undertake work offered then it might attract unwanted consequences, including the employer circumventing the proposed industrial action by selectively approaching Teachers who would refuse because of the ban, or alternatively, approaching only non-IEU members. In that regard, the IEU referred to an understanding that it will, in the event of future industrial action, advise the employers which of its members will be involved.

[21] In relation to the non-teaching staff who may have participated in partial work bans, the s.471 notices provided by the employers related only to Teachers wages and the IEU contends that as such notices do not comply with the legislation and that no reductions should take place for such employees.

2.2 The Catholic Education Office

[22] The employers contend that the formula that has been arrived at is fair and reasonable and that no further modifications are required. Whilst there is no precise calculation, the employers have significantly rounded down the final percentage figure of the reductions in the interests of trying to make the amount deducted as fair as possible. The employers reject the notion that the unregulated work takes up more time for Teachers than OPA and CEA.

[23] The employers submit that in the 5.5 hours allocated as the teaching day, it comprises of both SCT and Non-Contact Time, including marking and preparation time. The employers submit that it is not possible to take any more unregulated time into account, as it varies a great deal between Teachers, and is at the Teacher’s discretion. The employers contend that it would be unfair to require the introduction of a further specific component into a formula that is already conservative and has been rounded down to take into account the other work that Teachers do. In any event, this would be “too difficult” and all reasonable factors have already been taken into account.

[24] With respect to the 5.5 hours that make up the teaching day, the employers contend that this does not mean that the Teacher concerned is in front of a class for all of that 5.5 hours, because this allocation includes provision for Student Contact Time (22 and a half hours a week for secondary and 24 hours a week for primary teachers) and also Non-Contact Time when some of those unregulated professional commitments are undertaken.

[25] The employers did not accept the IEU’s analysis of the relief teaching arrangements and contend that the adoption of the single rate with the Enterprise Agreement for some of this work was a negotiated matter and took into account a number of factors, not simply the narrower range of duties that may be involved.

[26] The Catholic Education Office rejected the notion that the employers might seek to circumvent the ban on relief teaching and indicated that they had provided the s.471 notices to all Teachers because they do not know who the IEU members were that might be taking the industrial action. Furthermore, in terms of not allocating relief lessons to IEU members, the employers contend that this is not a practical issue as reliefs are only offered to those who have non-contact time and might well be allocated by a union member who was in charge of allocating the reliefs in the school.

[27] The employers confirmed their position, which was not disputed by the IEU, that each of the bans that were subject to the s.471 notices were partial work bans within the meaning of the FW Act. They also submit that they do not know whether the Teachers undertake other work during the partial work ban period, and even if the Teacher did undertake other activities, this is not the specific task that has been assigned by the employer at that specific time. Accordingly, any other work does not off-set the damage caused by the partial work ban, and the proportion of wages that is deducted is proportionate to the impact that is likely to occur during the partial work ban. That is, the carrying out of marking by the Teacher at that time might be beneficial for them, but it’s value to the employer does not compare with the disruption, inconvenience and cost that may be incurred if the Teacher does not take an allocated relief lesson or fails to perform extracurricular activities with the students. The employer referred to the approach adopted by the Commission in Bowers v Victoria Police 6 to support this notion.

[28] Furthermore, the employers contend that it would be unfair to further discount the proposed reductions given that the Teachers concerned are not performing the work required of them during the partial work ban and the existing “formula” adopted by them means that the reductions have already been significantly discounted.

[29] In relation to the non-teaching staff, the employers submit that the notices should not have been supplied to these employees and that the partial work bans only apply to Teachers. The only partial work bans that are relevant to Education Support Officers (ESOs) are those which relate to wearing T-Shirts and badges, and these are not the subject of the issued partial work ban notices.

[30] The Catholic Education Office indicated that if any non-teaching staff had accidentally or unintentionally been served with a s.471 reduction notice, the intention of the employers was not to make a reduction in their wages. In that light, the employer provided an undertaking to the Commission that there would be no reductions based upon the current notices for non-teaching staff and that if any deductions from wages had already occurred, these would be redressed.

3. Consideration

[31] The present task of the Commission has been comprehensively set out in the initial decision. In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ASC Pty Ltd, 7 Bartel DP also summarised that role as follows:

“[32] Section 472(3)(a) of the Act requires FWA to examine the proportion specified in the notice given by the employer with a view to determining if it was reasonable having regard to the ‘nature and extent of the partial work ban to which the notice relates’. In my view s.472(3)(a) requires FWA to consider more than whether the employer’s estimate of the usual time spent performing the work that has been banned was reasonable. It is apparent by the inclusion of s.472(3)(b) of the Act that, in considering an application for an order varying the proportionate reductions determined by the employer, FWA is to consider a range of matters that are broader than the calculation undertaken by the employer. As such there is no reason to read s.472(3)(a) narrowly or to interpret it other than in accordance with the ordinary meaning of the words contained within it. Part of the consideration of ‘fairness between the parties taking into account all of the circumstances of the case’ as required by s.472(3)(b) of the Act will include a consideration of, but is not limited to the matters set out in s.472(3)(a) of the Act.”

[32] The issue of other work being performed by employees during a partial work ban was considered by Roe C in Bowers v Victoria Police. 8 That matter focused on two forms of partial work ban involving a refusal to attend meetings and a ban upon participating in screening activities that had the effect that the Prosecutors concerned did not attend court proceedings on time.

[33] It is reasonably apparent that the Prosecutors concerned were not performing their normal duties when participating in the ban on screening activities, but in relation to the meetings, the following findings were made:

“[35] I accept that it is probable that some work related discussion and activity took place during the ten minute meeting and that the employer should have regard to the fact that in the notice Sergeant Bowers advised that the purpose of the meeting was to “discuss activities relating to prosecutions.” However, I am satisfied that this activity was not occurring at the normal time and place and it was not in the time and place desired by the employer. Furthermore, for the reasons discussed earlier I do not consider this to be the primary purpose of the activity and Victoria Police were right to make the assessment that this was not the primary purpose. Adopting the approach taken by Commissioner Deegan in the ACTION case, I have asked did the employer have reasonable expectation of the benefit of significant productive work during the period of the partial work ban and or was the productive work likely to be performed likely to offset the damage or disruption of the partial work ban and or was the proportion of wages deducted disproportionate to the damage or disruption likely to occur? If this had been the case then I would have grounds to consider that 100% deduction for the time of the meeting action was inappropriate. However, after considering all the circumstances I do not regard this to be the case.”

[34] In order to deal with the remaining issues in this matter, it is necessary to consider the basis of the proposed reductions before dealing with the detailed issues left to be resolved. In the initial decision, I found as follows:

“[65] The terms of regulation 3.21 have been set out earlier in this decision. It contemplates an employer calculating the reductions for an employee, or class of employees, by following three steps. These steps are:

● Identifying the work an employee or class of employees is failing or refusing to perform (or is proposing to fail or refuse to perform);
● Estimating the usual time that the employee or the class of employees would spend performing the work during a day; and
● Working out the time estimated in Step 2 as a percentage of an employee’s usual hours of work for a day.

[66] The reduction is the proportion by which the employee’s payment will be reduced for a day.

[67] Consistent with the approach adopted earlier in this decision, I do not consider that the “usual time” that the employee or the class of employees would spend performing the banned work during a day means that the activities concerned should be considered over the whole school year or some other period. That is, the focus of the steps in Regulation 3.21, and the provision more generally, is upon a day. In circumstances where the work that is subject to the ban is worked irregularly and not by all of the employees, it would be unworkable and unfair for the “usual time” not to be considered with respect to the day concerned with the ban. Accordingly, what the “usual time” means will depend upon the nature of the ban and whether the employee concerned is otherwise required to perform that work on the day in question. To average the requirement out as contended by the IEU would not be consistent with the approach in, and apparent purpose of, the provision and would in any event not represent a reasonable or proportionate reduction in salary. Presumably, if considered in the manner contended, it would also apply to Teachers who were not in fact acting on the ban at that time. Such an outcome would not be consistent with the scheme of the FW Act.

[68] The employers’ approach to the usual hours of work does not use the teaching or “payroll” hours of 5.5 per day, but rather takes reasonable account of the CEA and OPA. I acknowledge that this has meant making an overall provision for the annual CEA and OPA and that this contrasts to the approach I have taken with respect to the assessment of the estimated usual time for the banned work. However, these are different concepts and apply in different ways, and not to include those elements in some manner would not be consistent with the intention of the provision when applied in the present context. In any event, not to include some provision for the CEA and OPA in the usual hours of work would be unfair to the Teachers, and if not done through the formula, this would be a matter that the Commission would otherwise have regard to in the present exercise of discretion.

[69] I accept that the full extent of OPA, and potentially other unregulated work, undertaken by the Teachers has not been included in the calculation of “usual time” spent performing work on that day. However, this is difficult to assess given that nature of the work and the fact that these matters only partially regulated by the Enterprise Agreement. Importantly, the rounding down of the deduction to seven per cent indirectly takes account to some degree of the fact that other factors, such as the unregulated work, may not have been expressly included.”

[35] The reference to the “rounding down” above, arises from the fact that the employers’ “formula” produces a proposed reduction of 7.9 per cent and 7.6 per cent of the “daily” salary for the various categories of Teachers and this has been rounded down to 7 per cent in all cases. 9 I note that the exact reductions for each category of Teacher were set out in an attachment to each s.471 notice.

[36] The Enterprise Agreement contains comprehensive provisions dealing with hours of work and workload commitments for Teachers. Appendix G Workload of the Enterprise Agreement sets out the arrangements for the various categories of work including some that are regulated (as to time and/or extent) and others that are not regulated in that way, or only partially so. The unregulated or partially regulated work activities are still work responsibilities required of the Teachers.

[37] The following definitions set some of the context for the operation of the various provisions:

“G.3. DEFINITIONS
G.3.1 Curriculum Extension Activities means activities of the nature of those listed in sub-clause GA.3 requiring a Teacher's attendance at the School or elsewhere either within Non-Timetabled Time or outside of the school's Span of Hours.
G.3.2 Duties means the supervision of students undertaking activities, including lunch and recess breaks, outside of Timetabled Time.
G.3.3 Meetings and Briefings: means all such events, however titled, which a Teacher is required to attend.
G.3.4 Middle School means Marymount College and Sacred Heart College Middle School.
G.3.5 Non Contact Time means the amount of time provided during Timetabled Time where the Teacher is self-directed in the undertaking of professional responsibilities in support of their teaching or pastoral care. Non Contact Time is the difference between Timetabled Time and Student Contact Time.
G.3.6 Non-Timetabled Time means time within the Span of Hours, but outside of Timetabled Time.
G.3.7 Off Line Lessons means lessons and related activities provided in part or wholly outside of Timetabled Time.
G.3.8 Other Professional Activities means activities undertaken (consistent with subclause GA.2) by the Teacher directly related to the profession of teaching. A Teacher may be required to attend to these activities at specified times outside of Timetabled Time usually, but not always, within Non-Timetabled Time.
G.3.9 Preparation/Professional Development means preparation, training, professional development, or study undertaken at the employer's instruction. It may be included in Other Professional Activities where the employer approves the inclusion in the required time.
G.3.10 Professional Commitments means required activities which are directly related to teaching and also to teaching in a Catholic school but which are not regulated.
G.3.11 Relief Lessons means lessons or activities undertaken by a Teacher in lieu of the Teacher usually assigned to that class or activity.
G.3.12 Span of Hours means the times between which a Teacher's work is usually performed. It is not the usual daily starting time or the usual daily finishing time and does not indicate the usual span of attendance each day. The Span of Hours in the Technical Colleges will be 8 am to 9 pm for optimum use of their specialist facilities but all other provisions of this Appendix apply except where stated.
G.3.13 Special School means Our Lady of La Vang School and St Patrick's Special School.
G.3.14 Student Contact Time means the total amount of time from Timetabled Time that a Teacher is scheduled to exercise responsibilities (as listed in G4.1) either with individual students or with specified groups of students. A Teacher who is assigned a less than full teaching load may be required by the employer to undertake other activities up to the usual amount of Student Contact Time.
G.3.15 Timetabled Time means the total amount of scheduled time available in the timetable, exclusive of meal breaks. It is the total of Student Contact Time and Non-Contact Time. Timetabled Time for a Teacher commences from the time when the Teacher is first required to attend class or receive students in the morning until the Teacher is free to leave the classroom in the afternoon following the dismissal of students.
G.3.16 Varied by Agreement means that the matters specified may be varied to the extent indicated by way of consensus, or in the absence of consensus by way of a ballot which shall be conducted jointly by the Principal and accredited IEU (SA) worksite representative or a staff representative where no IEU (SA) worksite representative exists or where the IEU (SA) representative is not able to conduct the ballot.”

[38] The weekly and daily requirements set out in Appendix G include timetabled time (with specified student contact time), non-contact time, relief lessons, non-timetabled time, off-line lessons, OPA, CEA and preparation/professional development (PD) days.

[39] The nature of the work associated with some of these weekly and daily requirements is further clarified by clause G.4 of Appendix G in the following terms:

“G.4 TASK IDENTIFICATION

G.4.1 Student Contact Time activities comprise:

(i) lessons and associated activities eg ‘practical’ lessons, excursions, guest speakers
(ii) pastoral care lessons, attendance in class with students (home room period), administration period, supervised lunch eating in primary classrooms or special units
(iii) library, study hall, examination supervision, computer lab, time-out room, etc supervision
(iv) assemblies, year level or house gatherings of students
(v) regular timetabled supervision in Timetabled Time.
(vi) tasks allocated to specialist Teachers in Timetabled Time
(vii) liturgies and sport in Timetabled Time
(viii) other activities of a similar nature as directed.

G.4.2 Other Professional Activities comprise:

G.4.2.1 Supervision duties

(i) supervision of students - other than that undertaken with the teacher's allotted class/group in Timetabled Time.

G.4.2.2 Meetings and briefings required or approved by the employer such as:

(i) staff/faculty/team/subject/curriculum/campus, etc meetings
(ii) representational responsibilities such as OH&S Committee, Consultative Committee, School Board (including union representation on such bodies)
(iii) parent information evenings/afternoons
(iv) scheduled parent teacher meetings but excluding informal one-on-one meetings
(v) planning meetings
(vi) other activities of a similar nature as directed.

G4.2.3 Professional Commitments (not regulated) such as:

(i) course/subject preparation
(ii) marking/assessment
(iii) moderation
(iv) report writing
(iv) religious observances and spiritual activities as described in sub-clause G.2.7.8

G.4.3 Curriculum Extension Activities comprise activities such as:

(i) school camps and retreats
(ii) excursions
(iii) sporting activities, Pedal Prix
(iv) social and/or cultural events
(v) speech days/nights, graduation ceremonies
(vi) debating, Tournament of Minds
(vii) rehearsals for school productions, concerts, choirs
(viii) open days, fetes, and similar activities
(ix) other activities of a similar nature, as directed.”

[40] There are three types of partial work bans at issue in this matter. Meetings and briefings form, in general terms, part of the regulated OPA. CEA have separate provisions and involve, amongst other parameters, an ability for a school to require Teachers to undertake “reasonable” CEA work. If those requirements are consistent with Schedule 1 of Appendix G, they will be considered to be reasonable. Schedule 1 provides a range of commitments involving, in general terms, allowance for up to 20 or 30 hours per year of CEA (depending upon the school) within the existing salary and work arrangements, and additional payments and arrangements for work required beyond that commitment. Additional CEA may be undertaken on a voluntary basis.

[41] The undertaking of relief lessons is set out in part in clause G.2.3 in the following terms:

“G.2.3 Relief Lessons
G.2.3.1 Teachers may be required to undertake Relief Lessons in Non Contact Time but subject to the following conditions:

(i) Where the absence of a Teacher is likely to be prolonged, other Teachers will not normally be required to undertake the duties of the absent Teacher.
(ii) Where a Teacher is absent due to attendance at employer instigated activities such as conferences and school camps, the remaining Teachers will not be required to undertake the duties of the absent Teacher if this would involve them exceeding the normal teaching load at the School.

G.2.3.2 The total amount of Relief Lessons shall not exceed

(i) 20 hours per year for secondary Teachers
(ii) 15 hours per year for primary school Teachers
(iii) For middle and special Schools the number of hours will be averaged.

G.2.3.3 A secondary Teacher shall not be required to undertake more than 6 hours of Relief Lessons in anyone school term. A primary Teacher shall not be required to undertake more than 4.5 hours of Relief Lessons in anyone school term.
G.2.3.4 The undertaking of Relief Lessons shall not count towards the totals expressed in sub-clause G.2.3.2 where the relief is undertaken within the 'relieving' Teachers' normal amount of Student Contact Time.
G.2.3.5 The allocation of Relief Lessons to part-time Teachers shall be on a pro-rata basis.”

[42] I note that additional provisions are set out in the Enterprise Agreement for casual Teachers, and those circumstances where a temporary increase in teaching hours occurs for other Teachers, in the context of relief teaching. 10 These provisions include using a particular daily rate, being the Band 1 Step 3 annual salary for all such work that in performed by any level of part-time or casual Teacher provided that it does not extend beyond 5 consecutive school days.11

[43] In my view, there are particular features of relief teaching that impact upon the present exercise of discretion and I will come to those features shortly.

[44] Having regard to all of the circumstances, including those set out comprehensively in the initial decision, I accept that there is sufficient allowance already built into the employers’ approach to reasonably recognise that other work may be undertaken by the Teachers during the time of the partial bans associated with CEA, and the non-attendance at meetings/briefings, and to take account of the other factors bearing upon the present issue. Further, I accept that the proposed reductions with respect to these partial work bans are reasonable. I also continue to accept, for reasons largely set out in the initial decision, that this approach, including the rounding down, makes sufficient allowance for the fact that not all OPA and PD work has been expressly included in the “formula”.

[45] However, because of the nature of the relief teaching, how that work and the bans operate in practice, and how this work is dealt with under the Enterprise Agreement, I consider that the “full” reduction of 7 per cent for the estimated (full) duration of the bans on such work is not reasonable, despite the rounding down and other elements of the “formula”. The factors leading to that conclusion include that in general terms, a Teacher can only be assigned a relief lesson if they are, in effect, undertaking Non-Contact Time, which is defined as the amount of time provided during timetabled time where the Teacher is self-directed in the undertaking of professional responsibilities in the support of their teaching or pastoral care. In that context, the likelihood of other genuinely productive work being performed at that time is very high in the case of the partial ban on undertaking relief lessons. As referenced above, I acknowledge that some of the other partial work bans involve work that may also take place during Non-Contact Time. However, the context in which the relief teaching arises, and the requirements surrounding when that work is undertaken and how such work is treated by the Enterprise Agreement, are in my view different to that operating with respect to the other partial bans considered in this matter (and those dealt with by Roe C in Bowers v Victoria Police).

[46] The IEU proposes that, in effect, a very low (or no) reduction should take place because the Teachers are performing other duties during the partial bans. Consistent with the approach taken in Bowers v Victoria Police and the other authorities cited in the initial decision, the probable consequences of the partial bans for the schools concerned militates against such an approach. That is, the Teachers are not performing the work that is required of them by the employers during the period of the partial ban and this has consequences for the schools concerned. In such circumstances, a reasonable reduction from salaries may be applied consistent with the scheme of the FW Act.

[47] Accordingly, I consider that as a matter of discretion the Commission should issue an order modifying the s.471 notices in terms of the reduction that is to be made with respect to the ban on undertaking relief teaching. In all of the circumstances, a reduction of five per cent (of the “daily salary”), applying the approach that is otherwise set out in the s.471 notices, is a better and more reasonable reflection of the balance of considerations involved. The factors going to the level of the revised reduction are those that have been set out earlier in this decision. This involves all of the relevant circumstances including the nature and import of the “formula” and approach adopted by the employers - when applied to the ban on undertaking relief teaching in the context of that work, the likely consequences of that ban, and the particular treatment of relief teaching within the Enterprise Agreement.

[48] The adoption of the five per cent figure represents a modification of approximately a third in the amount of the salary reduction attributable to the ban on undertaking relief teaching. This, in my view, takes reasonable account of the various factors and considerations set out above.

[49] I have also considered whether the above findings, and the additional submissions of the parties, should lead to a revision of the earlier findings about the validity of the notices. The approach that I have adopted to the assessment of the reasonableness of the proposed reductions is consistent with that taken in the initial decision and does not mean that the notices were invalid or inconsistent with the requirements of the FW Act and FW Regulations.

[50] Rather, my conclusions in this decision are that the application of the formula as adopted by the employers, whilst being consistent with the FW Act and FW Regulations, results in an unreasonable reduction when applied to one of the particular partial work bans given the circumstances applying to that work under the Enterprise Agreement. Making an order to deal with that finding is consistent with the scheme of the FW Act and the discretion expressly given to the Commission under s.472.

[51] In terms of the non-teaching staff, I note that there is a dispute about whether any such employees have participated in the bans on CEA and it is not clear whether they have been provided with the notices. It is also not clear whether any non-teaching staff have participated in the bans on attending meetings and briefings however this is certainly possible. In any event, in light of the undertaking provided by the Catholic Education Office, the IEU did not press for orders on that issue. The undertaking is appropriate given the probable deficiencies with the current form of s.471 notices if applied to the non-teaching staff and the acceptance of that undertaking by the IEU is also constructive.

4. Orders

[52] Orders dealing with the modifications of the reductions to give effect to this decision are being issued today. 12 These orders apply with respect to the s.471 notices issued by the relevant employers to the extent that they provide for a reduction in relation to the partial bans impacting upon relief teaching. The reduction in these circumstances will be five per cent in lieu of the seven per cent as set out in those notices. The s.471 notices are otherwise not modified by this decision.

[53] Liberty is granted to the parties to apply with respect to any technical drafting issues concerning the Orders made.

COMMISSIONER

Appearances:

F Bernardi on behalf of the Independent Education Union (South Australia) Inc.

Y Webb, with permission, for the Catholic Church Endowment Society Inc (Catholic Education Office) on behalf of the employers concerned.

Further hearing details:

2016

Melbourne with a video link to Adelaide

February 17.

 1   AE405996 approved on 19 December 2013.

 2   CEA is regulated by the Enterprise Agreement as part of the Teacher workload provisions of that instrument – Appendix G.

 3   Clause 31.

 4   Clause 28.

 5   Referred to in Clause 31.6 of the Enterprise Agreement.

 6   [2011] FWA 6960.

 7   [2012] FWA 1377.

 8   [2011] FWA 6960.

 9   See initial decision at [62].

 10   Clauses 28 and 31.

 11   Clause 31.6; see also clause 28.3.

 12   PR577257.

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