[2019] FWC 1171
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.739—Dispute resolution

National Tertiary Education Industry Union
v
University of New England
(C2018/4494)

COMMISSIONER JOHNS

SYDNEY, 25 FEBRUARY 2019

Dispute under s.739 - casual employment duties - rates of pay.

Introduction

[1] On 14 August 2018, the National Tertiary Education Industry Union (NTEU) applied to the Fair Work Commission (Commission) to deal with a dispute under section 739 of the Fair Work Act 2009 (Cth) (FW Act) with the University of New England (University).

[2] In short, the dispute is about how casual academic teaching staff employed in the University’s School of Education are paid under the University of New England Academic & ELC Teaching Staff Collective Agreement 2014-2017 (Agreement).

[3] On or before Trimester 1 – 2018 casual employees undertaking online teaching were paid at a higher rate of pay than they were from Trimester 2 – 2018. From Trimester 2 – 2018 the rate of pay for online teaching was significantly reduced. Although there was a reduction in the rate of pay the work required to be undertaken in respect of online teaching did not reduce. The consequence of the chain was that casual employees undertaking online teaching had a reduction in their pay of around one third.

[4] The NTEU complained that the change implemented from Trimester 2 – 2018 was an incorrect application of the Agreement. The University contended that the change implemented from Trimester 2 – 2018 was a correct application of the Agreement (or correction to a previous incorrect application of the Agreement).

[5] The matter was listed for conference at which the NTEU invited the University to maintain the status quo. The University declined. The matter was then programmed for hearing.

Jurisdiction

[6] Section 739 of the FW Act empowers the Commission to deal with certain disputes under enterprise agreement dispute settlement terms.

[7] In the present matter the Agreement confers jurisdiction on the Commission to resolve “industrial disputes which may arise about the application of, or matters arising under, the Agreement or the National Employment Standards.”,    1 including “by conciliation, or where conciliation does not resolve the dispute by arbitration, in resolving the dispute the [Commission] can exercise any of its powers under the Fair Work Act”.2 The dispute in this case falls within that description. It is common ground that the Commission has jurisdiction to arbitrate the dispute.

The Agreement

[8] The Agreement was approved on 13 October 2014 and commenced operation on 20 October 2014. It passed its nominal expiry date on 1 October 2017. 3

[9] The parties to the Agreement are the University and,

“all employees who are employed in the classifications detailed in Schedules 5 and 6, and Part F of [the] Agreement”. 4

[10] The NTEU is covered by the Agreement. 5

[11] The dispute is about whether the University has correctly applied clauses 20, 21 and (for reasons that will become apparent) most crucially, Schedule 2 in the Agreement.

[12] The relevant parts of Schedule 2 of the Agreement provide that,

Definitions

Lecture/Tutorial

(a) "Lecture" or "tutorial" means any educational delivery described as a lecture or tutorial respectively in a course or unit outline, or in an official timetable issued by the University. A lecture or tutorial may be face to face teaching or tutoring respectively or equivalent delivery through a different mode.

(b) A tutorial is a supplementary form of education delivery where matters already covered elsewhere in a course are discussed, clarified or elaborated. A tutorial is conducted in a small group to enable effective student participation. A tutorial is conducted in accordance with guidelines issued by the lecturer in charge of the unit. Responsibility for the course rests with the lecturer in charge of the unit not the casual employee.

Demonstration

(a) A "demonstration" (howsoever called) involves the performance of such duties as the conduct of practical classes by setting up or supervising the correct method of use of equipment; issuing prepared instructions about experimental procedures or projects from the lecturer; supervising undergraduate students in carrying out experiments or laboratory work and being a source of technical advice.

(b) The hourly rate of pay for demonstrating and other duties encompasses one hour of student contact time only. Any work required outside the one hour (marking, giving a lecture or tutorial, attending a meeting or lecture, preparation time or other duties) will be paid as appropriate in accordance with Schedule 2 of this Agreement.

…

Other Required Academic Activity

For the purposes of this clause, "other required academic activity" will include work that a person, acting as or on behalf of the employer of a casual employee, requires the employee to perform and that is performed in accordance with any such requirements, being work of the following nature:

Casual Lecturing

A casual employee required to deliver a lecture (or equivalent delivery through face-to-face teaching mode) of a specific duration and related associated non-contact duties in the nature of lecture preparation, contemporaneous marking, student consultation and administration of records associated with that group of students will be paid at a rate for each hour of lecture delivered, according to the following table: ….

Casual Tutoring

A casual employee required to deliver and present tutorials (or equivalent delivery through other than face-to-face teaching mode) of a specified duration and related associated non-contact duties in the nature of preparation, contemporaneous marking, student consultation and administration of records associated with that group of students will be paid at a rate for each hour of tutorial delivered or presented, according to the following table….

Substantive hearing

[13] At the substantive hearing on 12 December 2018,

a) the NTEU was represented by Jeane Wells, Senior Industrial Officer, and

b) the University was represented by Catherine Pugsley, Australian Higher Education Industry Association (AHEIA).

[14] In advance of and following the substantive hearing the parties filed material. For completeness I set out below the documents relied upon by the parties. I have had regard to all of this material in coming to this decision.

Exhibit number

Description

Unmarked

F10 Application by the NTEU.

Unmarked

The University of New England Academic and ELC Teaching Staff Collective Agreement 2014-2017.

Exhibit 1

Witness Statement of Mitchell Parkes dated 23 August 2018.

Exhibit 2

Rebuttal Witness Statement of Mitchell Parkes.

Exhibit 3

Witness Statement of Professor Margaret Sims dated 23 August 2018.

Exhibit 4

Witness Statement of Lisa Jane Sonter (as amended) dated 23 August 2018.

Exhibit 5

Witness Statement of Benjamin Thorn dated 23 August 2018.

Exhibit 6

Second Witness Statement of Benjamin Thorn dated 7 September 2018.

Exhibit 7

Witness Statement of Kelvin McQueen dated 7 September 2018.

Exhibit 8

Witness Statement of David Thorsen dated 5 December 2018.

Exhibit 9

Amended Witness Statement of John Fitzsimmons dated 10 December 2018.

Exhibit 10

UNE Submissions.

Exhibit 11

NTEU Submissions.

Exhibit 12

NTEU Reply Submissions.

Unmarked

Agreed Statement of Facts dated 5 December 2018.

Unmarked

Final Submissions of the NTEU dated 22 January 2019.

Unmarked

Final Submissions of the UNE dated 22 January 2019.

Agreed facts

[15] The parties filed an Agreed Statement of Facts. Consequently, I make the following findings of fact:

“4. On 7 March 1996 the University of New England (Academic Staff) Enterprise Agreement 1995 was certified and came into force from the first pay period after 7 March 1996. 6

5. On 23 June 1997 the Australian Universities Academic and Related Staff (Salaries) Award 1987 was varied in accordance with the order of the Australian Industrial Relations Commission A0378 V019 S Print P2161 further to decisions given on 18 April 1997 [Print P0289] and 23 June 1997 [Print P2160]. 7

6. On 4 November 1997 - The University of New England Academic Staff Enterprise Agreement 1997 was certified and came into force from 3 November 1997. 8

7. On 27 July 2001, The University of New England (Academic Staff) Enterprise Agreement 2001-2003 was certified and came into force from 26 July 2001. 9

8. On 6 May 2005 the University of New England (Academic Staff) Enterprise Agreement 2003-2006 was certified and came into force from 5 May 2005. 10

9. In August 2006, the UNE Workplace Agreement 2006-2008 came into force. 11

10. On 9 September 2010 the University of New England Academic Staff – Union Collective Agreement 2010-2012 was approved to operate from 16 September 2010. 12

11. On 1 March 2011 Dr Benjamin Thorn accepted the terms of a Casual Academic Staff Contract of Employment with the University of New England in the form attached to the witness statement of David Thorsen, Director Human Resource Services.  13

12. On 26 June 2014 Ms Lisa Sonter accepted the terms of a Casual Academic Staff Contract of Employment with the University of New England in the form attached to the witness statement of David Thorsen. 14

13. On 13 October 2014 the University of New England Academic and ELC Teaching Staff Collective Agreement 2014-2017 was approved to operate from 20 October 2014. 15

14. On 3 July 2015 Dr Colin Hearfield accepted a Casual Academic Staff Contract of Employment with the University of New England in the form attached to the witness statement of David Thorsen. 16

15. On or about 11 July 2018 Dr Thorn accepted offers of casual academic employment for EDAE303 (Online)  17 and EDAE224 (On-Campus) and (Online)18 for Trimester 2 (T2), 2018.

16. Marking in the units is paid separately.  19 A summary report of Dr Thorn’s activity for EDAE224 (Online) is attached to the witness statement of John Fitzsimmons. 20 Dr Thorn has been employed as a casual academic in EDAE224 since 2011 and EDAE303 since 2015.21 All time sheets submitted by Dr Hearfield for T2, 2018 have been paid.22

17. After 11 July 2018 Dr Hearfield accepted offers of casual academic employment for EDCX302 (Online) and EDCX505 (Online). 23

18. Marking in the units is paid separately 24. Dr Hearfield has been employed as a casual academic since approximately 201525. All time sheets submitted by Dr Hearfield for T2, 2018 have been paid.26

19. On or about 15 July 2018 Dr Sonter did not accept casual academic employment duties for EDEC310 (Online) for T2, 2018 other than for marking.  27 All time sheets submitted by Dr Sonter for T2, 2018 have been paid.28

20. On 19 July 2018 Professor John Fitzsimmons, Deputy Dean of the Faculty of Humanities, Arts, Social Sciences and Education (HASSE) sent an email to staff with an updated Employment Request Form (EmPreq) in the form attached to his witness statement. 29

Principles of interpretation

[16] The principles relevant to the task of construing an enterprise agreement were summarised in Golden Cockerel 30 as follows:

“1. The [Acts Interpretation] Act does not apply to the construction of an enterprise agreement made under the [FW] Act.

2. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or contains an ambiguity.

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

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

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

6. Admissible evidence of the surrounding circumstances is evidence of the objective framework of fact and will include:

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

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

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

7. The resolution of a disputed construction of an agreement will turn on the language of the Agreement understood having regard to its context and purpose.

8. Context might appear from:

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

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

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

9. Where the common intention of the parties is sought to be identified, regard is not to be had to the subjective intentions or expectations of the parties. A common intention is identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement.

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

[17] In 2017 a Full Bench of the Commission modified the above summary in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (known as the Australian Manufacturers Workers Union (AMWU) v Berri Pty Ltd (Berri). 31 The Full Bench made the following observations:

“[41] The construction of an enterprise agreement, like that of a statute or a contract, begins with a consideration of the ordinary meaning of the relevant words. The disputed words must be construed in the context of the agreement as a whole. The process of interpretative analysis focusses upon the language of the agreement itself. In Amcor Limited v CFMEU,32 Gleeson CJ and McHugh J described the process in the following terms: ‘[t]he resolution of the issue turns upon the language of the particular agreement, understood in the light of its industrial context and purpose ...’.33 Or, as Kirby J put it in the same case, ‘[i]nterpretation is always a text-based activity’. 34

….

[44] There is considerable force in the Appellant’s contention that, as a general principle, all words in an enterprise agreement must prima facie be given some meaning and effect. It would seem to follow that the inclusion of a laundry allowance in Appendix 3 of the 2014 Agreement should not be regarded as superfluous or insignificant. Such an approach accords with the principles of statutory construction, 35 and, as a general proposition, the principles developed in the general law in the context of the interpretation of statutes are applicable to the interpretation of enterprise agreements. As the Full Bench observed in Paper Australia Pty Ltd t/a Australian Paper v Australian Manufacturing Workers’ Union:36

‘Australian Paper made the submission that no principle of statutory construction has any application to the interpretation of enterprise agreements, and relied upon the proposition stated in Golden Cockerel  that the Acts Interpretation Act 1901 (Cth) does not apply to the construction of enterprise agreements in support of that submission. The submission is rejected. It does not follow from the fact that enterprise agreements are not instruments to which the Acts Interpretation Act applies that modes of textual analysis developed in the general law in the context of the interpretation of statutes are incapable of application to enterprise agreements. While it undoubtedly remains necessary in interpreting a particular instrument to pay attention to the peculiar characteristics of that instrument, it is equally the case that there has been a convergence in the approach taken to the interpretation of statutes, agreements and other types of instruments - in particular, in the emphasis on the objective ascertainment of the instrument’s purpose and the move from textual to contextual interpretation. Additionally, many of the grammatical aides to the interpretation of statutes are equally applicable to other types of instruments. In the High Court decision in Royal Botanic Gardens and Domain Trust v South Sydney City Council, Kirby J said “... it would be indefensible for this Court, without good reason, to adopt a different approach in the ascertainment of the meaning of contested language in a contract from the approach observed in respect of legislation”. We therefore do not consider that Golden Cockerel should be taken as an exhaustive statement of the means by which the text of an enterprise agreement might be construed.’ (references omitted)

….

[46] There is a long line of authority in support of the proposition that a ‘narrow or pedantic’ approach to the interpretation of industrial instruments (such as enterprise agreements) is to be avoided, 37 and that ‘fractured and illogical prose may be met by a generous and liberal approach to construction’.38 A consequence of such an approach may be that some principles of statutory construction have less force in the context of construing an enterprise agreement. For example, in Shop, Distributive and Allied Employees’ Association v Woolworths Limited,39 Gray ACJ held that the presumption that a word used in one provision of a statute has the same meaning when it is used in another provision of the same statute, applied with less force in the context of an enterprise agreement:

‘Typically, such agreements are the product of hard negotiation, in which wording of particular clauses is often agreed without reference to other provisions of the same document. Provisions are commonly transmitted from one agreement to the next in a series, without regard to whether their terminology sits well with the words used in newly adopted terms. The use of other agreements, and awards, as precedents can often result in the borrowing of provisions, again without regard to whether the words used in them are consistent with the rest of the agreement under consideration. For these and other reasons, consistency will often be absent. It is easy to see that the same word can be used in different provisions with different meanings.’ 40

[47] We acknowledge that the fact that the instrument being construed is an enterprise agreement is itself an important contextual consideration. But it is also relevant that the instrument being interpreted in these proceedings is an enterprise agreement made pursuant to Part 2-4 of the FW Act and, as observed by White J in National Tertiary Education Union v La Trobe University, 41 it may be inferred that such agreements are intended to establish binding obligations:

‘The manner of making such agreements is subject to detailed prescription and their operation is contingent upon approval by the Fair Work Commission, the obtaining of which is itself a matter of detailed prescription. In my opinion, it is natural to suppose that parties engaging in this detailed process intend that the result should be a binding and enforceable agreement. To my mind, that is an important matter of context when approaching the construction of [the disputed clause in the agreement]’. 42

[48] Of course his Honour’s observation does not mean that an enterprise agreement may not include ‘matters which are in the nature of statements of aspiration or commitment and not themselves intended to be enforceable obligations or entitlements’ 43 – so much is clear from Reeves v MaxiTRANS Australia Pty Ltd.44 The fact that the 2014 Agreement is an enterprise agreement made pursuant to Part 2-4 of the FW Act is also relevant to the weight to be given to evidence of prior negotiations, a point to which we shall return shortly.

….

[60] It seems to us that there is an ambiguity in the 2014 Agreement regarding the laundry allowance referred to in Attachment 3. In particular, it is unclear in what circumstances the amount specified is to be paid and to whom. The frequency with which any such payment is to be made is also unclear.

[61] Having identified ambiguity it is permissible to consider evidence of the surrounding circumstances as an aid to the task of interpreting the agreement. As Mason J observed in Codelfa Construction Pty Ltd v State Rail Authority (NSW) (Codelfa): 45

‘… evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract where it has a plain meaning.’ 46

[62] The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties and the subject matter of the contract. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations. As Mason J observed in Codelfa:

‘… when the issue is which of two or more possible meanings is to be given to a contractual provision we look, not to the actual intentions, aspirations or expectations of the parties before or at the time of contract, except insofar as they are expressed in the contract, but to the objective framework of facts within which the contract came into existence, and to the parties’ presumed intention in this setting.’ 47

[63] As noted in Golden Cockerel, evidence of relevance to the objective framework of facts will include:

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

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

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

[64] As to category (i), evidence of prior negotiations will be admissible – but only for a defined purpose. As Mason J observed in Codelfa:

‘Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed. It is here that a difficulty arises with respect to the evidence of prior negotiations. Obviously the prior negotiations will tend to establish objective background facts which were known to both parties and the subject matter of the contract. To the extent to which they have this tendency they are admissible. But in so far as they consist of statements and actions of the parties which are reflective of their actual intentions and expectations they are not receivable. The point is that such statements and actions reveal the terms of the contract which the parties intended or hoped to make. They are superseded by, and merged in, the contract itself. The object of the parole evidence rule is to exclude them, the prior oral agreement of the parties being inadmissible in aid of construction, though admissible in an action for rectification.’ 48

[65] Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was. So much is clear from the oft-quoted statement of Madgwick J in Kucks v CSR Limited: 49

‘But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.’

….

[88] The diversity of interests involved in the negotiation and making of enterprise agreements warrants the adoption of a cautious approach to the admission and reliance upon evidence of positions advanced during the negotiation process. As Rares J recently observed, in Australian International Air Pilots Association v Qantas Airways Limited: 50

‘Substantially, the Act provided that the agreement was a tripartite document between a body of employees, a corporation with numerous officers and an industrial association. The involvement of so many individuals in the formation of the agreement re-emphasises the importance of approaching the construction of that document in accordance with the principle of objectivity. It is important, in doing so, to be cautious and bear firmly in mind the fact that the agreement was formed by a diversity of persons who had sought to protect their differing interests by various formulations of words in it. Those disparate intentions cannot be determinative of the proper construction to be given to the words chosen. In Health Services Union v Ballarat Health Services [2011] FCA 1256 at [79], Gray J said:

“In the days when an award might be negotiated between a union and an employer, and made by consent, the existence of a common understanding between the union and the employer as to the meaning of terms might have had some role to play in their construction. Whatever were the terms of such an agreement, and whatever their meaning was, those terms were imposed upon the employees who became bound by the award. In the current era, most industrial instruments are required to be put to a vote of the employees whose work will be covered by them, before they can be certified or approved so as to become enforceable by statute. The union and the employer who negotiated the terms might have had a common understanding of the meaning of them, but that understanding might not have been shared by all or some of the employees who voted for the operation of the agreement. They may have been entirely ignorant of the common understanding. In those circumstances, the occasions on which it can be said that a party to an agreement who entered into it on a common understanding should not be allowed to resile from that understanding will be rarer than they have been in the past.”’

….

[101] The admissibility of the post-contractual conduct as an aid to the construction of a contract is a somewhat vexed issue, in respect of which no clear line of authority has emerged.

[102] Some early High Court authority permitted the admissibility of post-contractual conduct as an aid to construction. 51 But obiter in more recent High Court judgements tends to support the view that such evidence is inadmissible.52

[103] Further, in Agricultural and Rural Finance Pty Ltd v Gardiner, 53 a majority of the High Court adopted the ‘general principle’ that ‘it is not legitimate to use as an aid to the construction of [a] contract anything which the parties said or did after it was made’. Of course, the expression ‘general principle’ is itself somewhat ambiguous, as Campbell JA observed in Franklins Pty Ltd v Metcash Trading Ltd (Metcash):54

‘It might mean that it is a principle that applies in all cases, or that it is a principle that usually applies, though perhaps being subject to exceptions.’

[104] As Allsop P observed in Metcash (at [6]), ‘much ink has been spilt over the last 30 years on this topic’. There is a daunting array of intermediate appellate court judgements on the admissibility of post contractual conduct, 55 but no clear consensus appears to have emerged.

[105] The judgement of Santow J in Spunwill Pty Ltd v BAB Pty Ltd 56 gave detailed consideration to whether subsequent conduct may be used as an aid to construction. Spunwill is a significant first instance judgement that has been considered, and cited with approval, in some of the intermediate appellate court judgements which have dealt with this issue. After considering the relevant authorities, Santow J concluded that the use of subsequent conduct as an aid to the construction of a contract:

‘… will be legitimate under the objective theory of contract in the limited circumstances where conduct evidences a clear and mutual subjective intention as to what the contract originally meant.’ 57

[106] In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But, consistent with the view expressed by Santow J in Spunwill, the post-contractual conduct must be such as to found a common understanding – a settled interpretation accepted by the parties.

[107] We also note that in Spunwill 58 Santow J observed that in deciding on the weight to be given to extrinsic evidence of post contractual conduct as part of the surrounding circumstances, it was useful to refer to the following passage from the judgment of Lambert JA in the Canadian case of Re Canadian National Railways and Canadian Pacific Ltd 59:

‘In the case of evidence of subsequent conduct the evidence is likely to be most cogent where the parties to the agreement are individuals, the acts considered are the acts of both parties, the acts can relate only to the agreement, the acts are intentional and the acts are consistent only with one of the alternative interpretations. Where the parties to the agreement are corporations and the acts are the acts of employees of the corporations, then evidence of subsequent conduct is much less likely to carry weight. In no case is it necessary that weight be given to evidence of subsequent conduct.’

[18] The Full Bench in Berri then modified the summary set out in Golden Cockerel in light of the observations made in the course of our decision.

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

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

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

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

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

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

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

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

[19] I adopt the Berri principles. Consequently, it is necessary to,

a) begin the analysis with a consideration of the ordinary meaning of the words of the relevant clauses in the Agreement,

b) determine whether the Agreement has a plain meaning,

c) review the text of the Agreement as a whole,

d) not rewrite the Agreement to achieve what might be regarded as a fair or just outcome,

e) (in determining the objective intention of the parties) do so by reference to what a reasonable person would understand by the language used in the Agreement,

f) not adopt an overly technical approach to the interpretation of the Agreement, and

g) not contradict the plain language of the Agreement.

Submissions - NTEU

[20] In its final submissions the NTEU submitted that,

“2. The Applicant submits that both the text of casual employment clauses and Schedule, and the context of the agreement as a whole, demonstrate the following:

•  Definitions of tutorial work in the Agreement do not only provide for managerial prerogative (if the Respondent states it is a tutorial in a timetable it is a tutorial)

•  All definitions of tutorial work include reference to equivalent delivery through other than face-to-face teaching mode, and the equivalent delivery, including the duration of the equivalent delivery, is to be determined by the School through the Academic Workload Policy (Clause 20.2.4)

•  Definitions of tutorial work ensure that teaching work which includes discussing, clarifying and elaborating matters covered elsewhere is tutorial work

•  Definitions of demonstration work clearly exclude tutorial work, and tutorial work is not ‘other required Academic activity’

3. To demonstrate this, the Applicant makes detailed submissions on the clauses of the Agreement and the evidence presented in submissions below.

4. The Applicant relies upon our prior submissions made in the Form 10 originating application, and the evidence before the Commission from Applicant witnesses.

5. …

6. This is a dispute relating to the incorrect application of terms of the Agreement in respect of the character of the duties of the work required of casual academic employees at the School of Education at University of New England.

7. In Trimester 1 - 2018 the University was using the on line teaching standard tutorial rate $133.40 60

8. In Trimester 1 - 2018 the University was using the Standard Tutorial Coordinator rate TD05 $186.14. 61

9. It is admitted that this was the practice 62 was also adopted in calculating student load for payments for casual academic on and before Trimester 1 - 2018.63

10. This practice was in accordance with Clause 20, 21, Schedule 2 and related clauses of the Agreement and the School of Education Workload policy 64.

11. However a unilateral change took place at the direction of Professor John Fitzsimmons 65 resulting in:

(i) In Trimester 2 - 2018 the University using the online teaching to other academic activity rate $62.97. 66

(ii) In Trimester 2 - 2018 the University was using the other Academic Activity Unit Coordinator Rate CA03 $83.33. 67

12. The other anomaly in this dispute is that teaching on-campus staff are paid Teaching Sessional Tutor Rate $133.40. The Respondent has paid staff teaching at the Other Academic Activity rate $62.97. 68 The Respondent is failing to pay the appropriate tutorial rate, and failing to correctly apply the obligations of the Agreement and relevant Workload Policy.

13. In Trimester 2 - 2018, there was a change in rates, however, the required teaching duties did not change. 69

14. The changes to rates were not brought to the attention to on line academic teaching staff until after they commenced work in Trimester 2 - 2018. 70

15. Casual Academic online teaching staff had an expectation that the rates paid prior to Trimester 2 - 2018 would not change. 71

16. The change in rate paid to casual academic online teaching staff reduces payments to a third of what was previously paid and naturally have implications for superannuation.  72

17. The direction of Professor John Fitzsimmons is inconsistent with the terms of the Agreement (as outlined in detail in submissions below) and School of Education Academic Workload Policy & Implementation Procedures. 73

19. The change is alleged to have occurred:

a. As a requirement arising out of Commissioner Johns’ Interim Orders made from 9th July 2018; 74 and

b. Financially driven. 75

       The Dispute

20. On 13 October 2017, Diane Mitchell sends a contract to Benjamin Thorne for EDAE224. Teaching on-campus for 16 students will be paid the online Teaching Sessional Tutor Rate $133.40. However teaching for 120 off campus students the online teaching rate ‘Other Required Academic Activity’ rate $62.04 would be paid. 76

21. On 4 July 2018, Dr McQueen sent in request for casual using the EMPREQ form, 77 but the EMPREQ form or the contract offered, removed the payment at tutorial rates for teaching and substituted payment at ‘Other Required Academic Activity’ rate.78

22. On 9 July 2018 the EMPREQ form or the contract sent to Dr Sonter for teaching and marking in EDEC310 for T2 2018. Teaching paid at the ‘Other required academic activity rate.’ Comparison EMPREQ contract available for teaching in the same unit in T3 demonstrates teaching paid at the tutorial rate. 79

23. On 10 July 2018, Dr Sonter emails Ms Diane Mitchell, Administrative Manager in relation to this contract resulted in the contract being offered to another casual who accepted it with payment for teaching at the ‘other Required Academic Activity’ rate. 80

24. On 13 July 2018, Jeane Wells, Industrial Officer, NTEU writes to David Thorsen Director, Human Resource Services, University of New England (Mr Thorsen) notifying a dispute under clause 58 of the Agreement for failing to apply the correct clauses related to correct payments of teaching and related work under Schedule 2 Salary Rates - Casual Academic Staff under the Agreement. 81

25. On 17 July 2018, Mr Thorsen writes to Ms Wells stating in part:

“The University’s position is that the $133.40 is a three hourly rate, not an hourly rate” 82

“there is no specific table in Schedule 2 of the collective agreement for “online equivalence” work and that is what the disagreement centers around” 83

26. On 19 July 2018 email is sent from Professor Fitzsimmons (then Deputy Dean of HASSE) to staff confirming the payment for online casual academic staff “will be paid at the Other Academic Base Rate NOT the Tutorial Rate (i.e. given that the tutorial rate equates to three hours work, 40 hours of online equivalence would equal 120 hours pay)”. 84

27. On 27 July 2018 a meeting took place with representatives from the Applicant and Respondent not resolving the dispute. 85

28. The Applicant subsequently filed a dispute in the prescribed form with the Fair Work Commission.

       The relevant clauses of the Agreement and the evidence arising from the hearing of 12 December 2018

29. The Agreement regulates and provides detailed pay rates in respect of teaching work. It is agreed between the parties that the casual employees are performing teaching work, the Applicant witnesses are described by the Respdondent’s witness as having taught in online units. 86 The dispute between the parties related to what teaching duties the casual academic employees are required to perform, what is the teaching work that the casual academic employees are performing, and what is the correct pay rate for these teaching duties.

30. The Applicant argues that with examination of the relevant clauses of the agreement, and their context within the agreement as a whole, demonstrates that casual academic employees can be required to perform and be paid for lecturing work, tutorial work, or other related academic duties.

31. The definitions of teaching duties (lecturing, tutoring and demonstrating) are contained in Schedule 2. However, all definitions include a reference to equivalent online delivery in a different mode, and crucially, the online equivalence of tutorial work, including its duration, will conform not the duration of an on campus tutorial class, but rather will confirm only to the employee protections outlined Clause 20.2.4, as demonstrated in Clause 20.2.4:

       The parameters of online equivalence will be set out in each School Workload Policy, and equivalent duration will conform to the provisions of sub clause 20.4, Requirements for Allocation of Workload

32. The provisions of clause 20.4 provide protections for employees. The equivalent duration of online equivalence for tutorial work must confirm with those provisions. The Respondent is mistaken if suggesting the specified duration must conform to an on campus tutorial, as the Agreement makes clear that the parameter for online equivalence, and specifically equivalent duration will feature in the School Workload Policy. In the School of Education, they can be found at 4.2 of the School Workload Policy, attached to Professor Fitzsimmons witness statement.

33. The payment for lecturing work and tutorial work is outlined in Schedule 2. The payment for other academic activities is also provided within Schedule 2. The evidence of the Applicant’s witnesses demonstrates that when required to perform teaching work for the Respondent, the casual employees in the School of Education are not performing other academic activities. They are required to perform tutorial work, and they should be paid at the appropriate rates outlined for tutorial work in Schedule 2.

34. The Agreement clauses related to this dispute include Clause 8 Consultation Arrangements, Clause 10 Requirement to state the terms of engagement, and in particular Clause 10.2.3. Clause 11.6, Clause 20 Academic Workloads, Clause 21 Casual employment and Schedule 2 – Salary Rates – Casual Academic staff.

35. Two elements of the Agreement central to this dispute are Clause 21 Casual employment, and Schedule 2 – Salary Rates – Casual Academic staff. Clause 21 provides for the regulation of casual employees, and states at Clause 21.2 that: The rates of pay for casual employees and the manner in which they are to be applied (including rates in respect of all marking that is not contemporaneous within a lecture, tutorial or other teaching session), are specified in Schedule 2.

36. Clause 21 ensures that all duties directed by the supervisor and performed by casual employees will be paid for (Clause 21.3); makes explicit what casual employees will not be responsible for (Clause 21.5.1; Clause 21.5.2), and allows that casual employees be provided with the opportunity for career development opportunities (Clause 21.10). Importantly, Clause 21.10 requires that, if the casual employee is authorised to participate in a career development opportunity: Such casual employee shall be paid at the Other Required Academic Activity casual rate of pay or English Language Teacher Rate 2 while participating in such career development activities.

37. It is crucial to note that the Agreement makes a number of explicit references to duties which can be characterised as ‘other required Academic duties’, and in Clause 21 this includes career development activities. Other explicit definitions of other Academic duties appear in Schedule 2, and we will demonstrate these below.

38. Schedule 2 commences with the clear commitment that: The minimum salaries paid to employees employed on a casual basis will be at the rates provided in this clause.

39. Schedule 2 also provides the following definitions of teaching duties which can be required of casual academic employees:

       Lecture/Tutorial

(a) “Lecture” or “tutorial” means any educational delivery described as a lecture or tutorial respectively in a course or unit outline, or in an official timetable issued by the University. A lecture or tutorial may be face to face teaching or tutoring respectively or equivalent delivery through a different mode.

(b) A tutorial is a supplementary form of education delivery where matters already covered elsewhere in a course are discussed, clarified or elaborated. A tutorial is conducted in a small group to enable effective student participation. A tutorial is conducted in accordance with guidelines issued by the lecturer in charge of the unit. Responsibility for the course rests with the lecturer in charge of the unit not the casual employee.

       Demonstration

(a) A “demonstration” (howsoever called) involves the performance of such duties as the conduct of practical classes by setting up or supervising the correct method of use of equipment; issuing prepared instructions about experimental procedures or projects from the lecturer; supervising undergraduate students in carrying out experiments or laboratory work and being a source of technical advice.

(b) The hourly rate of pay for demonstrating and other duties encompasses one hour of student contact time only. Any work required outside the one hour (marking, giving a lecture or tutorial, attending a meeting or lecture, preparation time or other duties) will be paid as appropriate in accordance with Schedule 2 of this Agreement.

(c) Responsibility for the course rests with the lecturer in charge of the unit not the casual performing demonstrating or other duties.

40. The Applicant submits that in the first definition provided above, the first line provides that a lecture or a tutorial is anything described as such by a course or unit outline, or in an official timetable. Therefore anything the Respondent names as a tutorial can be paid at a tutorial rate. But managerial prerogative is not the only way the Agreement defines a tutorial. In this same section, the text of the Agreement provides that tutorial work may also be required and paid for when employees perform ‘equivalent delivery through a different mode’. The Applicant argues that casual employees in the School of Education are required to perform tutorial work, and when conducted online it is tutorial work by ‘equivalent delivery through a different mode’.

        A lecture or tutorial may be face to face teaching or tutoring respectively or equivalent delivery through a different mode.

41. Clause 21 and Schedule 2 are central to the determination of the dispute, yet online equivalence is regulated in another related clause, Clause 20 Academic Workloads, and specifically Clause 20.2.4 which provides that:

The parameters of online equivalence will be set out in each School Workload Policy, and equivalent duration will conform to the provisions of sub clause 20.4, Requirements for Allocation of Workload.

42. Mr Thorsen has agreed in evidence before the Commission 87 that the School of Education workload policy, when directed in the hearing to the School of Education workload policy, found at Attachment 15 of Professor Fitzsimmons statement, contained provision for online equivalence. At Attachment 15 of the Professor’s statement, marked page number 43, at 4.2 the School of Education workload policy states:

To assist teams in determining a reasonable teaching loads, the following calculation can be used for determining face-to-face to online equivalence in teaching, 40 minutes per off-campus (online student) per trimester.

43. Mr Thorsen was specifically asked at hearing: ‘…it gives a series of calculations that make clear it’s about an equivalence to face to face teaching time and uses the phrase repeatedly ‘equivalent face to face teaching time’. Do you agree? Yes. 88 This policy, in accordance with Clause 20.2.4, provides an online equivalence for the specified duration.

44. As is clear in Schedule 2, only lecturing and tutorial teaching work have an online equivalent, so this equivalent duration can only apply to tutorial teaching work or lecture teaching work. There is no reference to ‘online equivalent in the definition or class of ‘other required academic activity’.

45. The Respondent’s representatives have not correctly applied the provisions of Clause 20.2.4 or Schedule 2 correctly. The former Deputy Dean of the School of Education has asserted that, ‘I do not agree that online tutorials typically happen within discussion forums. An online tutorial is usually held using Adobe Connect or Zoom’ 89.

46. This and the further evidence of Professor Fitzsimmons at paragraphs 21, 22 of his statement, simply demonstrate that Professor Fitzsimmons has failed to observe that the definition of tutorial work in the Agreement provides that a casual tutor is required to discuss, clarify and elaborate the course or subject matter covered elsewhere. Professor Fitzsimmons states at paragraph 22:

“The casual’s work in these units is to log on to the unit on a regular basis, to monitor the unit and answer questions raised by students about either the unit or the content. They engage with the learning activities of the students through the forums and provide them with guidance through the material on the Moodle site.

47. Professor Fitzsimmons has agreed that these casual teachers are required to discuss, guide, and engage, in evidence before the Commission 90. Dr Thorn confirms he is required to discuss, clarify, elaborate the course materials, in online equivalence.

48. It is agreed between the parties that the casual employees are performing teaching work, the Applicant witnesses are described as having taught in online units 91. The Applicant seeks that the Commission determine the teaching work being performed online, and the Applicant submits that, reflecting the evidence of the parties above, this teaching work is tutorial work.

49. Evidence before the Commission, from a unit co-ordinator of online and on-campus teaching subjects with some 19 years of experience 92, equivalent preparation time is a required duty for the casual academic employees in the School of Education to perform, in order to elaborate, clarify and discuss the course material. Associate Professor Parkes93, has stated not all, and certainly not most digital resources and subject materials would be placed online prior to the commencement of the teaching period. The Applicant submits that the Respondent argues this point to make the inference the casual employees teaching in the School of Education require no preparation time ahead of logging in to teach online. Yet as Associate Professor Parkes has noted, the subject material is delivered throughout the course or subject, and the casual academic employee has to review the updated material, and then consider the materials when discussing, clarifying or elaborating the course matter with students. As Associate Professor Parkes states regarding preparation time for casual tutors, when teaching in an equivalent teaching mode, there is no difference between on-campus and online tutorials: ‘I see no difference, they are equivalent’94. The ‘equivalent’ is not the same, as Associate Professor Parkes notes95. Associate Professor Parkes’ evidence is clear that as a Unit Co-ordinator he requires preparation time from casual teaching employees, in order to review and consider unit material as it is uploaded across the duration of the subject.

50. The definition of tutorial further includes that: A tutorial is conducted in a small group to enable effective student participation. While the agreement is clear that tutorial teaching can be conducted in an ‘equivalent delivery through a different mode’, the agreement requires that the relevant School workload policy will regulate the details of online teaching work as evidenced above. The School of Education workload policy has not defined online equivalence in respect of the size of the tutorial, but has provided an equivalent duration. The Respondent is also silent on what effective limits apply to make an online tutorial ‘small’. The evidence of Associate Professor Parkes shows that the Respondent has never advised, to his knowledge, a definition of small group for the purposes of teaching online’ 96. The Applicant argues that the Agreement does not define what a small online tutorial would be, and indeed the parties have every opportunity to place effective limitations on online teaching work though Clause 20.2.4.

         A tutorial is a supplementary form of education delivery where matters already covered elsewhere in a course are discussed, clarified or elaborated.

51. The definition of tutorial work in (b) above provides further detail, such as that: A tutorial is a supplementary form of education delivery where matters already covered elsewhere in a course are discussed, clarified or elaborated. The Applicants evidence shows that the casual Academic employees in the School of Education are required to perform teaching delivery in which matters already covered elsewhere in the course are discussed, clarified or elaborated. Associate Professor Parkes makes clear in his evidence that if a casual employee logs on to Moodle to download an assignment to mark it is a not teaching, it is marking. 97

52. But as an experienced Unit Co-ordinator, Associate Professor Parkes has given evidence that: ‘..the sort of interactions where we’re about building on content knowledge, elaborating, clarifying, discussing matters already discussed, as is the definition of a tutorial, I consider them both to be equivalent’ 98. AP Parkes is a unit co-ordinator with vast experience in allocating work to casuals, so this consideration as to the necessity of discussion, clarification and elaboration is critical in considering the work required to be performed by the casual academic employees in the School of Education.

53. Further evidence provided to the Commission demonstrates these casual Academics are performing tutorial work, not demonstration work, in their online teaching work. For example, Dr Lisa Sonter states in her witness statement: ‘Teaching responsibilities include preparation, delivery and follow of lecture material, writing and reading forum posts, offering references and support with readings, promoting student enquiry and engagement with the materials, supporting students on site or email’. 99

54. In addition, Dr Sonter performs other academic activities such as marking. 100 But the teaching work Dr Sonter performs comprises Dr Sonter discussing, clarifying and elaborating the course matters with students online. For this work, Dr Sonter should be paid at the appropriate tutorial rate. The Unit Co-ordination that Dr Sonter is performing is related to her teaching work in accordance with Schedule 2. As Dr Sonter is not required to perform demonstrate work, she is required to discuss, clarify and elaborate course material online, accordingly, the Unit Co-ordination performed relating to tutorial work is also required to be paid correctly in accordance with Schedule 2.

55. Dr Thorn has stated in his evidence that: ‘Teaching online has been a mixture of preparing on-line resources (in written and video form) and using on-line forums to encourage discussion and participation by the students and to get them to explore idea and approaches’ 101 Dr Thorn is required to perform: ‘…a supplementary form of education delivery where matters already covered elsewhere in a course are discussed, clarified or elaborated’, an element of the definition of tutorial provided in the Agreement cited above.

56. It is clear that the work that Dr Thorn performs when teaching online is not the same specified duration as an on-campus tutorial, for as an experienced unit co-ordinator has noted, online delivery will be equivalent, not the same. The specified duration of the tutorial duties Dr Thorn performs are specified in the School of Education Workload Policy.

57. It is equally clear that Dr Thorn is required to discuss course content online as confirmed by Professor Fitzsimmons. 102 Dr Thorn has agreed when teaching in 2018, whether online or on campus, he has been required to discuss, clarify or elaborate lecture materials103. Dr Thorn has confirmed to the Commission that he has never been asked to perform demonstration duties, as outlined by the definition of demonstration work in the agreement. It is agreed by the parties that Dr Thorn is required to teach online. Dr Thorn is not lecturing, and he is not demonstrating, he is tutoring in an equivalent delivery mode online.

       Other required academic activity duties are not tutorial duties – Demonstration duties are not tutorial duties

58. The Agreement provides a definition of Demonstration work, the only type of teaching delivery work provided for in the ‘other required Academic activity’ list. A demonstration ‘howsoever called’ receives the lowest teaching payment, being paid at the ‘other required academic activity rate’ and only involves the demonstrator showing students how to work laboratory equipment and providing technical advice or issuing prepared instructions, in accordance with the examples and guidance the list of activities in the Agreement provides.

59. Casual employees in the School of Education have been required to discuss, clarify, and elaborate course material. The employees are performing tutorial work and the Respondent is required to pay the tutorial rates of Schedule 2 for these duties.

60. The Applicant submits that the casual Academic employees are not performing ‘other required academic work’ when teaching online. Schedule 2 provides that other Academic activities are class of activities identified by the examples and guidance in Schedule 2. Following the title Other Required Academic Activity, Schedule 2 provides that:

For the purposes of this clause, “other required academic activity” will include work that a person, acting as or on behalf of the employer of a casual employee, requires the employee to perform and that is performed in accordance with any such requirements, being work of the following nature: (a) the conduct of practical classes, demonstrations, workshops, student field excursions; (b) the conduct of clinical sessions other than clinical nurse education; (c) the conduct of performance and visual art studio sessions; (d) musical coaching, repetiteurship, and musical accompanying other than with special educational services; (e) development of teaching and unit materials such as the preparation of unit guides and reading lists and basic activities associated with unit co-ordination; (f) consultation with students; (g) supervision; (h) attendance at lectures; (i) attendance at Faculty and/or School meetings, and/or a meeting with a unit coordinator/supervisor as required; and (j) directed to attend at (rather than deliver) lectures or other teaching activities. The above list is not intended to be exhaustive, but is provided by way of examples and guidance.

61. This guide to other required academic activity notes that the above list is not intended to be exhaustive, but is provided by way of examples and guidance. Notably, this list of activities does not refer to an ‘online equivalence’, as these duties do not include teaching duties such as lecturing or tutoring, which always refer to an online equivalence. These duties only make reference to demonstration work, clinical sessions, musical coaching – activities to which there is not an online equivalence.

62. The clause outlines a class of academic activity which is to be paid at the other required academic activity rate, which is a lesser pay rate than casual lecture or casual tutorial work. This class of activity includes demonstration work, and elaborates on the kinds of demonstration work applicable to a greater number of discipline examples, such as clinical sessions, musical coaching, practical workshops etc. The agreement notes that there is a wide variety of demonstration like activities, when in the definition of demonstration work earlier in Schedule 2 the definition provides that ‘demonstration work, howsoever named, means the performance of such duties as the conduct of practical classes by setting up or supervising the correct method of use of equipment; issuing prepared instructions about experimental procedures or projects from the lecturer; supervising undergraduate students in carrying out experiments or laboratory work and being a source of technical advice.

63. This guide or class of activities, and the nature of these activities, does not include the work being required of and performed by casual Academic employees in the School of Education. The evidence of casual Academic employees in the School of Education is that while they are certainly performing other required academic activity, ie non-contemporaneous marking, attendance at meetings, student consultation etc. (and if authorised, career development activities, which is also paid at the ‘other required Academic activity rate’ as per Clause 21.10), but in addition to these activities, they are also required to elaborate, discuss and clarify the subject material of the subjects they are teaching in, in an online tutorial, an equivalent delivery mode.

64. Associate Professor Parkes, a Unit Co-ordinator of 19 years’ experience, confirmed before the Commission that he has never asked a casual academic employee to perform demonstration work as defined by the agreement. 104 Associate Professor Parkes has also confirmed he has never required a casual academic, teaching online, to conduct practical classes, demonstrations, workshops or other elements of ‘practical classes’ included in the definition of ‘other required academic activity.105

65. The evidence of Dr Thorn states that he has never been required to perform demonstration duties as defined by the Agreement. 106

       Specified duration for online equivalence is not the equivalent of an on campus tutorial, but will be defined in a School Workload Policy as per Clause 20.4.2

66. The Agreement provides further definitional information about tutorial work at the introduction of the casual tutor rates, providing under the title casual tutoring:

A casual employee required to deliver and present tutorials (or equivalent delivery through other than face-to-face teaching mode) of a specified duration and related associated non-contact duties in the nature of preparation, contemporaneous marking, student consultation and administration of records associated with that group of students will be paid at a rate for each hour of tutorial delivered or presented, according to the following table…’.

67. The Respondent ignores the Agreement regulation of ‘specified duration’ provided in Clause 20.2.4. The Agreement provides at Clause 20.2.4 that the parameters of online equivalence to be articulated in the School of Education Workload Policy, in accordance with Clause 20.2.4 of the Agreement. When Associate Professor Parkes is asked, ‘has the University ever advised you or directed you as to what a specified duration is for the purposes of online teaching work?’, Associate Professor Parkes answered, ‘Never to my knowledge’ 107. In the equivalent delivery of online teaching, a specified duration period is not defined in the Agreement, although the parties are empowered to outline the parameters of online equivalence within the relevant School Workload Policy.

       Other related clauses of the Agreement

68. Clause 11.6 defines a casual employee. Clause 10 outlines the information required to be provided to employees within a contract of employment. Clause 10 explicitly excludes casual employees from being provided with a position description, and a classification level, and explicitly requires casual employees to be provided with, at Clause 10.1.3: ‘..for casual employees, the duties required, the number of hours required, the rate of pay for each class of duty required and a statement that any additional duties will be paid for’. The Applicant argues that the Respondent has failed to correctly implement Clause 10.1.3, as they have failed to adequately and/or correctly state the duties required in the contracts of employment issued to casual employees.

69. Clause 8 Consultation Arrangements at 8.1 provides that:

8.1.1 The University is committed to open discussion and direct consultation with employees and Unions about workplace issues. It is recognised that there will be significant consultation during the period of the Agreement on matters involving implementation of this Agreement, operational and cultural change and matters affecting employees generally or in a particular case. Such matters will be discussed in a spirit of cooperation and trust to ensure that employees and the Unions have an opportunity to raise workplace issues, to receive all relevant information on issues that affect them, to have an opportunity to contribute their views on those issues and to have meaningful involvement in decision making.

70. It is clear in the timeline outlined in paragraphs contained in the background to the dispute above that there has been no open discussion and direct consultation regarding proposing to change the work or the organisation of work in the relevant workplaces cited in this dispute. It is clear from the text of Clause 8.8.1 above that casuals are not excluded from the commitment to consult in respect of the implementation of the Agreement, and yet the University has not implemented any of the commitments of Clause 8.8.1 to the casual Academic employees relevant to this dispute, and has incorrectly applied this clause.

       Principles of agreement interpretation and application to this dispute

71. At paragraph 10 and onwards of the Applicant’s submissions in reply, the Applicant has relied upon the agreement interpretation principles outlined in AMWU & Berri 108. The Applicant has noted at paragraph 12 of these submissions that the task of the Commission is to objectively identify the common intention of the parties, by reference to what a reasonable person would understand by the language the parties have used to express their agreement, and without regard to the subjective intentions or expectations of the parties.109

72. Berri states: The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The disputed words must be construed in the context of the agreement as a whole. 110 The Applicant argues it is essential to consider the numerous references to tutorial definitions, and other related clauses, in order to determine the nature of the work being performed by the casual academic employees in the School of Education. Berri provides that ‘…as a general principle, all words in an enterprise agreement must prima facie be given some meaning and effect.’111

73. The Applicant submits that all of the elements of tutorial definitions have application, and yet some elements of the definition of tutorial must also be understood from the context of the agreement as a whole. For example, there is more than one definitional reference to the teaching duties that comprise tutorial work. But all definitions include a reference to equivalent online delivery in a different mode – this is crucial to the correct interpretation of the definition of tutorial work, in that for online equivalence will be featured in the School Workload Policy, and the equivalent duration will conform not to the duration of an on campus tutorial class, but rather will confirm only to the employee protections outlined Clause 20.2.4, as demonstrated in Clause 20.2.4:

           The parameters of online equivalence will be set out in each School Workload Policy, and equivalent duration will conform to the provisions of sub clause 20.4, Requirements for Allocation of Workload

74. The Respondent has failed to note that the parameters for online equivalence, and specifically the equivalent duration of the tutorial, is determined at the School level through the relevant School workload policy, as long as it complies with the protections for employees contained in Clause 20.2.4

75. Further, the Agreement provides a class of duties which comprise demonstration work, and they specifically do not include tutorial teaching duties, as the definition of demonstration makes clear. In the text of the Agreement, general matters are constrained by reference to specific matters. The list of ‘other required Academic activities’ include a teaching duty (demonstration), but clearly this class of activities does not include reference to an online equivalence, as the definitions of lecturing and tutorial teaching do.

76. Demonstration teaching duties are clearly not tutorial teaching duties, as made clear by the definition of demonstration, and the exclusion of teaching work whereby casual academic employees ‘discuss, clarify and elaborate’ from the class of ‘other required academic activities’ makes clear that a casual employee who is required to discuss, clarify and elaborate, should not be paid at the ‘other required academic activity’ rate. The class of words contained in the section ‘other required academic work’ derives their meaning from the context in which they appear. Demonstration work is included in this list. Tutorial work, whereby casual employees discuss, clarify and elaborate, is not included in this section. The evidence shows the casual employees are not performing demonstration duties. The appropriate tutorial rate applies.

77. The text of the Agreement makes clear that a tutorial is a supplementary form of education where matters already covered elsewhere are discussed, clarified and elaborated. The inclusion of this element of the definition prohibits the Respondent from applying managerial prerogative to the determination of the question what is a tutorial. It is a tutorial if the Respondent describes it as a tutorial in a unit outline or timetable. But if that was the only way to determine the nature of the casual work performed, the parties to the agreement would have left the definition limited to this managerial prerogative.

78. Instead, and for over twenty years as evidenced by the enterprise agreements attached to Mr Thorsen’s witness statement, the parties have agreed that a tutorial is also a supplementary form of education where matters already covered elsewhere are discussed, clarified and elaborated.

79. The definitions of tutorial also provide that they are conducted in a small group, to increase participation, and that they are of a specified duration. But as noted above, all words of the Agreement have work to do, and it is clear in Clause 20.2.4 of the Agreement that the parameters of online equivalence, including ‘duration’, are to be determined in the School Workload Policy. This is what has happened in the School of Education, as demonstrated by the School of Education workload policy at Attachment 15 of Professor Fitzsimmons statement. It is open to the parties to revise the School Workload Policy, in accordance with the terms of Clause 20.

80. The Applicant relies upon our F10 and prior submissions, and Berri in respect of the principles of agreement interpretation.”

81. We seek an order that the Respondent:

Submissions - University

[21] In its final submissions the University submitted that,

“2. The question for resolution by the Commission is primarily the proper construction and application of the terms “Casual Tutoring” and “Other Required Academic Activity” in Schedule 2 of the UNE Academic and ELC Teaching Staff Collective Agreement 2014-2017 (the Agreement), regarding the correct payment of casual academic staff performing certain tasks relating to the University’s online learning management system, known as Moodle.

3. As set out in AMWU v Berri [2017] FWCFB 3005, the resolution of a disputed construction of an enterprise agreement will turn on the language of the agreement having regard to its context and purpose. As stated by the Full Bench, the first task is to determine whether an agreement has a plain meaning or is susceptible of more than one meaning 112.

Definition of Casual Tutoring

4. The National Tertiary Education Union (NTEU) contends that online teaching activity falls within the meaning of “Casual Tutoring” and that this work should be paid at the corresponding (two or three hour) loaded rates 113. This is clearly incorrect with regard to the plain words and the evidence. At Schedule 2, under the heading “Casual Tutoring”, the Agreement provides:

A casual employee required to deliver and present tutorials (or equivalent delivery through other than face-to-face teaching mode) of a specified duration and related associated non-contact duties in the nature of preparation, contemporaneous marking, student consultation and administration of records associated with that group of students will be paid at a rate for each hour of tutorial delivered or presented, according to the following table:

    Type of Tutoring and Associated Working Time Assumed

    Salary as at 1st pay period on or after
    30 June 2012

    2% SALARY INCREASE
    Paid administratively
    1st Pay Period
    on or after 1-Jul-2013

    1% SALARY INCREASE
    1st Pay Period
    on or after
    1-Jul-2013

    3% SALARY INCREASE
    1st Pay Period
    on or after
    1-Jul-2014

    3% SALARY INCREASE
    1st Pay Period
    on or after
    1-Jul-2015

    3% SALARY INCREASE
    1st Pay Period
    on or after
    1-Jul-2016

    3% SALARY INCREASE
    1st Pay Period
    on or after
    1-Jul-2017

Tutorial (1 hour delivery and 2 hours of associated working time)

115.08

117.38

118.53

122.09

125.75

129.52

129.52

Repeat Tutorial (1 hour of delivery and 1 hour of associated working time)

76.72

78.25

79.02

81.39

83.83

86.35

88.94

Two additional tables provide higher rates where the staff member holds a PhD or is required to undertake Unit Coordination. All the tables contain a one hour delivery time for a tutorial and include additional hours for associated working time to give “loaded” rates which are multiples of the relevant “base rates” set out on page 1 of Schedule 2.

5. “Tutorial” is defined in Schedule 2 as follows:

Definitions

Lecture/Tutorial

(a) “Lecture” or “tutorial” means any educational delivery described as a lecture or tutorial respectively in a course or unit outline, or in an official timetable issued by the University. A lecture or tutorial may be face to face teaching or tutoring respectively or equivalent delivery through a different mode.

(b) A tutorial is a supplementary form of education delivery where matters already covered elsewhere in a course are discussed, clarified or elaborated. A tutorial is conducted in a small group to enable effective student participation. A tutorial is conducted in accordance with guidelines issued by the lecturer in charge of the unit. Responsibility for the course rests with the lecturer in charge of the unit not the casual employee.

6. “Casual Tutoring” as defined is unambiguous. When reading the plain words under “Casual Tutoring”, “Lecture/Tutorial” and “Tutorial” together, it is clear that work undertaken to be “Casual Tutoring”, whether delivered face to face or online, must (relevantly):

If the work undertaken does not have these characteristics, it will not be “Casual Tutoring” and accordingly will not attract the “loaded” casual rates in Schedule 2 which relate to associated working time.

7. The NTEU’s submissions to date 114 do not provide any substantive engagement with the language above or identify any ambiguity. The primary case of the NTEU incorrectly relied on past “custom and practice”, ignoring the authorities which state that evidence of subsequent conduct is of no utility in the construction of disputed terms (see paragraph 43 below).

8. In effect, having regard to the evidence, the NTEU is saying that the Commission should discard the plain words in the definition of “Casual Tutoring”, including “specified duration” and “described as a lecture or tutorial in a course of unit outline, or in an official timetable issued by the University”. Taken to its logical conclusion and, as put to Associate Professor Parkes 115 under cross-examination, the NTEU is saying that every time a casual staff member logs onto the Moodle and performs any kind of monitoring work (other than marking) they should be paid at a loaded rate three times the actual time spent on the Moodle.

The Evidence

9. The nature of online work described by the NTEU’s witnesses does not exhibit the characteristics required for the definition of “Casual Tutoring” in Schedule 2.

10. Dr Benjamin Thorn (Dr Thorn) has been engaged as a casual lecturer in creative arts education in the School of Education since 2007. He is the only witness to allege he is not receiving the correct rate of pay for the work performed. Dr Thorn provides first-hand evidence of his work as a casual lecturer in online units in Moodle. In his welcome to students in Moodle for his online unit EDAE224 he states:

“I will be monitoring the forums and adding comments where this seems useful.”  116

11. Twice during the course of the hearing, Dr Thorn agreed 117 with Professor Fitzsimmons’ description of online teaching in a Moodle unit as follows:

“…casuals’ work involved in these units is to log onto the unit on a regular basis to monitor the unit and to answer questions raised by students about either the unit or the content, engage with the learning activities of the students through the forums, and provide them with guidance through material on the Moodle site.”

12. Dr Thorn also confirms that online teaching work in a Moodle unit, is not:

● described as a lecture or tutorial in a course or unit outline or in an official timetable of the University 118; or

● for a specified duration. 119

13. The tables under the heading “Casual Tutoring” in Schedule 2 provide for one hour tutorials. Dr Thorn’s evidence is that his time spent working online in Moodle varies from week to week, that he does not log on in hour long blocks and that he might be monitoring several units at a time, flitting from one unit to another. 120

14. Dr Thorn says his online work also includes:

● developing materials for the Moodle site (he later clarified that almost all of this work was done three years earlier when he was the Unit Co-ordinator 121); and

● maintaining, updating, adding extra items throughout a trimester and providing trigger questions. 122

15. Neither Dr Thorn nor any other of the NTEU’s witnesses described associated work related to online teaching in the nature of preparation, contemporaneous marking, student consultation and administration of records as referenced in Schedule 2. Dr Thorn agreed that marking (eg: of assessments) is paid separately 123. The University’s evidence124 of payment for additional work such as updating materials or reviewing new material was accepted by the NTEU’s witnesses125.

16. There is no other NTEU witness who claims they are receiving an incorrect rate of pay.

17. Dr Lisa Sonter (Dr Sonter) has been employed as a casual lecturer in Early Childhood in the School of Education 126 for four years. Although she does not clearly distinguish on campus and online units, her evidence appears to be that her teaching responsibilities (apart from lecturing) in online units include writing and reading forum posts, offering references and support with readings, promoting student enquiry and engagement with the materials and supporting students by email127.

18. Associate Professor Mitchell Parkes (Associate Professor Parkes) is employed on a continuing basis, currently undertaking a one year secondment as Associate Professor Academic Development 128. The consistent evidence of Associate Professor Parkes is that the work in question is “distributed” and “largely asynchronous”129, and that “distributed activities” occur “across time and space rather than at a particular time and in a particular space.”130

19. In his witness statement filed on 7 September 2018, Associate Professor Parkes ignores the clear words under the heading “Casual Tutoring” in Schedule 2 when he contends that there is no mention of tutorials having to be of a “specified duration” and that this criterion should be precluded 131.

20. Associate Professor Parkes separately contended that for online activity, “specified duration” would be “over the course of week or weeks the topics are being covered”. 132 , “the boundaries of when the unit is running”133 or “the duration of the unit”134.

21. Under cross-examination Associate Professor Parkes conceded that one hour delivery referenced in the table under the “Casual Tutoring” heading is a “specified duration” 135 and that the online activity in a Moodle unit performed by casual staff is not set out in a course or unit outline.136 In response to a question whether the online interaction could be with an individual student or large groups, Associate Professor Parkes stated it could be “any number”137.

22. Professor Margaret Sims (Professor Sims) has been employed since 2009 as a continuing staff member in Early Childhood in the School of Education 138. Her evidence is that online teaching generally consists of delivery of content through readings supplemented by various forms of sharing content; that in many cases this material will be provided by the Unit Co-ordinator prior to the beginning of trimester and this material is supplemented during the trimester by a casual employee139.

23. The University’s evidence before the Commission regarding the nature of online teaching is consistent with the NTEU’s evidence, for example:

● the unit profiles in the course outlines for the units referred to in the NTEU’s evidence do not contain a scheduled tutorial 140;

● online teaching is not for a “specified duration” 141 and is asynchronous;142 and

● online teaching does not have a one hour delivery time per the tables under the heading “Casual Tutoring”. 143

24. Professor Fitzsimmons was asked under cross examination to confirm that the unit profile in the course outline for Dr Thorn’s casual teaching unit EDAE224 indicates that the Teaching Period states “Trimester 2.” 144 Any submission by the NTEU that a whole “Teaching Period” can constitute a tutorial of a “specified duration” within the meaning of Schedule 2 is unsustainable in light of the clear words of the unit profile which refer to a “Teaching Period” and not a “tutorial”.

25. Having regard to the clear and unambiguous words of Schedule 2 and the evidence set out above, online teaching in a Moodle unit does not fall within the definition of “Casual Tutoring” in Schedule 2 of the Agreement because it does not exhibit the following characteristics:

● it is not described as a tutorial in a course or unit outline or in an official timetable issued by the University;

● it is not necessarily conducted in a small group;

● it is not for a “specified duration” and is asynchronous and occurs across time and space;

● it does not have a one hour delivery time per the tables under the heading “Casual Tutoring”; and

● there are not any related associated non-contact duties.

26. The task falls to the Commission to determine the applicable pay rate under Schedule 2 of the Agreement for casual work relating to the Moodle system.

       Definition of Other Required Academic Activity

27. The NTEU contests 145 the University’s position that the applicable pay rate for online teaching is the “Other Required Academic Activity”, defined as follows:

Other Required Academic Activity

For the purposes of this clause, “other required academic activity” will include work that a person, acting as or on behalf of the employer of a casual employee, requires the employee to perform and that is performed in accordance with any such requirements, being work of the following nature:

28. The plain words of this definition indicate this is a catch-all for all “other required academic activity” which the employer “requires” a casual employee to perform. The definition includes a list of “examples and guidance”, expressly stated to be “non-exhaustive”.

29. Having regard to the language above, the evidence shows that casual online teaching is required by the University 146. This work consists of activities not specifically listed in the definition, such as monitoring the Moodle units, answering questions raised by students about either the unit or the content, engaging with the learning activities of the students through the forums, and providing them with guidance as well as posing questions and updating and supplementing materials (paragraphs 10, 11, 14, 17 and 22 above). As the provision is a “non-exhaustive” catch-all provision, there can be no question that this work is within the definition of “Other Required Academic Activity”, required to be paid at the corresponding rate. This is in contrast to the situation (see email of Professor Fitzsimmons dated 19 July 2018147) where casual staff are required to deliver a timetabled online tutorial for a specified duration, in which case they will be paid at the loaded “Casual Tutoring” rate.

30. Should the Commission consider there is ambiguity regarding the meaning of Schedule 2, an examination of the context and purpose confirms this construction. The purpose of Schedule 2 is to provide pay rates for casual teaching work at the University. The placement of the definition of “Other Required Academic Activity” as the last category of payment indicates its “catch-all” status.

31. There are other textual indications that this construction is correct. Clause 20.2.3 of the Agreement defines “teaching” as “the provision of education through activities such as lectures, tutorials, seminars, demonstrations, laboratory sessions, clinical/practicum sessions, field work, supervision, or other teaching methods, including teaching in equivalent ways and equivalent duration through on-line/distance education media, excluding distance education that is not a teaching related activity”. The definition includes “teaching related activity” which is defined in Clause 20.2.5 as “activity intrinsic to teaching, and refers to activities such as coordination, marking, student consultation, preparation, and curriculum and materials development…” Clause 20.2.4 provides a mechanism to measure online teaching work for the purposes of workload.

32. The definitions of “Casual Lecturing”, ”Casual Tutoring”, “Tutoring with PhD”, “Tutoring with Full Unit Coordination”, “Casual Marking” and “Other Required Academic Activity” in Schedule 2 delineate casual pay rates for the various “teaching” activities described in Clauses 20.2.3 and 20.2.5. Those activities such as lectures and tutorials which have associated working time are awarded higher “loaded” rates. Other activities receive the base hourly rate. Any submission by the NTEU that online “teaching” activities do not fall within the meaning of “Other Required Academic Activity” is unsustainable in light of these provisions.

33. During the hearing, the NTEU sought to establish that a “demonstration” can never take place online 148. This submission is of no assistance to the Commission as it focuses on only one sub-category of one example of the “non-exhaustive” list of activities in the definition of “Other Required Academic Activity”. There are also no words that exclude the possibility of an “online” demonstration within the definition of “demonstration”, which appears on the first page of Schedule 2.

       Background Circumstances and Industrial Context

34. The balance of these submissions are premised upon the NTEU being able to establish ambiguity about the definition of “Casual Tutoring” or “Other Required Academic Activity”. If this is the case, then the Commission may have regard to evidence of the surrounding circumstances (Berri Principles 8 and 10).

35. As set out in Berri Principle 11:

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

36. As stated in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury (2014) 87 NSWLR 41; [2014] NSWIRComm 23 at [128]:

“In order to ascertain the meaning of a provision of an award which is susceptible to more than one meaning, even after the consideration of the immediate context of a provision, recourse may be had to the circumstances surrounding the making of an award in order to see what the circumstances were with reference to which the words of the award provision were used.”

37. In Short v. Hercus Pty Ltd [1993] FCA 51; (1993) 40 FCR 511, Burchett J emphasised the need to have regard to the relevant industrial context in another often-cited passage at [7]:

“The context of an expression may thus be much more than the words that are its immediate neighbours. Context may extend to the entire document of which it is a part, or to other documents with which there is an association. Context may also include, in some cases, ideas that gave rise to an expression in a document from which it has been taken. When the expression was transplanted it may have brought with it some of the soil in which it once grew, retaining a special strength and colour in its new environment. There is no inherent necessity to read it as uprooted and stripped of every trace of its former significance, standing bare in alien ground. True, sometimes it does stand as if alone. But that should not be just assumed, in the case of an expression with a known source, without looking at its creation, understanding its original meaning, and then seeing how it is now used.”

38. The University’s enterprise agreements from 1995 to the present 149 demonstrate the industrial context and making of the award which was the source of the current wording in Schedule 2150. The evolution of the agreements shows that the current definitions of “Casual Tutoring” and “Other Required Academic Activity” in Schedule 2 were substantially transplanted from the University of New England (Academic Staff) Enterprise Agreement 1997151 (the 1997 Agreement).

39. The 1997 Agreement adopted and specifically references Clause 4 of the Australian Universities Academic and Related Staff (Salaries) Award 1987 152 which was varied by an order of the Australian Industrial Relations Commission (AIRC) on 23 June 1997153.

40. The order dated 23 June 1997, P2161 references an initial decision P0289 154 (Annexure A attached) and a supplementary decision P2160155, (Annexure B attached). In P0289, in the context of its determination of the provision “Other Required Academic Activity”, the AIRC considered that the award should include provision for payment for all (other) work required by the employer to be performed and demonstrably performed156.

41. In P2160 the AIRC rejected a submission by the NTEU that the definition of “tutorial” be broadened to include reference to a “workshop” as well as “any one-to-one and small groups teaching, other than a lecture.” The AIRC was not persuaded that there should be an expanded definition or that a two hour loading for associated working time should be paid for a workshop. This type of work thus remained within the list under “Other Required Academic Activity” which is paid at single rate. 157

42. With reference to the above authorities, the decisions which led to the current wording in Schedule 2 create an understanding of the original meaning. The reasoning of the AIRC does not support the NTEU’s contention that loaded rates for associated work should apply to the online teaching work described by the witnesses in these proceedings.

        Custom and Practice

43. The NTEU’s case primarily rests on evidence of the parties’ conduct subsequent to the making of the relevant provisions of the Agreement and a novel argument regarding “custom and practice”. Consistent with the University’s submissions and the relevant authorities 158, evidence of the parties “subsequent conduct” was struck out at the hearing159. Accordingly the NTEU’s principal arguments fall away.

       Ancillary Matters

44. The NTEU’s submissions do not touch on how they say Clauses 10 and 21 of the Agreement support the construction contended by it 160. In addition, should there be any assertion made to the contrary, the evidence before the Commission shows the University has provided contracts in compliance with Clause 10 of the Agreement, so far as it applies to casual employees, relevantly Clause 10.1.3161.

Conclusion

45. The application should be dismissed.”

Consideration

[22] Correctly applying the Berri principles it is necessary to begin with a consideration of the ordinary meaning of the relevant words in the Agreement. For this reason, it is appropriate to again set out the most relevant provisions.

“Definitions

Lecture/Tutorial

(a) "Lecture" or "tutorial" means any educational delivery described as a lecture or tutorial respectively in a course or unit outline, or in an official timetable issued by the University. A lecture or tutorial may be face to face teaching or tutoring respectively or equivalent delivery through a different mode.

(b) A tutorial is a supplementary form of education delivery where matters already covered elsewhere in a course are discussed, clarified or elaborated. A tutorial is conducted in a small group to enable effective student participation. A tutorial is conducted in accordance with guidelines issued by the lecturer in charge of the unit. Responsibility for the course rests with the lecturer in charge of the unit not the casual employee.

….

Casual Tutoring

A casual employee required to deliver and present tutorials (or equivalent delivery through other than face-to-face teaching mode) of a specified duration and related associated non-contact duties in the nature of preparation, contemporaneous marking, student consultation and administration of records associated with that group of students will be paid at a rate for each hour of tutorial delivered or presented, according to the following table….”

[23] The first observation to be made is that parties to an enterprise agreement can define any term or concept however they like. For example, they could define “night” as “that period of a day when the sun is shining.” Although it is preferable that words in agreements are defined as they are commonly understood there is no requirement that the parties do so. So too the scope of a defined term is within the power of the parties to determine. The word “dog” when used in reference to a “dog handling allowance” could be defined broadly as “Canis lupus familiaris” meaning all domestic dogs or narrowly as just the Airedale Terrier breed. The point is, it is entirely a matter for the parties.

[24] In the present matter we are concerned to understand what a “tutorial” is. However, what an academic (or any of their students, the NTEU or the AHEIA) thinks is or should be treated as a “tutorial” is not the test. What is required is an examination of the ordinary meaning of the words used in the Agreement.

[25] In the Agreement,

"tutorial" means any educational delivery described as a … tutorial … in a course or unit outline, or in an official timetable issued by the University.

….

A tutorial is conducted in a small group…

….

A casual employee required to deliver and present tutorials (or equivalent delivery through other than face-to-face teaching mode) of a specified duration…

(my emphasis)

[26] Thus the definition of a tutorial for the purposes of the Agreement requires a consideration, in particular, of the various places were “tutorial” is used. Considering these words in the context of the Agreement as a whole means that a tutorial is something described as such, conducted in a small group and something for a specified duration.

[27] True it is that tutorials can be delivered other than by face-to-face, but that does not mean that every online activity is to be defined as a tutorial. If the online activity is not described as a tutorial, not conducted in a small group and is not for a specified duration it is not a tutorial of the purposes of the Agreement.

[28] That is not to say that the work undertaken by casuals in the online space is not time consuming. It is not to say that principles of industrial equity might dictate that online work by casuals be treated as something equivalent to a tutorial. It is just to say that is not how the Agreement defines a tutorial. I am not satisfied that clause 20.2.4 dealing with “online equivalence” is of assistance.

[29] It might be said that the definition of tutorial in the Agreement is more akin to a traditional notion of what a tutorial is (something I may have been familiar with many, many years ago at law school). It might be said that the definition is not ‘fit for purpose’ in the modern world of online learning. However, if that is the case, then it is for the parties to remedy it in bargaining. It is not the role of the Commission to “update” the Agreement negotiated by the parties.

[30] Consequently, it must be that the online work undertaken by casuals is properly to be regarded as “Other Required Academic Activity”. The nature of work described as “Other Required Academic Activity” is (as the Agreement expressly states) “not intended to be exhaustive, but is provided by way of example and guidance.” In this context it might be said that the online work undertaken by casuals is in the nature of consultations with students and/or supervision.

[31] This is not a case of where “if it looks like a duck, swims like a duck, and quacks like a duck, then it probably is a duck”. And so, while the online work undertaken by casuals may have all the hallmarks of a tutorial that is not how it is defined in the Agreement. This is the appropriate mode of textual analysis (developed in the general law) to be applied in the present context. It is not a narrow and pedantic approach but rather a logical one having regard to the plain and ordinary words used by the parties to the Agreement.

[32] For these reasons I am not satisfied that there is any ambiguity in the words used in the Agreement. Having not identified any ambiguity, it is then not permissible for me to consider evidence of the surrounding circumstances as an aid to the task of interpreting the Agreement.

[33] Insofar as the University was applying the Agreement in a different way prior to Trimester 2 – 2018 the better view is that its conduct after the making of the Agreement (i.e. its post contractual conduct) is not admissible. What was done after the Agreement was made appears more likely to have been wrong or done in error and therefore should not be used as an aid to construction. What has happened in the past (custom and practice) does not establish ambiguity. This is particularly so because the University is a legal body other than a natural person. It is therefore more difficult to ascribe weight to the actions of a legal (non-natural person) entity in deciding how to interpret the Agreement.

[34] The task I have performed does not involve a rewriting of the Agreement to achieve what might be regarded as a fair or just outcome. Had I done that then the interpretation advanced by the NTEU would likely have prevailed. But that is not the role of the Commission in interpreting agreements. The Agreement before me is that which was produced by the parties and it was open to them to define “tutorial” as they liked. Having decided that the Agreement has a plain meaning I am not permitted to contradict the plain language of the Agreement. To adopt the contentions of the NTEU would result in the plain language of the Agreement being contradicted and have me fall into error.

Conclusion

[35] For the reasons set out above, the Commission, as presently constituted, is satisfied that, in respect of the subject matter of the present dispute, the University correctly applied the Agreement from Trimester 2 – 2018.

[36] An Order giving effect to this Decision will be issued.

Seal of the Fair Work Commission with member's signature.

COMMISSIONER

Appearances:

Ms J Wells, Industrial Officer, NTEU for the Applicant.

Ms C Pugsley, AHEIA for the Respondent.

Hearing details:

Wednesday,

12 December 2018.

Melbourne - Video link to Armidale and Sydney, NSW.

Final submissions:

Exchanged 22 January 2019

Printed by authority of the Commonwealth Government Printer

<PR705212>

 1   Clause 58.

 2   Clause 58.3.4.

 3   [2014] FWCA 7206, para [5].

 4   AG2014/8837, clause 3.1.

 5   [2014] FWCA 7206, para [4].

 6   Amended witness statement, David Thorsen, Attachment 8, page 2.

 7   Submissions, University of New England, Annexure C.

 8   Amended witness statement, David Thorsen, Attachment 9, page 1.

 9   Amended witness statement, David Thorsen, Attachment 10, page 1.

 10   Amended witness statement, David Thorsen, Attachment 11, page 1.

 11   Amended witness statement, David Thorsen, Attachment 12 .

 12   Amended witness statement, David Thorsen, Attachment 13, page 2.

 13   Amended witness statement, David Thorsen, Attachment 6.

 14   Amended witness statement, David Thorsen, Attachment 5.

 15   Amended witness statement, David Thorsen, Attachment 14, page 1.

 16   Amended witness statement, David Thorsen, Attachment 7

 17   Witness statement, Benjamin Thorn, paragraph 8 and Annexure C

 18   Witness statement, John Fitzsimmons, Attachment 14

 19   Witness statement, John Fitzsimmons, Attachment 14, Witness statement Benjamin Thorn, Annexure C

 20   Witness statement, John Fitzsimmons, Attachment 9

 21   Witness statement, John Fitzsimmons, Attachment 10

 22   Witness statement, John Fitzsimmons, paragraph 25

 23   Witness statement, Colin Hearfield, paragraph 8, Annexures B and C and amended respondent evidence

 24   Witness statement, Colin Hearfield, paragraph 8, Annexures B and C and amended respondent evidence

 25   Witness statement, Colin Hearfield, paragraph 3

 26   Witness statement, John Fitzsimmons, paragraph 25

 27   Witness statement, Lisa Sonter, Annexure G

 28   Witness statement, John Fitzsimmons, paragraph 25

 29   Witness statement, John Fitzsimmons, Attachment 5

 30   [2014] FWCFB 7447 at [41].

 31   [2017] FWCFB 3005.

32 (2005) 222 CLR 241.

33 Ibid at 246.

 34   Ibid at 262.

 35   Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 382 per McHugh, Gummow, Kirby and Jayne JJ.

 36   [2017] FWCFB 1621 at [21].

 37   Kucks v CSR Limited (1996) 66 IR 182 at 184.

 38   City of Wanneroo v Australian, Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 at 440; See in general Golden Cockerel at [19]–[22].

 39   [2006] FCA 616.

 40   Ibid at [26].

 41   [2015] FCAFC 142.

 42   Ibid at [108].

 43   NTEU v La Trobe University [2015] FCAFC 142 at [109] per White J.

 44   (2009) 188 IR 297 at [19]-[22].

 45   (1982) 149 CLR 337.

 46   Ibid at 352.

 47   Ibid

 48   Ibid.

 49   (1996) 66 IR 182 at 184.

 50   [2017] FCA 346 at [29].

 51   See Howard Smith and Co Ltd v Verawa (1907) 5 CLR 68 at 78; Farmer v Hanon (1919) 26 CLR 183 at 197 and White v Australian and New Zealand Theatres Ltd (1943) 67 CLR 266 at 275 and 281.

 52   Administration of Papua New Guinea v Daera (1973) 130 CLR 353 at 446; Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 348.

 53   (2008) 251 ALR 322 at [35] per Gummow, Hayne and Kiefel JJ, and at [163] per Heydon J.

 54   [2009] NSWCA 407 at [319] per Allsop P.

 55   Metcash at [330].

 56   (1994) 36 NSWLR 290 at 304.

 57   Ibid at 312.

 58   Ibid

 59   (1978) 95 DLR (3d) 242 at 262.

 60   Benjamin Thorn statement dated 21 August 2018 at paragraph 7 and 10, NTEU Exhibit 5

 61   Form 10 Attachment E

 62   Professor John Fitzsimmons statement dated 10 December 2018 at paragraph 9, Exhibit 9

 63   Form 10 Attachment E

 64   Professor John Fitzsimmons statement (Exhibit 9) dated 10 December 2018 at paragraph 9 and 28 attachment 15 Clause 1.3 of the School of Education Academic (SOE) Workload Policy & Implementation Procedures

 65   Professor John Fitzsimmons statement dated 10 December 2018 at paragraph 9 attachment 4

 66   Professor John Fitzsimmons statement dated 10 December 2018 at paragraph 9 attachment 4 and paragraph 11 attachment 5 and Benjamin Thorn (Exhibit 5) statement dated 21 August 2018 at paragraph 7, 10 and 12

 67   Form 10 Attachment F

 68   Benjamin Thorn (Exhibit 5) statement dated 21 August 2018 at paragraph 7 annexure B

 69   Professor John Fitzsimmons statement dated 10 December 2018 at paragraph 9 attachment 4

 70   Lisa Jane Sonter (Exhibit 4) statement dated 23 August 2018 at paragraph 10 and Benjamin Thorn (Exhibit 5) statement dated 21 August 2018 at paragraph 10

 71   Lisa Jane Sonter statement dated 23 August 2018 at paragraph 10.

 72   Professor John Fitzsimmons statement (Exhibit 9) dated 10 December 2018 at paragraph 7, 9 Attachment 4 and paragraph 11 attachment 5

 73   Professor John Fitzsimmons statement dated 10 December 2018 at paragraph 9 and 28 attachment 15 Clause 1.3 of the School of Education Academic (SOE) Workload Policy & Implementation Procedures

 74   Form 10 Attachment H paragraph 1, and Attachment J page 1 dot point 1, Professor John Fitzsimmons statement dated 10 December 2018 at paragraph 11 Attachment 5 page 2 paragraph 1 and paragraph 28 attachment 16

 75   Professor John Fitzsimmons statement dated 10 December 2018 at paragraph 9 attachment 4

 76   Form 10 Attachment G and Benjamin Thorn (Exhibit 5) statement dated 21 August 2018 paragraph 7 annexure B

 77   Form 10 Attachment C

 78   Form 10 Attachment D

 79   Form 10 Attachments E and F

 80   Annexure E of Lisa Sonter Statement

 81   Form 10 Attachment I

 82   Form 10 Attachments J page 1, paragraph final paragraph

 83   Form 10 Attachment J page 2 paragraph 2

 84   Form 10 Attachment H

 85   Form 10 Attachment K page 2, paragraph 1

 86   Paragraph 21, 22 of Professor Fitzsimmons witness statement

 87   At PN684.

 88   At PN685.

 89   At paragraph 34 of the statement of Professor Fitzsimmons statement.

 90   At paragraph 22 of Professor Fitzsimmons statement, Exhibit 9

 91   At paragraph 21 and 22 of Professor Fitzsimmons statement, Exhibit 9

 92   PN297 of transcript

 93   At PN291 of transcript

 94   At PN289 of transcript

 95   At PN288 of transcript

 96   At PN374 of transcript

 97   At PN 347 of transcript

 98   At PN341 of transcript

 99   At paragraph 3, witness statement of Dr Sonter

 100   At paragraph 3, witness statement of Dr Sonter

 101   At paragraph 6 of Dr Thorn’s witness statement, Exhibit 5

 102   At paragraph 22 of Professor Fitzsimmons witness statement

 103   At PN517

 104   At PN 382 of transcript.

 105   At PN 387 of transcript.

 106   At PN518.

 107   At PN380 of transcript.

 108   Automative, Food, Metals, Engineering, Printing and Kindred Industries Union (known as the Australian Manufacturers Workers Union (AMWU & Berri) Pty Ltd (Berri) [2017] FWCFB 3005

 109   Paragraph 114 (2), (3) and (4) of AMWU & Berri

 110   At paragraph 41 of AMWU & Berri

 111   At paragraph 44 of AMWU & Berri

 112   Berri (Principle 7) at [114]

 113   Ex#12 at paragraph 23

 114   Ex#11, for example, paragraph 13 and Ex#12

 115   Transcript, PN342-4

 116  Ex#9, Attachment 9

 117   Transcript, PN448 and PN490

 118   Transcript, PN459

 119   Transcript, PN460

 120   Transcript, PN495-6

 121   Transcript, PN448, PN508

 122   Transcript, PN448

 123   Transcript, PN491

 124   Ex#9 at paragraph 23, Attachments 11 and 12

 125  Transcript, PN309-312 and PN498-504

 126  Ex#4, page 1

 127  Ex#4, paragraph 3

 128   Transcript, PN148, PN159

 129   Ex#2, second page, second paragraph and transcript, PN338

 130  Ex#2, fourth last page, first paragraph and transcript, PN168-170

 131  Ex#2, third last page under the heading “Be of specified duration”

 132  Ex#2, second last page, first paragraph

 133   Transcript, PN348

 134   Transcript, PN350

 135   Transcript, PN355

 136   Transcript, PN357

 137   Transcript, PN358-359

 138  Ex#3, paragraph 3

 139   Ex#3, paragraph 8 (a)

 140   Ex#9, paragraph 19. Attachment 6

 141   Ex#9, paragraph 22, Attachment 9

 142   Ex#9, paragraph 16

 143   Ex#9, paragraph 22, Attachment 9, page 2 under the heading “Summary Weekly Time Spent”

 144  Transcript, PN813

 145   Ex#12 at paragraph 23

 146   Ex#9, Attachment 14

 147   Ex#9, paragraph 11, Attachment 5

 148   Transcript, PN693-4, PN382-3 and PN518

 149   Ex#8, Attachments 8-14

 150   Ex#10, paragraphs 25-29

 151   Ex#8, Attachment 9 (pages 62-66)

 152   Ex#8, Attachment 9 (page 66)

 153   Ex#10, Annexure C

 154   As referred to in the List of Authorities provided to the Commission by email on 12 December 2018 and paragraph 5 of the Agreed Statement of Facts filed on 5 December 2018

 155   As referred to in the List of Authorities provided to the Commission by email on 12 December 2018 and paragraph 5 of the Agreed Statement of Facts filed on 5 December 2018

 156  Annexure A to these submissions, pages 22-3 under the heading “(viii) Other activities:”

 157   Annexure B to these submissions, page 5 under the heading “(c) Definition of Tutorial”

 158   Ex#10, Annexure B and paragraphs 30-36, eg, Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWIRComm 23 at [128].

 159   For example, see PN48-52, PN67-77, PN112-120, PN536.

 160   Ex#11 and 12.

 161   Ex#8, paragraphs 10 and 112, Attachments 5-7.