[2021] FWC 1683

The attached document replaces the document previously issued with the above code on 26 March 2021.

The reference in the second sentence of paragraph [61] has been amended to “clause 32.10(a)(ii)”.

Associate to Deputy President Clancy

Dated 31 March 2021

[2021] FWC 1683 [Note: An appeal pursuant to s.604 (C2021/2152) was lodged against this decision - refer to Full Bench decision dated 13 July 2021 [[2021] FWCFB 3649] for the result of the appeal.]
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.739—Dispute resolution

Australian Education Union & Others
v
Bendigo Kangan Institute of TAFE
(C2019/6707)(C2019/6108)(C2019/6163)(C2019/6167)(C2019/6210)(C2019/6231)(C2019/6268)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 26 MARCH 2021

Alleged dispute about matters arising under an enterprise agreement regarding the allocation of duties to employees.

[1] On 1 November 2019, the Australian Education Union (the AEU) filed an application under s.739 of the Fair Work Act 2009 (the Act) for the Commission to deal with a dispute. The AEU referred the dispute pursuant to clause 10.18 of the Victorian TAFE Teaching Staff Agreement 2018 and the dispute relates to the allocation of duties to employees and the operation of clause 32 of that agreement. Six other related applications were subsequently joined to the AEU’s proceedings. In this Decision, the AEU and the six other applicants will be referred to collectively as the Applicants.

[2] Having initially been dealt with by various other members of the Commission, all dispute files were allocated to me. As they were not able to be resolved in conference, I issued directions for the filing of material ahead of an arbitration to determine the following questions:

  Having regard to the matters in dispute at Bendigo Kangan Institute ACE campus, what is the correct construction of clauses 32.5 and 32.10 of the Victorian TAFE Teaching Staff Agreement 2018? (The Construction Question)

  Based on a proper construction of clause 32.10, are the duties that have been rostered to be performed by employees of BKI, which BKI has designated as being “assessment hours observing competence” (and so allocated in ACE employees’ workplans), duties that should be allocated under clause 32.10(a)(i) or clause 32.10(a)(ii) of the 2018 Agreement? (The Application Question)

[3] The onset of COVID-19 and consequent Government restrictions prompted the parties to request that the initial March 2020 hearing dates be vacated. I agreed and listed the applications for hearing on 12-16 October 2020 before hearing closing oral submissions on 11 December 2020.

Background

[4] Prior to 1993, the industrial instruments covering the TAFE sector in Victoria were made by the Industrial Relations Commission of Victoria (IRCV). In 1992, under the Industrial Relations Act 1979 (Vic), the IRCV made the Technical and Further Education Teaching Service Award 1992 (the 1992 Award).

[5] On 30 August 1994, the Australian Industrial Relations Commission made the TAFE Teachers’ Conditions of Employment (Victoria) Interim Award 1994 (the 1994 Award) on an interim basis. As a result of award simplification proceedings, the 1994 Award was varied and renamed to the TAFE Teachers’ Conditions of Employment (Victoria) Award 2002 (the 2002 Award). Among the respondents to the 2002 Award were the Councils of Bendigo Regional Institute of Technical and Further Education and Kangan-Batman Institute of Technical and Further Education.

[6] In or around 2000, Bendigo Regional Institute of TAFE and the Kangan Batman Institute of TAFE had entered into separate certified agreements respectively called the Bendigo Regional Institute of TAFE Teaching Staff Certified Agreement 2000 and the Kangan Batman Institute of TAFE Teachers’ Certified Agreement 2000. In 2004, the AEU entered into a certified agreement known as the Victorian TAFE Teaching Staff Multi-Employer Certified Agreement 2003 (the 2003 Agreement) with TAFE institutes including the Councils of Bendigo Regional Institute of Technical and Further Education and Kangan-Batman Institute of Technical and Further Education.

[7] The next agreement appears to have been the Victorian TAFE Teaching Staff Multi-Business Agreement 2009 (the 2009 Agreement). The 2009 Agreement incorporated the 2002 Award in its Schedule 6. It also included a Schedule 7, which comprised a Memorandum of Understanding between the AEU and the employer parties to the 2009 Agreement entitled, “Re Interpretation and clarification of aspects of the MECA and now the Victorian TAFE Teaching Staff Multi-Business Agreement 2009 (MBA)”.

[8] As outlined above, the dispute before me concerns matters arising under the Victorian TAFE Teaching Staff Agreement 2018 (the 2018 Agreement). The immediate predecessor of the 2018 Agreement is the Victorian TAFE Teaching Staff Multi-Enterprise Agreement 2015 (the 2015 Agreement) which was itself a rollover of the 2009 Agreement. The 2015 Agreement incorporated the 2009 Agreement as its Schedule 3 and had a nominal expiry date of 2 July 2016.

[9] Bargaining for the 2018 Agreement was preceded by representatives of various TAFE institutes, the Victorian TAFE Association (the VTA) and the AEU participating in “blue sky thinking” sessions facilitated by an organisation called Minds at Work on 8 December 2015, 16 December 2015 and 27 January 2016. Bargaining formally commenced in or around July 2016, when each of the TAFE institutes to be covered by the 2018 Agreement issued a Notice of Employee Representational Rights (NERR) to employees who would be covered by the 2018 Agreement.

[10] The AEU proposed that the parties participate in the Commission’s New Approaches pilot program and the parties participated in interest-based bargaining training at the Commission in August 2016. In or about October 2016, the parties agreed to broad objectives for bargaining which was recorded in a document prepared by the VTA called, “Victorian TAFE teacher bargaining committee bargaining protocols”. There were 60 meetings of the bargaining representatives over the 2-year period between 5 July 2016 and 28 June 2018.

Correspondence and documents exchanged during bargaining

[11] Correspondence and documents exchanged during bargaining included the following:

  On 14 November 2016, Mr Greg Barclay of the AEU emailed bargaining representatives and former Commissioner Cribb a discussion paper for the meeting on 16 November 2016 entitled “Fair and Equitable Teacher Workload Allocations”. From this it may be noted that reference was made to the then workload of teachers having scheduled duties totalling 960 hours per year, of which a maximum of 800 hours was to be spent in teaching and/or assessment and/or supervision of students;

  On 7 March 2017, Mr Andrew Williamson, then Executive Director of the VTA, sent an email attaching a ‘without prejudice’ draft model for workload allocation which ‘proposed teaching, assessment and supervision’ duties of up to 25 hours per week;

  On or about 12 April 2017, Mr Williamson prepared an updated ‘without prejudice’ draft model for workload allocation which proposed teaching duties of up to 25 hours per week/800 hours per annum and placed assessment and supervision amongst ‘other duties’ and provided this to the AEU;

  On 7 March 2018, Mr Justin Mullaly, Branch Deputy President of the AEU, emailed Mr Williamson a proposed work plan clause prepared by the AEU regarding workload allocations. The document was entitled “Workload – Work plan – Work Allocation Principles”. From this it may be noted that reference was made to there being 1200 hours of Teaching, comprising:

i. A maximum of 800 hours face to face; online or by other means; supervision of learning;

ii. correction; assessment undertaken prior to, during and at the completion of a student’s course of study, which in a default work plan was to constitute 300 hours; and

iii. teaching currency including the development of professional practice and research which in a default work plan was to constitute 100 hours.

  On or about 20 March 2018, Mr Williamson provided the AEU a ‘without prejudice’ bargaining proposal which included a VTA proposal to increase the annual teaching hour cap to a ‘genuine’ 800 hours, by shifting allowances to the non-teaching allocation;

  On 29 March 2018, Mr Mullaly emailed Mr Williamson a document comparing the VTA and the AEU positions in bargaining and confirmed the AEU’s 7 March 2018 position in relation to 1200 hours of Teaching and also made reference to “volume of assessment activities outside of formal classroom time with students” being a consideration in the allocation of work if a default work plan was to apply;

  At a bargaining meeting on 27 April 2018, Mr Mullaly put a proposal to the VTA regarding the allocation of hours, which included a definition of ‘Teacher work’ as follows:

“Teacher work in the agreed work plan is comprised of 3 types of work:

(a) Duties directly related to the teaching and learning program of the Employee’s student(s) and/or class(es) to an annual maximum of 1200 hours:

i. Teaching duty which is face to face, online, or by other means, and supervision of student learning, including where the delivery of the course(s) is not timetabled or rostered, to an annual maximum of 800 hours, including any credit hours allocated under clause xxx (span clause), and

ii. Preparation, planning, curriculum development, and assessment undertaken prior to, during and at the completion of a student’s course of study to an annual minimum of 400 hours…”

  On 29 April 2018, Mr Tony Bugden of the Department of Education and Training emailed a draft version of the 2018 Agreement to Mr Williamson, Mr Mullaly and Mr McIver (then AEU Industrial Officer). This version included a clause 17.5 and a definition of “teaching”, which respectively stated:

  “Employee work is made up of various components that fall within 3 categories

(a) Duties directly related to the teaching and learning program of the Employee’s students and or classes to an annual maximum of 1200 hours of:

i. Delivery face to face, online or by other means; and supervision of students to a maximum of 800 hours annually;

ii. Preparation, planning, curriculum development and assessment undertaken prior to, during and at the completion of a student’s course of study…”

  teaching in relation to a particular teacher means rostered teaching sessions in a documented course of study for which the teacher has primary responsibility for educational delivery and includes sessions of direct student instruction rostered or required for curricular or pastoral functions involving student supervision, student counselling and consultation.”

  On or about 29 May 2018, the VTA sent to the AEU a copy of a document prepared by Lander & Rogers, together with a marked up copy of the 2018 Agreement, which included a proposed amendments for the definition of “teaching”;

  On about 15 June 2018, the VTA sent an update addressed to all TAFE teachers, which purported to advise that “in principle” agreement had been reached and included, amongst a summary of key features, “Reducing the categories of work down to two: Teaching and Teaching-related Duties” and “Increasing the consistency across the sector for teaching to be capped at a genuine 800 hours per annum”;

  On 19 June 2018, Ms Meredith Peace of the AEU wrote to Mr Williamson regarding the VTA update, disputing that the version of an agreement prepared by Lander & Rogers constituted the ‘in-principle agreement’ reached between the AEU and VTA on 30 April 2018;

  On 20 June 2018, Mr Williamson responded to Ms Peace’s correspondence, asserting that following communication between the VTA and AEU in the period 1 May 2018 to 10 May 2018, the AEU provided their written version of the in-principle agreement to VTA on 14 May 2018 and Lander & Rogers returned their recommended changes back to the AEU on 29 May 2018. Mr Williamson rejected the assertion that the Lander & Rogers changes were substantive changes.

[12] It is nonetheless agreed between the parties that the VTA and the AEU reached an in-principle agreement regarding the terms of the proposed 2018 Agreement on or about 29 April 2018, that voting occurred by electronic ballot between 24 August 2018 and 12 noon on 29 August 2018 and that the 2018 Agreement was made on 29 August 2018.

[13] When the VTA filed the application for approval of the 2018 Agreement in the Commission on 6 September 2018 as the employer bargaining representative for the TAFE institutes, the application was accompanied by a Form F17 – Employer’s declaration in support of an application for approval of an enterprise agreement (other than a greenfields agreement) declared by Mr Williamson. On 21 September 2018 the AEU filed a Form F18 – Statutory declaration of employee organisation in relation to an application for approval of an enterprise agreement (other than a greenfields agreement). The 2018 Agreement was approved by the Commission on 12 October 2018.

[14] The 2018 Agreement commenced operation on 19 October 2018, save for Part E (Clauses 26 to 33) which commenced operation on 1 January 2019.

Questions to be determined

[15] As outlined above, there are two questions the parties have asked the Commission to determine:

  Having regard to the matters in dispute at Bendigo Kangan Institute ACE campus, what is the correct construction of clauses 32.5 and 32.10 of the Victorian TAFE Teaching Staff Agreement 2018? (The Construction Question)

  Based on a proper construction of clause 32.10, are the duties that have been rostered to be performed by employees of BKI, which BKI has designated as being “assessment hours observing competence” (and so allocated in ACE employees’ workplans), duties that should be allocated under clause 32.10(a)(i) or clause 32.10(a)(ii) of the 2018 Agreement? (The Application Question)

[16] The relevant clauses in dispute are set out as follows in the 2018 Agreement:

“32.5 Employee work is made up of various components that fall within 2 categories:

(a) Teaching duties directly related to the teaching and learning program of the employee’s students and or classes to an annual maximum of 1200 hours of:

(i) Teaching delivery face to face, online or by other means; and supervision of students to a maximum of 800 hours annually;

(ii) Preparation, planning, curriculum development and assessment undertaken prior to, during and at the completion of a student’s course of study.

For each hour of teaching that an Employee is allocated under clause 32.5(a)(i), the Employee, will be allocated half an hour for the purpose of sub-clauses 32.5(a)(ii).

Note that the annual cap under this clause is subject to reduction through credits accrued under clause 28 (Teaching Unsociable Hours).

(b) Teaching related duties:

(i) Institute and regulator compliance;

(ii) Industry and community engagement;

(iii) Planning and curriculum development;

(iv) Maintaining teaching and vocational currency;

(v) Program related applied research and innovation,

(vi) Other duties including relevant travel and meetings.”

“32.10 Where the Employer and Employee cannot complete an agreed work plan under clause 32.3 a default work plan will be set by the Employer that confirms to the following:

(a) Duties directly related to the teaching and learning program of the employee’s students and or classes to an annual maximum of 1200 hours of:

(i) Teaching delivery face to face, online or by other means; and supervision of students to a maximum of 800 hours annually;

(ii) Preparation, planning, curriculum development and assessment undertaken prior to, during and at the completion of a student’s course of study.

For each hour of teaching that an employee is allocated under clause 32.10(a)(i), the Employee, the Employee will be allocated half an hour for the purpose of sub-clauses 32.10(a)(ii).

(b) Teaching related duties:

(i) Institute and regulator compliance;

(ii) Industry and community engagement;

(iii) Planning and curriculum development;

(iv) Maintaining teaching and vocational currency;

(v) Program related applied research and innovation,

(vi) Support of student learning that is necessary to meet regulatory requirements and learning outcomes.

(a) Other duties including relevant travel and meetings to a maximum of 160 hours (other than Senior Educators and Education Managers).”

[17] It may be observed that in all but a few minor respects, which are not material, the wording in Clauses 32.5 and 32.10 of the 2018 Agreement is identical. I have noted the parties have at times referenced both clauses in making their submissions and at others, simply address one of the two.

The Construction Question

[18] The principles that apply to the interpretation of an enterprise agreement have been outlined by the Full Bench of the Commission in AMWU v Berri Pty Ltd 1 (Berri), drawing on the earlier Full Bench decision in AMIEU v Golden Cockerel Pty Ltd.2 The Full Bench in Berri affirmed that the interpretation 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 dispute over the interpretation of an enterprise agreement will turn on the language of the agreement, having regard to its context and purpose. Context might appear from the text of the agreement as a whole, the disputed provision’s place and arrangement in the agreement, and the legislative framework under which the agreement was made.3

[19] Berri further provides that the first task in construing an enterprise agreement is to determine whether an agreement has a plain meaning or is ambiguous or susceptible of more than one meaning. 4 It is permissible to take into account the historical context in order to assist in determining whether ambiguity exists in the first place.5

[20] Answering the Construction Question requires me to determine the correct construction of Clauses 32.5 and 32.10 of the 2018 Agreement having regard to the matters in dispute. These, in essence, concern the hours of work to be performed by employees and recorded in their weekly schedule of teaching hours as “assessment hours” and in the timetable as “in class assessment”. One of the ways these hours are identified in the disputed work plans are as “assessment hours observing competence.”

[21] The Applicants’ characterisation of their case is that the duties the teachers have been rostered to do are:

a) Teaching delivery face to face under clause 32.10(a)(i); or

b) Sessions of direct student instruction rostered for functions involving student supervision under clause 32.10(a)(i), relying on the definition of teaching; or

c) Supervision of students under clause 32.10(a)(i).

[22] Bendigo Kangan’s position is the meaning of clauses 32.5 and 32.10 includes that assessment undertaken prior to, during or at the completion of a student’s course of study, whether undertaken in class or out of class, is counted within clause 32.5(a)(ii) (if agreed) or 32.10(a)(ii) (if default) of the 2018 Agreement. Bendigo Kangan summarises its reasons for adopting this construction as follows:

  The construction gives effect to the language of clauses 32.5(a) and 32.10(a) and in particular, the fact that in both clauses:

  Assessment is identified as a category (a)(ii) duty;

  Assessment is broadly framed extending to assessment undertaken prior to, during, or at the completion of a student’s course of study; and

  No distinction is drawn between assessment undertaken in class and assessment undertaken out of class;

  This construction gives effect to the scheme of the 2018 Agreement whereby teachers are paid for:

  Attending their work location for up to 1260 hours (30 hours times 42 weeks) per year;

  Being accountable for 1748 hours of teaching and other duties per calendar year; and

  Performing an annual maximum of Teaching Duties of 1200 hours per year;

  This construction gives effect to the change in language in the 2018 Agreement, which does not include assessment within the description of duties going towards the 800 hour cap in Clauses 32.5(a)(i) and 32.10(a)(i), compared with the language in the industrial instruments that immediately preceded it, which expressly did;

  This construction gives effect to the objective circumstances surrounding the negotiation of the 2018 Agreement in which assessment was initially expressly included within the description of duties going towards the 800 hour cap, as part of an attempt to negotiate a higher cap, and then removed from that collection of duties and placed in a different category with the 800 hour cap being retained; and

  This construction gives effect to what employees were told in the information sessions conducted by the employer’s representative pursuant to its obligations under s.280(5) of the Act prior to their voting on whether or not to approve the 2018 Agreement.

[23] The Applicants contest the validity of the construction adopted by Bendigo Kangan and submit that the correct construction of clause 32.10(a), read with the definition of ‘teaching’ in the Dictionary in Schedule 6 the 2018 Agreement, is:

  Clauses 32.10(a)(i) and (ii) are not mutually exclusive categories of work, such that work may be assessment under clause 32.10(a)(ii) as well as teaching delivery face to face under clause 32.10(a)(i). Further, work may also be assessment under clause 32.10(a)(ii) as well as supervision of students under clause 32.10(a)(i);

  The definition of ‘teaching’ applies to the word ‘teaching’, where used in clause 32.10(a)(i);

  Applying this definition of ‘teaching’, work that is teaching delivery face to face under clause 32.10(a)(i) includes rostered teaching sessions in a documented course of study for which the teacher has primary responsibility for educational delivery face to face, online or by other means; and

  Applying the definition of ‘teaching’, work that is teaching delivery face to face under clause 32.10(a)(i) includes sessions of direct student instruction rostered or required for curricular functions involving student supervision.

[24] The Applicants submit that clauses 32.10(a)(i) and (ii) set up a system whereby the 1200 hours of teaching duties are divided into two broad categories. The first in clause 32.10(a)(i) is to a maximum of 800 hours and the balance is to come from the second.

[25] I am satisfied clauses 32.5(a) and 32.10(a) have a plain meaning. Assessment is a distinct action that involves appraisal and evaluation. 6 To ‘teach’ on the other hand is an action involving the imparting of knowledge or skill and the giving of instruction, while the act of supervision involves the oversight and direction during execution or performance.7 The distinction between teaching delivery and supervision on the one hand and assessment on the other is reflected in the structure of clauses 32.5(a) and 32.10(a). Further, I do not consider assessment as used in subclauses 32.5(a)(ii) and 32.10(a)(ii) is ambiguous. That it is contemplated that it will be undertaken prior to, during and at the completion of a student’s course of study indicates it can be performed both in and out of a classroom setting. As such, I am satisfied that hours spent undertaking assessment are not to be counted within the 800 hour annual maximum provided for in subclauses 32.5(a)(i) and 32.10(a)(i).

[26] My determination that there is no ambiguity in clauses 32.5(a) and 32.10(a) has been informed by the classification descriptor for the teacher classification (L1 to L3.4) in the 2018 Agreement, which states “Teaching roles will include planning and conducting teaching, conducting and evaluating assessment and pastoral care” and assisted by taking into account the historical context. I have noted that each of the 1992, 1994 and 2002 Awards featured maximum teaching duty hours of 800 per year and this included curriculum allowances of up to 80 hours per year for various assessment duties.

[27] The 2003 Agreement was to be read and interpreted wholly in conjunction with the 2002 Award, save that its terms were to prevail over the over the terms of the 2002 Award to the extent of any inconsistency. The definition of ‘teaching duty hours’ was introduced. It stated:

“Teaching Duty Hours (TDH) means sessions of instruction and/or supervision and/or assessment of student/s; whether delivered at a campus of the Institute or elsewhere or whether delivered in person or by other means.”

[28] Clause 16.1 of the 2003 Agreement provided that employees were accountable for 1748 hours of teaching and other duties within a calendar year and clause 16.2 stated the allocation of such duties provided that the allocation of such duties was subject to clause 18.8 of the 2002 Award (which stated that the maximum teaching duty hours was to be 800 hours per year).

[29] The 2009 Agreement incorporated the 2002 Award in its Schedule and again, its terms were to prevail to the extent of any inconsistency. The definition of teaching duty hours was also retained, as was the maximum annual teaching duties hours from the 2002 Award. The 2015 Agreement then incorporated the 2009 Agreement as its Schedule 3.

[30] It can thus be concluded that:

a) there had been consistency regarding the notion of 800 maximum teaching duty hours from the 1992 Award until the 2018 Agreement; and

b) there had been a definition of teaching duty hours commencing with the 2003 Agreement.

[31] It can be concluded from this historical context that prior to the 2018 Agreement, the assessment of students whether delivered in person or by other means, together with sessions of instruction and supervision, fell within the definition of teaching duty hours and the 800 hour per year maximum for these. It can also be concluded that assessment could be undertaken in person or by other means. The 2018 Agreement introduced new provisions governing teaching duties (which is not disputed). While no longer including the definition of teaching duty hours (which included specific reference to ‘assessment of student/s’), it introduced the following definition of ‘teaching’:

teaching in relation to a particular teacher means rostered teaching sessions in a documented course of study for which the teacher has primary responsibility for educational delivery and includes sessions of direct student instruction rostered or required for curricular or pastoral functions involving student supervision, student counselling and consultation”

[32] This definition of teaching was said to be modelled on the definition of teaching in the Victorian Government Schools Agreement 20178 In that agreement, I observe that the definition is actually entitled ‘face to face teaching’ and there is a distinction made at clause 22 between face-to-face teaching on the one hand and preparation, correction, assessment, meetings student supervision, reporting and organisational duties on the other.9

[33] The inference I draw from the historical context is that the 2018 Agreement, while retaining the 800-hour cap, was intended to change the long-established position regarding the assessment of students. The reference and placement of assessment in subclauses 32.5(a)(ii) and 32.10(a)(ii) indicates this and whereas the definition of ‘teaching duty hours’ included instruction, supervision and assessment, the definition of ‘teaching’ makes reference to instruction and supervision only and no reference to assessment. That there is no distinction between in or out of class assessment in in subclauses 32.5(a)(ii) and 32.10(a)(ii) is reflective of the historical context when one has regard to the formerly used definition of ‘teaching duty hours’.

[34] These considerations support an interpretation of clause 32.5 and clause 32.10 whereby “Teaching delivery face to face, online or by other means; and supervision of students to a maximum of 800 hours annually” does not include the assessment of students and that assessment may be performed both in and out of a classroom setting.

[35] My view is reinforced having regard to the documentation that passed between the parties during negotiations outlined in [11] above. In this regard, Bendigo Kangan has invited me to conclude that there was an objective intention on the part of the bargaining representatives to change the approach in the 2018 Agreement, by counting “assessment” (whether in class or out of class) as category (ii) teaching duties. However, the Applicants dispute the documentation can be relied on for this purpose and the Full Bench in Berri recommended a cautious approach to the admission and reliance upon the evidence of the positions advanced during the negotiation process. I observe that the Full Bench in Berri suggested that evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement. 10 Moreover, I have had regard to the following observations of the Full Bench in EnergyAustralia Yallourn Pty Ltd v Construction, Forestry, Mining and Energy Union:11

“One important aspect of the decision in Berri is its discussion of the nature of enterprise agreements made under the Act, and the fact that, unlike the position that obtained under earlier legislation, there are no ‘parties’ to enterprise agreements. An enterprise agreement is made not between an employer and a union or other bargaining representative, but by an employer and its employees. Accordingly, principles of interpretation that pertain to intention, objectives, and purpose must take into account the position of employees and their understanding of the proposed agreement leading up to, and in particular immediately prior to, the vote to approve the agreement. Evidence of communications between the employer and employees either during negotiations, or as part of the employer explanation required by s.180(5), may be of more interpretative assistance than evidence of negotiations between employers and bargaining representatives.” 12 (references omitted)

[36] In this vein, I have noted the material attached to Mr Williamson’s statement that was circulated during the access period for the 2018 Agreement for the purposes of s.180(5) of the Act. These included:

(a) The Victorian TAFE Teaching Staff Agreement 2018: Your summary guide to the proposed multi enterprise agreement (Summary Guide), section 3 of which dealt with work arrangements, including hours of work. as follows

rk arrangements, including hours of work. Agreed and Default

(b) Information about the terms and effect of the Victorian TAFE Teaching Staff Agreement 2018 (Explanatory Document), page 5 of which included the following explanation of clause 32 of the 2018 Agreement:

“The work plan is made up of various duties and these fall within 2 categories:

  Teaching Duties – up to a maximum of 1200 hours made up as follows:

  Teaching delivery face to face, online or by other means and supervision of students –800 hours;

  Preparation, planning, curriculum development and assessment undertaken prior to, during and at the completion of a student’s course of study.

  Teaching Related Duties:

  Institute and regulator compliance;

  Industry and community engagement;

  Planning and curriculum development;

  Maintaining teaching and vocational currency;

  Program related applied research and innovation;

  Other duties including relevant travel and meetings.”

(c) a presentation presented to employees to be covered by the 2018 Agreement at all employers, including Bendigo Kangan, as recorded in the PowerPoint presentation (including speaking notes) titled Proposed Victorian TAFE Teaching Staff Agreement 2018 (Presentation), slide 18 of which stated that the previous distinction between scheduled and non-scheduled duties which had underpinned the in-class and out of class distinction would no longer apply.

(d) a video recording of Mr Williamson presenting the Presentation, which was uploaded to the VTA website, so that employees who did not attend one of the scheduled sessions could watch the presentation in their own time. In the recording of the Presentation Mr Williamson stated:

  “What this means is that assessment is not considered part of the 800 teaching delivery hours and does not count towards the 800 teaching delivery hours in the workplan.”

  “Teaching component of teaching duties does not include in class and out of class assessment (in relation to slide 27 in the recording of the Presentation)

[37] Bendigo Kangan contends that slides 23 to 28 of the Presentation dealt with the allocation of duties and development of workplans. I have noted:

(a) slide 24 of the Presentation states:

“What this means is that assessment is not considered part of the 800 teaching delivery hours and does not count towards the 800 teaching delivery hours in the workplan.”

(b) slide 27 of the Presentation outlined the breakdown of the 1200 hours of “teaching duties” and I observe that the speaking notes to slide 27 of the Presentation stated:

“Teaching component of teaching duties does not include in class and out of class assessment”

[38] I am satisfied that the explanation provided to employees prior to them voting whether to approve the 2018 Agreement outlined that the 2018 Agreement would change the way that assessment was treated in terms of the 1200 hours of teaching duties. I have noted the statements that whereas previously assessment had counted towards the 800 teaching hours cap, this would no longer be the case. I have also noted that in the speaking notes and the presentation it was outlined that assessment included both in class and out of class assessment. Further, I have noted these communications were referred to in the Form F17 Employer’s statutory declaration in support of the approval of the 2018 Agreement.

[39] It is not disputed by the AEU that these explanations were provided and nor did the AEU dispute their contents, either with various TAFEs, the VTA or in the Form F18 statutory declaration it filed in response to the application for approval. I have been invited to find that absent formal issue being taken with it, the explanation referred to in the Form F17 should be taken to reflect the objective understanding of the parties to the Agreement because the Form F17 and the Form F18 were the evidentiary basis upon which the Commission satisfied itself that the statutory prerequisites for approval (including those concerning whether the agreement was explained to employees and genuinely approved) were met.

[40] Bendigo Kangan has urged I adopt a similar approach to that adopted in a contractual context, which was explained by Lewison and Hughes in The Interpretation of Contracts in Australia (2012), at 72 [3.07] in the following terms:

“The court may take into account published explanatory notes in interpreting the contract that they are intended to explain.

In Investors Compensation Scheme v West Bromwich Building Society [[1998] 1 WLR 896 at 913], deficiencies in the drafting of the contract were solved partly by reference to the explanatory notes that accompanied the contract. Lord Hoffmann said:

‘First, the claim form was obviously intended to be read by lawyers and the explanatory note by laymen. It is the terms of the claim form which govern the legal relationship between the parties. But in construing the form, I think one should start with the assumption that a layman who read the explanatory note and did not venture into the claim form itself was given an accurate account of the effect of the transaction.’”

[41] I have noted the following evidence of Mr Mullaly, when cross-examined:

(a) the AEU knew that as part of the employers’ explanation under s180(5), the VTA had been putting forward presentations that included that assessment did not fall within the 800 (category (i)) hours; 13

(b) having become aware of that, the AEU did not bring to the attention of the VTA or the employers that far as the AEU was concerned, the VTA was wrong, and that in-class assessment did count towards the 800 hours; 14 and

(c) when making the statutory declaration to the Commission in support of the 2018 Agreement, (CB 3338-3344 – JXM-25) the AEU did not make any reference to any concern as to the accuracy of the matters put forward by the employers or by the VTA in the presentations that were referred to in the F17. 15

[42] Having regard to what I have outlined in paragraphs [25]-[41] above, I conclude:

  The structure and wording of Clauses 32.5 and 32.10 of the 2018 Agreement is not ambiguous. It reflects that ‘assessment’ is an undertaking that differs from ‘teaching’ and ‘supervision’ and makes no distinction between assessment undertaken inside the classroom or outside the classroom;

  Having regard to the historical context, Clauses 32.5 and 32.10 of the 2018 Agreement, while retaining the 800-hour cap, were intended to change the long-established position regarding the assessment of students;

  “Teaching delivery face to face, online or by other means; and supervision of students to a maximum of 800 hours annually” in the 2018 Agreement does not include sessions involving the assessment of students, whether undertaken inside or outside the classroom;

  The explanation provided to employees prior to them voting whether to approve the 2018 Agreement outlined that the 2018 Agreement would change the way that assessment was treated in terms of the 1200 hours of teaching duties reinforces my conclusion on the Construction Question.

[43] As such, my conclusion in relation to the Construction Question is that the correct construction of clauses 32.5 and 32.10 of the 2018 Agreement is that assessment undertaken prior to, during or at the completion of a student’s course of study (whether undertaken inside class or outside of class) is to be counted within subclause 32.5(a)(ii) (if agreed) or subclause 32.10(a)(ii) (if not).

The Application Question

[44] By way of context, the Automotive Centre of Excellence (ACE) is a campus of Bendigo Kangan. The ACE is a dedicated training facility which trains employees for automotive industries and its two main learning areas are “the Hub” and “the Workshop”. Bendigo Kangan counts all work performed in the Hub towards a teacher’s “teaching delivery” hours under subclauses 32.5(a)(i) and 32.10(a)(i) of the 2018 Agreement (as applicable). The Workshop (also referred to as the “Service Centre”) is a practical learning environment. Bendigo Kangan says that since 1 July 2019, teachers are rostered in the Workshop for either teaching in a practical workshop or final assessment in a practical workshop.

[45] Bendigo Kangan counts all work teaching in a practical workshop towards a teacher’s “teaching delivery” hours under subclauses 32.5(a)(i) and 32.10(a)(i) of the 2018 Agreement and seeks to count the work of a teacher rostered to undertake final assessment in a practical workshop as “preparation, planning, curriculum and assessment” hours in the teacher’s work plan pursuant to subclauses 32.5(a)(ii) or 32.10(a)(ii) of the 2018 Agreement.

[46] As outlined at the outset, the Application Question is

Based on a proper construction of clause 32.10, are the duties that have been rostered to be performed by employees of BKI, which BKI has designated as being “assessment hours observing competence” (and so allocated in ACE employees’ workplans), duties that should be allocated under clause 32.10(a)(i) or clause 32.10(a)(ii) of the 2018 Agreement?

[47] The Applicants reject the proposition that work undertaken in the Workshop can be characterised as either teaching/instruction or assessment. Put another way, the Applicants’ position can be characterised as being that all the work performed in the Workshop involves assessment.

[48] The Applicants contend there is a factual issue concerning what constitutes “the duties that have been rostered to be performed by employees of BKI, which BKI has designated as being ‘assessment hours observing competence’ (and so allocated in ACE employees’ workplans)” in the Application Question. The Applicants submit the disputed duties are:

(a) Those which were contained in Mr Stephen Bowden’s email to teachers on 27 June 2019 providing a copy of the timetable for week 27.

(b) Those duties which are described as ‘in-class assessment’ in the roster issued for the week of 1-5 July 2019.

(c) Tasks in the default workplans issued to Mr Michael Wade and Mr Andrew Edwards, described as ‘assessment of student work’ or ‘assessment hours observing competence’.

[49] The Applicants submit what the employees were rostered to do is assessed by considering what they were told in the emails, rosters and workplans. It asserts the employees were given no specific information about what they were required to do and because the emails, rosters and workplans refer only to ‘assessment’ and not ‘final assessment’ or ‘demonstration assessment’, the reference to ‘assessment’ is capable of capturing both the Knowledge Assessment Practical (KAP) and demonstration assessment. As to what the employees were told, the Applicants submit the following propositions are relevant:

  It is what the recipients of the documents reasonably understood them to mean and what Mr Bowden wrote in the email that determines what the workers were in fact rostered to do;

  Rostering was clarified for some workers by them being told to do what they normally did or do whatever practical was needed to be done;

  The rostering information was given in the context of teachers not being told to fundamentally change the way they been performing work;

  At most, the rostering information was about the performance of any form of assessment and all of the work performed in the classroom is assessment;

  There was no correcting or clarifying email sent in response to Mr Bowden’s email dated 27 June 2019.

[50] The Applicants reject there being any dichotomy between instruction/teaching delivery on the one hand, and assessment on the other. They submit both KAP and demonstration assessment involve assessment and instruction of students and that the teachers have been performing KAP work and demonstration assessment work during the disputed hours. With the rostered duties being to perform ‘assessment’, the Applicants contend that because work associated with KAP is ‘assessment’ and the work associated with KAP work is teaching delivery under clause 32.10(a)(i), the rostered duties are thereby to perform work that is agreed to be teaching delivery work. As such, the Applicants submit it follows that the answer to the second question should be that the duties should be allocated under clause 32.10(a)(i) of the Agreement.

[51] Bendigo Kangan submits the focus of the Application Question is on the duties rostered, as opposed to those the employees may have performed despite their roster. Bendigo Kangan agrees the question turns on what the employees were told to do but says this is in turn informed by what they were told not to do. It says the roster and the accompanying emails make clear:

  The time is to be directed towards “assessment” and in circumstances where assessment is a term used in subclause (a)(ii) and does not appear in subclause (a)(i) (even if and after the definition of teaching is imported into the clause), on its face it is a direction to perform a category (a)(ii) duty; and

  Referencing emails of Mr Bowden, 16 the time is “Not Teaching” and when so rostered the employee is “not the teacher”. As such, the roster and emails make clear that when so rostered, employees are not to engage in “teaching delivery” as that phrase is used in subclause (a)(i).

[52] Bendigo Kangan relies on the context in which the emails, rosters and workplans were issued. In this regard, I have noted that on 28 May 2019, Mr Gary Atherton, Acting Director of ACE, sent an email to Mr Bowden and others in relation to “adding the identified assessment hours into the weekly timetable for Automotive from the 1st of July”. The email reads as follows:

“Afternoon Steve, Brendon and Perry, could you please start to working on adding the identified assessment hours into the weekly timetable for Automotive from the 1st of July.

Automotive management has identified 3 extra assessment hours on the time table as from 1st July that are in line with the MEA …

20 hours teaching duties

3.0 hours – assessment time tabled

3.5 EDTH

1.5- hour scheduled meetings/ non directed duties.

2.0 hours of break time [Tea breaks]

30 hours of attendance [5 day attendance pattern or by course delivery alignment.]

PN: If any staff member are not signed up as EDTH you will need to add these hours as timetabled assessments hours … please ensure that portfolio’s time table is finalized 2 weeks prior the implementation on the 1st July timeframe.”

[53] I have also noted the text of an email sent 27 June 2019 by Mr Bowden, who was responsible for rostering most of the teachers at ACE, to teaching employees at ACE:

“Hi All,

Please find attached the t/tables for week 27

NOTE.

This timetable has been issued with all teachers completing 24 hours teaching.

This timetable has also been issued, under management direction, to include 4 hours of assessment time from you 400 hours.

This assessment time is assessment, Not Teaching (emphasis as per the email)

[54] Prior to that email there were discussions between Mr Joseph Ballato and Mr Bowden in January 2019 that included rostering of teachers to undertake the assessment of competencies as part of the 400 hours in subclauses 32.5(a)(ii). I have noted that on 17 January 2019, Mr Ballato presented a PowerPoint presentation to the ACE teaching staff, which could be accessed by Mr Bowden, in which he discussed workplans and included links to resources explaining the difference between teaching and assessment and changes to workplans under the 2018 Agreement. 17 While Mr Bowden did not agree, he understood that what Bendigo Kangan wanted was for teachers to perform 4 hours of demonstration assessment and that that 4 hours was to be included in the roster.18 Mr Bowden was also part of discussions, along with other AEU representatives, in March 2019 after which he was sent correspondence.

[55] I am satisfied Mr Bowden understood he was being asked to roster teachers to undertake assessment in a way that represented a change from previous Agreements. The content and formatting of the 27 June 2019 email from Mr Bowden confirms this. It indicates he understood the implications of the direction that the teachers perform four hours assessment time. In issuing the roster for week 27, he saw fit to include some commentary on the roster in bold font introduced by the heading “NOTE”. Secondly, he was at pains to point out that the roster was issued “under management direction”. Thirdly, he saw fit to make the point “assessment time is assessment, Not Teaching.” In the face of this I do not find the Applicants’ submission that the teachers were not told to fundamentally change the way in which they worked to be at all persuasive. I am satisfied it would have been apparent from the text of Mr Bowden’s email that management had directed a change in the timetabling and the substance of the change was that four hours which had previously been timetabled as teaching was now to be timetabled as assessment. An implication to this effect was unambiguous.

[56] I note that while the Applicants submit that the rostering was ‘clarified’ for the some of the teachers on the basis of evidence of discussions with their supervisors, the teachers did not deem it necessary to seek clarification from Mr Bowden despite him being responsible for rostering most of the teachers at ACE. I do not accept the Applicants’ proposition that the rostering information was given in the context of teachers not being told to fundamentally change the way in which they had been performing work. Apart from flying in the face of what had been communicated in Mr Bowden’s email, there were the various explanations given to teachers as part of the approval process for the Agreement that I have outlined above. Secondly, there were professional development sessions with ACE teaching staff in January and May 2019 at which the difference between teaching and assessment was discussed. Thirdly, it is clear that on 28 June 2019 (the day after Mr Bowden’s email) Mr Edwards took issue with his workplan and was asserting that assessment should be included in his 800 hours. 19 Further, Mr Wade began dialogue with Bendigo Kangan upon receipt of his draft default workplan in June 2019 before requesting referral to the workload dispute panel on 5 August 2020.20 In fact, by early August 2019, the AEU was asserting multiple contraventions of the 2018 Agreement by Bendigo Kangan, including in relation to the definition of teaching. A default workplan was also issued to Mr Jarryd McAllen in late August 2019 and it was Mr McAllen who lodged the first of the applications under s.739 of the Act that has given rise to this proceeding, on 4 October 2019. Finally, while the Applicants have submitted that there was no correcting or clarifying email sent in response to Mr Bowden’s email dated 27 June 2019 (by Mr Ballato), I note there was an email sent by Mr Bowden on 20 February 2020 to teaching employees at ACE, stating:

“Hi all. Please find attached teaching roster.

If you are in Purple, “In Class Assessment”, it means just that.

You are not the teacher. You go to a room and seek out students who need assessment only. There must be another teacher in the room who is doing normal teaching duties.” (emphasis as per the email)

[57] I am satisfied that the disputed duties referenced as “assessment, Not Teaching” or “You are not the teacher. You go to a room and seek out students who need assessment only” (in the emails) and “Assessment Hours Observing Competence” or “Assessment of student work” (in the default work plans), relate to the decision of Bendigo Kangan to roster teachers to perform the final or demonstration assessment and from these, the teachers understood there was a change in how the time rostered for such assessment was to be counted.

[58] I have noted, accept and find the following evidence from Mr Ballato’s statement regarding the practice at the ACE since 1 July 2019 compelling:

(a) where a teacher is rostered for assessment, the standard practice at ACE is to also have one teacher rostered for teaching;

(b) where a teacher is rostered to teach a practical workshop in the Workshop, these hours are counted towards a teacher's “teaching delivery” hours in the teacher's work plan;

(c) where a teacher is rostered to undertake assessment in the Workshop (which is only for a student's final assessment tasks for a unit of competency), this is counted towards “preparation, planning, curriculum development and assessment” hours in the teacher's work plan;

(d) final assessment can involve a number of tasks, one of which might be to pull apart a gear box and put it together. The teacher will ask the student questions but unlike in Stage 2, the student does not ask questions and the teacher does not provide guidance. Instead, the teacher observes the student performing the task;

(e) during the final assessment phase, once the student has successfully performed the tasks twice and answered the questions asked by the teacher, the teacher will complete the assessment tool and the student will have then completed the unit;

(f) during the final assessment, the teacher does not demonstrate the task to be performed, intervene or provide instruction, other than where there is an occupational health and safety issue;

(g) after the student has finished the assessment, if he or she has not successfully performed the task, the teacher will explain where the student has gone wrong, and what needs to improve before some or all of the final assessment for the unit is attempted again;

(h) forms of assessment other than the final assessment are either automated (in the case of Quizzes) or counted as category (i) teaching delivery duties (in the case of Demonstrations and Competency Tests); and

(i) if a teacher is rostered to perform assessment in a particular session, and their colleague (who was rostered to perform teaching delivery during the same session) is absent, the teacher who attends would be required to perform both teaching delivery and assessment in that particular session. In that circumstance, Bendigo Kangan would credit the teacher for both category (i) and category (ii) in respect of the session and for a two-hour session, the teacher would be credited for four hours even though only two hours was worked. 21

[59] Further, while the Applicants appear to contend that any level of questioning or any feedback at all during the demonstration assessment moves it within clause 32.10(a)(i) duties, my assessment is that when read as a whole, the evidence of Mr Ballato supports a conclusion that the feedback given at the end of demonstration assessment is not of a kind that amounts to “teaching delivery” or “supervision of students” so as to make it a duty under subclauses 32.5(a)(i) or 32.10(a)(i). I am fortified in this conclusion by evidence from Mr Bowden, 22 Mr McAllen,23 Mr Edwards24 and Mr Wade25 that acknowledges demonstration assessment differs from KAP and that the role the teacher plays differs between the two functions. I note that the hours are counted as assessment for the purposes of clause 32 only when a teacher is rostered to perform demonstration assessment in the Workshop with another teacher present to provide teaching delivery and that at the time of the demonstration assessment, the student must demonstrate that he or she has developed the degree of competence in the practical skills and knowledge or theory required to do the job. While demonstration assessment can involve students performing the same tasks as previously conducted in the KAP, the fact that it is the final assessment is the distinguishing feature and that the feedback is given at the conclusion of the assessment, distinguishes the demonstration assessment from a duty that arises under subclauses 32.5(a)(i) or 32.10(a)(i).

[60] While the Applicants have submitted work that is assessment can also involve teaching and supervision and therefore be counted as a duty under subclauses 32.5(a)(i) or 32.10(a)(i), I consider the correct approach to be adopted is to characterise whether the particular duties fall within subclauses 32.5(a)(i) or 32.10(a)(i) or subclauses 32.5(a)(ii) or 32.10(a)(ii) by having regard to their major or substantial function. 26 Through the application of this approach, it can be concluded that the KAP undertaken in the teaching delivery phase is teaching delivery while the demonstration assessment is assessment because its major and substantial function is to assess whether the employee has attained practical and theoretical competence. That demonstration assessment might involve the execution of other duties such as answering a question, or some supervision will not change its major or substantial function. The Applicants’ propositions regarding a teacher’s obligation to supervise might underpin their submission that all in-class assessment is teaching but it does not change the major or substantial function of demonstration assessment.

[61] In summary, I accept Bendigo Kangan’s position that the duties designated as being ‘“assessment hours observing competence” (and so allocated in ACE employees’ workplans)’ that have been rostered are duties that should be allocated under clause 32.10(a)(ii) of the 2018 Agreement. It follows from the above that the second question should be answered – the duties that have been rostered to be performed by employees of BKI, which BKI has designated as being ‘Assessment Hours Observing Competence’ (and so allocated in ACE employees’ work plans), are duties that should be allocated under clause 32.10(a)(ii) of the 2018 Agreement.

Conclusion

[62] The task the parties have asked me to discharge is one of interpreting the Agreement they have produced. The answers to the questions they have asked me to determine in order to resolve the dispute are as follows:

1) “Having regard to the matters in dispute at Bendigo Kangan Institute ACE campus, what is the correct construction of clauses 32.5 and 32.10 of the Victorian TAFE Teaching Staff Agreement 2018?”

Answer: The correct construction of clauses 32.5 and 32.10 of the 2018 Agreement is that assessment undertaken prior to, during or at the completion of a student’s course of study (whether undertaken inside class or outside of class) is to be counted within subclause 32.5(a)(ii) (if agreed) or subclause 32.10(a)(ii) (if not).

2) “Based on a proper construction of clause 32.10, are the duties that have been rostered to be performed by employees of Bendigo Kangan, which Bendigo Kangan has designated as being “assessment hours observing competence” (and so allocated in ACE employees’ workplans), duties that should be allocated under clause 32.10(a)(i) or clause 32.10(a)(ii) of the 2018 Agreement?”

Answer: The duties that have been rostered to be performed by employees of BKI, which BKI has designated as being “assessment hours observing competence” are to be counted within clause 32.5(a)(ii) (if agreed) or are to be counted within clause 32.10(a)(ii) (if not).

esig

DEPUTY PRESIDENT

Appearances:

Mr M Irving QC on behalf of the Australian Education Union & Ors

Mr C O’Grady QC and Mr B Avallone of Counsel on behalf of Bendigo Kangan Institute of TAFE

Hearing details:

2020.

By Video via Microsoft Teams

11 December.

Printed by authority of the Commonwealth Government Printer

<PR728163>

 1   [2017] FWCFB 3005.

 2   [2014] FWCFB 7447.

 3   [2017] FWCFB 3005 at point 1 in [114].

 4   Ibid at point 7 in [114].

 5   Ibid at point 8 in [114].

 6   As per the Macquarie Dictionary definitions of ‘assess’ and ‘assessment’.

 7   As per the Macquarie Dictionary definitions of ‘teach’, ‘supervise’ and ‘supervision’.

 8   Annexure JXM 20 to Exhibit A1 CB 3093 at 3098.

 9   Ibid at CB 3118.

 10   [2017] FWCFB 3005 at point 13 in [114].

 11   [2017] FWCFB 3574.

 12   Ibid at [76].

 13   Transcript, 12 October 2020 at PN896-PN902.

 14   Ibid at PN878-882.

 15   Ibid at PN903-908.

 16   Bendigo Kangan includes in this the email sent by Mr Bowden on 20 February 2020.

 17   Exhibit R2 at CB at 2515 and Annexure JB1 to Exhibit R2 at CB 2587.

 18   Transcript, 13 October 2020 at PN1123-PN1131.

 19   Annexure AE7 to Exhibit A7 at CB 1728-1729.

 20   Annexure MW4 to Exhibit A15 at CB 1802.

 21   See Exhibit R2, CB 2511 and 2514.

 22   Transcript, 13 October 2020 at PN1197, PN1240, PN1242.

 23   Ibid at PN1522-PN1523, PN1529-PN1533, PN1539, PN1552.

 24   Ibid at PN1862-PN1865, PN1920.

 25   Ibid at PN PN2198 -PN2201.

 26   Choppair Helicopters Pty Ltd v Bobridge [2018] FCA 325 at [64]-[66] (and the authorities cited therein, particularly Fair Work Ombudsman v Complete Windscreens (SA) Pty Ltd [2016] FCA 621 at [27]).