[2021] FWCFB 3649

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Australian Education Union
v
Bendigo Kangan Institute of TAFE
(C2021/2152)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT COLMAN
COMMISSIONER BISSETT

SYDNEY, 13 JULY 2021

Appeal against decision [2021] FWC 1683 of Deputy President Clancy at Melbourne on 26 March 2021 in matter numbers C2019/6707, C2019/6108, C2019/6163, C2019/6167 C2019/6210, C2019/6231 and C2019/6268.

[1] The Australian Education Union (AEU) has lodged an appeal against a decision 1 of Deputy President Clancy made on 26 March 2021 in which he determined a dispute that had been referred to the Commission for determination under clause 10.18 of the Victorian TAFE Teaching Staff Agreement 20182 (2018 Agreement). The Agreement relevantly covers Bendigo Kangan Institute of TAFE (BKI) and teachers employed by BKI at its Automotive Centre of Excellence (ACE). The dispute concerned whether, as the AEU contended, time spent by teachers conducting final assessments of students in practical classroom workshops should be counted towards the annual 800-hour cap on teaching delivery and supervision prescribed by clauses 32.5(a)(i) and 32.10(a)(i) of the 2018 Agreement. The Deputy President rejected the AEU’s contention and concluded that the time in question did not count towards the 800-hour cap. The AEU’s appeal to the Full Bench contends that the Deputy President’s conclusion was erroneous.

[2] Clauses 32.5 and 32.10 of the 2018 Agreement are relevantly in identical terms. They read as follows:

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 conforms 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.

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

[3] Briefly stated, the facts to which the Deputy President was required to apply these provisions were the following. The ACE is a training facility that prepares students for work in the automotive industry. In June 2019, BKI set workplans for teachers under clause 32.10 of the 2018 Agreement that included time allocated to “assessment hours observing competence”. These were hours in which teachers would undertake “demonstration assessment” of students in practical workshops. Such assessments constitute the final assessment task for a unit of competency and may involve the student undertaking a number of practical tasks, such as disassembling and then reassembling a gear box. At times when a teacher is rostered to conduct a demonstration assessment of a student, another teacher is rostered to teach students in the workshop. The teacher conducting the demonstration assessment is required to evaluate the student’s competence. Once the student has successfully performed the required tasks twice and answered questions posed by the teacher, the teacher must complete the assessment document. This confirms the student’s completion of the unit.

[4] When BKI set the workplans in June 2019, it advised teachers that time spent conducting demonstration assessments would be regarded as “assessment” work for the purposes of clauses 32.5(a)(ii) and 32.10(a)(ii) of the 2018 Agreement, rather than “teaching delivery” under clauses 32.5(a)(i) and 32.10(a)(i), and that it would therefore not count towards the 800-hour cap on teaching delivery. The AEU raised a dispute with BKI under the dispute resolution procedure in clause 10.18 of the 2018 Agreement. It considered that the demonstration assessments involved “teaching delivery face to face” or “supervision” for the purposes of 32.5(a)(i) or 32.10(a)(i), because the hours were worked in the classroom and involved feedback, supervision, and instruction of students. The AEU considered that, under clauses 32.5 and 32.10, assessment work could constitute both “teaching delivery” and “assessment”, and that when this occurred, the hours worked counted towards the 800-hour cap. It was common ground that the work of the teacher rostered to teach but not assess students during the demonstration assessment falls within clauses 32.5(a)(i) and 32.10(a)(i), and that assessment work undertaken by teachers outside of the classroom falls within clauses 32.5(a)(ii) and 32.10(a)(ii).

[5] The parties submitted to the Deputy President two questions that they asked the Commission to determine in resolution of the dispute. These were:

(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? (the Construction Question)

(2) 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)

[6] Before the Deputy President, the AEU contended that the assessment work that teachers are required to perform was “teaching delivery face to face” or “supervision of students” and therefore falls within clauses 32.5(a)(i) and 32.10(a)(i), because although it entails assessment, it also involves teaching or supervision. Alternatively, it contended that the assessment work constituted “sessions of direct student instruction … involving student supervision” for the purpose of the general definition of “teaching” found in clause (u) of the definition section in schedule 6 of the 2018 Agreement. The AEU contended that the two broad categories of work in clauses 32.5(a)(i) and 32.10(a)(i) on the one hand, and clauses 32.5(a)(ii) and 32.10(a)(ii) on the other, are not mutually exclusive, and that work that might be described as “assessment” under the latter clauses could also be teaching delivery or supervision under the former. The AEU contended that where this occurs, the hours count towards the 800-hour cap on “teaching delivery face to face” in clauses 32.5(a)(i) and 32.10(a)(i).

[7] BKI contended that the disputed hours involved “assessment” within the meaning of clauses 32.5(a)(ii) and 32.10(a)(ii), which includes assessment undertaken during a student’s course of study, without any distinction as to whether assessment is conducted in class or out of class. It submitted that sub-clauses (i) and (ii) of clauses 32.5(a) and 32.10(a) respectively established distinct categories, that duties undertaken by a teacher would either fall within one category or the other, and that the disputed duties were fundamentally assessment duties and therefore did not count towards the 800-hour cap. BKI further contended that the correctness of its construction was confirmed not only by the text of the provisions but also the circumstances surrounding the negotiation of the 2018 Agreement. It noted that previous enterprise agreements had expressly stated that assessment work counted towards the 800-hour cap, and that during negotiations for the 2018 Agreement, assessment duties had initially been included within the duties that would count towards the 800-hour cap but were then removed from those hours. BKI further submitted that information explaining the 2018 Agreement to employees had specifically identified assessment as falling outside the 800-hour cap.

[8] In relation to the Construction question, the Deputy President concluded:

“[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).”

[9] As to the Application Question, the Deputy President concluded:

“[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. 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.”

The appeal

[10] An appeal under s 604 of the Fair Work Act 2009 (Cth) (FW Act) is an appeal by way of rehearing, however the Commission’s powers on appeal are exercisable only if there is error on the part of the primary decision maker. The dispute resolution procedure in the 2018 Agreement provides that an appeal lies from a decision of the Commission with the leave of the Full Bench (see clause 10.28). This imports the usual position in relation to appeals, which is that permission to appeal is required under s 604. Subsection 604(2) requires the Commission to grant permission to appeal if it is satisfied that it is in the public interest to do so. Permission may otherwise be granted on discretionary grounds.

[11] The AEU advances four grounds of appeal. Grounds 1 and 4 challenge the Deputy President’s answer to the Construction Question. Ground 1 contends that the Deputy President erred by accepting BKI’s construction of the 2018 Agreement rather than its own, which it says is correct. Ground 4 submits that the Deputy President erred in his conclusion that, in determining whether duties fall within clauses 32.5(a)(i) and 32.10(a)(i) or clauses 32.5(a)(ii) and 32.10(a)(ii), the correct approach to be adopted is to characterise the duties by reference to their major or substantial function. Grounds 2 and 3 respectively challenge the Deputy President’s answer to the Application Question and contend that the Deputy President’s factual findings as to the nature and proper categorisation of the relevant duties were erroneous.

[12] In its written appeal submissions, the AEU presented its challenge to the Deputy President’s decision as entailing six fundamental contentions. First, the AEU submitted that properly understood, clause 32.5 contemplates duties that can comprise both teaching delivery or supervision and assessment, and that when this occurs, the duties fall within both sub-provisions (i) and (ii) of clauses 32.5(a) and 32.10(a). This would not mean that the hours were counted twice for the purposes of the annual 1200-hour cap on “teaching duties”, but only once, under sub-provision (i). Secondly, the AEU submitted that it follows that there is no need to categorise duties by reference to their major or substantial function, as the Deputy President did. Thirdly, the circumstances surrounding the negotiations for the 2018 Agreement could not alter the proper construction of clause 32.5. Fourthly, the general definition of “teaching” found in schedule 6 applied to the question of whether the disputed duties were teaching duties, and the Deputy President was wrong to conclude otherwise. Fifthly, applying that definition, the disputed duties were “sessions of direct student instruction”; or sixthly, constituted “student supervision”.

The Construction Question: appeal grounds 1 and 4

[13] We consider that the Deputy President’s interpretation of the relevant provisions was correct, and that appeal ground 1 must therefore be rejected. The teaching delivery and supervision duties covered by clauses 32.5(a)(i) and 32.10(a)(i) are distinct from the assessment and other duties covered by clauses 32.5(a)(ii) and 32.10(a)(ii). There is nothing in the text or structure of clauses 32.5 and 32.10 which suggests that duties may be regarded simultaneously both as “teaching delivery face to face” or “supervision” under sub-clause (i) and “assessment” under sub-clause (ii). Clauses 32.5(a) and 32.10(a) pointedly bifurcate the duties described in sub-clauses (i) and (ii). Only those duties falling within (i) will count towards the 800-hour annual cap. Those falling within (ii) will not. Both will however count towards the annual maximum of 1200 hours of “teaching duties” prescribed by clauses 32.5 and 32.10.

[14] Sub-clauses (i) and (ii) establish categories of duties. Clause 32.5(a) states that employees’ work is “made up of various components that fall within 2 categories”, namely those in sub-clauses (i) and (ii). Clause 32.10 contains a different introductory sentence but is otherwise substantively and structurally identical to clause 32.5. It contains the same two categories established by clause 32.5(a). In some contexts, categories can overlap. But in the present context, the purpose of the categories is to determine how the hours worked will be treated for the purposes of limitations on working hours. In the scheme of clause 32, it would not make sense for duties to fall within both categories, for this would lead to the problem that the duties would count twice for the purpose of the 1200-hour cap on “teaching duties”. The AEU’s solution to this problem is to declare that hours of mixed duties comprised of assessment and teaching would count only towards the 800-hour cap, but there is nothing in the text of the 2018 Agreement to indicate that this is so. The absence of any provision addressing how mixed duties would be counted, in a provision which is fundamentally concerned with placing limitations on the number of hours to be worked performing certain kinds of duties, only reinforces the conclusion that clauses 32.5(a) and 32.10(a) contemplate duties falling either within sub-clause (i) or (ii), not both.

[15] More generally, the AEU’s contention that clauses 32.5(a)(ii) and 32.10(a)(ii) understand “assessment” to be confined to assessment outside the classroom finds no support in the text of the 2018 Agreement. There is no basis to read down the clauses in this way. Sub-clause (ii) has nothing to say about where assessment might take place. It elaborates only upon when it may occur, and in broad terms, stating that assessment may be undertaken “prior to, during and at the completion of a student’s course of study”.

[16] The AEU’s third contention, in aid of its first ground of appeal, disputed the relevance of the circumstances surrounding the negotiation of the 2018 Agreement and the manner in which the 2018 Agreement differs from the enterprise agreements that preceded it. The AEU contended that these matters could not and do not alter the proper construction of the 2018 Agreement. We agree with the union in this respect, but only insofar as the surrounding circumstances confirm the proper construction of the 2018 Agreement that the Deputy President identified. The enterprise agreement that preceded that 2018 Agreement, the Victorian TAFE Teaching Staff Multi-Enterprise Agreement 2015 3 (the 2015 Agreement), contained a cap of 800 “teaching duty hours”, which were defined as “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” (see clauses 7(19), 16.1 and 16.2, and schedule 6 clause 18.7). The assessment of students was clearly included within the 800-hour teaching cap under the 2015 Agreement. This had also been the position under the two enterprise agreements that preceded the 2015 Agreement. The 2018 Agreement removed this definition and established new provisions that left assessment outside the hours that counted towards the 800-hour cap.

[17] Moreover, as the Deputy President noted at [36] and [37], BKI’s explanation of the terms of the 2018 Agreement to employees prior to the vote squarely addressed this change. Employees were told 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”. The AEU did not contend that this explanation was in fact not provided, or that it meant something other than what it plainly states. The Deputy President was right to conclude at [42] that the historical context supports a conclusion that clauses 32.5 and 32.10 were intended to alter the treatment of assessment in the counting of hours towards the 800-hour cap, and that employees were advised of this change. The potential interpretative significance of an employer’s explanation to employees of the terms of an enterprise agreement in satisfaction of its obligation under s 180(5) of the FW Act was noted in the decision of the Full Bench in EnergyAustralia Yallourn Pty Ltd v Construction, Forestry, Mining and Energy Union [2017] FWCFB 3574 at [76]. This passage was cited by the Deputy President in his decision. We agree with it.

[18] The AEU contended that the Deputy President erred in failing to apply to his interpretation of clauses 32.5 and 32.10 the new definition of ‘teaching’ contained in schedule 6 of the 2018 Agreement. This definition is as follows:

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.

[19] The AEU submitted that the definition covers the assessment work undertaken by teachers in the practical workshops because this work comprises “rostered teaching sessions in a documented course of study for which the teacher has primary responsibility for educational delivery”, or “direct student instruction rostered or required for curricular or pastoral functions involving student supervision”. The Deputy President rejected this contention and so do we.

[20] First, it is unclear to us how the definition of “teaching” could meaningfully apply to clauses 32.5(a)(i) and 32.10(a)(i). The AEU would have the definition apply to the words “teaching delivery face to face”, however this is a composite phrase that would need to be disaggregated and then unworkably reconstituted for the definition to be applied. Secondly, clauses 32.5 and 32.10 deal directly and specifically with the treatment of different kinds of teaching-related work for the particular purposes established by those clauses, whereas the definition of teaching in schedule 6 is one for general purposes in the 2018 Agreement and operates subject to the more specific provisions. Thirdly, the general definition of teaching in schedule 6 carries no meaning that is contrary to the construction of clauses 32.5(a) and 32.10(a) that we have set out above. It makes no reference to assessment. We do not see how the assessment work in question in this matter could be described as “rostered teaching sessions in a documented course of study for which the teacher has primary responsibility for educational delivery”. The relevant sessions are rostered for assessment, not teaching. Nor are the relevant duties properly described as “direct student instruction rostered or required for curricular or pastoral functions involving student supervision”. Although in one sense teachers are watching over students’ work, the substance of their work at this time is not supervision. It is assessment. In this regard, it is significant that where teachers are rostered to undertake the assessment work, the standard practice is for there to be another teacher rostered in the same classroom to teach those students who are not undertaking an assessment. This teacher is regarded as undertaking “teaching delivery”.

[21] The AEU contended that BKI’s interpretation of clauses 32.5 and 32.10 would have unreasonable consequences. It said that there would be no limitations on the ability of BKI to designate work in practical workshops or elsewhere as “assessment”, and that the hours of work rostered to be done by teachers could be drastically increased. At the hearing of the appeal, BKI confirmed that up to 120 hours of final assessments in practical workshops would be rostered each year.

[22] However, while we appreciate the AEU’s concern about the implications of the Deputy President’s decision, we do not consider that these consequences reflect an unreasonable or improbable outcome that tells against the construction that we favour. There is nothing inherently unreasonable about treating assessment work in the classroom differently from “teaching delivery face to face”, nor is it unreasonable that such assessment work be excluded from the 800-hour cap. Further, there are certain limitations on BKI’s ability to roster teachers to undertake assessment work. First, BKI could not simply label duties as assessment and consign them to the second category. The substantial character of the duties must be that of assessment. Secondly, there will be practical limits which confine the amount of work that could reasonably be described as assessment. Teaching duties that are “directly related to the teaching and learning program of the … students and or classes” would reasonably be comprised primarily of teaching and learning, with the assessment of what has been learnt by students forming a quantitatively minor component. Thirdly, disputes about the rostering of assessment work can be taken to the Workload Dispute Panel established by clause 10.15 of the dispute resolution provision. Further, it will remain the case that clauses 32.5(a) and 32.10(a) set an overall limit of 1200 hours on duties in categories (i) and (ii) together, and that hours that teachers are required to work beyond this number are overtime (see clause 29).

[23] In respect of the AEU’s concern about the amount of time that teachers must spend in the classroom, we would note that “teaching delivering face to face” can occur online, and therefore potentially at home. As to the volume of work already falling with clauses 32.5(a)(ii) and 32.10(a)(ii), we note that staff other than teachers perform some of the preparation, planning and curriculum development of category (ii), and some of the current assessment consists of automated tests. Moreover, under the 2018 Agreement teachers are accountable each calendar year for 1748 hours of “teaching and other duties” (clause 32.1), of which they can be required to attend their work location for up to 30 hours per week for up to 42 weeks per year, equating to 1260 hours (see clause 31.1).

[24] The AEU contended that, on BKI’s construction, one teacher might spend a whole rostered session doing work associated with a demonstration assessment and have all time worked counted towards teaching delivery, whereas another teacher working in the same class would have no time counted towards teaching delivery. What the AEU appears to mean is that the teacher rostered to conduct the assessment has time allocated to assessment, whereas the other teacher in the classroom, who is not rostered to undertake the assessment, is regarded as teaching. We see nothing anomalous in this. We accept the AEU’s contention that, when students not undertaking the assessment approach teachers who are conducting an assessment with questions or requests for help, it is in teachers’ professional nature to respond and help. However, those teachers have not been rostered to teach. They have been rostered to assess. We see no reason why the assessing teachers could not refer the students in question to the other teacher in the classroom.

[25] The AEU further contended that BKI’s construction would have the consequence that although work may involve teaching and supervision, and require the work to be done in a classroom of students, it is not counted as teaching and supervision for the purposes of the 800-hour annual cap, and that such a construction undermines the purpose of clauses 32.5(a)(i) and 32.10(a)(i) and would be unreasonable. We disagree. We see nothing unreasonable in work that substantially involves assessment being classified as such, nor is there anything unreasonable in the consequence that what one might term “peripheral” teaching work undertaken in the course of conducting assessment work might be excluded from the 800-hour cap.

[26] We consider on the other hand that the AEU’s construction of the provisions produces certain anomalies. First, if clauses 32.5 and 32.10 treat class-based assessment as “teaching delivery face to face”, but other assessment as falling within sub-clause (a)(ii), then teachers of practical courses such as automotive and cooking, who are more likely to undertake assessment in the classroom, would have these hours of assessment count towards their 800 hours, whereas teachers of theoretical courses marking exams outside the classroom would not. Such an iniquitous outcome is unlikely to have been intended. Secondly, if class-based assessment involves “teaching delivery face to face online and by other means” because of the feedback provided by the teacher to the student, there is no reason to think that assessment conducted outside the classroom would not also qualify, because the marking of papers would presumably also involve “feedback”, but in some “online or other” form. Yet it is common ground that assessment conducted outside the classroom falls within clauses 32.5(a)(ii) and 32.10(a)(ii). Thirdly, clauses 32.5 and 32.10 require that for each hour allocated to teachers under subclauses 32.5(a)(i) and 32.10(a)(i), one half hour is to be allocated under subclauses 32.5(a)(ii) and 32.10(a)(ii). It is unclear why preparation time would be required for conducting assessments.

[27] In respect of the fourth ground of appeal, and the AEU’s second fundamental contention, we consider that the Deputy President’s approach of characterising the relevant duties was correct. Because clauses 32.5 and 32.10 divide duties into categories for the purpose of counting hours towards the 800-hour cap, it is necessary to determine into which category a teacher’s duties fall. As we have said earlier, the categories established by clause 32 do not overlap, but particular work may involve elements that, considered individually, might fall into both. Where particular duties involve elements of both instruction and assessment, it will be necessary to determine the substantial character of the duties in order to categorise them. In our view, clauses 32.5 and 32.10 anticipate this. The two categories in sub-clauses (i) and (ii) are subspecies of “teaching duties” under clause 32.5(a) and “duties directly related to teaching” under clause 32.10; they are two components of a common genus. In other words, all of the various duties are different forms of teaching duties. It is therefore unsurprising that duties may comprise elements of assessment and teaching. This is particularly so in the context of a TAFE, where instruction is vocationally-oriented and practical, and assessment could be expected to bear a similar character. But that does not mean that “mixed” duties are to be classified in both categories, because that would defeat the purpose of setting the 800-hour annual cap exclusively for duties in sub-clause (i), namely “teaching delivery face to face” and “supervision”.

[28] In its written submissions, the AEU contended that there was no basis in the text of the provision to read it as requiring duties to be categorised by reference to their substantial character, and that it was impermissible to imply words into an enterprise agreement unless the words were so obvious as to go without saying. It further contended that there was nothing to suggest that the “substantial character” test is any more readily to be implied into the provisions than other similar formulations such as an approach referrable to the “significant part of the work” or the “dominant function”. We consider these contentions to be misconceived. No one is proposing to imply a term into clause 32. Rather, the ascertainment of the “substantial character” of a particular duty is a logical way to approach the application of the terms of the clause to facts. It is no different from analogous approaches to the application of the terms of awards and enterprise agreements, particularly in relation to classifications of work. In this regard, we observe that the approach of the Deputy President was akin to that adopted by Bromberg J in Choppair Helicopters Pty Ltd v Bobridge [2018] FCA 325 (Choppair) at [64]-[66]. The fact that it may be possible to formulate the test in different ways is of no moment.

[29] The AEU’s contention that duties are not to be characterised by reference to their substantial function, and may be assigned to one or both categories of duties, would have the consequence that any amount of teaching or supervision undertaken in the course of assessing students’ work would see the relevant hours classed as teaching delivery and counted towards the 800-hour cap. This would mean that work that is fundamentally and substantially in the nature of assessment would be treated as something that it fundamentally and substantially is not, simply because of the concurrent existence of some minor instructional element. This cannot have been intended. It would defeat the purpose of the bifurcation of duties established by the clause and the setting of the 800-hour cap for one category only. We consider the clause to contemplate that in order to determine whether disputed duties fall within sub-clauses 32.5(a)(i) and 32.10(a)(i), or within 32.5(a)(ii) and 32.10(a)(ii), it is necessary to make an evaluative assessment of its character. This is the approach that was taken by the Deputy President. That approach was correct.

[30] In summary, clauses 32.5 and 32.10 establish separate categories of teaching duties. Teaching delivery and supervision are in one category. Assessment is in another. The 800-hour annual cap applies to the first category, not the second. So much is clear from the text. The historical context reinforces this conclusion. Under the 2015 Agreement, assessment work was included in the definition of “teaching duty hours” and counted towards the 800-hour cap. But the 2018 Agreement changed that position.

[31] The conclusion that the Deputy President’s construction of clause 32 was correct, and that teaching duties must be characterised in order to determine into which category they fall, means that it is a short step to a further conclusion, namely that the duties in question are assessment duties that fall within clauses 32.5(a)(ii) and 32.10(a)(ii). The AEU did not contend that the duties in question were substantially of an instructional character, or dispute that at the relevant times the teachers are undertaking assessments of students. Nevertheless, we will briefly consider the remaining appeal grounds.

The Application Question: appeal grounds 2 and 3

[32] The AEU’s written appeal submissions contained an extensive account of its evidence at first instance. We confine our reasons to the alleged errors in the Deputy President’s findings.

[33] Appeal ground 2, and the AEU’s fifth and sixth contentions, contended that the Deputy President erred in his answer to the Application Question by failing to conclude that the duties in question were “teaching delivery face to face” or “sessions of direct student instruction rostered for functions involving student supervision”. Appeal ground 3 contended that the Deputy President erred in his findings in relation to the duties that employees had been rostered to perform. The Deputy President’s essential factual findings were set out in paragraphs [57] and [58]:

“[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.” (footnote omitted)

[34] The AEU contended that during a demonstration assessment, the teacher’s interaction with the student involves guidance, feedback, and also instruction, because the teacher will tell the student if there is a better way of doing the task, and will also instruct students who are not undertaking the demonstration assessment if they ask for assistance. The AEU contended that the Deputy President’s findings at [58](f) that the teacher does not intervene or provide instruction, and [58](d) that teachers do not provide guidance, were contrary to the weight of the evidence, and that the finding at [58](g) was correct but materially incomplete. The AEU also contested the Deputy President’s finding at [59] that feedback given by teachers to students at the end of a demonstration assessment was not of a kind that amounted to teaching delivery or supervision of students. The AEU submitted that the Deputy President ought to have made different factual findings in relation to these and other matters.

[35] The AEU’s notice of appeal also contested findings made by the Deputy President at [55] in respect of correspondence sent from BKI to teachers in June 2019 attaching a 27 week timetable, which noted that the timetable included 4 hours of assessment time and that “this assessment time is assessment, not teaching”. The Deputy President found that it would have been apparent from the text of this correspondence that BKI had directed a change in the timetabling, the substance of which was that the four hours that had previously been allocated to teaching was now timetabled as assessment. The AEU’s notice of appeal also contested the Deputy President’s findings at [56] however the particular findings in question were not identified.

[36] In Fox v Percy 4 Gleeson CJ, Gummow and Kirby JJ said at [23]:

“[An appellate court] must, of necessity, observe the ‘natural limitations’ that exist in the case of any appellate court proceedings wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the ‘feeling’ of a case which an appellate court reading the transcript, cannot always fully share.” (footnotes omitted)

[37] In Robinson Helicopter v McDermott 5 the High Court, citing Fox v Percy, said the following at [43]:

“A court of appeal conducting an appeal by way of rehearing is bound to conduct a "real review" of the evidence given at first instance and of the judge's reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. But a court of appeal should not interfere with a judge's findings of fact unless they are demonstrated to be wrong by ‘incontrovertible facts or uncontested testimony’, or they are ‘glaringly improbable’ or ‘contrary to compelling inferences’” (footnotes omitted)

[38] The principles in Fox v Percy have been consistently applied by Full Benches of the Commission. On appeal, the factual findings made by a member at first instance should generally stand, unless it can be demonstrated that the member has failed to use their advantage in respect of the hearing of the evidence, or has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was “glaringly improbable”. 6 The natural limitations that apply to the hearing of an appeal by a Full Bench include the inability of the Bench to hear the witnesses, and the constraints of time that prevent the Full Bench being taken to all of the evidence in detail. The member at first instance is in a better position than the appeal bench to make findings of fact. Further, an appeal to a Full Bench exists for the correction error. It is not a hearing de novo.

[39] The AEU has not demonstrated that the Deputy President’s factual findings are affected by any of the deficiencies identified in Fox v Percy and Robinson Helicopter. The findings have not been shown to be wrong or glaringly improbable. We do not consider that any further factual findings were required to be made. The Deputy President’s findings were entirely available on the evidence, and in various respects they are plainly correct. In particular, it seems improbable that the teachers conducting a final assessment would provide any substantial guidance or instruction to the students whom they are required to assess, because guidance and instruction would affect the student’s performance and distort the objectivity of the assessment. It can readily be imagined that feedback would be provided in respect of work that has been assessed. But this is not, in the context of clause 32.5, “teaching delivery face to face”; it is part and parcel of assessment, whether practical or theoretical. We agree with the Deputy President’s finding at [59] that feedback given by teachers to students at the end of the assessment does not amount to teaching delivery or supervision of students.

[40] It its written submissions, the AEU contended that the Deputy President erred at [57] by finding that the disputed duties related to the decision of BKI “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”. The AEU submitted that the disputed duties extended beyond the demonstration assessment and included the “Knowledge Assessment Practical” (KAP), which is part of the teaching delivery at an earlier stage of the course whereby the teacher assists the student to achieve competence in the relevant practical skills. This appears to us to be a complaint going to the framing of the questions for determination. The parties needed to put before the Deputy President the dispute that required determination. If the AEU had a concern about the proper identification of the duties that were the subject of the dispute, it could have proposed an alternative or additional question.

[41] To the extent that the AEU’s contention is that there is no difference between the KAP (which BKI treats as teaching delivery) and the demonstration assessment, it was rejected on the evidence by the Deputy President at [59], and we find no error in this conclusion. It was not in dispute that the demonstration assessment is the final appraisal of whether the student can perform the task. The feedback provided at the end of the assessment is different in nature to that provided during the KAP when the student is learning how to perform the task.

Conclusion

[42] We consider that appeal grounds 1 and 4, which concern the Deputy President’s answer to the constructional question, raise a matter of importance for the large number of employees who are covered by the 2018 Agreement in respect of a concern about the implications of the Deputy President’s decision for the future rostering of assessment work for teachers. We therefore consider it appropriate to grant permission to appeal in relation to these grounds of appeal. However, as we have explained, the Deputy President’s interpretation of the provisions was correct. Grounds 1 and 4 must therefore be dismissed.

[43] In relation to appeal grounds 2 and 3, the AEU has not established any arguable case of error, nor have we identified any other grounds upon which permission to appeal should be granted, whether in the public interest or on the conventional basis. Permission to appeal on these grounds is therefore refused.

[44] We order as follows:

1. Permission to appeal is granted in respect of appeal grounds 1 and 4.

2. Permission to appeal is refused in respect of appeal grounds 2 and 3.

3. The appeal is dismissed.

al of the Fair Work Commission with the memeber's signature.