FEDERAL COURT OF AUSTRALIA
Victoria University of Technology -v- Australian Education Union
[1999] FCA 1065
INDUSTRIAL LAW – Courts – whether appellate court can go behind concession on basis of which matter was argued at first instance – circumstances in which appellate court may do so - Industrial Award – provisions prescribing maximum number of hours of scheduled duties and teaching duties and pro-rata maxima for employment for less than the full teaching year – whether “full teaching year” refers to calendar or chronological year or lesser period during which services rendered – imposition of penalty for breach – principles governing exercise of discretion - Words and phrases – “full teaching year”
Workplace Relations Act 1996 (Cth) ss 178(5), 347(1) and 356
TAFE Teachers’ Conditions of Employment (Victoria) Interim Award 1994
Australian Journalists Association v Advertiser Newspapers Ltd (1982) 3 IR 144 referred to
Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 applied
Federated Agricultural Implement Machinery and Ironworkers’ Association of Australia
v H V McKay Massey Harris Pty Ltd (1936) 36 CAR 268 applied
House v The King (1936) 55 CLR 499 applied
Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60 applied
Parkinson v Grazcos Co-op Ltd (1958) 1 FLR 90 applied
VICTORIA UNIVERSITY OF TECHNOLOGY (AS SUCCESSOR IN LAW TO THE
COUNCIL OF THE WESTERN MELBOURNE INSTITUTE OF TAFE) v
AUSTRALIAN EDUCATION UNION
VG 364 OF 1998
RYAN, BRANSON AND FINKELSTEIN JJ
6 AUGUST 1999
MELBOURNE
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IN THE FEDERAL COURT OF AUSTRALIA |
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VG 364 OF 1998 |
ON APPEAL FROM A JUDGMENT OF A SINGLE JUDGE OF THE FEDERAL
COURT OF AUSTRALIA
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BETWEEN: |
VICTORIA UNIVERSITY OF TECHNOLOGY (AS SUCCESSOR IN LAW TO THE COUNCIL OF THE WESTERN MELBOURNE INSTITUTE OF TAFE) Appellant
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AND: |
AUSTRALIAN EDUCATION UNION Respondent
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DATE OF ORDER: |
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WHERE MADE: |
MINUTES OF ORDER
THE COURT ORDERS:
1. That the appeal be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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VG 364 OF 1998 |
ON APPEAL FROM A JUDGMENT OF A SINGLE JUDGE OF THE FEDERAL
COURT OF AUSTRALIA
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BETWEEN: |
VICTORIA UNIVERSITY OF TECHNOLOGY (AS SUCCESSOR IN LAW TO THE COUNCIL OF THE WESTERN MELBOURNE INSTITUTE OF TAFE) Appellant
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AND: |
Respondent
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JUDGE: |
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DATE: |
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PLACE: |
REASONS FOR JUDGMENT
THE COURT
1 This appeal raises a narrow point of interpretation of the TAFE Teachers’ Conditions of Employment (Victoria) Interim Award 1994 (“the Award”). Ms Gabriella Pretto was employed under the terms of the Award by the appellant, the Victoria University of Technology, formerly the Council of the Western Melbourne Institute of TAFE (“Western Melbourne”) from 26 February 1996 to 31 December 1996, a period of 44.4 weeks. Part 1 Division 1 of the Award contained these definitions:
“(2) ‘casual teacher’ means a person employed to teach 0.4 time fraction or less and paid on an hourly basis;
...
(7) ‘contract teacher’ means a teacher employed for a fixed or limited term by the College Council;
...
(9) ‘EFT’ means equivalent full-time;
...
(12) ‘full-time teacher’ means a person employed for 1.0 time fraction;
...
(15) ‘part-time teacher’ means a person employed for 0.4 time fraction or greater but less than full time;”
2 Division 2 of Part 3 of the Award prescribed employment conditions for teachers by stipulating:
“3.2.1Teachers may be employed either:
(1) on a full-time basis or
(2) on a part-time basis or
(3) on a casual basis.
3.2.2 Teaching staff employed on a casual basis shall not be employed beyond a maximum of 0.4 the maximum teaching duty hours prescribed for full-time teachers.”
3 Division 3 of Part 3 of the Award provided under the heading “TEACHER ATTENDANCE AND HOURS OF DUTY”:
“3.3.1Teachers carry out professional duties for a minimum of 38 hours per week. The actual hours of attendance at the work location are determined within the provisions of this award.
3.3.2 Teachers are required to attend their work location for 30 hours per week. Core attendance time is within the ordinary hours of duty.
3.3.3 Teachers shall not be required to work for more than five (5) hours without being allowed a meal break of at least 30 minutes. Teachers shall not be required to take meal breaks of more than one hour. Teachers shall not be required to attend during meal breaks. Teachers shall be entitled to take their lunch break between the hours of 12 midday and 2.00pm and shall be entitled to take an evening meal break between the hours of 5.00pm and 7.00pm.
3.3.4 When duties are allocated on the same day the time between duties shall be deemed to be attendance time except for meal breaks specified in clause 3.3.3 above.
3.3.5 Teachers are not required to attend on days where duties are not scheduled provided the 30 hours attendance requirement is met.”
4 Division 4 of Part 3, in which the clause which is the subject of this appeal occurs, provided, under the heading “TEACHERS’ PROFESSIONAL DUTIES”:
“3.4.1Scheduled Duties
(1) Maximum Scheduled Duties
The maximum scheduled duties shall be 960 hours per year (pro-rata for part-time or employment for less than the full teaching year). Scheduled duties shall include a minimum of 30 hours of professional development.
(2) The following allowances shall be counted as scheduled duties:
(a) Union branch allowances,
(b) Occupational Health and Safety representatives allowances, and
(c) travel allowances.
3.4.2 Teaching Duty Hours (Student Contact Hours)
(1) Teaching duties shall include practical placement field teaching visits where practical placement is required by the accredited course.
(2) Maximum Teaching Duty Hours
The maximum teaching duty hours shall be 800 hours per year (pro-rata for part-time or employment for less than the full teaching year).
(3) The following allowances shall be counted as teaching duty hours:
(a) curriculum allowances,
(b) program co-ordinator and head of department allowances,
(c) large department allowances, and
(d) administrative and program allowances.
(4) Teaching duty hours shall be further reduced when scheduled duties other than teaching duty hours exceeds 160 hours per year.”
5 Although cl 3.4.1 prescribed “maximum scheduled duties” and “maximum teaching duty hours” to be worked “per year”, the Award did not contemplate that scheduled duties or teaching duty hours up to those maxima should be allocated once and for all at the beginning of a particular year. Rather, Division 5 of Part 3 provided under the heading “ALLOCATION OF DUTIES”:
“3.5.1 Allocation of Scheduled Duties
(1) Unless otherwise specified in this award total duty hours scheduled shall be the total hours required for the activity.
(2) Duties shall be scheduled for periods of not less than 4 weeks (“Roster Period”). A teacher’s attendance pattern within the Roster Period may only be varied with the agreement of the teacher concerned. Allocations shall be made no less than 2 weeks prior to the commencement of each Roster Period.
The provisions of this sub clause shall not apply to the first four weeks of a teaching program in the first semester.
3.5.2 Allocation of Teaching Duties – Weekly
(1) The teaching duties for each teacher will be allocated, from the annual load, on a weekly basis.
(2) Consultation and agreement of the teacher concerned is required for any allocation of:
- more than 21 hours of teaching duties in any one week
- more than 26 hours of scheduled duties in any one week
3.5.3 Cancellation of Classes
Where classes are cancelled by the college, two weeks notice of cancellation shall be provided to the teacher. Where two weeks notice is not given, hours allocated for classes cancelled by the college will be deemed to have been taught.
3.5.4 Scheduled Duties Outside the Ordinary Hours of Duty
(1) Teachers may be requested to perform scheduled duties as part of their ordinary hours of work outside the ordinary hours of duty and between the hours of 9.00 am and 5.00 pm on Saturdays and Sundays pursuant to the terms of this clause.
(2) The allocation of duties at such times shall only be determined following consultation with, and the agreement of, the teacher concerned.
(3) (a) For each scheduled hour worked:
(i) outside the ordinary hours of duty, or
(ii) between 9.00 am and 5.00 pm on a Saturday,
a loading of 25% of the ordinary hourly rate shall be paid.
(b) For each scheduled hour worked between 9.00 am and 5.00 pm on a Sunday, a loading of 50% of the ordinary hourly rate shall be paid.”
6 Forms of leave other than sick leave or annual leave were accommodated by cl 3.5.5 which provided:
“Teachers on Approved Leave
(1) Subject to sub-clause (2) teachers on approved leave other than sick leave, non-attendance time or annual leave shall be deemed to have performed four hours of teaching duty and 0.8 hours of other scheduled duties for each day of leave.
(2) Sub-clause (1) shall not apply where the total hours of teaching duty and/or scheduled duties (actually performed or deemed to have been performed pursuant to sub-clause [1]) equal or exceed the maximum teaching duty hours and/or maximum scheduled duty hours prescribed for the teacher under Division 4 of this award.
(3) Teaching duty hours and other scheduled duties allocated on days approved as sick leave shall be deemed to have been performed.”
7 The consequences of a teacher’s having been allocated teaching hours in excess of the maximum prescribed by cl 3.4.2 were prescribed in these terms by Division 6 of the Award:
“3.6.1A teacher shall be paid for excess hours in accordance with clause 3.6.2 where:
(1) The allocation of teaching duties is determined following consultation with, and agreement of, the teacher concerned and
(2) The teacher is allocated and performs additional teaching duties in excess of:
(a) those scheduled for the week; or
(b) the maximum teaching duties referred to in clause 3.4.2.
(3) Where a teacher agrees to the allocation of teaching duties other than substitution duties in excess of the maxima referred to in clause 3.5.2(2) he/she shall be paid for excess hours in accordance with clause 3.6.2 only to the extent that his/her teaching duties exceed 84 hours in the teacher’s 4 week roster period or his/her scheduled duties exceed 104 hours in the 4 week roster period
3.6.2 The following rates for excess hours shall be paid:
(1) Monday to Saturday inclusive except for Public Holidays:
At the rate of time and a half of the ordinary hourly rate for the first two excess hours on each day and double time thereafter.
(2) Sunday:
In all cases except Public Holidays at the rate of double time of the ordinary hourly rate.
[3.6.2(3) substituted by V001 from 23 Dec 94]
(3) A rate of double time and a half of the ordinary hourly rate, for work performed on a public holiday.
3.6.3 Payment for excess hours shall be made no later than in the fortnight following the roster period in which it was worked.
[3.6.4 inserted by V001 from 23 Dec 94]
3.6.4 All work performed on a public holiday shall be paid at the rate of double time and a half of the ordinary rate of pay.”
8 Part 8 of the Award prescribed employee entitlements to public holidays by stipulating:
“8.1.1Except as hereinafter provided, employees shall be entitled to the following holidays without loss of pay:
(1) New Year’s Day, Good Friday, Easter Saturday, Easter Monday, Christmas Day and Boxing Day; and
(2) the following days, as prescribed throughout the state of Victoria: Australia Day, Anzac Day, Queen’s Birthday and Labour Day and Melbourne Cup Day;
(3) if [sic] any other day or days as may be gazetted in addition to or in substitution of any of these days by proclamation or Act of Parliament.
8.1.2 Provided that:
(1) When Christmas Day is a Saturday or a Sunday, a holiday in lieu thereof shall be observed on 27 December.
(2) When Boxing Day is a Saturday or Sunday, a holiday in lieu thereof shall be observed on 28 December.
(3) When New Year’s Day or Australia Day is a Saturday or Sunday, a holiday in lieu thereof shall be observed on the next Monday.”
9 Annual leave for employees other than “casual teachers” as defined was regulated by Part 9 of the Award which was introduced by cl 9.1.1 in these terms:
“For the purposes of determining an employee’s entitlements to leave, the following shall apply:
(1) An ‘employee’ under this Part shall not include a person engaged as a casual teacher as defined in clause 1.1.1(2) of this award.
(2) Service shall not include:
(a) any period of unpaid leave other than that which may be recognised as service by the employer;
(b) any period of service subsequent to the date from which a pension is payable under the provisions of the State Superannuation Act 1988 (Vic) or of such other pension schemes as may apply where the employee retires on the grounds of age or ill health until re-employed by an employer respondent to this award.
(3) No employee during any period of paid leave provided for by this award shall engage in any employment for hire or reward with an employer known to him or her to be bound by this award.”
10 The substantive prescription of annual leave entitlements was in cl 9.1.2:
“(1) An employee shall be entitled to twenty days annual leave for each twelve month period of continuous service, or on a pro-rata basis for any period of service which is less than twelve months.
(2) Annual Leave shall accrue from the date of commencement at the rate of 1.67 days for each completed month of service.
(3) Annual Leave shall be taken within fifteen months of being accrued unless otherwise agreed by the employee and the employer.
(4) Annual Leave, including leave taken in excess of the leave credits accrued, shall be taken at a mutually agreeable time having regard to the operation of the employer, provided that a request for leave including a request for leave of four weeks’ duration shall not be unreasonably refused.
(5) Annual Leave not taken in accordance with clause 9.1.2(3) shall be paid in full to the employee upon expiration of the employee’s employment.
(6) Notwithstanding clause 9.1.2(1) and 9.1.2(2), if an employee’s employment is terminated and that employee has taken more paid annual leave than would have been accrued at the rate of twenty days per year the employer may recoup the amount of paid annual leave in excess of the leave accrued.”
11 The learned primary judge, at p 2 of his reasons for judgment, noted:
· During her employment with Western Melbourne Ms Pretto accrued an entitlement to, and was required to take, 3.4 weeks annual leave. She was also entitled to 8 public holidays.
· Ms Pretto performed teaching duties over a period of 39.4 weeks. Her actual teaching duty hours were 708.
12 His Honour also recorded, at the same page of his reasons, that:
“There is no dispute between the parties about the number of hours which constitute ‘the full teaching year’. The relevant number is 1,748. It is arrived at as follows:
· 52 weeks represents a full calendar year.
· From 52 weeks deduct 4 weeks annual leave and 2 weeks of public holidays leaving 46 weeks.
· 46 weeks multiplied by 38 hours equals 1,748 hours.
Ms Pretto was employed full-time but for a period of time less than the full teaching year, that is, less than 1,748 hours. Consequently, her maximum teaching duty hours are less than 800. The issue in dispute is how much less?”
13 During the course of argument on the appeal, the view was ventured from the Bench that the concession or agreement by the parties below that a “full teaching year” comprised 1,748 hours may have been misconceived. The expression “the full teaching year” is nowhere defined in the Award and it was speculated that it may have been a relic of earlier industrial prescriptions which applied to tertiary institutions all of which entirely ceased operations for commonly accepted periods of three weeks around the Christmas holiday and one week over Easter. Accordingly, the parties were given leave to put before the Court extrinsic evidence of the history of relevant award prescriptions and to make written submissions as to the impact of that history on the interpretation of cl 3.4.2(2) which is at the heart of this appeal.
14 Is it appropriate to go behind the acceptance by the parties that the “full teaching year” is 1,748 hours or 46 weeks of 38 hours each? Mr R Tracey QC, who appeared with Mr M McDonald for the appellant, submitted that because the application had proceeded before the judicial registrar and on review before the primary judge on the agreed basis, that basis should not be disturbed on appeal even if this Court were to doubt its correctness.
15 However, the construction of an instrument, although not its meaning, is a matter of law: Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60 at 79; Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 394-397. Accordingly, it is for the Court to determine what is the proper construction of the instrument and the parties cannot impose upon the Court, by their agreement, a construction that is contrary to law.
16 Further, there is good reason for resolving the meaning of “full teaching year”. We were told from the bar table that there are fourteen or fifteen respondents to the Award and the interpretation that this Court adopts will have application to what is, presumably, a significant number of employees whose circumstances are similar to those of Ms Pretto.
17 We therefore consider it appropriate to determine the meaning of the phrase “full teaching year”. In that connection we propose to refer to the material which the parties put before the court as part of the surrounding circumstances as an aid to the construction of the award. The material indicates that the phrase was first introduced into a relevant industrial prescription in 1991 when the Federated Teachers’ Union of Victoria and the Government of Victoria concluded an “Agreement on Award Restructuring for TAFE Teachers” (“the 1991 Agreement”). That superseded an “Agreement between the Minister for Education and the Teachers’ Federation of Victoria on Terms and Conditions of Employment for TAFE College Teaching Staff” (“the 1988 Agreement”) which was expressed to apply from 1 January 1988 until 1 January 1991. Clause 12 of the 1988 Agreement provided:
“STRUCTURE OF THE COLLEGE YEAR AND AVAILABILITY OF TEACHING STAFF
12.1 TAFE Colleges will be available for teaching programs between the hours of 8.00 am and 10.00 pm from Monday to Friday during the year up to 48 weeks in the year as determined by College Councils.
12.2 Colleges will not be available for teaching programs during three weeks over the Christmas – New Year period and one week over the Easter period. The dates of these four weeks will be published in the TAFE Gazette.
12.3 Colleges may utilise their facilities for teaching programs on gazetted public holidays and weekends according to community demand in accordance with the provisions of this Agreement.
12.4 Teachers will be available for duty in any of the weeks that the College is open for teaching programs.
12.5 College Councils may assign duties to individual teachers during 42 weeks of the year.
12.6 Teachers are not required to attend the College during weeks in which they are not assigned duties.
12.7 Teachers non-attendance periods will be administered in accordance with the agreed ‘Leave Regulations’.”
18 Clause 4.2 of the 1991 Agreement recited:
“STRUCTURE OF THE COLLEGE YEAR AND AVAILABILITY OF TEACHING STAFF
4.2.1 TAFE colleges will be available for teaching programs between the hours of 8.00 am and 10.00 pm from Monday to Friday during the year.
Where local circumstances permit and subject to consultation, including consultation with the FTUV branch, individual colleges may be available between 7.00 am and 8.00 am Monday to Friday and 9.00 am and 5.00 pm on Saturday and Sunday.
4.2.2 Colleges may utilise their facilities for teaching programs on gazetted public holidays according to community demand in accordance with the provisions of this Agreement.”
19 Clause 4.6 of the 1991 Agreement provided for the payment of overtime rates for work done on designated public holidays including Christmas Day, Boxing Day, New Year’s Day and Good Friday. It can therefore be seen that a transition occurred between the 1988 Agreement and the 1991 Agreement from a “college year” comprising no more than 48 weeks as determined by each College council to a “college year” extending over the full chronological year of 365 days and including, subject to the overtime penalty, all designated public holidays. As a result there is no longer any generally accepted, or required, period of “shut-down”. In the absence of evidence tending to establish a custom or practice which gives it a different meaning, we are therefore disposed to equate “full teaching year” with a full chronological year of 365 days.
20 “The full teaching year” cannot be confined, as the parties’ agreement or concession implies, to a period during a calendar year for which a particular teacher is “on duty”. To confine the concept in that way could entail a different “full teaching year” for each teacher according to whether he or she took any and, if so, how much, annual leave in the calendar year in question. It is to be borne in mind, however, that cl 3.4.2(1) by prescribing that maximum teaching hours shall be “pro rata for part-time or employment for less than the full teaching year” contemplates that there shall be a single identifiable “full teaching year” against which the part of the teaching year for which a short-term teacher has been employed is to be measured.
21 The learned primary judge was induced by the concession or agreement to which we have just referred to calculate “the full teaching year” by deducting from the 52 weeks of the calendar year the amount of annual leave and the public holidays allowed by the Award to a teacher who has been employed for a full calendar year. His Honour said:
“The use of the word ‘pro-rata’ is indicative of a figure proportionate to the figure for a full teaching year. As indicated above the figure for a full teaching year is 1,748 hours. This means that a teacher employed for 52 weeks is treated as having a full teaching year of 46 weeks; six weeks being excluded for leave and public holidays.
The parties accept the figure of 1,748 hours as the appropriate denominator in the formula for the calculation of pro rata maximum teaching duty hours for persons employed for less than a full year.”
22 In our view, the preferable application of cl 3.4.2(1) on its proper construction to the facts of this case is to express the maximum number of teaching hours for Ms Pretto as bearing the same proportion or ratio to 800 as her employment for less than the full teaching year (44.4 weeks) bore to 52 weeks. The calculation can be expressed mathematically as follows:
“N
52 x 800 hours
Where N is the number of weeks the person was employed in the year.”
In the case of Ms Pretto this would produce the following result:
“44.4
52 x 800 hours = 683.08 hours
23 We should say that the result would be the same even if we proceeded on the concession made by the parties that the “full teaching year” was 1,748 hours. In that event, the calculation would be expressed as follows:
“N
1748 x 800 hours
Where N is the number of hours the person was employed in the year.”
24 The argument advanced below on behalf of Western Melbourne and repeated on the appeal was summarised by the learned primary judge in these terms:
“Counsel for Western Melbourne, Mr Michael McDonald contended that it was impermissible, to calculate the relevant numerator, by deducting annual leave and public holidays from the total period of employment. Mr McDonald’s submission focused on the use of the term ‘employment’ in the phrase ‘pro-rata for … employment for less than the full teaching year’. He submitted that the reference to ‘employment’, requires the relevant numerator to include annual leave and public holidays, as the employment relationship subsists during such leave and holiday periods.”
25 That argument was rejected as focusing too narrowly on the term “employment” without regard to its context. His Honour continued:
“Central to that context are the words ‘pro-rata’ and ‘less than the full teaching year’. A consideration of the entirety of the words in the relevant sub-clause supports the interpretation favoured by the Union. The full teaching year having been made the basis for the proportionate assessment and that period having included a deduction for annual leave and public holidays, in my view, it follows that the numerator in the equation, must also take into account relevant periods deducted for annual leave and public holidays.
The construction which I accept involves a comparison of like with like, by identifying the teaching year for which a teacher is employed as a proportion of the whole teaching year. Furthermore, it avoids an absurd consequence. The vice in the construction proposed by Western Melbourne is that a teacher employed for a 46 week period, for example, from mid February to late December, would have the same maximum teaching duty hours as a teacher employed from 1 January to 31 December. Such a result would render otiose the word “pro-rata” in cl 3.4.2(2) of the Award. Such a consequence could not have been intended by the framers of the Award, that is, the parties who consented to its making by the Australian Industrial Relations Commission.
It follows, that a teacher, in the position of Ms Pretto, engaged for 44.4 weeks from late February to late December, should have excluded from that period, for the purpose of calculating the relevant “pro-rata” teaching year, 3.4 weeks annual leave and eight public holidays. This leaves a figure of 39.4 weeks. Accordingly, calculation of the pro rata maximum teaching duty hours of Ms Pretto, pursuant to clause 3.4.2(2), should occur as follows:
· 39.4 weeks multiplied by 38 hours equals 1,497.2 employment hours
· 1,497.2 divided by 1,748 equals .85652
· .85652 x 800 equals, rounded off, 685.22 hours.
Consequently, cl 3.4.2(2) of the Award allowed Ms Pretto to perform, in the period from 26 February 1996 until 31 December 1996, a maximum number of teaching duty hours of 685.22 hours.”
26 It will be seen that the result of his Honour’s calculation is not substantially different from the one which we have reached. That is because the major premise of his Honour’s analysis is, with respect, correct. That is that, if the prescribed number of days of entitlement to annual leave and public holidays are to be deducted in calculating “the full teaching year”, the corresponding entitlements must be deducted in calculating the duration of the teaching year of the short-term teacher.
27 However, as we have already indicated, it is unnecessary to deduct time for annual leave or public holidays from either side of the equation. The entitlement of the short-term teacher to annual leave is also expressed as being “on a pro-rata basis for any periods of service which is less than twelve months” [cl 9.1.2(1)]. Moreover, a full-term teacher is not obliged to take annual leave within the calendar or teaching year in which it accrues; it “shall be taken within fifteen months of being accrued unless otherwise agreed between the employee and the employer;” [cl 9.1.2(3)]. Correspondingly, unless the short-term employee has taken pro-rata annual leave as it accrued pursuant to cl 9.1.2(2) he or she will receive payment in lieu of annual leave at the expiration of the term of the employment pursuant to cl 9.1.2(5).
28 The interpretation which we favour of “the full teaching year” does not require a different meaning to be given to “employment” in cl 3.4.2 of the Award from that for which Counsel for Western Melbourne contended. That was that “employment” is to be equated with the state of being employed or the contractual relationship of employer and employee. Accordingly, the pro rata maximum number of teaching hours ordained by cl 3.4.2 is to apply to any full-time employee whose state of being employed, as stipulated by his or her contract of employment, is less than a full chronological year of 365 days or 52 weeks. This interpretation accords with the construction given by Evatt J to the phrase “in 52 weeks of employment” in cl 35A of the Journalists (Metropolitan Daily Newspapers) Award 1974 which was examined in Australian Journalists Association v Advertiser Newspapers Ltd (1982) 3 IR 144.
29 In written submissions filed after the hearing of the appeal had concluded, Counsel for Western Melbourne contended that “the full teaching year” in cl 3.4.2 must mean something different from “12 months” or “calendar year” because those expressions are used in cl 9.1. However, cl 9.1.2 which is set out at para 10 of these reasons and cl 9.1.3 were respectively concerned with entitlements to annual leave and sick leave after a designated period of “continuous service”. Sub-clauses 9.1.7, 9.1.9, 9.1.10 and 9.1.11 were respectively concerned with long service leave, maternity leave, adoption leave and paternity leave and were, in terms, incapable of applying to short-term employees engaged for less than a year. Both cll 3.4.1 and 3.4.2, on the other hand, were concerned with maximum hours for scheduled duty and teaching hours and required to be applied before or during a relevant period of employment. We therefore do not regard it as inconsistent with other expressions in the Award for its framers to have identified those to whom the pro rata maxima were to apply as persons whose employment was to enure for “less than the full teaching year” of 52 weeks.
30 A separate ground of appeal was directed to the penalties of $200 and $50 imposed on Western Melbourne for each of the breaches of cll 3.6.1 and 3.6.3 which the primary Judge found to have been committed. As to the question of penalty his Honour said:
“Ms Richards submitted that a penalty should be imposed on Western Melbourne, “although not a large one”. Mr McDonald submitted that no penalty should be imposed as the relevant interpretation was not free from doubt. Mr McDonald made good his point by referring to the judgment of the judicial registrar which led to the order subject to review, that is, a dismissal of the proceeding. In my view, a penalty should be imposed, as refusal to impose a penalty may be seen as tolerance by the Court of award breaches. Further, such a refusal would fail to recognise the important role of registered organisations in ensuring award compliance and attempting to recover some or all of any penalty so imposed.
At the time when the breaches of the Award occurred, a $1000 penalty was the statutory maximum the Court could impose in application brought under s 178 of the Act. Having regard to this limit, and the concession made by the Union that the numerous breaches of cl 3.6.1 of the Award must be treated as a single breach for the purpose of s 178(2) of the Act, it is appropriate that a penalty of $200 be imposed for Western Melbourne’s failure to properly pay Ms Pretto in respect of teaching duty hours performed in excess of her maximum teaching duty hours. A further $50 penalty will be imposed for breach of cl 3.6.3 which requires Western Melbourne to make payment for excess hours in the fortnight following the roster period in which those hours were worked. It is appropriate that the penalties imposed by this judgment be paid to the Union pursuant to s 356(b) of the Act.”
31 Section 178(1) of the Workplace Relations Act 1996 provides:
“Subject to section 182, where an organisation or person bound by an award, an order of the Commission or a certified agreement breaches a term of the award, order or agreement, a penalty may be imposed by the Court or, except in the case of a breach of a bans clause, by a court of competent jurisdiction.”
32 That sub-section is not materially different in its terms from s 119(1) of the Conciliation and Arbitration Act 1904 which has been held to repose in the Court a discretion whether or not to impose a penalty; see, eg, Federated Agricultural Implement Machinery and Ironworkers’ Association of Australia v H V McKay Massey Harris Pty Ltd (1936) 36 CAR 268 and Parkinson v Grazcos Co-op Ltd (1958) 1 FLR 90 at 96. Accordingly, an appeal against the imposition of a penalty is to be determined by application of the well-known principles enunciated by the High Court in House v The King (1936) 55 CLR 499 at 504:
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the Judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
33 We can discern nothing in the reasons at first instance which indicates that his Honour applied a wrong principle. We do not regard the statement that “refusal to impose a penalty may be seen as tolerance by the Court of Award breaches” as reciting a principle that the Court must, in all cases of proven award breaches, impose some penalty. That would be wrong. However, we understand his Honour’s statement to record only a conclusion that to impose no penalty could be regarded as unwarrantably condoning a breach which, in the circumstances of this application, has been more than trivial or technical. Those circumstances included the fact that the application was not brought or treated as a test case and that no evidence was adduced by Western Melbourne to establish that its calculation of Ms Pretto’s entitlements had been based on legal advice or otherwise reflected a bona fide view of the correct interpretation of the relevant provisions of the Award.
34 We have been more troubled by the learned primary Judge’s suggestion that a refusal to impose a penalty “would fail to recognise the important role of registered organisations in ensuring Award compliance and attempting to recover some or all of any penalty so imposed”. The Workplace Relations Act by s 347(1) effectively provides that a respondent to a proceeding under that Act shall not be ordered to pay costs to the applicant. It would therefore be wrong for the Court, when deciding whether to impose a penalty or when fixing the amount of a penalty, to be influenced by a concern to reimburse an applicant organisation to any extent for costs incurred in prosecuting the application. That, we consider, is so notwithstanding that s 178(5) of the Act allows a penalty for breach of Award to “be sued for and recovered by”, amongst others, “an organisation that is affected or any of whose members are affected by the breach”. That explains the choice which has to be made, once it has been decided to impose a penalty and the amount of the penalty, whether to order that the penalty or part of it be paid into the Consolidated Revenue Fund or to a particular organisation or person; see s 356 of the Act. However, having regard to the small amount of the total penalties in this case in relation to the maximum penalties prescribed by the Act, and the costs which the respondent may be taken to have incurred in prosecuting this application, We are not persuaded that the present penalties were imposed as a colourable way of allowing the respondent to recoup part of those costs. Moreover, the penalties, being very much at the lower end of the scale marked out by the maximum of $1,000, are not unreasonable even making due allowance for the fact that Western Melbourne had no prior convictions.
35 For these reasons, we would dismiss the appeal.
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I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Court. |
Associate:
Dated: 6 August 1999
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Counsel for the Appellant: |
Mr R Tracey QC with Mr M McDonald |
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Solicitor for the Appellant: |
Minter Ellison |
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Counsel for the Respondent: |
Ms M Richards |
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Solicitor for the Respondent: |
Maurice Blackburn & Co |
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Date of Hearing: |
19 February 1999 |
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Date of Judgment: |
6 August 1999 |
