FEDERAL COURT OF AUSTRALIA

Farrell v Mater Dei Limited [2019] FCA 473

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 30.01 of the Federal Court Rules 2011 (Cth), the issue of whether the enterprise agreements referred to in paragraph 4 of the applicant’s concise statement applied to her be determined separately from any other question in this proceeding and before any trial in this proceeding by reference to the following question (separate question):

Did each of the agreements as defined in the applicant’s concise statement apply to the applicant’s employment by the respondent?

2.    The answer to the separate question in order 1 be “no”.

3.    The originating application be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BROMWICH J:

1    The respondent, Mater Dei, a company limited by guarantee, operates a co-educational school from Kindergarten to Year 12 for children with mild to moderate intellectual disabilities at Camden in Western Sydney. That school was known at different relevant times as Mater Dei, Camden; Mater Dei School; or just Mater Dei. It is convenient to use the name Mater Dei School.

2    Prior to 2016, Mater Dei also operated a residential “Living Skills” program which was open to students enrolled at Mater Dei School. The purpose of the program was to develop basic skills for living independently. The applicant, Ms Carmel Farrell, was employed by Mater Dei to work as a “Social Educator” in the program, teaching independent living skills.

3    Mater Dei was a party to three successive enterprise agreements in place from 2011. Each agreement was relevantly the same, or substantially the same, in covering non-teaching support and operational staff who “work in” a “school” listed in an attachment to each agreement. Ms Farrell contends that she fell within that description, and was therefore entitled to certain benefits under the agreements. She seeks a declaration that Mater Dei contravened s 50 of the Fair Work Act 2009 (Cth) by failing to make a range of payments required by the agreements, compensation, and the imposition of civil penalties (sought to be made payable to her).

4    Mater Dei contends that Ms Farrell did not work in Mater Dei School, and so was not covered by the agreements, but rather was covered by the Social, Community, Home Care and Disability Services Award, a modern award. As a result, Mater Dei contended that Ms Farrell was not entitled to any of the relief she seeks.

5    It was common ground that Ms Farrell’s argument as to her being covered by the agreements had to prevail in order for her to succeed in this proceeding, by which she seeks a declaration that she was covered by the agreements. The agreements were:

(1)    the School Support Staff (Catholic Independent Schools) Enterprise Agreement 2011 (2011 EA);

(2)    the Support and Operational Staff (NSW Catholic Independent Schools) Enterprise Agreement 2013 (2013 EA); and

(3)    the Support and Operational Staff (NSW Catholic Independent Schools) Multi-Enterprise Agreement 2015-2016 (2015 EA).

6    The parties jointly proposed that the threshold issue of whether or not Ms Farrell was covered by the agreements should be resolved by way of a separate question under r 30.01 of the Federal Court Rules 2011 (Cth), with the final form of the separate question to be the subject of submissions. The final form of the separate question, agreed to by the parties via their written submissions, was as follows:

Did each of the agreements as defined in the applicant's concise statement apply to the applicant's employment by the respondent?

7    I agreed to the parties’ proposal because it was apparent that this is an ideal circumstance for adopting the separate question procedure, going to the central issue on liability, because:

(1)    if the answer was “no”, Ms Farrell’s case had to wholly fail;

(2)    if the answer was “yes”, that would establish an indispensable basis for making the declarations sought and Mater Dei’s liability to pay compensation and penalties, subject to an assessment of the quantum.

8    I am satisfied that the form of the separate question as agreed between the parties is appropriate and that accordingly an order for such a question should be made.

Background

9    Between 1997 and the end of 2016, Ms Farrell was employed by Mater Dei as a social educator within the program.

10    The program was predominantly funded by the New South Wales government and was housed at four residences, four days a week. At each house, two social educators would rotate between sleepovers over the four days. Ms Farrell worked at three of the four houses during the time that she was employed by Mater Dei, working rostered hours, including two sleep overs per week. The program was managed by a director of services who had previously been a teacher at Mater Dei School.

11    During her employment, the parties agreed that this employment was subject to the Award. That is reflected in each of her four contracts of employment, each constituted by a letter of offer dated 28 April 1997, 8 December 1997, 27 February 2006 and 30 November 2012. She signed each letter, accepting the offer and thereby constituting each contract. The information in the first two paragraphs of the first letter dated 28 April 1997 was substantially replicated in the succeeding three letters. The first two paragraphs in the first letter read as follows:

It is with pleasure that I offer you a contract of employment as a part-time Non Resident Social Educator (Sleepover) at Mater Dei Limited for the period commencing on Monday, April 28, 1997 and concluding on Friday, December 19, 1997. Your initial appointment will be at our residence at 4 Teralba Road, Leumeah.

You will be employed by Mater Dei Limited under the terms and conditions of the Social and Community Services Employees (State) Award (the “Award”), the Social Educators Employed By Mater Dei Ltd, Camden (the “Agreement”) and in accordance with, and adherence to, the principles and values of the Catholic ethos at Mater Dei Limited.

12    The 2011 EA was created in the wake of the award modernisation process for the purpose of preserving pre-reform employment entitlements. The 2011 EA took its terms from the State awards that had existed from 2005 and 2009 and also incorporated additional mandatory inclusions and increased entitlements provided for by the Fair Work Act. The 2011 EA agreement was renegotiated in 2011 and in 2015, resulting in the 2013 EA and 2015 EA, respectively. Although not the subject of evidence, it was not in dispute that Ms Farrell did not vote on any of the agreements or otherwise participate in making them. That would not determinative of anything, but it is conduct consistent with the mutual understanding of the parties at the time that Ms Farrell was employed according to the terms and conditions of the Award and her contract.

13    In late July 2016, Mater Dei School informed Ms Farrell that her employment would end in December 2016 by way of redundancy. This was due to changes in government funding, which meant that Mater Dei had to cease operating the program. Mater Dei continues to operate Mater Dei School.

14    In December 2016, Ms Farrell, through the Independent Education Union as her representative, asserted that she ought to have been paid in accordance with the agreements since the first agreement commenced in January 2011. Ms Farrell’s short answer to the common position that the Award applied was that this was a mistake that was not uncovered until the Union became involved.

15    It is common ground that the effect of the coverage clauses in the three agreements is relevantly the same, although I note that the 2011 EA does not contain an express exclusion clause as the 2013 EA and 2015 EA did. It is therefore convenient to determine the separate question primarily by reference to the terms of the 2015 EA.

16    The coverage clause in the 2015 EA is as follows (emphasis in original):

2.1    This Agreement covers and applies to:

(a)     The Employers listed in Attachment A, at page 158 of this Agreement;

(b)     Employees who are employed by an Employer listed in Attachment A, and who work in any school in New South Wales operated by the Employer; and

(c)     the Union, its officers and its members.

2.2    This Agreement shall not apply to:

(a)     teachers including persons appointed as a teacher; or

(b)     persons engaged on an individual fee basis to instruct students in the areas of music or other individual arts; or

(c)     sports coaches and trainers; or

(d)     swim coaches and staff employed in health and fitness centres and/or swimming pools owned and operated by the Employer; or

(e)     members of a recognised religious order and/or clerks in Holy Orders, and/or Ministers of Religion, who are engaged for the purpose of religious instruction or supervision of prayers, or to undertake other religious duties; or

(f)     persons employed as Business or Financial Managers or Bursars (however titled) employed in a senior management or executive position who have managerial responsibilities including the delegated authority to act for the school from time to time in the recruitment, training, and dismissal of staff; or

(g)     Early Learning Centres (including childcare teachers and childcare workers) and childcare workers in Before and After School Care and Vacation Care services; or

(h)     counsellors, psychologists, therapists and youth workers; or

(i)     Boarding house staff employed at Red Bend Catholic College Forbes, St Gregory’s College Campbelltown, St Joseph’s College, St Scholastica’s College, and St Stanislaus’ College.

17    The definition of “Employee” in cl 4 of the 2015 EA is defined exhaustively to mean “a person employed under one of the following classifications”:

(a)    School Support Staff

A School Support Staff Employee is an Employee other than a teacher who may be employed in a position described as food technology assistant, art assistant, Technological and Applied Studies assistant, music assistant, agriculture assistant, print room assistant, laboratory assistant, library assistant, book-room assistant, archivist, bilingual aide, teacher’s aide, canteen staff, uniform shop staff, alternative format publication staff, or any other position in which the Employee is required to assist and support the Employer, the teaching staff, and other school officers in the day to day functions, curricular or co-curricular activities of the school, including incidental cleaning (excluding persons employed solely for the purpose of cleaning), and any Employee employed in a clerical or administrative capacity.

(b)    Information Technology Staff

…

(c)    Maintenance and Outdoor Staff

…

(d)    General Operational Staff

…

(e)    Nursing Staff

…

(f)    Boarding House Staff

…

18    Attachment A to the 2015 EA provided:

Employers covered by this Agreement    

19    It was not asserted by either party that there was any material difference between the above clauses and definitions, and the corresponding clauses in the 2011 EA and the 2013 EA.

20    This separate question falls to be determined principally by reference to the meaning to be given to cl 2.1(b) of the 2015 EA, reproduced above, in the context of the rest of that agreement, especially the clauses set out above. All references to that clause number in these reasons is a reference to the coverage clauses in all three agreements.

21    It was not in doubt that if the phrase “work in any school” (or “work in a school” per the 2011 EA) in cl 2.1(b) applied to Ms Farrell in relation to Mater Dei School, that school was in New South Wales and it was “operated” by Mater Dei. The key issue for determination is therefore whether Ms Farrell did “work in” the Mater Dei School, that being the only relevant school operated by Mater Dei referred to in the agreements, in the context of the definition of “School Support Staff” in cl 4 and in the context of the express exclusions in cl 2.2, both contained in the 2013 EA and 2015 EA.

22    A significant volume of documentary evidence, and some affidavit evidence in chief and oral evidence in cross-examination, was adduced. Ultimately, very little of that evidence took matters much beyond the question of interpretation posed by the separate question. The evidence did not add to the pleaded case that Ms Farrell’s work for Mater Dei on the program was conducted in the separate residence facilities, and in the community, rather than at the premises of the Mater Dei School. There was some attendance at staff meetings, assemblies and other events at the Mater Dei School premises, but not to perform work for the program.

Ms Farrell’s case

23    An important initial part of Ms Farrell’s argument turns on seeking to establish that Mater Dei was an indivisible organisation, being a single entity with a single purpose, relying on the objects of the company as set out in its constitution as follows (at [2.1]):

The objects for which the Company is established are:-

To conduct govern and carry on an educational establishment, subject always to the provisions of relevant legislation, at Mater Dei, Camden, or elsewhere in the State of New South Wales as part of the mission of Good Samaritan Education, and of the Catholic Church and in conformity with its beliefs, teachings, and legislation and in conformity with the Charism of Good Samaritan Education defined in Rule 2.2 and the Philosophy of Education of Good Samaritan Education defined in Rule 2.3 and in accordance with the policies, statements and protocols of Good Samaritan Education and the Mission Statement of the College.

24    Emphasis is placed on the reference in the singular, to “an educational establishment”. However, the objects for which a company is established, having their roots in the now discarded ultra vires doctrine from the era of articles and memorandums of association, no longer inhibit a company once so established from going beyond its original founding objectives. Clause 2.1 of Mater Dei’s constitution does not of itself make the program part of the Mater Dei School, as opposed to both being operated by the same legal entity. Ms Farrell’s argument expressly did not go that far, but rather sought to make this part of her case that the program was a part of the operations of the school.

25    Ms Farrell contends that either the program was part of the school, or the program was a school in its own right, such that she was entitled to the benefit of the agreements. The second aspect, namely the contention that the program was a school in its own right, cannot succeed because:

(1)    Schedule A to the 2011 EA is an express “LIST OF CATHOLIC INDEPENDENT SCHOOLS COVERED BY THIS AGREEMENT”, listing “Mater Dei, Camden” as its “Trading Name” and “Legal Name”, and not listing the program as a school;

(2)    Attachment A to the 2013 EA is an express list of “Employers and Schools covered by this Agreement”, listing “Mater Dei School t/as Mater Dei School”, and not listing the program as a school;

(3)    Attachment A to the 2015 EA is an express list of “Employers covered by the Agreement”, listing the “School Name” as “Mater Dei” and the “Employer Name” as “Mater Dei”, and not listing the program as a school.

26    In light of the above tolerably clear description of the schools that were covered by the three agreements, there is no room for any of those agreements to accommodate coverage of a school that is not listed. In order for Ms Farrell to succeed, she therefore had to establish that she worked “in” the Mater Dei School, not just for the organisation that ran both that school and the program.

27    Ms Farrell asserts that as the term “school” is not defined in the agreements, they must be interpreted objectively rather than subjectively or by reference to the industrial history leading to the three agreements, and that resort should be had to the meaning given in the following cases:

(1)    The National Institute of Dramatic Art v Chief Commissioner of State Revenue [2016] NSWSC 1471; 103 ATR 856 (NIDA), which considered whether the National Institute of Dramatic Art was to be characterised as a “school or college” for the purposes of exemptions to payroll tax. White J referred at [25]-[28] to the ordinary meanings of the word “school” from dictionary definitions, such as a “place or establishment where instruction is given, especially one for children”.

(2)    Cromer Golf Club Ltd v Downs [1972-73] ALR 1295, which considered the definition of “school” within the context of a statutory scheme providing for the acquisition or resumption of land for public works. The applicant refers to the judgment of Barwick CJ at 1299, in which his Honour noted that, “[i]t seems to me that a “school” is a place where people, whether young, adolescent or adult, assemble for the purpose of being instructed in some area of knowledge or of activity …”.

(3)    Commissioner of Taxation v Leeuwin Sail Training Foundation Limited (1996) 68 FCR 197 and Commissioner of Taxation v Australian Airlines Ltd (1996) 71 FCR 446, which both considered the definition of “school” for the purpose of determining exemptions from sales tax. The applicant states that similarly broad views of the meaning of “school” were adopted by the Full Court in these cases.

28    Ms Farrell submits that the above authority demonstrates that the term “school” comprehends not only schools established and regulated by education departments teaching a set curriculum, but also a broad range of other educational or instructional programs as follows:

(1)    The whole of the National Institute of the Dramatic Arts: NIDA.

(2)    A fitness camp predominantly involving the instruction of young and adolescent people in the care and improvement of the body, broadly an area of knowledge and expertise generally described as physical fitness: Cromer Golf Club.

(3)    A training program conducted on a square-rigged ship, involving programs for personal development, corporate team building, disabled youth, school maritime studies, and eco adventure. The principal activity was a personal development program that entailed a 10-day voyage: Leeuwin.

(4)    A flight training centre: Australian Airlines Ltd.

29    Reliance is placed by Ms Farrell upon the need in NIDA to determine whether the National Institute of Dramatic Art was a “college or school”, its principal purpose being to “promote and encourage expertise in the practice, knowledge, appreciation, understanding and enjoyment of” dramatic arts by various means. Those means included teaching, training and instruction. The evidence indicated that a range of other services were offered in addition to degree courses, including short-term courses open to the public, courses for business executives, vocational training and venue hire. The Institute had relied upon those additional activities to argue that, overall, it was not a college or school. White J did not accept that argument, finding (at [39]):

In my view the word “school” in cl 12(1)(c) is to be given the wide sense that the word has been given in the Australian cases referred to above as being a place or institution where people, whether young, adolescent or adult, receive instruction in some area of knowledge or of activity. “College” at least includes an institution that provides post-secondary higher education, such as a technical or professional school that awards a diploma or like certification, or provides specialised professional education, such as a business college, music college or naval college. I do not accept that in cl 12(1)(c) the words “school or college” refer only to an educational institution that promotes learning through a set curriculum taught by a professional body of teachers and subject to a formal assessment encompassing the notion of regular attendance over a substantial period of time. The National Fitness Camp in Cromer Golf Club and the training ship in Leeuwin would not be a school (or college) on that more limited definition. But both the High Court and the Full Federal Court, in finding that the relevant bodies conducted a school, said that this was in accordance with the ordinary meaning of that word. I do not think a more limited meaning should be given to the words “school or college” in cl 12(1)(c) merely because a more limited meaning might be adopted in cl 4 having regard to the context in which the words “school or college” are used in cl 4.

30    Ms Farrell also relies upon Mater Dei’s own funding application records as to the scope of the services provided by the program, as follows:

Give a general description of the education program you wish to provide:

The Living Skills Program aims to provide all students involved in the program, both full time and part time, with the individual support needed for them to become active participants in their local community. Through doing this we provide social situations for the students to interact with each other as well as the wider community. This provides a learning experience for both the students involved and members of the wider community. This is carried out with the full support of trained social educators.

Please describe the objectives of your program:

To ensure a safe and supportive environment for students to learn social skills and interact within the local community.

To provide a learning environment for the students to learn socially acceptable behaviour.

To provide the level of social support needed by all individuals.

To access appropriate activities that will assist the individual to realise their learning outcomes as identified through the individual planning process…

…How will this program be evaluated in terms of learning outcomes?

All staff complete evaluations of the student outcomes on a fortnightly basis. This is in the form of a task analysis and comments on the students ability to complete the outcome. Staff are also required to complete half yearly and yearly reports about the students progress. If a student has been successful in learning the new skill then staff, family or student are able to convene a new meeting to plan different outcomes.

31    Ms Farrell relies upon other such records of Mater Dei School to like effect.

32    In urging the interpretation of cl 2.1(b) that she relies upon, Ms Farrell places contextual emphasis upon cl 2.2. While NIDA and the other cases cited arose in specific statutory contexts, Ms Farrell contends that the ordinary meaning of “school” was deployed, which should inform the ordinary and objective meaning of that term in this case. She asserts that there was no apparent reason why the term in cl 2.1(b) was referrable to any narrower meaning. Ms Farrell submits that the exclusion of a variety of workers who would not be captured by a narrow meaning of “school” by cl 2.2 is an important contextual indicator that no such narrow meaning was intended. It was only necessary to exclude childcare workers, swim coaches, gym staff and boarding house staff if the term “school” was broader than the confines of classrooms and the teaching of a curriculum.

33    Oral submissions by Ms Farrell’s counsel describe social educators as being “closer to the process of instruction, teaching, the raison d’être of a school.” Reliance is placed on a comparison between her duties as a social educator and the job classification of, in particular, a school support staff level 4 position in Part C of the 2015 EA, which are in turn cross-referenced to the indicative duties of school assistants in Annexure 2 of that agreement, which are said to “describe perfectly” the duties that Ms Farrell had as a social educator. It should be noted in that regard that none of the indicative duties of school assistants involve any actual teaching, whereas the most recent position description annexed to Ms Farrell’s first affidavit (4 June 2018) listed the following as her main tasks, which at least have an element of teaching-like activities:

1.    Manage day to day operation of the residence in cooperation with other members of the team ie part time Social Educator, Living Skills Program Assistant and the Director of Services.

2.    Participate in the development and implementation of student Individual Plans (IPs) under the supervision of the Living Skills Program Assistant and the Director of Services.

3.    Promote the maximum participation of each student in decisions and activities of the household.

4.    Encourage regular contact with parents/carers in relation to day to day management of the student, through phone calls, School Diary, correspondence etc.

5.    Administer and monitor administration of medication.

6.    Account for finances allocated to residence on a monthly basis.

7.    Supervise and support all residents outside of school hours.

8.    Liaise with families, school staff and community agencies where appropriate.

9.    Other tasks as required by the Director of Services.

34    That impression is reinforced by Ms Farrell’s description in her first affidavit, noting the element of instruction and direct interaction with students (at [29] and part of [30]):

A typical day as a Social Educator would start with students from Mater Dei school arriving at the house by taxi. I helped students unpack their bags, clean their lunchboxes [passage not read]… Together with the other social educator I would then usually take the 5 students to the shops. We would ordinarily take two cars, and I would take 2 or 3 of the students. I took the students in my own car and the travel would range between 2 and 8 kilometres depending on which house I was working in at the time.

While shopping I assisted students with their shopping list for that night’s meal. The students’ lists I prepared as part of the IP. I would prompt students with the items that we needed, and they would collect the items from the shelves and place them in the basket.

35    In cross-examination, Ms Farrell confirmed that she was responsible for teaching life skills to the students attending the program, including in the community, such as shopping.

36    In the result, I am not convinced that a comparison of the detail of job descriptions can contribute much, if anything, to the determination of the coverage and application of the agreements, not least because work is capable of being covered by more than one industrial instrument or agreement, yet only one can apply: Aldi Foods Pty Ltd v Shop, Distributive and Allied Employees Association [2017] HCA 53; 350 ALR 381 at [30]. A classification might conceivably tip a decision one way or the other if it was otherwise finely balanced, but that should be a point of last resort.

Mater Dei’s case

37    Mater Dei relies upon a body of authority on the interpretation of industrial awards and agreements, culminating in the decision of White J (with whom Mortimer and Bromwich JJ agreed) in Qube Ports Pty Ltd v Maritime Union of Australia [2018] FCAFC 72 (at [64]-[65]):

There are well developed principles concerning the construction of industrial awards and agreements, which take account of the fact that they are commonly drafted by lay persons and lack the precision and clarity to be expected in commercial contracts.

The principles were reviewed recently by Tracey J in Transport Workers’ Union of Australia v Linfox Australia Pty Ltd [2014] FCA 829; (2014) 318 ALR 54 at [29]-[41]. It is not necessary to repeat the principles in detail in these reasons. It is sufficient to say that the Court will seek to identify, in an objective way, the meaning intended by the parties to the agreement having regard to the language they have used and, in doing so, avoid a narrow or pedantic approach. In particular, the Court takes account of the circumstance that the drafters of the agreement were likely of a “practical bent of mind” and likely to have been concerned with expressing their intentions in ways understood in the context of the relevant industry and industrial relations environment. As with commercial contracts, the Court will prefer a construction which gives effect to the presumed purpose of the parties.

38    In seeking to apply the construction principles set out above, Mater Dei relies first upon the ordinary, grammatical meaning of the words “work in any school” in cl 2.1(b), and points to support for that ordinary meaning to be found in the context in which those words appear.

39    As to the ordinary, grammatical meaning, Mater Dei relies first upon dictionary meanings to be found in the Oxford English Dictionary as to the meaning to be given to the phase “work in any school” and the word “operated” as they appear in cl 2.1(b), described in its written submissions as follows:

Work (verb) – Be engaged in physical or mental activity in order to achieve a result;

In (preposition) – Expressing the situation of something that is or appears to be enclosed or surrounded by something else. Synonyms are ‘inside, within, in the middle of, within the bounds of, within the confines of’;

School (noun) – An institution for educating children. Synonyms are ‘educational institution, centre of learning’; and

Operate – Control of the functioning of a (machine, process or system).

40    Mater Dei submits that the correct construction of cl 2.1(b) is that the word “school”:

(1)    is used as a noun, being an educational institution operated by the employer; and

(2)    is not used as a verb, in the sense of “send to school; educate”, or “train or discipline (someone) in a particular skill or activity”, or in the sense of the synonyms for “school” when used as a verb of “teach” or “instruct”; and

(3)    is to be understood, by the use of, and therefore appropriate emphasis upon, the preposition “in”, connecting the verb “work” with the noun “school”, which has the effect of requiring the activity to take place within the school in the sense of being enclosed or inside its parameters.

41    Mater Dei submits that:

(1)    it is not enough that someone employed by the operator of a school merely engage in the process of schooling or instructing more generally, being the effective interpretation urged by Ms Farrell;

(2)    while Ms Farrell and the other social educators employed by Mater Dei did perform some duties of that character in relation to some students of the school concerning independent living skills, none of them worked “in” the school in the sense contemplated by cl 2.1(b) – a mere connection with the school of that kind does not suffice; and

(3)    the practical effect of Ms Farrell’s argument would be to interpret “in” as though it said or meant “in, or in connection with,”, but there was no proper basis for expanding the meaning of cl 2.1(b) in that way.

42    Mater Dei supports its primary, literal, argument with the following contextual arguments:

(1)    the definition of the term “Employee” in cl 4 of each agreement originally came from the definition of the same word in the NSW School Support Staff (Catholic Independent Schools) (State) Award;

(2)    that definition was effectively duplicated in the 2011 EA, emphasising the phrase in bold;

“Employee” means any employee employed in a clerical and administrative capacity and any employee other than a teacher who is employed to assist and support the employer, teaching staff and other school officers in the day to day functions of the school, including incidental cleaning, but excluding those persons employed solely for the purpose of cleaning, and excluding persons employed under the Maintenance and Outdoor Staff (Catholic Schools) Enterprise Agreement 2011.

Provided that employees may include school assistants such as food technology assistants, art assistants, TAS assistants, music assistants, agriculture assistants, print room assistants, laboratory assistants, library/audio-visual assistants, book room assistants, bi-lingual aides and employees’ aides.

(3)    the same definition was amended in the 2013 EA, and then carried forward in the 2015 EA, whereby the 2011 EA definition became a separate class of employee known as a “School Support Staff” employee, emphasising the phrase as follows (using the definition as it appears in the 2015 EA, emphasis added):

(a)    School Support Staff

A School Support Staff Employee is an Employee other than a teacher who may be employed in a position described as food technology assistant, art assistant, Technological and Applied Studies assistant, music assistant, agriculture assistant, print room assistant, laboratory assistant, library assistant, book-room assistant, archivist, bilingual aide, teacher’s aide, canteen staff, uniform shop staff, alternative format publication staff, or any other position in which the Employee is required to assist and support the Employer, the teaching staff, and other school officers in the day to day functions, curricular or co-curricular activities of the school, including incidental cleaning (excluding persons employed solely for the purpose of cleaning), and any Employee employed in a clerical or administrative capacity.

(4)    The above definitions of “employee” contextually support the ordinary, grammatical meaning of the phrase “work in any school” in cl 2.1(b) so as to be confined to the schools themselves as institutions operated by Mater Dei, because:

(a)    each such definition both expressly excludes teachers, and expressly includes those assisting and supporting teaching staff and other school officers – that is, it applies to those supporting teachers, directly or indirectly, not those who themselves fulfil the role of being a teacher or teaching beyond the terms of the definition itself;

(b)    the reference to “day to day functions, curricular or co-curricular activities” of the school is referrable to the course of study at the school and related activities, with the Mater Dei schools being primary and secondary education institutions delivering the State government approved curriculum – the social educators had no role in relation to that curriculum, but rather were confined to providing instruction on (that is to say, teaching in the verb sense) independent living skills outside that curriculum; and

(c)    all the roles identified in the definition are, as the title “School Support Staff” suggests, roles involving support of teaching in some direct or indirect way, whilst not being a teacher which is expressly excluded.

(5)    Ms Farrell’s argument that she is a School Support Staff employee therefore cannot be sustained.

Consideration

43    There are three effective requirements to be met by an employee of an employer operating one of the schools listed in the agreements in order to be covered by those agreements:

(1)    working “in” the “school” in question in accordance with cl 2.1(b), being one of the schools operated by the employer (the working “in” Mater Dei School requirement);

(2)    falling within the definition of “Employee” in cl 4, including by not falling within one of the exclusions embedded in that definition (the “Employee” requirement); and

(3)    falling outside one of the exclusions in cl 2.2 for the purpose of the 2013 EA and 2015 EA (the not otherwise excluded requirement).

The working “in” Mater Dei School requirement

44    The arguments advanced by Mater Dei as to the ordinary meaning of the phrase “work in any school” in cl 2.1(b) are more convincing than those advanced by Ms Farrell, especially once the possibility of the program itself being a school is removed from the equation. Little assistance is to be gained from the meaning of “school” in other contexts, such as the taxation cases Ms Farrell relies upon, not just because those legislative frameworks are very different, or even because the more practical exercise of interpreting industrial instruments is not the same exercise as statutory construction or even commercial contract interpretation, but also because that word is used, linguistically, in a particular way that was not any evident part of those cases.

45    The clear intention of the three agreements was to deal with what takes place “in” a “school”. Teachers, both appointed as such, and performing teaching and related roles, are expressly excluded from the agreements, a point considered in more detail below. Those employees who in some way support the teaching function, but do not perform that teaching function or a related function, are covered by, and intended to be covered by, the agreements, subject to meeting the definition of being such an employee, and not otherwise being excluded.

46    The correct way to understand the phrase “work in any school” is not one that requires any convoluted or complicated process of construction. As a matter of plain English:

(1)    the word “school” is used as a noun to refer to an educational institution operated by the employer, reinforced by the list of schools in the schedule or annexure to each agreement; and

(2)    the word “in” is used to denote where the work is performed – the same meaning could just as well have been achieved by the use of the word “at”.

47    Ms Farrell did not work in, or at, the Mater Dei School. As such, she was not covered by the agreements.

“Employee” requirement

48    Persons appointed as teachers, and those who are not appointed as teachers but who are involved in teaching and related roles, rather than various kinds of support and operational roles, are excluded from coverage by the 2015 EA in at least two places (with the same reasoning applying to the 2013 EA):

(1)    in the “School Support Staff” classification forming part of the definition of “Employee” for the purposes of cl 2.1(b); and

(2)    in the exclusion provisions in cl 2.2.

49    Although the 2011 EA did not include the exclusion provisions in cl 2.2, the definition of “Employee” at cl 4 referred to “any employee employed in a clerical and administrative capacity and any employee other than a teacher who is employed to assist and support…” (emphasis added).

50    The clear intent, to be derived from the text and without the need to have resort to extrinsic material, is that those who teach or perform similar or related roles are not meant to be covered by the agreements because they are not merely support or operational employees. The agreements are clearly and expressly designed to cover those in various support or operational staff roles: school support staff; information technology staff; maintenance and outdoor staff; general operational staff; nursing staff; and boarding house staff.

51    The problem for Ms Farrell is that she was, on her own case, performing a direct educative role: she was teaching, albeit outside of any regulated curriculum. Even if she had performed the work she did “in” or “at” the Mater Dei School (which she did not), she was performing more than a non-teaching support or operational staff role. If the program had been conducted in or at the Mater Dei School, she would not have fallen within the definition of “Employee”, so could not do so away from that school.

Not otherwise excluded requirement

52    The express exclusions in cl 2.2 of the 2013 EA and 2015 EA, properly understood, emphasise the overall intent of the definition of “Employee” in a way that helps Mater Dei’s argument, rather than Ms Farrell’s argument. Those employed as teachers are again expressly excluded, even though that would not seem to be necessary. That otiose exclusion suggests that cl 2.2 is present to make who is not covered by the agreements abundantly clear. Additional express exclusions beyond those employed as teachers are directed to ensure those in positions involved directly or indirectly in the exercise of teaching are not, by silence, unintentionally covered by the 2015 EA (and thus by parity of reasoning, by the 2013 EA), despite not being employed to perform only support or operational tasks. A shopping list of teaching-related activities and positions was therefore expressly excluded: sport and music instruction other than by persons employed as teachers per se, those engaged in religious instruction, business or financial managers (including Bursars), childcare workers, counsellors, psychologists, therapists and youth workers.

53    In my view, none of those listed in the express exclusions in cl 2.2 would readily have fallen within the definition of “School Support Staff” in the definition “Employee” in cl 4, even if cl 2.2 was absent. This reinforces the view already expressed that cl 2.2 operates in the manner of more abundant caution, and is therefore not to be read in a way that, by some omission, expands the coverage of the “Employee” definition in cl 4. An employee who wishes to be covered by the agreements must first fall within that definition, and then also not otherwise be excluded (even if the exclusion provision generally ought to have little work to do).

54    The alternative would produce the curious outcome that all of those teaching and related positions, being non-support or operational positions, were excluded only because this was done expressly rather than by interpreting the intended scope of the agreements, but social educators performing a teaching-like role were not excluded. The absence of an express exclusion is not a sufficient basis to read the definition of “Employee” more widely than its language will independently bear. The exclusory list in s 2.2, while not making express reference to the social educator provision, does not assist Ms Farrell.

Conclusion

55    There is no room for any serious doubt that social educators in the program were not covered by the agreements, and therefore that Ms Farrell was not so covered. The answer to the separate question as to whether each of the agreements applied to Ms Farrell’s employment by Mater Dei must therefore be “no”. The originating application must therefore be dismissed.

Associate:

Dated:    5 April 2019