Department of Education and Training v Queensland Teachers Union of Employees and The Queensland Public Sector Union of Employees [2011] ICQ 16

CITATION: Department of Education and Training AND Queensland Teachers Union of Employees and The Queensland Public Sector Union of Employees (C/2011/9) - Decision <http://www.qirc.qld.gov.au> INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 - s. 341(1) - appeal against decision of industrial commission Department of Education and Training AND Queensland Teachers Union of Employees and The Queensland Public Sector Union of Employees (C/2011/9) PRESIDENT HALL 8 June 2011 DECISION [1] This is an Appeal against the decision of the Queensland Industrial Relations Commission (the Commission) given on 3 March 2011 and released the same day. The parties to the proceedings before the Commission and the parties to proceedings on the Appeal to this Court, are the Department of Education and Training (DET), the Queensland Teachers Union of Employees (QTU) and The Queensland Public Sector Union of Employees (QPSU). The QPSU was formed by way of an amalgamation. Some of the transactions with which this matter is concerned involved one of the amalgamating unions, viz., Queensland Professional Officers' Association "Union of Employees". For simplicity, I shall refer throughout to the QPSU as the party to all transactions. [2] In November 1990, industrial negotiations between DET, QTU and QPSU came to fruition in an arrangement known as the "Award Restructuring Agreement" (the Agreement). One matter dealt with was how, henceforth, DET would provide tuition by way of teaching and tutoring when that tuition could not be provided by permanent staff (full-time and part-time) performing their normal hours of work. The understanding developed was that the tuition would be provided as casual work and that existing permanent staff would be given preference of engagement for such work. Clause 13 of the Agreement provided: "Casual Engagements The parties agree that any excess teaching/tutoring available beyond the full-time load of staff shall be met by casual engagement. The parties agree that first preference for casual engagements will be given to permanent teachers and tutors. The parties agree that the casual employee shall mean an employee other than a permanent part-time employee who is engaged by the hour to work on an irregular basis as a teacher or tutor.". [3] The Agreement led to the making of the Technical Teachers Award - State 1991 (the 1991 Award). Section 4.5 of the 1991 Award gave effect to clause 13 of the Agreement providing: "4.5 Casual Employment (1) Casual engagements shall be offered first to permanent Teachers and Tutors provided that such engagements extending beyond six (6) hours per week for permanent Teachers and Tutors shall be subject to the discretion of the College Director. (2) The following conditions shall be applicable to casual employment excluding engagements in Stream 1000 programs:- (a) A Casual Teacher shall be paid the hourly equivalent of Step 6 of the Teacher salary scale provided in subclause (2) of clause 3.3 of this Award; (b) The hourly rate in provision (a) above shall be calculated by dividing the appropriate fortnightly salary by 42 and adding 22% for engagements between the hours of 8.00 a.m. and 6.00 p.m. Monday to Friday; (c) The hourly rate in provision (a) above includes payment for teaching, associated functions and incidental duties; (d) A Casual Tutor shall be paid the hourly equivalent of 70% of Step 6 of the Teacher salary scale provided in subclause (2) of clause 3.3 of this Award. The hourly rate provision for a Casual Tutor shall be calculated by dividing the appropriate fortnightly salary by 64 and adding 22% for engagements between the hours of 8.00 a.m. and 6.00 p.m. Monday to Friday; -- 1 of 6 -- 2 The number of hours that a casual tutor is engaged for must reflect the number of hours that they are programmed for tutoring duties. (e) All teaching/tutoring hours worked before 8.00 a.m. and after 6.00 p.m. Monday to Friday or on Saturday shall be paid at one and a-half times the ordinary hourly rate; (f) All teaching/tutoring hours worked on Sundays shall be paid at double the ordinary hourly rate; (g) All teaching/tutoring hours worked on Statutory Holidays shall be paid at double time and one-half the ordinary hourly rate; (h) Where casual teaching/tutoring is allotted owing to an unscheduled staff shortage caused by sick leave, special leave or any other emergency, payment shall be made at the applicable rate specified provisions (a) to (g) above.". [4] The Queensland Industrial Relations Commission which made the 1991 Award pursuant to the Industrial Relations Act 1990 (the 1990 Act), was informed about the new understanding about necessary additional tuition time. However, the language used by the industrial advocates largely obfuscated the difficulties in permitting permanent workers to work what would be normally be thought of as overtime hours under a casual engagement. An additional difficulty was that the casual engagement was said to be severable and distinct from the worker's permanent engagement. Counsel for the Appellant has helpfully summarised the dialogue between the advocates and the Full Bench of the Commission. I am content to adopt the summary but I must confess that I do not accept Counsel's submission that the passages make plain that the parties to the 1991 Award appreciated that the time worked by permanent staff continued to be overtime. The relevant passages are: "24. Mr Hamilton, who appeared on behalf of the Queensland Professional Officers Association said that the new hours proposal to be contained in the Award would 'eliminate the necessity for payment of overtime penalty rates based on computed time'. In describing the payment which would be made for overtime worked, Mr Hamilton said: 'Rather than getting time and a half on top of time and a half for overtime in the evening period or on Saturdays, it will be down to some other arrangement, which I will address in a little while. Teaching and tutoring hours worked on Sundays and statutory holidays will be paid at double time and double time and one half respectively. The rate will be set in accordance with the casual provision of the Award. It is not the overtime rate of the salary of the person working the overtime.' (emphasis added) 25. Mr Hamilton went on to say of the new 'casual' arrangements that: '… I think it will become evident as I talk about how the arrangement will work, and the employment arrangements to be made, and in view of the significant changes to the current overtime provision, our proviso for the agreed position is that causal engagement for teaching and tutoring - the current permanent staff have first option. They are guaranteed the first option. Should they choose not to accept the casual engagement then, of course, they are free to offer that engagement to whomever they wish. … As I was saying, the rate will be set in accordance with the casual employment provision in the award.' 26. In addressing casual engagements, Mr Hamilton went on to say: 'This category completes the spectrum of the forms of engagement necessary in TAFE. It is one of great flexibility and designed to be used in either the true casual circumstance or eliminate the regular use of overtime for TAFE teachers. It is intended that all excess teaching/tutoring required beyond 21 hours per week be a separate engagement as a casual with a guarantee of first choice to current employees. The arrangements will remove the grounds for dispute regarding overtime in the current award whilst retaining the spirit of the current overtime provision.' (emphasis added) 27. Mr Hamilton later referred to the use and importance of the causal [sic] employment provision in clause 4.5 of the proposed Award as having been addressed in the Award Restructuring Agreement. -- 2 of 6 -- 3 28. Mr Moloney, who appeared for the Queensland Teachers Union, referred to the causal [sic] employment provision in clause 4.5 in the following terms: 'I would also wish to refer to clause 4.5 concerning casual employment and indicate a little bit more about the significance of this change to the Award as it was again a matter of some comment by the Commission yesterday. The current technical teachers award provides an overtime clause for teachers with the rate of pay for overtime being based on the teacher's individual salary classification. What this award proposes is a flat rate of payment for overtime because overtime is to be paid at the rate for casual engagements.' (emphasis added) 29. Mr Cavanagh, who appeared for the Department, described the elimination of overtime teaching in the following terms: 'The negotiations between the parties have resulted in the agreed elimination of current overtime teaching provisions and the introduction of casual engagements. Any excess teaching/tutoring beyond the full time load of staff is to be met by casual engagements with first preference for those engagements to be given to permanent teachers and tutors. The introduction of the casual engagement concept will result in a substantial productivity gain for the bureau with excess teaching/tutoring after 6.00 p.m. to be paid at the rate of time and one half rather than at the rate of two and a quarter times under the existing award'.". [5] Having laid bare the difficulties with the proceedings of 1991, I have to add that the terms of the "hours of work" provision of the 1990 Act (s. 221) does not, as a matter of first impression, preclude such treatment of overtime. One must also recognise that the creation of hybrid statutory engagements, which sit ill with the common law of master and servant, was well within the Commission's power. [6] In fact, the Agreement was implemented. Permanent staff who were given additional casual engagements were also given an additional payroll number and processed on two payrolls. On each payroll, all hours of work were shown as ordinary hours. DET made superannuation contributions on all casual hours worked. The perplexing issue is whether the superannuation contributions were paid pursuant to an entitlement. [7] The contributions were certainly not paid pursuant to the 1991 Award. The 1991 Award merely referred to the entitlements otherwise created by the Superannuation (Government and other Employees) Act 1988 and the Government Officers Superannuation Scheme (Go Super). Whether or not after the making of the 1991 Award the Appellant's obligation in respect of superannuation came to be based both on the Superannuation (Government and other Employees) Act 1988 and the Industrial Relations Act 1990, may be left for another day. The 1991 Award plainly did not alter the entitlements originally created by the Superannuation (Government and other Employees) Act 1988. The Appellant's obligation and the employees' entitlement continued to relate to contributions based on earnings from ordinary hours of work. Indeed, Counsel who appears both for QTU and QPSU does not seek to source the entitlement to the contributions which were being paid in the 1991 Award. The submission is that the entitlement was contractual in nature. [8] Both at first instance and on the Appeal, all parties have struggled with the difficulty that copies of documents relating to the creation of what were held out as casual engagements during the 1990's have not been retained and have not been put in evidence. All the Commission had by way of evidence and all that has been available to this Court is what is accepted to be a standard form offer of casual employment in use in April 2004 and what is accepted to be a standard form offer of casual employment in use in July 2009. Both offers refer to the matter of superannuation without creating an entitlement to employer contributions. Both offers use the same language (whilst positioning the reference to the QSuper web site differently): "Casual employees are not required to contribute superannuation; however you may receive employer superannuation contributions to a scheme known as QSuper Accumulations Plan, depending on the amount earned. Should you wish to make contributions to this scheme, it will be necessary for you to complete a Request to Vary Contributions form which is located on the QSuper Website or contact to Superannuation Office on XXXX XXX XX.". Importantly, each of the offers also contains a provision in the following terms: "Your engagement is made in accordance with the Public Service Act 1996 and your conditions of employment are in accordance with the relevant award. If you wish to discuss the conditions please contact QSU Casual Payroll Officer. Commencement of duty will be taken as acceptance of the terms and conditions of employment.". -- 3 of 6 -- 4 In the case of each of the offers, the passage above was misleading in that by the time of the offer, the relevant Award had been superseded by a certified agreement. Putting that matter aside, objectively construed, the language seems to me to set in place an arrangement under which (upon commencement of duties) a casual engagement as an employee of DET comes into existence and the relevant Award attaches to the engagement to set the conditions of employment. I do not of course suggest that the contractual language "… your conditions of employment are in accordance with the relevant award" operates to attach the Award terms to the worker's engagement in a contractual way. The Award terms applied because the engagement fell within the scope of the Award. They were given statutory effect by the terms of the Industrial Relations Act 1990 and later by the Industrial Relations Act 1999, compare Byrne v Australian Airlines Limited1 at 423 at 424 per Brennan CJ, Dawson and Toohey JJ. The significance of the contractual language was that it shuts out argument that there were contractual conditions of employment additional to the Award conditions. Doubtless, variation was possible. However, as a general proposition, implication of a term into a contract, being a term which parties have not thought fit to express, is not permissible if the term to be implied contradicts an express term of contract B.P. Refinery (Western Port) Pty Ltd v President, Councillors and Ratepayers of the Shire of Hastings2 at 283, Per Lord Simon of Glaisdale, Viscount Dilhorne and Lord Keith of Kinkel. The general proposition has been explicitly applied to attempts to imply a term into a contract on the basis of custom and usage, see Con-Stan Industries of Australia Pty Ltd v Norwhich Winterthur Insurance (Australia) Ltd3 at 236 per Gibb CJ, Mason, Wilson, Brennan and Dawson JJ. At first instance, the now Respondents' entire case was based on the implication of a term on the basis of custom and usage. [9] One has to accept that at the time at which the first "casual engagements" were entered into by permanent staff (full-time and part-time), there was not a custom of paying superannuation contributions on the basis of the wages earned in the "casual engagement", which were so well known and acquiesced in that everyone making a contract could reasonably be presumed to have imported term to such effect in the contract. However, the scheme appears to have been that each "casual engagement" was a separate engagement. In the course of time, the payment of the contribution may well have acquired such notoriety that DET and the "casual workers" could reasonably be presumed to have imported a term to that effect into the contract. In any event, the Commissioner who arbitrated in the matter at first instance, so found. The Appeal to this Court is pursuant to s. 341(1) of the Industrial Relations Act 1999. The Appeal is limited to the grounds of error of law and excess or want of jurisdiction. It cannot be said that there was not any evidence upon which such a finding might be made. There is room for argument about whether the evidence should have been accepted (in whole or in part) or should have been accepted as sufficient to establish the fact. However, such considerations whilst entirely appropriate on a rehearing on the record are quite inappropriate on an appeal under s. 341(1). The point at which I part company with the Commissioner who arbitrated in the matter is that, if one assumes that the standard form offers utilised in the 1990's materially were in the same terms as the offer of April 2004 and the offer of July 2009, implication of an entitlement to the superannuation contributions by the employer based upon the permanent staff members "casual earnings" is not permissible because it involves the implication of a term which is inconsistent with an express term of the contract of employment. If one assumes that some other standard form offer was in use in the 1990's, the Respondents must fail as to that period of time on the simple ground that the Respondents have not made out their case. [10] As time moved into the 21st Century, the argument about notoriety about DET paying superannuation contributions on the casual earnings of permanent staff became easier to maintain. However, additional difficulties arose on the issue of consistency. [11] The industrial arrangements about the provision of additional tuition put in place by the 1991 Award were continued by the TAFE Teachers' Award - State 2003 (the 2003 Award). However, the arrangements were not maintained by the Department of Education, Training and the Arts, TAFE Educational Employees Certified Agreement 2006 (the 2006 Agreement). Importantly, clause 13 of the Agreement provided: "13.1 A casual employee means an employee other than a part-time employee, who is engaged as such on an hourly basis to work for less than the ordinary hours of a full time employee 13.2 Casual employees should not: • be engaged on a regular and systematic basis; • be engaged for several periods of employment for more than one year; and • have a reasonable expectation of further employment with the employer. 1 Byrne v Australian Airlines Limited (1995) 185 CLR 410 2 B.P. Refinery (Western Port) Pty Ltd v President, Councillors and Ratepayers of the Shire of Hastings (1977) 180 CLR 266 3 Con-Stan Industries of Australia Pty Ltd v Norwhich Winterthur Insurance (Australia) Ltd (1985-1986) 160 CLR 226 -- 4 of 6 -- 5 13.3 A casual employee is not entitled to annual leave, sick leave or paid public holidays. However, casuals are compensated for the loss of these entitlements by way of extra loading added to their ordinary rate of pay.". A permanent full-time or part-time employee seeking to deliver additional tuition would inevitably fail to satisfy clause 13.1 and each of the first and third bullet-points of clause 13.2. Further, unlike the 1991 Award and the 2003 Award, the 2006 Agreement made detailed provision for overtime which amongst other things imposed restrictions on the working of overtime, limited earnings from overtime work and introduced the TOIL system, under which overtime was compensated by the grant of time off in lieu. The arrangement struck in 1990, viz., the Award Restructuring Agreement, had become incompatible with the industrial instrument binding upon DET and its permanent and casual staff. [12] The Department of Education and Training, TAFE Educational Employees Certified Agreement 2009 (the 2009 Agreement) maintained the regime put in place by the 2006 Agreement, save that treatment of overtime work as overtime work now appears to have become a requirement. For fullness, I add that both Agreements leave the matter of superannuation to regulation by Commonwealth law. [13] Whilst the 2006 Agreement operated and since the 2009 Agreement commenced, the attempt to establish an entitlement to payment of superannuation contributions based on the "casual earnings" of permanent staff (full- time and part-time) became impossible to argue. It may be that the reference to "Award" in the standard form offer should, after the 2006 Agreement and 2009 Agreement, be read as a reference to the Agreement which superseded the Award at the relevant time. On that assumption the argument for implication will fail, because the argument involves an attempt to imply into the contract of employment a term additional to and inconsistent with the terms and conditions of employment which are asserted by the contract of employment to be the terms and conditions of the engagement. If "Award" is not read as a reference to the Agreement superseding the Award at the relevant time, the argument for implication will fail because it involves an attempt to impute to the parties to the engagement an intention to set a contractual term which would fail for inconsistency with the Certified Agreement in force at the time. [14] Rejection of the argument that an entitlement to payment of superannuation contributions on the "casual earnings" of permanent (full-time and part-time) staff may be established on the basis of "custom and usage", leads to success of the Appeal. This was not a case in which the now Respondents might contend that on the basis of equity, fair dealing and good conscience, a practice which had been followed for approximately 20 years should be regularised by order of the Commission. The Respondents were inhibited by terms of clause 11 of the 2009 Agreement which provides: "11. NO FURTHER CLAIMS 11.1 This agreement is in full and final settlement of all parties' claims for its duration. It is a term of this agreement that no party will pursue any extra claims relating to wages or conditions of employment whether dealt with in the agreement or not. 11.2 This agreement covers all matters or claims that could otherwise be subject to protected industrial action. 11.3 It is agreed that the following changes may be made to employee's rights and entitlements during the life of this agreement: (a) General Rulings and Statements of Policy issued by the Queensland Industrial Relations Commission that provide conditions that are not less favourable than current conditions; (b) Any improvements in conditions that are determined on a whole-of-government basis; (c) Reclassifications; 11.4 Unless inconsistent with the terms of this agreement, the entitlement of employees covered by this agreement as contained in awards, agreements, Ministerial Directives or determinations made under the Public Service Act 2008 effective at the date this agreement was made shall not be reduced for the life of this agreement.". [15] It may well be that, avoidance of clause 11 of the 2009 Agreement was the inspiration for the now Respondents' decision to argue for relief on the basis of an existing right as contended. However, even on the narrow basis upon which the now Respondents advanced their claim, the Appellant contends that there is contravention of the no extra claims clause. As a matter of first impression, it seems to me that there is a fundamental difference between an argument about what entitlements exist and an argument for a new entitlement. The latter argument may readily be identified as the making of an "extra claim". In the former category of case, it is difficult to understand that anything "extra" is being asserted. In reliance upon Emwest Products Pty Ltd v Automotive, -- 5 of 6 -- 6 Food, Metals, Engineering, Printing and Kindred Industries Union4, Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union5, National Fleet Network Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union6 and National Union of Workers v Qantas Airways Ltd7, Counsel for the Appellant has sought to argue that the claim brought by the now Respondents was an "extra claim" because the terms of the 2009 Agreement were comprehensive and the implied term asserted was additional to those terms. With respect, that argument seems to me to give insufficient weight to clause 11.4 of the 2009 Agreement which assumes that "agreements" which were effective at the date of commencement of the 2009 Agreement, continue to have efficacy and effect. Doubtless, if the Agreement contended for by the now Respondents had existed in an express form at that date, it would have failed under clause 11.4 of the 2009 Agreement for inconsistency of the terms of the 2009 Agreement. However, it would not have failed because it was additional to the comprehensive terms of the 2009 Agreement. [16] I have formed the view that the Appeal should be allowed. I do not at this stage propose to make an Order allowing the Appeal and setting aside the decision of the Commission. I shall hear the parties on the terms of any Orders which should be made. In the interim, the Order staying the decision of the Commission remains in place. Any question as to costs is reserved. Dated 8 June 2011. D.R. HALL, President. Released: 8 June 2011 Appearances: Mr A.A.J. Horneman-Wren SC, instructed by Crown Solicitor for the Appellant. Mr J.W. Merrell, instructed by Macrossans Lawyers for the First Respondent and directly instructed for the Second Respondent. 4 Emwest Products Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2002) 112 IR 388 5 Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2003) 125 IR 449 6 National Fleet Network Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2005) 143 IR 45 7 National Union of Workers v Qantas Airways Ltd [2010] FWA 4991, 23 July 2010 -- 6 of 6 --