2022 WAIRC 00771
WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT


CITATION : 2022 WAIRC 00771

CORAM
: INDUSTRIAL MAGISTRATE B. COLEMAN

HEARD
:
WEDNESDAY, 15 JUNE 2022

DELIVERED : THURSDAY, 3 NOVEMBER 2022

FILE NO. : M 59 OF 2021

BETWEEN
:
MR RUFUS SADAT ANWAR GILL
CLAIMANT

AND

GOLDFIELDS BAPTIST COLLEGE INCORPORATED
FIRST RESPONDENT
AND

MR CRAIG DREDGE
SECOND RESPONDENT

CatchWords : INDUSTRIAL LAW – Interpretation of industrial agreement – consideration of whether extraneous materials should inform the interpretation of definitions within the agreement – whether the respondents accurately assessed qualifications and experience at the commencement of employment – whether the respondents correctly transitioned between levels of employment
Legislation : Fair Work Act 2009 (Cth)
Teacher Registration Act 2012 (WA)
Industrial Relations Act 1979 (WA)
Instrument : Goldfields Baptist College Staff Agreement 2016 to 2018
Educational Services (Teachers) Award 2020
Case(s) referred
to in reasons: : Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Excelior Pty Ltd [2013] FCA 638 at 53
Mildren v Gabbusch [2014] SAIRC 15
Miller v Minister of Pensions [1947] 2 All ER 372
Briginshaw v Briginshaw [1938] HCA 34
Result : Claim dismissed
REPRESENTATION:

CLAIMANT : MS M. GIRGIS (OF COUNSEL) FROM THE INDEPENDENT EDUCATION UNION OF AUSTRALIA - WA BRANCH
RESPONDENT : MR J. WOOD (OF COUNSEL) FROM CLYDE AND CO

REASONS FOR DECISION
1 By application lodged on 19 March 2021, the claimant, Rufus Sadat Anwar Gill (Mr Gill) alleges a breach of clauses of the Goldfields Baptist College Staff Agreement 2016 to 2018 (the Agreement), along with alleged contraventions of the Fair Work Act 2009 (the FW Act) by the first respondent employer, Goldfields Baptist College Incorporated (the College) and the second respondent, Mr Craig Dredge (Mr Dredge).
2 Mr Gill seeks payment of an amount of money for unpaid salary and superannuation plus interest, along with the payment of penalties pursuant to s 545(3) of the FW Act.
Background
3 It is not in dispute that the first respondent operates the Goldfields Baptist College, which is an educational venue within the meaning of the Teacher Registration Act 2012 (WA) (the Act). The College is in Kalgoorlie-Boulder in Western Australia.
4 Mr Gill has completed the following qualifications in Science, Language and Teaching:
(a) Bachelor of Science from the University of Karachi completed in 1999;
(b) Master of Science in Botany from the University of Karachi completed in 2000;
(c) Post Graduate Diploma in French from the University of Karachi completed in 2006; and
(d) Graduate Diploma of Education (Secondary) Monash University completed in March 2012.
5 It is accepted that Mr Gill has not completed any of the following qualifications:
(a) A two-year full-time course in early childhood education;
(b) A degree in education or early childhood education that requires three years of full-time study; or
(c) A degree in education or early childhood education that requires four years of full-time study.
6 On or about 5 April 2017, Mr Gill submitted an Expression of Interest to the College for a teaching role.
7 He entered into a contract of employment with the College on 12 April 2017.
8 Mr Gill was employed by the College on two successive contracts of employment, between approximately 24 April 2017 and 31 December 2019.
9 He was employed as a teacher within the meaning of the Agreement. At all material times, the Agreement applied to the College and to Mr Gill as an employee of the College.
10 During the period of employment, the second respondent, Mr Dredge, was employed by the College as the Principal.
11 When he commenced employment with the College, Mr Gill provided the College with evidence that he had been granted provisional registration by the Teacher Registration Board of Western Australia (TRBWA).
12 At the time that Mr Gill entered into the first contract in April 2017, he had previously been employed to work as a teacher by various schools.
13 Prior to completion of his Graduate Diploma of Education (Dip Ed) at Monash University, Mr Gill was employed at:
(a) Lillydale Adventist Academy in Victoria between 2008 and 2010; and
(b) Seventh Day Adventist Schools Tasmania between 2010 and 2012.
14 After Mr Gill had completed his Dip Ed he was employed by:
(a) Marist Regional College in Tasmania between 2014 and 2015;
(b) The Tasmanian Department of Education to work at various schools including Devonport High School and Yolla District High School between 2014 and 2015;
(c) Karalundi Aboriginal Education Community Inc to work at Karalundi College in 2016;
(d) The Western Australian Department of Education to work at Hedland Senior High School in 2017.
15 The first contract with the College provided the following relevant conditions of employment:
(a) Mr Gill’s salary was to be set according to cl 15.4 of the Agreement, depending upon his qualifications and years of experience;
(b) Mr Gill was to be employed at the College on a full-time basis, based upon average ordinary contact hours of 37.5 hours per week, averaged over a period of 12 months;
(c) Subject to extension by the College, the period of the contract was to be from 24 April to 16 December 2017; and
(d) Mr Gill was to be paid an annualised salary equivalent to ‘Step 7’ pursuant to cl 15.4 of the Agreement.
16 On 15 December 2017, Mr Gill entered into a further contract of employment with the College.
17 The second contract of employment provided that Mr Gill would continue to perform all required duties at the College (as set out in cl 5.3.2 of the Agreement) and referred to Mr Gill’s reduced ‘face to face’ teaching load as a graduate teacher.
18 Over the course of his employment, Mr Gill received a salary in line with the rates of salary set out in s 15.4, Table 1D of the Agreement:
(a) From 24 April 2017 to 6 May 2018 Mr Gill received a salary in line with Step 7;
(b) Between 7 May 2018 to 19 May 2019 Mr Gill received a salary calculated at Step 8;
(c) Between 20 May 2019 and 12 January 2020 Mr Gill received a salary calculated at Step 9.
19 Mr Gill resigned his position with the College on 31 December 2019.
The Claimant’s Position
20 The claimant asserts that he was not paid correctly by the College for the duration of his employment and that his salary should have been assessed by Mr Dredge at the commencement of his employment as at least Step 11 rather than Step 7.
21 The claimant pleads that he had amassed the equivalent of 6.84 years of prior service as a full-time teacher at the time of commencement with the College, and further, that he met the criteria to be classified as either a “Four Years Trained Teacher” or “Five Years Trained Teacher” within the meaning of cl 4.1.23, cl 4.1.24, cl 6.3.2.1.2 and cl 6.3.2.1.1 of the Agreement.
22 The claimant argues that the Agreement must be read in conjunction with the federal Educational Services (Teachers) Award 2020 (the Award), along with the national teaching standards and registration framework set by the Australian Institute for Teaching and School Leadership (AITSL Framework).
23 The claimant also asserts that the College was required to progress him to the next stepped salary as of 21 June 2017, then thereafter every 12 months to the next stepped salary.
The Respondents’ Position
24 The respondents argue that the AITSL Framework and the Award have no bearing upon the interpretation of the Agreement.
25 Their position is that the College and Mr Dredge complied with all obligations pursuant to the Agreement when setting the claimant’s starting salary.
26 The respondents assert that the College paid more salary to Mr Gill than was required under the Agreement, that both respondents acted in good faith and that the claimant’s salary was determined fairly and reasonably, based upon the information that was available at the time.
27 The respondents also assert that the College increased Mr Gill’s wage at the appropriate dates, pursuant to the Agreement.
28 The respondents argue that cl 3.4 of the Agreement expressly excludes the application of any other industrial instrument (including the Award) that might otherwise apply to the employment of teachers at the College, although it is accepted that the relevant definitions related to trained teachers within the Agreement and the Award are identical.
Determination
29 Schedule 1 attached sets out the jurisdiction, practice and procedure of the Western Australian Industrial Magistrates Court (IMC) and the relevant legislation.
30 The issues to be determined in this trial are as follows:
(i) At the commencement of his employment with the College, did Mr Gill qualify as a ‘Four Year Trained Teacher’ or a ‘Five Year Trained Teacher’ pursuant to cl 4.1.23 and cl 4.1.24 of the Agreement?
(ii) Did the College accurately assess Mr Gill’s qualifications and experience at the commencement of his employment?
(iii) Did the College correctly transition between levels of salary throughout Mr Gill’s employment?
(iv) Does any liability arise with respect to underpayment? If yes, was the second respondent knowingly concerned in the underpayment, such that he has contravened s550(2)(c) of the FW Act?
31 The interpretation of an award or agreement will always begin by a consideration of the ordinary meaning of its words. Regard must be had to the context and purpose of the provision or expression being construed. The context of the provision may appear from the text of the instrument as a whole, its arrangement and the place of the provision within the agreement. If the plain meaning is clear, as it is in this case, the Court will have no need to refer to extrinsic materials. Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Excelior Pty Ltd [2013] FCA 638 at 53.

Issue 1: Did the claimant qualify as a ‘Four Year Trained Teacher’ or a ‘Five Year Trained Teacher’?
32 Pursuant to cl 4.1.23 of the Agreement, a teacher will fit within the definition of a
“Four Years Trained Teacher” if the teacher:
(i) ‘has completed a degree in education or early childhood education requiring three years of full-time study at an Australian university’ [emphasis added]; or
(ii) ‘the equivalent as determined by the National Office of Overseas Skills Recognition’, or
(iii) equivalent as determined by ‘the relevant State or Territory teacher registration authority’, or
(iv) ‘in the case of early childhood teachers’, the equivalent as determined by ‘the relevant licensing and accreditation authority’.
33 Pursuant to cl 4.1.24 of the Agreement, a teacher will fit within the definition of a
“Five Years Trained Teacher” if the teacher:
(i) ‘has completed a degree in education or early childhood education that requires four years of full-time study at an Australian university and in addition has completed a postgraduate degree at an Australian university requiring at least one year of full-time study’ [emphasis added]; or
(ii) ‘the equivalent as determined by the National Office of Overseas Skills Recognition’, or
(iii) the equivalent as determined by ‘the relevant State or Territory teacher registration authority’, or
(iv) ‘in the case of early childhood teachers’, the equivalent as determined by ‘the relevant licensing and accreditation authority’.
34 Clause 6.3.2 of the Agreement sets out the minimum rates of salary payable to full-time teachers and refers to the stepped salaries within Table 1D of cl 15 of the Agreement.
35 A five-year trained teacher is entitled to commence on Step 6 of the scale and progress according to normal years of service to Step 13 of the scale.
36 A four-year trained teacher is entitled to commence on Step 5 of the scale and progress according to normal years of service to Step 13 of the scale.
37 A two/three-year trained teacher is entitled to commence on Step 3 of the scale and progress according to normal years of service to Step 9, except if the teacher has full registration under the current Western Australian teacher registration authority.
38 A teacher that does not fall within the other categories within cl 6.3.2 of the Agreement commences on Step 1 of the scale and thereafter progresses according to normal years of service to Step 9 of the scale. This category of teacher is referred to in the clause as a “not otherwise classified teacher”.
39 Clause 6.3.2.2 of the Agreement allows for credit of an extra year for obtaining an additional qualification related to the teacher’s teaching role at the College. There is no evidence that Mr Gill had obtained any additional qualification while teaching at the College.
40 Mr Gill accepts that he has not completed a three-year full-time degree in education or early childhood education at an Australian university. Transcript of Proceedings pages 11 to 13.

41 Nor has he completed a four-year full-time degree in education or early childhood education at an Australian university, coupled with a one year full-time postgraduate degree at an Australian university. Ibid.

42 Mr Gill has no educational qualifications relating to early childhood education at all. Ibid.

43 Therefore, the only way in which Mr Gill could be characterised as either a four or five-year teacher pursuant to the Agreement is if the National Office of Overseas Skills Recognition (NOOSR) has determined that he has completed an equivalent degree, or, the relevant State or Territory teacher registration authority has determined that Mr Gill has completed the equivalent educational requirements.
44 Evidence tendered at trial reveals that Mr Gill’s University of Karachi qualifications have been assessed by the NOOSR.
45 In September 2007, the Overseas Qualifications Unit of the Department of Innovation Industry and Regional Development advised Mr Gill, via three assessment notices dated 19 September 2007, that based on assessment guidelines published by the NOOSR:
a. his Post Graduate Diploma in French had been assessed as comparable to the educational level of an Australian Graduate Diploma; Exhibit 1, attachment RG 9.

b. his Degree of Master of Science in Botany had been assessed as comparable to the educational level of an Australian Bachelor Degree; Ibid.
and
c. his Degree of Bachelor of Science (Awarded in the First Class) had been assessed as comparable to the educational level of an Australian Bachelor Degree. Ibid

46 None of the assessment advices indicate that any of Mr Gill’s Karachi qualifications were the equivalent to:
(1) a three-year, full-time ‘degree in education or early childhood education’ at an Australian university; or
(2) a four-year full-time degree in education or early childhood education’ at an Australian university, and in addition, a one-year full-time postgraduate degree at an Australian university.
47 The Overseas Qualifications Unit assessed Mr Gill as having the equivalent of two Australian Bachelor degrees, along with an Australian Graduate Diploma.
48 The evidence clearly does not support the proposition that Mr Gill fell within the definition of a four-year or five-year trained teacher pursuant to the Agreement because the assessment advices issued by the Unit failed to assess any of his Karachi qualifications as being equivalent to a degree in education or early childhood education. Indeed, the transcripts of results from the University of Karachi do not reveal the completion of any subjects that could be considered as qualifications related to teaching. See exhibit 1 attachment RG9.

49 The sole remaining criterion within the definition relates to a determination by a “relevant State or Territory teacher registration authority”: this phrase is not defined in the Agreement but it is clear on a plain reading of the clause, read in conjunction with the entirety of the Agreement, that the determination must be made by a teacher registration authority within an Australian State or Territory.
50 Mr Gill asserts that his evidence of provisional registration by the TRBWA constituted a determination that he has completed the equivalent educational requirements to fall within the four or five-year trained teacher definition.
51 He argues that the TRBWA utilises the AITSL Framework for Teacher Registration in Australia.
52 The AITSL Framework states that ‘the [minimum] qualifications requirement for registration is completion of at least four years of higher education (full-time or equivalent) study, including an initial teacher education program accredited in Australia, leading to the achievement of a recognised qualification; or an overseas qualification assessed as equivalent.’
53 Mr Gill argues, by reason of his grant of provisional registration, that the minimum educational requirements under the framework for registration as a teacher in Western Australia (as assessed by the TRBWA) were equivalent to the educational criteria required to qualify as a four-years trained teacher. Amended Statement of Claim para 12.

54 Mr Gill further argues that his equivalent qualifications, combined with his Graduate Diploma in French, were equivalent to the educational criteria required to qualify as a five-years trained teacher. Ibid.

55 However, such arguments fail to consider the legislative regime for teacher registration in Western Australia.
56 As set out in the letter from the TRBWA to Mr Gill, Exhibit 1, attachment RG1.
provisional and full registration as a teacher in Western Australia is governed by the Act.
57 Pursuant to s 16 of the Act:
A person is eligible for provisional registration as a teacher if the person –
(a) has a teaching qualification –
(i) from an accredited initial teacher education programme; or
(ii) that the Board recognises as equivalent to such qualification; and
(b) meets the professional standards approved by the Board for provisional registration, or has done so within previous 5 years; and
(c) is a fit and proper person to be a registered teacher; and
(d) has the English language skills, both written and oral, prescribed as suitable for registration as a teacher [emphasis added].
58 Section 3 of the Act defines Board as:
The Teacher Registration Board of Western Australia established by Section 86.
59 Section 3 of the Act defines Professional Standards as:
The professional standards developed by the Board and approved by the Minister under section 20.
60 Section 20 of the Act states:
(1) Professional standards are to be developed by the Board and approved by the Minister.
(2) The purpose of the professional standards is to detail the abilities, experience, knowledge or skills expected of registered teachers.
(3) The professional standards may adopt the text of any code, rules, specifications, standard or other document issued, published or approved by another person or body.
(4) The text referred to in subsection (3) may be adopted –
(a) wholly or in part or as modified by the professional standards; and
(b) as it exists at a particular date or as amended from time to time.
(5) The Board is to make the professional standards available for inspection on a website maintained by the Board.
61 The argument espoused by Mr Gill may perhaps have been persuasive had there been evidence presented that demonstrates that the TRBWA actually utilises, either in part or in full, the AITSL Framework as part of their professional standards for registration.
62 No such evidence has been presented, nor was a copy of the TRBWA professional standards tendered at trial.
63 No evidence has been tendered regarding the TRBWA website maintained by the Board, nor the professional standards that are available for inspection on the site.
64 The letter from TRBWA to Mr Gill merely demonstrates that at the time of his employment with the College, he had been granted provisional registration to teach in Western Australia. He had met the minimum requirements pursuant to s 16 of the Act.
65 In no way does the letter support the proposition that the TRBWA had determined that Mr Gill had qualifications equivalent to either:
(i) a three-year, full-time ‘degree in education or early childhood education’ at an Australian university; or
(ii) a four-year full-time degree in education or early childhood education’ at an Australian university, and in addition, a one-year full-time postgraduate degree at an Australian university.
66 At the time he commenced employment with the College, Mr Gill did not qualify as a ‘Four Years Trained Teacher’ or a ‘Five Years Trained Teacher’. Nor did he qualify as a Two’ or ‘Three-years Trained Teacher’.
67 Based upon the evidence presented at trial, at the time that he commenced with the College, Mr Gill’s classification fell within the ambit of cl 6.3.2.1.4 of the Agreement: he was a ‘Not otherwise classified’ teacher and therefore, read in conjunction with cl 6.2.4 of the Agreement, was to commence on Step 1, progressing to each further step upon completion of a year’s full-time service.
Issue 2: Did the College accurately assess the claimant’s qualifications and experience at the commencement of his employment?
68 Mr Gill asserts that at the time he commenced with the College in April 2017, he had performed the equivalent of 6.84 years prior service as a full-time teacher. Amended Statement of Claim para 9, Exhibit 1, paras 13 to 27.

69 Pursuant to cl 6.3.1.1 of the Agreement, Mr Gill was entitled to be granted credit for previous teaching service if the following criteria were met:
(i) Upon engagement, Mr Gill was required to establish to the satisfaction of the College the length of his prior teaching service;
(ii) The teaching service must have occurred in recognised schools certified or registered under the appropriate legislation in other States or Territories.
70 The clause then sets out a calculation for calculating the service of particular classes of teachers: full-time teachers, part-time teachers and relief teachers.
71 Each of those classes is clearly defined in cl 4 of the Agreement: in order to satisfy the definition of a ‘teacher’, the teacher must be registered to teach within the State of Western Australia. Agreement clauses 4.1.12, 4.1.13, 4.1.14

72 To satisfy the criteria for credit for prior service pursuant to cl 6.3.1 of the Agreement, a teacher is required to provide evidence of prior teaching service amassed since being registered to teach in Western Australia Agreement clause 4.1.12, 4.1.13, 4.1.14
or within ‘schools certified or registered under the appropriate legislation in other States or Territories of the Commonwealth of Australia’. Agreement clause 6.3.1.1.

73 Clearly, when cl  6.3.1 of the Agreement is read in conjunction with the definitions in cl 4.1.13 to 4.1.13, the Agreement allows the College to give credit to teachers who have been registered to teach in another State or Territory of Australia and who can provide satisfactory evidence of teaching experience in a certified or registered school within that jurisdiction.
74 Mr Gill asserts that he should have been given credit for the following full-time teaching service amounting to a total of 6.21 years Amended Statement of Claim para 9i; Exhibit 1, paras 13 to 20; Exhibit 2, Annexures N and P: Statements of Service.
:
School/Educational Facility
Time Period
Service
Lilydale Adventist Academy
15/01/2008 to 14/01/2010
2 years
Seventh-Day Adventist Schools Tasmania (Ltd)
15/01/2010 to 26/07/2012
2.53 years
Marist Regional College Tasmania
01/02/2015 to 31/07/2015
0.49 years
Tasmanian Department of Education (Devonport High School)
03/02/2014 to 17/04/2014
0.2 years
Tasmanian Department of Education (Yolla District High School)
10/08/2015 to 23/09/2015
0.12 years
Karalindi Aboriginal Education Community
01/02/2016 to 23/09/2016
0.64 years
Hedland Senior High School
30/01/2017 to 23/04/2017
0.23 years

75 Mr Gill asserts that he should have been given credit for the following part-time teaching service Amended Statement of Claim para 9ii; Exhibit 1, paras 21 to 24; Exhibit 2, Annexures N and P: Statements of Service.
:

School/Educational Facility
Time Period
Service
Marist Regional College Tasmania
20/10/2014 to 14/11/2014
0.04 years
Marist Regional College Tasmania
15/09/2014 to 26/09/2014
0.03 years
Marist Regional College Tasmania
21/07/2014 to 18/08/2014
0.07 years

76 Mr Gill asserts that he should have been given credit for the following relief teaching service C Amended Statement of Claim para 9iii; Exhibit 1, paras 25 to 27; Exhibit 2, Annexures N and P: Statements of Service.
:
School/Educational Facility
Time Period
Service
Marist Regional College Tasmania
13 days
0.065 years Note that this calculation of service was incorrectly stated in the Amended Statement of Claim as ‘0.49’.

Tasmanian Department of Education
85 days
0.425 years Note that this calculation of service was incorrectly stated in the Amended Statement of Claim as ‘0.32’.

77 Mr Gill was granted provisional registration as a teacher in Tasmania in January 2012 Exhibit 1, attachment RG2.
and was granted provisional registration as a teacher in Western Australia from 12 February 2016. Exhibit 1, attachment RG1.

78 He was not registered as a teacher in any State or Territory at the time that he was working at the Lilydale Adventist Academy: he had been granted ‘Board Authority’ to teach two subjects, which was a limited authority to teach. This did not amount to registration as a teacher, as is made clear in the letter from the Teachers Registration Board of Tasmania:
Limited Authorities to Teach (LATs) are a special authority granted by the Board to school, when certain conditions are met, to enable the school to employ a person does not qualify for registration, for a specific and short timeframe and for a particular purpose. LATs are only used when a school cannot find a suitably registered teacher for a role and the school provides evidence of this to the Board. Ibid at paragraph 2.

79 Given that Mr Gill was not granted provisional registration to teach in any State or Territory of Australia until January 2012, the College was not required to consider any period of service prior to that date.
80 At the time that Mr Gill commenced with the College, he was requested to provide evidence of years of his full-time equivalent teaching experience as a fully qualified teacher. Exhibit 2, paragraph 30 and annexure B Employment Application Form.

81 On 15 April 2017, at the time that he expressed interest in the teaching position, Mr Gill provided to the College a copy of his curriculum vitae (CV). Exhibit 2 para 10, annexure A.

82 The information within the CV outlined in very general terms the following teaching experience from January 2012 onwards Ibid. Note that the claimant’s curriculum vitae informed the reader that his service period for relief teaching was from January 2010, however, since the claimant was not a registered teacher in Tasmania until January 2012, two years of this teaching service could not be taken into account.
:
School/Educational Facility
Position
Time Period
Hedland Senior High School
Secondary Teacher
January 2017 – April 2017
Karalundi Aboriginal Community Inc (WA)
Secondary Teacher
January 2016 – September 2016
Yolla District High School (TAS)
Secondary Teacher
August - September 2016
Marist Regional College (TAS)
Secondary Teacher
July 2014 – July 2015
Various Schools (TAS)
Relief Teacher
January 2012 – July 2014
83 Along with the CV, Mr Gill provided a reference from Karalundi Aboriginal Education Community Inc, confirming that he had been employed with their organisation as a full-time teacher from February 2016 until 23 September 2016.
84 The information contained within the letter was inconsistent with Mr Gill’s CV, since Mr Gill had asserted in his CV that he had commenced with Karalundi in January 2016, though this was only a difference of one month and may have been a typographical error.
85 Comparing the information contained within the CV and Karalundi letter to the information supplied by Mr Gill in his evidence about his prior teaching experience, it is clear that Mr Gill did not provide the College with any detailed information about his prior teaching experience at the time that it was requested. No distinction was made between full-time and part-time teaching within the body of the CV, no reference was made to ‘FTE ratios’ in order to correctly calculate any amount of part-time service, See clause 6.3.1.1.2 of the Agreement.
and no information was provided about the total days of work as a casual or relief teacher.
86 Subsequently, on 8 April 2017, Mr Gill submitted a formal application for the role to Mr Dredge by email. Exhibit 2 para 10, Annexure B.
Within the application form, Mr Gill asserted that he had ‘over 15’ years of full-time teaching experience. Ibid.
Within the section of the Application titled “Experience in the last five years’, Mr Gill had written the words ‘Please refere [sic] to resume’.
87 None of the attachments sent with the email provided any further information that would assist Mr Dredge to accurately calculate Mr Gill’s previous teaching experience. Nor was any further information about teaching experience provided in the two emails sent to Mr Dredge on 10 April 2017. Exhibit 2 paras 11 and 12, Annexures C and D.

88 After his interview for the position, Mr Gill was requested to provide further information. On 11 April 2017 he supplied via email to Mr Dredge a course outline, a PowerPoint presentation and copy of a payslip from the Department of Education relating to his position at Hedland Senior High School. Exhibit 2 paras 14 and 15, Annexure E.
The payslip indicated that Mr Gill was being paid at ‘Band 2’ for the ‘Country Teaching Program’. His fortnightly pay rate at Hedland was $2,612.28.
89 Prior to offering Mr Gill the teaching role at the College, Mr Dredge undertook an assessment of Mr Gill’s previous teaching experience, based upon the information that had been provided to him. Exhibit 2 paras 27-37.
Given the vague assertions made by Mr Gill in his CV and his application, it was impossible for Mr Dredge to accurately calculate how much prior teaching Mr Gill had amassed, save and except for reviewing the information provided in the Karalundi letter and the Hedland Senior High School payslip.
90 Mr Dredge ultimately granted Mr Gill credit for a period equivalent to 2 years of full-time teaching service and ascertained that he was entitled to commence on salary Step 3. Exhibit 2, para 35.

91 Having reviewed the materials provided to Mr Dredge in early April 2017, I am satisfied that at the time that he undertook the assessment, Mr Dredge calculated the prior teaching experience as accurately as he could in the circumstances.
92 Based upon the information provided in evidence at trial, (bearing in mind that any service prior to January 2012 was ineligible because Mr Gill had not yet attained provisional accreditation), the actual prior teaching experience of Mr Gill at the time that he was offered the position at the College was 2.81 years, calculated as follows:

School/Educational Facility
Time Period
Service
Seventh-Day Adventist Schools Tasmania (Ltd)
1/02/2012 to 26/07/2012
0.50 years
Marist Regional College Tasmania
01/02/2015 to 31/07/2015
0.49 years
Tasmanian Department of Education (Devonport High School)
03/02/2014 to 17/04/2014
0.2 years
Tasmanian Department of Education (Yolla District High School)
10/08/2015 to 23/09/2015
0.12 years
Karalindi Aboriginal Education Community
01/02/2016 to 23/09/2016
0.64 years
Hedland Senior High School
30/01/2017 to 23/04/2017
0.23 years
Marist Regional College Tasmania
20/10/2014 to 14/11/2014
0.04 years
Marist Regional College Tasmania
15/09/2014 to 26/09/2014
0.03 years
Marist Regional College Tasmania
21/07/2014 to 18/08/2014
0.07 years
Marist Regional College Tasmania
13 days relief teaching
0.065 years
Tasmanian Department of Education
85 days relief teaching
0.425 years

93 Therefore, Mr Dredge was incorrect in his calculation by an amount of 0.81 years. However, such an error makes no meaningful difference, since Mr Gill had not yet amassed enough teaching experience to attain the next step, being Step 4.
94 Mr Gill asserts that he provided Statements of Service from the Tasmanian Department of Education, Marist Regional College and Karalundi to the College upon his commencement, to allow Mr Dredge to correctly calculate Mr Gill’s prior teaching experience: Exhibit 1, paragraph 38.
I do not accept this.
95 Had the Statements of Service been provided at the commencement of Mr Gill’s employment, Mr Dredge would have been able to correctly ascertain the actual prior teaching experience of 2.81 years.
96 Further, in the response letter to the Independent Education Union (the Union) dated 31 July 2018, Mr Dredge made specific reference to the fact that Mr Gill had not provided sufficient details to the College: he then specifically listed the two schools that he was able to calculate (being Hedland and Karalundi) and gave an explanation regarding how he came to calculate the balance of the relief and short-term employment work. Exhibit 2, Annexure M, Letter to the Independent Education Union dated 31 July 2018.
Mr Dredge then invited the Union to provide further evidence in support of the prior teaching service.
97 Mr Gill’s Statements of Service were attached to the subsequent letters from the Union dated 3 September 2018 Exhibit 2, Annexure N, letter to Mr Craig Dredge dated 3 September 2018.
and 22 March 2019. Exhibit 2, Annexure P, Letter to Mr Craig Dredge dated 22 March 2019.
That is the first time that the College received official Statements of Service from Mr Gill.
98 Even if there had been cogent evidence presented at trial that demonstrated Mr Gill had provided evidence of his prior teaching experience to the College in April 2017, there would only have been a marginal adjustment of 0.81 to Mr Dredge’s assessment. It would not have qualified Mr Gill to receive any more than a ‘Step 3’ salary under cl 15.4 of the Agreement.
99 At no time throughout the duration of his employment until September 2018 did Mr Gill provide any further evidence of prior teaching experience as required by cl 6.3.1.1 of the Agreement, although had he done so, his salary would not have been adjusted.
Issue 3: Did the College correctly transition between levels of salary throughout the claimant’s employment?
100 Mr Gill argues that by reason of him being employed on a full-time basis from 24 April 2017, that he was eligible to progress to the next salary level from 21 June 2017, since he had amassed 306 days by the time that he commenced and was only required to work a further 58 days in full-time employment to progress to the next salary level. Amended Statement of Claim paragraphs 16 to 18.

101 However, such an argument fails to properly examine the Letter of Offer or Employment to Mr Gill dated 12 April 2017 and also the relevant clauses of the Agreement.
102 The Letter of Offer of Employment specified that the salary is set ‘according to the Staff Agreement 2016 to 2018, depending upon qualifications and years of experience’ as per 15.4 Table 1D Teacher Salaries and clause 6.3.2. Exhibit 2, Annexure F, Letter of Appointment.

103 The letter confirmed that Mr Gill’s salary for 2017 would be $68,995 or Step 7 at a rate of (1.0) FTE pro rata. Ibid.

104 The letter attached a copy of the Agreement.
105 Mr Gill signed the letter on 12 April 2017. At the time of signing the Letter of Offer of Employment, he was accepting the offer of employment on the terms and conditions set out in the letter and in the Agreement.
106 Pursuant to clause 6.2.4.1 of the Agreement:
… where the classification structure for an Employee contains steps within levels an Employee shall be appointed to step one of the appropriate level and shall progress to each further step in the level on completion of a year’s full- time service or equivalent. The number of steps within each level shall be as set out in section 15 – Monetary Rates.
107 Pursuant to cl 6.3.6.6.1 of the Agreement:
A teacher who commences employment after the usual date of commencement at a school in any school year, shall be paid from the date the teacher commences provided that at the end of Term Four or final semester in that year, the teacher shall be paid an amount calculated pursuant to clause 6.3.6.3 or 6.3.6.4 as appropriate and shall receive no salary or other payment other than payment under this clause until the School Service Date or the resumption of term one for first semester in the following school year.
108 Pursuant to cl 6.3.6.6.2 of the Agreement:
In each succeeding year of employment, the anniversary of appointment of the teacher for the purpose of this clause shall be deemed to be School Service Date.
109 Pursuant to cl 4.1.32 of the Agreement:
“School Service Date” means the usual commencement date of employment at a school for teachers who are to commence teaching on the first day of the first term.
110 It is clear from the terms of the Agreement that Mr Gill was not entitled to progress to the next salary level from 21 June 2017. He was only entitled to commence to the next salary step upon his 12-month anniversary of appointment.
111 Mr Gill entered into a new contract with the College in December 2017 and remained at Step 7 but his salary increased incrementally to $71,410 per annum. Exhibit 2, paras 21-22; Annexure H.

112 The College correctly transitioned Mr Gill to Step 9 in May 2018 when he had reached his anniversary of appointment.
113 At no time during Mr Gill’s employment did the College fail in its obligations to Mr Gill in respect of transitioning between salary levels.
Issue 4: Does any liability arise with respect to underpayment?
114 No liability arises with respect to underpayment. Having attained 2.81 years of prior teaching service and being a ‘Not otherwise classified teacher’ pursuant to cl 6.3.2.1.4 of the Agreement, Mr Gill was only entitled to commence on Step 3, being the annual salary of $51,404.
115 At the time that Mr Gill commenced employment with the College, Mr Dredge reviewed Mr Gill’s previous salary at Hedland Senior High School and began Mr Gill at Step 7 (being the annual salary of $68,995), because he did not want to pay Mr Gill a salary lower than he was paid in his previous role.
116 At the commencement of his employment, the College paid Mr Gill $17,591 per annum more than they were required pay to under the Agreement.
117 Thereafter, Mr Gill correctly transitioned between the levels of salary until ceasing employment in December 2019.
118 Having concluded so, it is therefore not necessary for any assessment to be made regarding the second respondent’s liability.
Result
119 The claim is dismissed.



B. COLEMAN
INDUSTRIAL MAGISTRATE



Schedule I: Jurisdiction, Practice And Procedure Of The Western Australian Industrial Magistrates Court Under The Fair Work Act 2009 (Cth)
Jurisdiction
[1] An employee, an employee organization or an inspector may apply to ‘an eligible State or Territory court’ for orders regarding a contravention of the civil penalty provisions identified in s 539(2) of the FWA.
[2] The IMC, being a court constituted by an industrial magistrate, is an ‘eligible State or Territory court’: FWA s 12 (see definitions of ‘eligible State or Territory court’ and ‘magistrates court’); Industrial Relations Act 1979 (WA) s 81 and s 81B.
[3] The application to the IMC must be made within six years after the day on which the contravention of the civil penalty provision occurred: FWA s 544.
[4] The civil penalty provisions identified in s 539 of the FWA include contravening a term of the NES: FWA s 44(1).
[5] An obligation upon an ‘employer’ is an obligation upon a ‘national system employer’ and that term, relevantly, is defined to include ‘a corporation to which paragraph 51(xx) of the Constitution applies’: FWA s 12, s 14, s 42 and s 47. A NES entitlement of an employee is an entitlement of an ‘employee’ who is a ‘national system employee’ and that term, relevantly, is defined to include ‘an individual so far as he or she is employed … by a national system employer’: FWA s 13, s 42 and s 47.
Contravention
[6] Where the IMC is satisfied that there has been a contravention of a civil penalty provision, the court may make orders for ‘an employer to pay [to an employee] an amount … that the employer was required to pay’ under the modern award: FWA s 545(3)(a).
[7] The civil penalty provisions identified in s 539 of the FWA includes:
· The Core provisions (including s 44(1) and s 45) set out in pt 2 - 1 of the FWA: FWA s 61(2) and s 539.
[8] Where the IMC is satisfied that there has been a contravention of a civil penalty provision, the Court may make orders for:
· An employer to pay to an employee an amount that the employer was required to pay under the FWA: FWA s 545(3).
[9]  Any person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision: FWA s550(1).
[10] Where a person is involved in a contravention, the person will have contravened the provision if they have:
· aided, abetted, counselled or procured the contravention; or
· induced the contravention, whether by threats, promises or otherwise; or
· in any way, by act or omission, directly or indirectly, been knowingly concerned in the contravention or have been a party to the contravention; or
· conspired with others to effect the contravention: FWA s550(2).

[11] In contrast to the powers of the Federal Court and the Federal Circuit Court, an eligible State or Territory court has no power to order payment by an entity other than the employer of amounts that the employer was required to pay under the FWA. For example, the IMC has no power to order that the director of an employer company make payments of amounts payable under the FWA: Mildren v Gabbusch [2014] SAIRC 15.
Burden and standard of proof
[12] In an application under the FWA, the party making an allegation to enforce a legal right or to relieve the party of a legal obligation carries the burden of proving the allegation. The standard of proof required to discharge the burden is proof ‘on the balance of probabilities’. In Miller v Minister of Pensions [1947] 2 All ER 372, 374, Lord Denning explained the standard in the following terms:
It must carry a reasonable degree of probability but not so high as is required in a criminal case. If the evidence is such that the tribunal can say ‘we think it more probable than not’ the burden is discharged, but if the probabilities are equal it is not.
[13] In the context of an allegation of the breach of a civil penalty provision of the FWA it is also relevant to recall the observation of Dixon J said in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336:
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences [362].