WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES’ COURT

PARTIES LIQUOR, HOSPITALITY AND MISCELLANEOUS UNION, WESTERN AUSTRALIAN BRANCH

CLAIMANT

-v-

The Minister for Education and Training, Chief Executive Officer, Department of Educationand Training

RESPONDENT

CORAM INDUSTRIAL MAGISTRATE W.G. TARR

HEARD Wednesday, 14 December 2005, Wednesday, 18 January 2006, Thursday, 19 January 2006, Wednesday, 15 February 2006

DELIVERED Wednesday, 19 April 2006

CLAIM NO. M 72 OF 2005

CITATION NO. 2006 WAIRC 04146

CatchWords Interpretation of agreement; intention of the parties

Legislation Industrial Relations Act 1979 & Education Assistants General Agreement No. AG 108 of 2004

Cases referred to in decision

 Norwest Beef Industries Limited v West Australian Branch, Australasian Meat Industry Employees Union 64 WAIG 2124

Result Interpretation given

Representation 

Claimant Mr M Swinbourn appeared as agent for the Claimant

Respondent Mr S Murphy (of Counsel) of the State Solicitor’s Office appeared for the Respondent

Reasons for Decision

(Outcome advised to the parties at the conclusion of the hearing, written reasons to be provided by His Honour)

1         The Claimant herein is an organisation of employees registered pursuant to Part II Division 4 of the Industrial Relations Act 1979 (the Act).

2         The Respondent is the employer of the employees the subject of the claim.

3         Both parties are the named parties to the Education Assistants General Agreement 2004 No AG 108 of 2004 (the Agreement)

4         It is the Claimant’s claim that the Respondent breached the Agreement in relation to the progression through the classification structure provisions as they relate to Education Assistants.  In particular the requirements provided for in clauses 21.7 and 21.18 of the Agreement.

5         The parties have been engaged in discussions and have filed in the Court a Statement of Agreed Facts and Issue for Determination.

6         The issue for determination is as follows:

“Given that the assessment as per subclause 21.12 of the Agreement was not carried out by 9 July 2004 in respect of the named employees, because the respondent believed that the named employees were ineligible to apply, was the respondent subsequently in breach of subclause 21.16 of the Agreement because it did not automatically recognise the named employees as Level 3?

7         The claim is on behalf of a group of named employees and it is agreed that:

• Each of the named persons applied for their position to be re-assessed by a District Office Committee by completing a Request for Level 3 Recognition Form and forwarding it to the relevant District Office Committee by 9 July 2004.or line managers over the telephone.
• The named persons were all employed as Education Assistants at the material time.  Atthe material time, none of the named employees were formally appointed to a (sic) Education Assistant (Special Needs) position.  At the material time, the majority of the named persons were formally appointed to Education Assistants (Primary, Pre-Primary, Rural Integration Program, Ethnic) positions.
• On the basis of the respondent's determination that the named persons were not employed as an Education Assistant (Special Needs), the respondent considered that the named persons were not eligible to apply for reassessment and so the respondent did not assess the applications in respect of the named persons as per subclause 21.12 of the Agreement.
• The respondent did not automatically recognise the named persons as Level 3 as contemplated by subclause 21.16 of the Agreement.

8         The Agreement in Part 5 provides for Progression Through the Classification Structure.  That part contains six clauses, the first five of which make provisions for the classification by way of a Level and Step within that level for specified employees as follows:

• Clause 20. – Education Assistants (Primary, Pre-primary, Rural Integration program, Home Economics Assistant, Ethnic).
• Clause 21. – Education Assistants (Special Needs) in Education Support Units and Working with Individual Students in Mainstream Schools.
• Clause 22. – Education Assistants (Special Needs) in Education Support Schools and Centres.
• Clause 23. – Education Assistants (Special Needs) in SPER Centres.
• Clause 24. – Aboriginal and Islander Education Officers. 

9         It is necessary to set out clause 21 of the Agreement with all its subclauses for the purpose of these reasons.  The clause reads as follows:

21 EDUCATION ASSISTANTS (SPECIAL NEEDS) IN EDUCATION SUPPORT UNITS AND WORKING WITH INDIVIDUAL STUDENTS IN MAINSTREAM SCHOOLS

21.1 Prior to the selection or employment of Education Assistants (Special Needs) in Education Support Units or working with individual students in mainstream schools, the position will be assessed as Level 2 or Level 3 and advertised as such.

21.2 Employees employed in positions classified at Level 2 shall commence on Level 2 step 1 and progress by annual increments through Level 2 and Level 3 of the classification structure.

21.3  An employee will progress from Level 2 to Level 3, unless the relevant school principal indicates prior to an employee's increment date that an employee's work performance is not satisfactory and the employee is not capable of exercising the responsibilities and carrying out the duties of a Level 3 Education Assistant.  The school principal must be able to demonstrate to the employer that performance issues are genuine and have been raised with the employee.

21.4 Education Assistants who progress to Level 3 will carry out the functions and duties as prescribed by the relevant Level 3 Education Assistant Job Description Form (JDF).

21.5 Notwithstanding subclause 21.2 an employee in a Level 2 position who believes they should be recognised as a Level 3 may apply for their position to be re-assessed by the District Office Committee in accordance with the procedure outlined in subclauses 21.9 to 21.16.

21.6 All new employees will have an increment date in accordance with their anniversary date.

Transitional arrangements for existing employees.

21.7 The parties have agreed that the employees named in Employer Exhibit “1” of the WAIRC proceeding to register this Agreement shall be recognised as Level 3 employees.

21.8  All other employees except those referred to in Employer Exhibit “1” and subclause 21.19  will progress from Level 2 to Level 3, unless the relevant school principal indicates prior to an employee's increment date that an employee's work performance is not satisfactory and the employee is not capable of exercising the responsibilities and carrying out the duties of a Level 3 Education Assistant. The school principal must be able to demonstrate to the employer that performance issues are genuine and have been raised with the employee.

21.9 An existing employee not identified in subclause 21.7 shall continue at their current classification and progress through Level 2 and Level 3 of the classification structure by annual increments provided that an employee who believes their position should be recognised as Level 3 may apply for their position to be re-assessed by the District Office Committee

21.10 An employee applying for re-assessment shall complete the Request for Level 3 Recognition Form, Schedule 3.  The employee shall forward the form to the relevant District Office Committee for consideration.  The form may be signed by the school principal and/or classroom teacher.

21.11 Upon receipt of the form, the District Office Committee will forward a receipt of acknowledgement to the Education Assistant.

21.12 The District Office Committee will assess each submission based on the special needs requirements of students in consideration of the Individual Education Plan and the role requirements provided in the relevant Level 3 Education Assistant JDF.

21.13 If the District Office Committee confirms that the position is that of a Level 3 Education Assistant, the employee shall be classified as Level 3.

21.14 If the District Office Committee determines that the position does not warrant Level 3 classification, the employee shall continue at their current classification.

21.15 An Education Assistant may appeal the decision of the District Office Committee by utilising the Dispute Settlement Procedure in this Agreement.

21.16 Where the assessment process as outlined above is not completed by 9 July 2004, the Education Assistant will automatically be recognised as Level 3.

21.17 An employee named in Exhibit 1 or who is recognised as a Level 3 through the process outlined in subclauses 21.9 to 21.16 and who has been continuously employed prior to 22 July 2001 will:

(a) be classified as Level 3, Step 1 from 22 July 2002 and progress to Step 2 and Step 3 on 22 July 2003 and 22 July 2004 respectively; and

(b) receive appropriate arrears payment by 9 July 2004.

21.18 An employee named in Exhibit 1 or who is recognised as a Level 3 through the process outlined in subclauses 21.9 to 21.16 and who has not been continuously employed prior to 22 July 2001 will move to Level 3.1 from 1 January 2004 and shall progress through Level 3 of the classification structure by annual increments.

21.19 Notwithstanding the other provisions of this clause an employee solely employed to attend to a student to address exposure to a specific medical condition:

(a) anaphylactic reactions;

(b) epilepsy;

(c) diabetes; or

(d) any other conditions as agreed by the parties;

will begin employment at Level 1.  These employees shall progress through Levels 1 and 2 in annual increments.

21.20 Where an agreement cannot be reached in relation to a particular medical condition the dispute shall be dealt with under the Dispute Settlement Procedure of this Agreement.

10      It has been agreed that the named persons were all employed as Education Assistants and not appointed to an Education Assistant (Special Needs) position.

11      The Claimant argues however that the provisions of clause 21, in particular the “Transitional arrangements for existing employees”, should apply not only to the Education Assistants (Special Needs) but to the named persons.  It is argued that the provisions of clause 21.9 allow them to “apply for their position to be re-assessed by the District Office Committee” and where, as provided in clause 21.16 “the assessment process is not completed by 9 July 2004 the Education Assistant will automatically be recognised as Level 3”.

12      In support of that argument I have been referred to the definition of “employees” in clause 3 which reads:

“Employees” means all employees working in the Department of Education and Training as Education Assistants, Aboriginal and Islander Officers, Ethnic Assistants, and Home Economics Assistants.

13      I have been asked to interpret clauses 21.9 and 21.16 together with the other relevant subclauses of the Agreement as applying to all employees as defined.

14      The Western Australian Industrial Appeal Court, in Norwest Beef Industries Limited v West Australian Branch, Australasian Meat Industry Employees Union 64 WAIG 2124, dealt with the issue of the interpretation of awards and agreements.  In the reasons of Brinsden J, His Honour set out the following

“If it be the case that the correct approach to the interpretation of an industrial award is to read the document itself and give to the words used their ordinary commonsense English meaning (see Jackson J in United Furniture Trades Industrial Union v Dale Manufacturing Co Pty Ltd, 30 WAIG 539, at p. 540) then the first task in every case will be to determine whether the words used are capable in their ordinary sense of having an unambiguous meaning.  If that question is answered in the affirmative then the further consideration of the expressed or supposed intention of the award making tribunal does not fall to be considered. The majority of the Full Bench in this case took that view when they said:

‘It is now trite law that when the meaning of language read in its ordinary and natural sense is obtained it is not necessary or indeed permissible to look to the intention of the parties.’

In my opinion the majority of the Full Bench has correctly stated the basic principle to be applied in the interpretation of industrial awards.  Any other conclusion would lead to industrial anarchy.  If the contrary were the case every employer, union official and indeed each employee would need to have available to him the expressed views of the award making tribunal whether they be expressed before or after the making of the award in order to determine the intention of the tribunal whilst the award itself would be rendered meaningless.”

15      I believe the Claimant would have liked to call evidence as to the intention of the parties but it is my view there is no ambiguity in the relevant clauses of Part 5 of the Agreement.

16      Given the ordinary commonsense English meaning of the wording of the Agreement, it is my view that it must follow that the subclauses of each clause in Part 5 relate to the employees mentioned in the clause heading.  It could not be the case, as suggested, that clauses 21.7 to 21.20 have application to the employees mentioned in clauses 20, 22, 23 or 24.  Those clauses stand alone and any reference to “employee” in them must be a reference to the employee referred to in the clause title.

17      For example, clause 20 provides for Education Assistants (Primary, Pre-primary, Rural Integration program, Home Economics Assistant, Ethnic) – and I assume from submissions that the named employees come within that category – and as such they are initially employed at Level 1 Step 1 of the classification structure and may progress through to Level 2.  There is no provision for them to go beyond Level 2 in that classification.  Clause 22, 23 and 24 provide for the employees in the classifications to which each clause applies to be either employed at Level 3 or to progress to a Level 3.

18      As I have mentioned the intention of the parties to the Agreement is only relevant to the extent of what the Agreement provides on the face of it.  The parties had an opportunity if it was their intention to add a clause which clearly applied to all classifications in relation to transitional arrangements for existing employees.

19      It is my view that the only interpretation that can be concluded from the way Part 5 has been engrossed is that the subclauses of each clause relate to the employee referred to in the heading of the clause and the Claimant’s interpretation cannot be sustained.

20      I find that the Respondent was justified in concluding that the named employees did not qualify for consideration under clause 21.

W G Tarr

Industrial Magistrate