WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

CITATION : 2012 WAIRC 00446

DELIVERED : THURSDAY, 19 July 2012

CLAIM NO. : M 38 OF 2011

Claimant

-v-

Director General, Department of Education

Respondent

Catchwords : Alleged breach of Education Assistants’ (Government) General Agreement 2010 (the Agreement); Failure to carryout inductions of new employees; Failure to notify the union of inductions; Whether school based inductions permissible; Whether the responsibility for conducting inductions passed from the “district offices” to “regional offices” following restructure.

Legislation  : Industrial Relations Act 1979

School Education Act 1999

Instruments  : Education Assistants’ (Government) General Agreement 2007

Education Assistants’ (Government) General Agreement 2010

Result : Alleged breaches of Clause 10.3 of the Agreement are not made out.

  Other parts of claim admitted.

Representation : Ms E Palmer (as agent) appeared for the claimant

  Mr D Matthews (Counsel), instructed by the State Solicitor’s Office, appeared for the respondent                           

Reasons for Decision

The Claim

1         United Voice WA (the claimant) alleges that the Director General, Department of Education (the respondent has contravened or failed to comply with Clause 10 - Induction of the Education Assistants’ (Government) General Agreement 2010 (the 2010 Agreement), which provides:

“10. INDUCTION

10.1 The employer consistent with its policy, Staff Induction, will ensure all new employees and redeployees attend induction sessions within three months of commencement of employment.

10.2 The Department of Education and Training will develop a specific induction package for Education Assistants.              

10.3           Each district office is responsible for conducting inductions which are to be held twice each term during term time for new employees. The Employer will notify the Union if there are no new employees requiring induction and the required second induction in the term will not be necessary.

10.4 The Union will be given at least 14 days notice of the time and place of the inductions and the names of those attending.  The Union is entitled to at least thirty minutes to address new employees without Employer representatives being present.  The Union will meet the costs associated with its attendance at such sessions.

10.5 Every effort will be made to induct new employees in remote locations.  Inductions may be part of professional development days or other days dedicated to staff training or development.  Where car travel is greater than two hours, consideration may be given to an on-line induction to be available for new employees.”

2         The claimant says that between 1 January 2011 and 5 June 2011, inclusive, the respondent breached the aforementioned clause in the following ways:

a) by failing to ensure that 158 new employees and redeployees attended an induction session within 3 months of commencement of employment (Clause 10.1);

 b) by the District Offices not being responsible for conducting inductions (Clause 10.3);

c)   by failing to hold inductions for new employees twice each term during term time for new employees (Clause 10.3)

d) by failing on 26 occasions to give the claimant at least 14 days’ notice of the time and place of inductions and the names of those attending (Clause 10.4); and

e)                  by not allowing the claimant on 26 occasions its entitlement of at least 30 minutes to address new employees without employer representatives being present (Clause 10.4).

3         It suffices to say that the Respondent admits the breaches outlined in paragraphs (a), (d) and (e) above but denies the allegations in paragraphs (b) and (c).  The parties agree that the outcome in paragraph (c) is contingent upon the outcome in paragraph (b).

Background

4         The claimant union represents Education Assistants employed by the respondent.  In more recent times the union has attempted to increase the profile of Education Assistants who, in the past, were sometimes seen and regarded as being unskilled workers. The claimant says that in reality they possess important skills.  It is therefore striving to increase the professionalism of Education Assistants and to create commensurate career and pay structures.

5         The proper induction of Education Assistants is seen by the claimant as being an important and integral process by which it can achieve its objectives. With that in mind it negotiated the inclusion of an induction clause in the Education Assistants’ (Government) General Agreement 2007 (the 2007 Agreement) which has been retained in the 2010 Agreement.

6         The claimant’s State Secretary, Mr David Kelly, testified that it was important from the union’s point of view that inductions be conducted by a central authority so that they could be regulated and monitored. There were quality assurance benefits in the induction being conducted in that way. It was also more convenient for the union. From a logistical point of view it was physically impossible for the union to attend all school based inductions, sometimes involving only a few employees at different locations, potentially being conducted at the same time. It was far better for the union to recruit members and address Education Assistants about various campaigns at large induction sessions. Simply put, the union does not have the resources to attend multiple small induction sessions.

7         In early September 2010, the Premier of Western Australia and the Minister for Education announced in a joint statement that there would be a change in the delivery of school services. They said that schools would be given greater autonomy and that bureaucratic restrictions would be reduced. It was intended that support services occur within or as close to schools as possible. The new support structure would involve the creation of 75 school networks in eight education regions across the state. Each region would be headed by a Regional Executive Director who would become a member of the Department’s executive team. The new model would replace district education offices. School support services that operated from those offices would move to schools. The new model was designed to provide greater access between schools and the Director General through a flatter management structure.

8         Ms Margaret Collins, who is the Regional Executive Director for the Southwest Education Region was called by the respondent and testified that district offices were abolished on 7 September 2010. Some of the functions of district offices were transferred to schools whilst others, such as human resource functions, went to head office. Ms Collins produced a document prepared by the Department of Education concerning Regional Executive Directors (Exhibit 8). She said that the role of Regional Executive Directors is substantially different to that performed by district offices.  Rather than providing support, Regional Executive Directors are expected to monitor the performance of all schools in the region and intervene if a school is underperforming. The role of Regional Executive Directors in achieving that end is described within Exhibit 8 as follows:

• support innovation, efficiency and collaboration so students have access to a broad, high quality curriculum
• coordinate communications and complaints, disputes and crisis management processes
• monitor schools through the Department’s performance information systems on student achievement (academic and non-academic), financial and human resource management, and community relations
• initiate and coordinate support for and intervention in underperforming schools
• manage school principals and regional staff
• lead the implementation of Department policies, programs and initiatives
• facilitate and support interagency collaboration and partnerships
• support the professional learning and development of Network Principals in consultation with the professional learning and leadership institute
• advise Corporate Executive on Department policy and programs

9         Ms Collins said that as a result of the restructure, Regional Executive Directors were not involved in inductions and that school principals became empowered to induct all staff, including Education Assistants. The function of conducting inductions and complying with Clause 10 of the 2010 Agreement therefore rests with individual school principals.  

10      Ms Sandra Thompson, the Respondent’s Principal Human Resources Consultant who was called by the respondent, affirmed that position. She also testified that as a result of “regionalisation” school principals became responsible for the induction of Education Assistants. She said that principals were given all the necessary materials, information and support to conduct the requisite inductions.

11      Although Ms Collins and Ms Thompson are now quite firm in their view about where the responsibility for inductions lays, the fact of the matter is that there was considerable initial confusion about this issue within the Education Department itself.  Indeed, that confusion continued well into 2011.  Such is evident from the testimony of Ms Michelle O’Driscoll, the claimant’s Team Lead Organiser for the education industry employees.

12      Ms O’Driscoll testified that in September 2010 she met with the respondent, Ms Sharon O’Neil and others concerning the proposed changes. The exact form of the proposed changes was not then known.  As a result of that meeting, Ms O’Driscoll satisfied herself that although there would be some changes made to staffing at district offices, they would essentially remain intact and be renamed as regional offices. That view was reinforced by various discussions she had with departmental officials and also because of what was said in a series of emails passing between her and Ms Thompson.  It is important to refer to some of those emails in order to accurately reflect what was happening at the time, and to explain why Ms O’Driscoll held that view.

13      On 4 February 2011, Ms Thompson sent an email to Ms O’Driscoll (Exhibit 2.1) which contained the following:

“Subject: Coordination of inductions for Cleaners, Gardeners and Education Assistants

Good Afternoon Michelle

Thank you for meeting with us this morning. As discussed, the proposed plan to coordinate regional inductions in 2011 is as follows:

•   Workforce Management will coordinate EA inductions in collaboration with each Regional Education Office. A copy of the EA Induction calendar for the year will be provided to the LHMU and you will be advised in a timely manner when changes occur.
•   Workforce Management will provide the EA induction calendar to Strategic Asset Planning. Wherever possible, Cleaning and Gardening inductions in country and remote areas will be planned to align with the EA induction calendar.
•   Group EA Inductions will not be planned in the Kimberley and Pilbara regions in the wet season.

We look forward to working with you this year.”

14      On 17 February 2011, Ms O’Driscoll, by email, queried whether an induction timetable had been finalised. That same day Ms Thompson responded by email saying:

“Hi Michelle

I understand you would be a bit concerned but I want to reassure you it is in progress. Approval from the ED Workforce is being sought to contact the Regional Executive Directors. This will enable me to lock in the dates and negotiate any support they may require to coordinate inductions.”

15      Ms Thompson admitted during her testimony that she had initially informed Ms O’Driscoll that the proposed plan was for regional offices to continue to induct Education Assistants, but after consultation with departmental officers, it was decided that regional offices did not have the capacity to deliver inductions. She also admitted that during the transitional phase there was a lack of clarity about who was responsible for the delivery of inductions. It only later became clear to her that it was the responsibility of individual schools to deliver the inductions. Ms Thompson said that the lack of clarity, combined with awareness and capacity issues, led to breaches of the 2010 Agreement which have been admitted.

16      The Respondent accepts that in some instances inductions did not occur and where they did, in some cases, the correct procedures as provided for by Clause 10 of the 2010 Agreement were not followed. The Respondent accordingly admits the allegations in the Claim, save that she did not comply with Clause 10.3. The imposition of penalties for non-compliance with the admitted breaches is to be considered following the determination of the outstanding issue in this matter.

Determination

17      Given the admissions made by the respondent, the sole issue to be determined in this matter is whether the respondent has failed to comply with Clause 10.3.

18      Clause 10.3 commences by stating:

“Each district office is responsible for conducting inductions…”

19      The claimant submits that the meaning of the initiating words of the provision is clear and unambiguous, that is, that the act of performing inductions is to be done by district offices and not by the central department or schools. Each district office is responsible for, and obliged to carry out, inductions.

20      The meaning of “responsible” in the Oxford Dictionary of English (2nd edition, 2003) is stated as:

“… having an obligation to so something or having control over or care for someone,  as part of one’s job or role.”

21      It is contended therefore that the parties intended that each district office carry out inductions of Education Assistants employed in schools within their respective districts. Indeed, that was how it was done leading up to the changes made in September 2010. The claimant says further, that even if Clause 10.3 is read to mean that district offices were responsible for making sure inductions were conducted, the act of transferring responsibility entirely to schools with nobody performing an overarching co-ordination role, is of itself, in breach of the provision.

22      “District office” is not defined in the 2010 Agreement, nor is it defined in the School Education Act 1999.  The claimant asserts that “district office” was a name given to a location within the Education Department’s organisational structure, situated between the central department and its schools. District offices facilitated communications between the department and schools, and also co-ordinated services and functions across schools.  The claimant contends that the eight regional offices and seven local education offices, which replaced the 14 district offices, are located in the same organisational and physical geographical locations as the former district offices. They, like district offices, have responsibility for communicating and co-ordinating the implementation of departmental policy to schools, and for co-ordinating services and functions across the schools in their area. The claimant therefore says that regional and local education offices are, for my purposes, to be considered as “district offices”.  The re-badging of district offices as regional and local education offices should not allow the respondent to circumvent its obligations.

23      The claimant further submits that on its clear and express terms, Clause 10 mandates that inductions be conducted at a central location. When Clauses 10.1, 10.3 and 10.5 are read together they contextually manifest intent for centralised inductions. Centralised inductions should occur both organisationally and geographically.  It is suggested that the requirement that inductions be held twice each term only makes sense if inductions are required to be held centrally. The necessity for inductions to be held twice a term will not exist if inductions are held at school level, because there will generally be insufficient new employees and/or redeployees to warrant that. The claimant also points out that if Clause 10.1 contemplated inductions being held at the school level then the special provision for remote employees found in Clause 10.5 would not exist.

24      In the alternative, the claimant argues that if I do not accept the clear and unambiguous terms of the Clause 10.3, then a consideration of the historical context evidencing the common understanding and intentions of the parties in reaching agreement on Clause 10, should be undertaken.  Further, the claimant points out that the respondent’s initial conduct following the restructure demonstrates that she recognised the need to maintain the status quo by transferring the responsibility for conducting inductions to the natural equivalent officer of the defunct district office. The subsequent unilateral decision to alter the common understanding as to how inductions would be conducted was against the clear and unambiguous understanding of the clause, as evidenced by past conduct. It was not permissible to create a new regime under the terms of the existing agreement.

25      Clause 10 is aimed at ensuring that Education Assistants receive specific and dedicated inductions for which district offices are responsible. However, as a result of a government initiative which restructured the Education Department, district offices were abolished on 7 September 2010.  From then on inductions could no longer be conducted by district offices. The restructure which abolished district offices created considerable confusion about who would take on the role of inducting Education Assistants.   It is self-evident from Ms Thompson’s e-mails that she was of the view that Regional Executive Directors would do so. Her view was not predominant.  The Director General of Education regarded the role of Regional Executive Directors as being substantially and substantively different to that of district offices. Exhibit 8 supports that.  As      Ms Collins explained, regional offices took on a supervisory or monitoring role, whereas district offices were responsible for hands on support. Most of the district offices hands on functions devolved to schools in line with government policy.

26      I accept Ms Collins’ evidence that, the role of Regional Executive Directors, and that performed regional offices is significantly different to that of the now defunct district offices. I accept that regional offices are not structured to provide hands on support.  It is not their role to conduct inductions.  That responsibility has devolved to schools in line with the policy underlying the restructure.

27      The thrust of the claimant’s argument in this matter is that where “district office” is referred to in Clause 10.3, the Court should read “regional offices”.  That is in line with what the claimant was led to understand would be the situation following the restructure.

28      The obligation to induct Education Assistants is, and has always been, the responsibility of the Director General of the Department of Education.  That is recognised by the claimant who has bought this Claim against her.  Clause 10.3 does no more than to provide for an agreed arrangement as to the delegation of the responsibility to conduct inductions. The clause spells out that district offices are responsible for conducting inductions.  Upon district offices being abolished the immediate responsibility for conducting inductions reverted to the Director General. She resumed that immediate responsibility when it became impossible for inductions to be done by district offices.  In line with the policy underlying the restructure, she delegated that responsibility to schools.

29      Clause 10.3 of the 2010 Agreement does not lock into place a certain organisational structure for the life of the 2010 Agreement which subjects the Director General of Education to enforcement proceedings in the event of a change. There is no undertaking in that clause or elsewhere in the 2010 Agreement that district offices would not be abolished.

30      The claimant asserts that the respondent is in breach of Clause 10.3 because she has failed to ensure that inductions were organised by a body at a level above schools and that because she has failed to ensure that the inductions are held at central locations.  There is nothing in Clause 10.3 which requires inductions to be conducted at central locations, even though that is how it was done in the past, and was how it was contemplated by the parties at the time the agreement was made.  Clause 10.5, upon which the claimant places some considerable weight, does no more than to enable employees in remote locations who cannot attend a dedicated induction session to be inducted in other ways.

31      Notwithstanding the pre-existing practice, neither Clause 10.3 nor Clause 10.5 read with each other, or as a whole with the other provisions of Clause 10, requires that inductions be held at a central location. Clause 10 does not say that inductions are to be conducted at a central location or at locations other than schools.  The clause is capable of construction without reference to extraneous evidence. Clause 10.3 is concerned with the responsibility for carrying out inductions but not the form or location of those inductions.

32      The claimant asserts at paragraph 3.6(b) of its Statement of Claim that the respondent has breached Clause 10.3 because district offices were, during the material periods, not responsible for conducting inductions.  In the circumstances, the real question to be determined on the pleadings is whether there has been a breach of Clause 10.3 because the Director General has failed to ensure that district offices continued, and therefore failed to ensure that district offices continued to have responsibility for the conduct of inductions.

33      Clause 10.3 does not require the continued existence of district offices. Once those offices were abolished, it rendered the first part of the first sentence in Clause 10.3 otiose. It was impossible for district offices to have responsibility for inductions when they did not exist.  The respondent cannot be, and is not, in breach of Clause 10.3 because district offices have been abolished.  There was no agreement that district offices would exist for the life of the 2010 Agreement. Clause 10.3 is incapable of enforcement. It is no more than a mechanical provision relating to delegation of responsibility to district offices.  Upon the abolishment of district offices that mechanism became redundant.

34      In any event, even if it could be said that there has been a breach of Clause 10.3, the common law defence of impossibility enables exculpation of the respondent. It suffices to say that the impossibility of complying with Clause 10.3 arose from the implementation of government policy which the respondent was statutorily obliged follow.

35      The alleged breach of Clause 10.3 of the 2010 Agreement, as asserted in paragraph 3.6(b) of the Statement of Claim is not made out. It follows, given that the allegation in paragraph 3.6(c) of the Statement of Claim is contingent upon the claim in paragraph 3.6(b) being satisfied that it too is also not made out.

36      I will now hear the parties in relation to the admitted breaches.

G. CICCHINI

INDUSTRIAL MAGISTRATE