WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

CITATION : 2018 WAIRC 00389

DELIVERED : Thursday, 28 jUNE 2018

FILE NO. : M 81 OF 2017

CLAIMANT

AND

Director General of Education

Respondent

CatchWords : INDUSTRIAL LAW (WA) - PRACTICE AND PROCEDURE – Application for leave to amend originating claim – Proposed amendments allege contravention of industrial agreement provisions on ‘full and proper consultation with staff’ and on grievance procedure – Whether amended claim has reasonable prospects of success - Whether leave to amend should be allowed

Legislation : Industrial Relations Act 1979 (WA)
School Education Act 1999 (WA)

Instruments : School Education Act Employees’ (Teachers and Administrators) General Agreement 2014

Case(s) referred to
in reasons  : May v Thomas [2008] WASCA 215
    Sino Iron Pty Ltd v Mineralogy Pty Ltd [2014] WASC 406
    smec Australia Pty Ltd v Valentine Falls Estate Pty Ltd [2011]
    WASCA 138
    Boase v Axis International Management Pty Ltd (No 2) [2012]
    WASC 334

Result : Application for leave to amend the claim is refused.

Representation:

Claimant : Mr Magyar (in person)

Respondent : Mr J. Carroll instructed by the State Solicitor of WA

REASONS FOR DECISION

1          Mr Magyar is a school teacher at Kent Street State High School.1 On 22 August 2013 he wrote to a regional executive director of the Department of Education, Ms Margaret Collins, invoking the procedure covering ‘grievances about worksite matters affecting employees’ found in cl 41 (the Clause 41 Procedure) of the School Education Act Employees’ (Teachers and Administrators) General Agreement 2014 (the School Agreement).2 Mr Magyar’s grievance concerned an allegation that school principal, Ms Ward, had failed to allocate time at a staff meeting on 21 August 2013 for discussion of an issue that was of concern to Mr Magyar. This was said to be a contravention of cl 9.3(b) of the School Agreement which provides that the agenda of whole of staff meetings ‘be determined in full and proper consultation with staff’.3 On 4 September 2013, Ms Collins advised Mr Magyar that she would not commence the Clause 41 Procedure because she considered that Ms Ward had in fact complied with cl 9.3(b) of the School Agreement. On  3 May 2017, Mr Magyar commenced this claim alleging a contravention of cl 41 of the School Agreement when Ms Collins failed to convene a Regional Grievance Committee (RGC) as required by the Clause 41 Procedure (the 2013 Contravention Claim). After the commencement of his claim, a RGC was convened to determine Mr Magyar’s grievance. By a letter dated 4 September 2017, the RGC determined the grievance, setting out written ‘findings’ and ‘resolutions’, including that ‘full and proper consultation with all teaching staff regarding the structure of meetings for 2018 take place before the end of 2017’ (the RGC Resolution).

2          On 11 December 2017, Mr Magyar filed an application to amend the claim, alleging that: (1) in breach of cl 9.3(b) of the School Agreement, Ms Ward had failed to engage in ‘full and proper consultation with staff’ on the agenda, venue, frequency and timing of 2018 staff meetings; (2) in breach of cl 41.10 of the School Agreement (RGC resolutions are binding on employees), Ms Ward had failed to engage, before the end of 2017, in full and proper consultation with all teaching staff regarding the structure of meetings for 2018. The proposed amendments will together be referred to as ‘the 2017 Contravention Claims’. The respondent contends and Mr Magyar disputes that relevant consultation took place in staff meetings held on 9 October 2017 and 15 November 2017. The respondent opposes the proposed amendments. For the reasons set out below, I agree with the respondent that the 2017 Contravention Claims have no reasonable prospects of success. It follows that Mr Magyar’s application for amendment must be dismissed.

3         Although the matter is not entirely clear, the text of the Form 6 Application to amend the claim lodged by Mr Magyar on 11 December 2017, suggests that he proposed to add the 2017 Contravention Claims to the 2013 Contravention Claim. If that is correct, the 2013 Contravention Claim remains to be determined. I propose to hear from the parties on the most efficient mode of achieving that determination. For example, the respondent may consider it expedient to admit a contravention of cl 41 of the School Agreement by failing to convene a Regional Grievance Committee (RGC) in September 2013 and for the Court to hear submissions from the parties on appropriate consequential orders.

Application to Amend a Claim: the Principles

4         Subject to case management considerations, a party will usually be permitted to amend a claim to enable the court to conveniently decide all matters in issue between the parties.4 However, if it is apparent that a proposed amendment would result in a claim that has no reasonable prospects of success, the application for amendment will be refused. It is for the respondent in this case to persuade the court that there is no issue to be tried in respect of the 2017 Contravention Claims. The amendment will be allowed unless the court is satisfied that this case is ‘one of the clearest of cases, when there is a high degree of certainty that the 2017 Contravention Claims would ultimately fail at trial’.5 If the ultimate outcome of the 2017 Contravention Claims may be affected by unresolved questions of fact or difficult questions of law or any other factor, including the filling of the current evidential vacuum, then the application to amend should be granted.6 The power to refuse an amendment on the basis that a claim has no reasonable prospects of success is always exercised with great care and more so in the case of an unrepresented litigant where the court must be alert to the possibility of an undisclosed viable cause of action.7

The 2017 Contravention Claims

5         The 2017 Contravention Claims raise for consideration the content of the rights, duties and liabilities of teachers and the principal with respect to ‘whole of staff meetings outside the normal school day’ as proscribed by cl 9.3 of the School Agreement. The meaning of cl 9.3 of the School Agreement must be ascertained by the ordinary meaning of the words read against the context of cl 9, the whole of the School Agreement and the relevant legislative framework, including the School Education Act 1999 (WA) (the Act).

6         Clause 9.3 of the School Agreement provides that the principal may require teachers to attend up to five hours of ‘whole of staff meetings’ per term, including in smaller learning area groups (cl 9.3(a)). The ‘agenda, venue, frequency and timing of scheduled’ meetings is determined by the principal ‘in full and proper consultation with staff’ (cl 9.3(b),(c)) and will reflect equity considerations including family responsibilities (cl 9.3(b)). The ordinary meaning of cl 9.3 suggests that the principal is required to set a date and time for whole of staff meetings after ‘full and proper consultation with staff’ and having regard to equity considerations. Similarly, the principal is required to set the meeting agenda after consultation with staff.

7         In addition to making provision for ‘whole of staff’ meetings in cl 9.3, other provisions of cl 9: identify that the functions of a teacher are found in s 64 of the Act (cl 9.1); notes that a teacher’s workload is to be negotiated such that it is not excessive (cl 9.2); provides that teachers may be required to attend two parent teacher interviews with the ‘agenda, venue and timing of the interviews determined in full and proper consultation with staff’ (cl 9.5); provides for the possibility of payment or time off in lieu for activities outside normal hours such as school camps etc. (cl 9.6; 9.7). The significance of the content of the balance of cl 9 when interpreting cl 9.3 is to suggest that: the parties to the School Agreement are concerned to delimit the outer parameters of the workload of teachers; and that the duties upon the principal are considerable insofar as consultation with staff is required on both staff meetings and parent teacher interviews.

8          The 2017 Contravention Claims also raise for consideration cl 41.10 of the School Agreement which provides that resolutions of the Regional Grievance Committee are binding on all employees to the grievance. The issue is whether ‘full and proper consultation with all teaching staff regarding the structure of meetings for 2018’ took place before the end of 2017’.

9         The Act provides for the establishment of government schools by the Minister (s 55). The functions of the chief executive officer (CEO) (s 61), principals (s 63) and teachers (s 64) are proscribed by the Act. The CEO determines the standard of educational instruction in government schools. The functions of the principal include responsibility for day to day management and control of the school. The functions of a teacher include the giving of competent instruction to students in accordance with the curriculum. The functions of a teacher are subject to the direction and control of the principal (s 64(2)(c)). The significance of the content of the Act when interpreting cl 9.3 and cl 41.10 is to confirm that the principal is ultimately responsible for the management of the school. One implication is that the manner in which consultation with staff will occur is a matter in which the principal enjoys broad discretion.

10      The following facts, disclosed in Mr Magyar’s application to amend the claim filed on 11 December 2017 will, for present purposes, be assumed to be correct:

1. By a letter dated 4 September 2017, the RGC resolved that: ‘full and proper consultation with all teaching staff regarding the structure of meetings for 2018 take place before the end of 2017’; ‘consultation may occur at an all of staff meeting in term 4 or suitable other time such as a professional learning day’; ‘staff are to be given the opportunity for submission, discussion, recording and feedback’.
2. In the same letter, the RGC offered, if requested, more detailed advice on the consultation process. Notwithstanding his request to the RGC, Mr Magyar has not received further advice from the RGC.
3. On 9 October 2017, all staff had the opportunity to attend a ‘professional learning day’. The agenda for that day did not contain an item that made reference to 2018 staff meetings. On the morning of 9 October 2017, staff had the opportunity to view a document entitled, ‘PL/SD Planner – Using 2017 PL/SD Planner as a guide’. The document contained a proposal for allocation of time in 2018 to the following items (based upon the 2017 allocation for the same items): professional development, staff meetings (my emphasis), learning area time, peer observation etc. The same document referred to “other ideas presented for discussion”. Approximately five minutes before the time scheduled for a meeting lunch break, the proposal was raised and, without any discussion, the subject of a vote by staff attending the meeting. The proposal was not the subject of discussion before 9 October 2017 in any learning area meeting that involved Mr Magyar.
4. On 9 October 2017 (and after the professional learning day meeting), Mr Magyar attended a learning area meeting where the head of the learning area invited staff to comment upon ‘the voting’ at the professional learning day meeting earlier that day. Mr Magyar, surprised at the issue being raised, did not offer any comment.
5. On 8 November 2017, in anticipation of a ‘professional learning day’ for staff scheduled for 15 November 2017, a ‘draft PL planner for 2018’ said to reflect the outcome of the 9 October 2017 meeting was distributed by email to all staff together with the following comments: (1) ‘should anyone wish to present an alternative plan for how we make best use of the time allocated, this can be placed on the agenda and time will be allocated’ (emphasis in original); (2) ‘I also urge anyone wishing to offer an alternative plan to forward that to all staff for consideration in advance of the meeting’.
6. On 13 November 2017, in anticipation of the 15 November 2017 ‘professional learning day’ an email was sent to all staff with a ‘last call for anyone who wants to submit an alternative plan or variation to the plan for professional learning and general staff meetings’ to circulate a presentation to all staff.
7. On 15 November 2017, all staff had the opportunity to attend the ‘professional learning day’. I infer: the agenda for that day did not contain an item that made reference to 2018 staff meetings; the ‘draft PL planner 2018’, including reference to staff meetings, was approved by the meeting.
8. The capacity of staff to engage in meaningful discussion of 2018 staff meetings during the meetings of 9 October 2017 and 15 November 2017 may have been adversely affected by: (1) the level of staff attendance at those meetings (15% - 25% of staff were absent); (2) the absence of an agenda item concerning 2018 staff meetings; (3) the absence of any proposed resolution concerning 2018 staff meetings; (4) the risk of confusion as a result of the failure to distinguish between 2018 meetings required by cl 9 of the School Agreement and meetings that concerned ‘professional learning’; and (5) fatigue and hunger of staff when those items were reached (shortly before lunch).

The 2017 Contravention Claims Have No Reasonable Prospects of Success.

11       On any view of the facts set out in paragraph 10 above, those attending the all staff meeting on 15 November 2017: (1) had been aware since 9 October 2017 of a proposal from the principal for an allocation of time in 2018 to meetings on professional development, staff meetings and learning area time; (2) had been invited by emails on 8 November 2017 and 13 November 2017 to submit and distribute an alternative proposal; and (3) had been invited by the same emails to orally address the 15 November 2017 meeting directly on such alternative proposal. Undoubtedly, Ms Ward may have opted for alternative modes of consultation with staff. To take a (perhaps absurd) example, she may have opted to meet individually with each and every staff member and solicit their views. Alternatively, she may have opted to engage in the mode preferred by Mr Magyar, comprising agenda items and draft resolutions to be discussed at an all staff meeting which was not a professional learning day. However, as my analysis of the School Agreement in paragraphs 6-9 above demonstrate, the principal enjoys a broad discretion on the mode of consultation. She chose to distribute a draft 2018 planner on 9 October 2017 for consideration over a reasonable period and discussion (if requested) at a subsequent professional learning day on 15 November 2017 to which all staff were invited. Those steps, outlined as (1), (2) and (3), in the first sentence of this paragraph unarguably constitute full and proper consultation with staff on the timing, frequency and structure of whole of staff meetings to be held in 2018. The RGC Resolution specifically adverts to the possibility of consultation on a professional learning day. There is no arguable contravention of cl 9.3 or of cl 41.10. The consultation by Ms Ward did not extend to identifying the venue or describing the content of the agenda of 2018 whole of staff meetings. However, in October and November of 2017 and at the date that Mr Magyar lodged his application to amend this claim, it was premature for Ms Ward to engage in consultation on the venue of 2018 staff meetings or the content of the agenda of 2018 staff meetings.

Conclusion

12      The 2017 Contravention Claims have no reasonable prospects of success and the application for amendment will be refused. I am satisfied that the ultimate outcome of the 2017 Contravention Claims is not affected by unresolved questions of fact or difficult questions of law or any other factor, including the absence of evidence that would warrant the application being granted.

M. FLYNN

INDUSTRIAL MAGISTRATE

1. These reasons will be published on the same date as the reasons for a decision in another case involving the same parties, see File M 213 of 2017. Where apposite, it has been convenient to repeat or adapt parts of the reasons in File M 213 of 2017.

2. 41 GRIEVANCE RFSOLUTION PROCEDURE

41.1 The grievance resolution procedure covers grievances about worksite matters affecting employees that are within the control or responsibility of the employer or its employees. Any resolution of a grievance under these procedures must be capable of being implemented at the workplace/worksite. This clause does not bind swimming instructors, whose procedure is outlined in clause 39.5 of this Agreement.

41.2 This grievance resolution procedure excludes those grievances more appropriately dealt with by legislation or policy involving such matters including:  (a) sexual harassment;  (b) equal opportunity;  (c) occupational safety and health;  (d) Public Sector Commission Commission's Code of Ethics;  Commissioner's Instructions or the Public Sector  (e) performance and disciplinary matters; and  (f) criminal behaviour.

41.3 This grievance resolution procedure has been developed to achieve the following objectives:  (a) resolution of grievances at the workplace level;  (b) the right of employees to approach the employer or the Union for advice or assistance without any repercussions;  (c) grievances are dealt with in accordance with the principles of natural justice and due process;  (d) employees are informed of their rights and responsibilities in the grievance resolution process;  (e) there is a proper consideration of the facts and circumstances relating to the grievance; and  (f) decisions are impartial, transparent and capable of review.  Whilst the grievance is the subject of this grievance resolution process, the status quo prevailing before the grievance was lodged will remain, unless otherwise agreed between the parties, or where the maintenance of the status quo is impractical.

41.4 Where a representative of the Union or the employer provides an employee with assistance in formulating a grievance, that person must exclude themselves from the Consultative Committee hearing the grievance where there is a conflict of interest or they cannot act without bias.

41.5 Fundamental principles in dealing with grievances are as follows:  (a) discussion and resolution should be within a general framework of co-operation, which emphasises prevention of further grievances rather than just a resolution of the immediate matter;  (b) as far as possible, grievances should be handled using the normal line management structure;  (c) all employees involved in the grievance and their representatives must act in good faith, with a genuine desire to resolve any grievance at the lowest possible level if possible, and to maintain communications at all levels with a view to resolving the issue or issues;  (d) resolution of grievances should occur as quickly as possible and be completed as soon as practicable;  (e) employees have the right to raise legitimate grievances without threat of repercussion;  (f) confidentiality must be maintained at all times in the resolution of a grievance, including the outcome, unless otherwise agreed to by all the employees involved in the grievance; and  (g) employees who are not party to the grievance cannot be compelled to become involved in the grievance resolution process.

41.6 The procedures to be followed when an employee wishes to lodge a grievance are:  (a) Where a grievance arises at a worksite, in the first instance the matter should be dealt with in an informal manner. The aggrieved employee should attempt to resolve the grievance with the other employee. Consultation with other officers or the Union office may take place as a normal line management process in order to attempt to resolve the matter prior to the commencement of the formal grievance procedures set out below.  Employees are committed to resolving grievances cooperatively. Every effort should be made to resolve the issue informally.  If a grievance cannot be resolved informally, it can be considered under the formal grievance procedure.  (b) The formal grievance resolution procedure is instigated as follows:  (i) The instigation of the grievance procedure in the first instance is the responsibility of the aggrieved employee and such employee must act within three weeks of the circumstances occurring from which the grievance arises.  (ii) Where a grievance is lodged after three weeks, the Consultative Committee has the discretion to accept a late grievance on such grounds as the party being on sick leave or because of failed attempts to resolve the issue informally or through other processes such as mediation. The onus is on the aggrieved employee(s) to provide written reasons of the cause of the delay at the time of lodging their grievance. The Consultative Committee must provide written reasons for its decision to reject an application lodged out of the three week time limit.  (iii) The grievance must be written in a clear and concise manner and include the relief sought. The response acknowledging the grievance and advice of the outcome of consideration of the grievance will also be in writing.  (iv) Where an employee has a grievance with his or her principal or line manager, the employee must notify him or her. If the matter is not resolved informally between the principal or line manager and the employee, the employee is entitled to go straight to Level Two of the procedure.  (v) In circumstances where the grievance relates to a School Administrator or the Regional Executive Director, the resolution process may require the grievance to be considered by another Regional Grievance Committee.  (vi) In circumstances where the issues raised by the grievance may have system-wide ramifications, and are not able to be resolved at the workplace level, the matters can be referred to EREC for determination and action.

41.7 The formal grievance resolution procedure has two levels: Level One - Worksite/School and Level Two - Regional Grievance Committee.

41.8 Level One - Worksite/School  (a) At this stage, the grievance should be considered formally by the Worksite/School Consultative Committee within five working days of its receipt. The committee is made up of the principal or line manager and the local Union representative.  (b) In the case where there is no school site Union representative or where that person is the principal or line manager, another Union member from that school or workplace should take the position who is nominated by the President of the Union or his or her nominee.  (c) The aggrieved employee may nominate and be accompanied by a support person at this and any subsequent stage. This support person can advise but not represent the aggrieved employee at any stage of the grievance. Both members of the committee may nominate a deputy member to attend in their stead.  (d) A person who has initiated a grievance or who is the subject of a grievance is not to be a member of a Consultative Committee dealing with that grievance, even if they would normally be a member under the preceding provisions. If it is not possible, as a result of this, to form a Worksite/School Consultative Committee the grievance will be referred to Level Two.  (e) The Worksite/School Consultative Committee will attempt to reach an agreed resolution to the grievance. These resolution(s) will be provided in writing to the employees involved in the grievance and will be binding on all employees involved in the grievance.  (f) Where the Worksite/School Consultative Committee is unable to reach an agreed resolution to the grievance they will inform all employees to the grievance of this fact. The aggrieved employee has a period of five working days in which they may take the grievance to Level Two. The aggrieved employee is required to inform the Union and the Regional Executive Director.

41.9 Level Two - Regional Grievance Committee (a) At this stage, the matter should be considered formally by the Regional Grievance Committee.  (b) A Regional Grievance Committee is constituted within ten working days for each grievance at this level. The Regional Grievance Committee is made up of a senior employee nominated by the Director General and one Union member nominated by the President of the Union. A person who has initiated a grievance or is the subject of a grievance is not to be a member of an Regional Grievance Committee dealing with that grievance, even if he or she would normally be a member under the preceding provisions.  (c) At this stage, the Regional Grievance Committee should attempt to resolve the issue so that it can be referred back to the school for implementation. (d) If the Regional Grievance Committee believes the issues raised by the grievance have system-wide ramifications, the committee may seek advice from the Director General and the President of the Union or their nominees and take such advice into consideration in determining the grievance.

41.10 Resolutions of the Regional Grievance Committee are binding on all employees to the grievance.

41.11 Where the Regional Grievance Committee is unable to reach an agreed resolution, the issue may be raised at a formal meeting of the EREC-ICG.

3. 9 TEACHERS - FUNCTIONS AND RESPONSIBILITIES

This clause is to be read in conjunction with Part 3 - Teachers of the Award.

9.1 The functions of a teacher are contained in Section 64 of the Act.

9.2 (a) Each teacher's workload is negotiated at the school level within parameters provided in the Act. (b) No teacher will be required to perform an unreasonable or excessive workload during the school year.

9.3 (a) The principal can require teachers to attend whole of staff meetings outside the normal school day or normal operating hours totalling five hours per term. These meetings will be used for collaborative purposes to improve the school's performance. Whole of staff meetings may include meetings of groups of teachers working in phases of learning or learning areas. (b) The agenda, venue, frequency and timing of scheduled meetings convened under this clause will be determined in full and proper consultation with staff. Equity considerations such as family responsibilities, professional and personal development commitments and the flexible hours arrangements will be considered in the decision making process. (c) The responsibility to ensure whole of staff meetings occur rests with the principal. (d) Staff who cannot attend a scheduled whole of staff meeting will be provided with access to

agendas, minutes and tabled documents.

9.4 A part-time teacher cannot be required to attend a staff meeting on a day the teacher would not ordinarily work. Where the principal requests a part-time teacher to attend on a day the teacher would not ordinarily work, and the teacher agrees, the teacher will be paid for the time they are required to attend.

9.5 (a) Teachers are required to conduct up to two formal interviews/meetings with parent/carers outside the normal school day or normal operating hours each year to discuss students' progress. (b) The agenda, venue and timing of these meetings will be determined in full and proper consultation with staff. The final responsibility to ensure meetings occur rests with the principal.

9.6 Payment or time off in lieu (TOIL) may be considered for agreed work undertaken outside of official student instruction time for such activities as school camps, music and drama festivals and performances; and parent interviews in excess of those specified in clause 9.5.

9.7 The employer recognises that some employees are required to travel to undertake their normal teaching duties. The employer will explore time off in lieu arrangements or the payment of an allowance to compensate employees for travelling time undertaken outside normal working hours.

9.8 The Department will continue to fund low-cost access to laptop computers for teachers for personal and work use.

4. May v Thomas [2008] WASCA 215; Sino Iron Pty Ltd v Mineralogy Pty Ltd [2014] WASC 406.

5. smec Australia Pty Ltd v Valentine Falls Estate Pty Ltd [2011] WASCA 138 [20].

6. smec Australia Pty Ltd v Valentine Falls Estate Pty Ltd [20 – 25].

7. Boase v Axis International Management Pty Ltd (No 2) [2012] WASC 334, [57] (Beech J): ‘On an application for summary disposal involving a litigant in person, the court should be astute to ensure that, in a poorly expressed or unstructured document setting out the claim, there is no viable cause of action which, with appropriate amendment, could be put into proper form: Wentworth v Rogers (No 5)(1986) 6 NSWLR 534, 536, 543; Tobin v Dodd [2004] WASCA 288 [15]. … A court should be careful to see that the rights of an unrepresented litigant have not been 'obfuscated by their own advocacy': Neil v Nott [1994] HCA 23; (1994) 121 ALR 148, 150; Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10].’