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  4. Stidwill v State of Queensland (Department of Education and Training) - [2016] QIRC 91

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Stidwill v State of Queensland (Department of Education and Training)[2016] QIRC 91

Stidwill v State of Queensland (Department of Education and Training)[2016] QIRC 91

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION: 

Stidwill v State of Queensland (Department of Education and Training) [2016] QIRC 091

PARTIES: 

Stidwill, Andrea Helen

(Applicant)

v

State of Queensland (Department of Education and Training)

(Respondent)

CASE NO:

D/2016/9

PROCEEDING:

Notice of Industrial Dispute

DELIVERED ON:

HEARING DATE:

25 August 2016

12 July 2016

HEARD AT:

Brisbane

MEMBER:

Industrial Commissioner Neate

ORDER:

  1. Andrea Helen Stidwill is a "Three-year trained teacher" for the purposes of the Teachers' Award - State 2012.

CATCHWORDS:

INDUSTRIAL LAW – INDUSTRIAL DISPUTE – Interpretation of Award – scope of definition of "Four-year trained teachers" in clause 5.2.2(a) of Teachers' Award – State 2012 – teacher with Bachelor of Education (Teaching) degree from University of Auckland – three-year full-time course – whether teacher is four-year trained – whether degree is "an approved degree from a recognised tertiary institution" – approach to construction of clauses in Award – whether Trans-Tasman Mutual Recognition Arrangement and legislation to implement that arrangement is relevant – whether the language of clause 5.2.2.(a) is ambiguous – whether the history preceding the Award, including previous Teachers' Awards, assists in interpreting clause 5.2.2(a) – whether a subsequent Modern Award can assist in interpreting that clause.

CASES:

Commonwealth of Australia Constitution s 51 (xxxvii)

Education (Teacher Registration) By-law 1999

Higher Education (General Provision) Act 1993

Industrial Relations Act 1999 (Qld) ss 229, 320

Trans-Tasman Mutual Recognition Act 1997 (Cth)

Trans-Tasman Mutual Recognition (Queensland) Act 2003 (Qld)

Kucks v CSR Ltd (1996) 66 IR 182

Short v F W Hercus Pty Ltd (1993) 40 FCR 511

Australian Workers' Union of Employees, Queensland v James Hardie Australia Pty Ltd [2001] 167 QGIG 280

United Firefighters' Union of Australia, Union of Employees Queensland v Department of Community Safety - Queensland Fire and Rescue Service (D/2013/84) - Decision

United Voice, Industrial Union of Employees, Queensland v State of Queensland (Department of Education, Training and Employment) [2014] QIRC 107

Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337

The Australasian Meat Industry Employees Union v Golden Cockerel Pty Ltd [2014] FWCFB 7447

APPEARANCES:

Mrs A.H. Stidwill, the Applicant in person.

Mr R. Patterson, for the Respondent.

Decision

  1. [1]
    Andrea Helen Stidwill ("the Applicant") obtained her tertiary qualifications in New Zealand and is employed as a school teacher in Queensland.  She gave notice under   s 229 of the Industrial Relations Act 1999 ("the Act") of an industrial dispute which is, in essence, whether she should be classified and paid (and should have been classified and paid since appointment) as a four-year trained teacher.
  1. [2]
    The State of Queensland, Department of Education and Training ("the Respondent") submits that she does not satisfy the criteria for a four-year trained teacher, but is a three-year trained teacher.

Background

  1. [3]
    In December 2010, the Applicant graduated with a Bachelor of Education (Teaching) from the University of Auckland, New Zealand.  That degree was a three-year full-time course, although the Applicant completed it after four years of part-time study between 2007 and 2010. 
  1. [4]
    The Applicant was granted provisional teacher registration with the New Zealand Teachers Council from 16 February 2011.  She was granted full registration on               3 March 2013. 
  1. [5]
    From 3 March 2011, the Applicant was granted provisional registration as a teacher in Queensland by the Queensland College of Teachers ("QCT") under the Trans-Tasman Mutual Recognition Arrangement.[1] 
  1. [6]
    She commenced employment with the Respondent on 28 March 2011 as a Supply A (Casual) Teacher at Varsity College, Varsity Lakes, Queensland.  She subsequently held a number of Supply A and temporary employment engagements there.
  1. [7]
    On 30 April 2013, the Applicant was informed that she had been granted full registration as a teacher in Queensland, and on 16 June 2014 she was appointed as a permanent full-time teacher at Varsity College.
  1. [8]
    The Applicant commenced her employment in Queensland as a graduate teacher on Band 1 Step 1, at which a three-year trained teacher is appointed.  She was subsequently offered and accepted various temporary and permanent appointments as a teacher on a three-year trained classification.
  1. [9]
    At the time of the hearing, the Applicant was in her fifth year of teaching and was on Band 2 Step 1. 
  1. [10]
    Clause 5.2.2 of the Teachers' Award - State 2012 includes the following definition of "Four-year trained teachers":

"(a) "Four year trained teacher" will mean a person appointed as a teacher who holds an approved degree from a recognised tertiary institution or an approved equivalent tertiary qualification plus at least one year of teacher education or such other qualifications recognised by the employer as equivalent to one year of teacher education."

  1. [11]
    The Applicant contends that her tertiary qualifications satisfied the "Four-year trained teachers" classification by virtue of the fact that she has "an approved degree from a recognised tertiary institution."  Accordingly, she should be classified and paid (and should have been classified and paid since appointment) as a four-year trained teacher.
  1. [12]
    The Respondent submits that:
  1. (a)
    the Applicant's qualifications satisfy the "Three-year trained teacher" classification by virtue of the fact that she has completed three years of full-time equivalent study in an education and teaching discipline (see clause 5.2.1(a)); and
  1. (b)
    in the absence of relevant further study sufficient to supplement her three-year trained status, her qualifications do not satisfy the "Four-year trained teacher" classification at clause 5.2.2(a) of the Teachers' Award - State 2012. 

 The correspondence between the parties 

  1. [13]
    The dispute between the Applicant and the Respondent is clearly illustrated by an exchange of detailed correspondence between them (and between the parties and the Queensland Ombudsman) over a period of more than two and a half years. That correspondence contains the respective positions of the parties and also identifies the material informing, and the reasoning in support of, those positions.
  1. [14]
    On 2 May 2013 the Applicant wrote to the Payroll Classification Team in regard to her pay classification which, after one year on contract, was Band 1 Step 2.  She noted that she obtained her Bachelor of Education degree in New Zealand, the degree is studied over three years, and she received her teacher registration in Queensland under the mutual recognition scheme (i.e., the Trans-Tasman Mutual Recognition Arrangement).  The Applicant referred to, and quoted from, statements in relation to the mutual recognition scheme on the QCT website which, she stated, "imply that my Bachelor of Education is deemed equivalent to the Queensland Bachelor of Education."  She attached to the letter a copy of her academic transcript.  On that basis she expressed the belief that she should be on the same pay scale as her peers who obtained their degrees in Australia, i.e. Band 2 Step 2.  She expressed "shock" that she was on a different pay scale and being paid $8,000 per year less than her colleagues who had been teaching for the same length of time as she (Exhibit 1, RB-9).
  1. [15]
    Later that day, Sarah Johnston, from the Respondent's Payroll Services, Human Resources Branch replied by email as follows:

 "According to our advice and understanding the University of Auckland - Bachelor of Education (Teaching) Degree you have completed is the equivalent of an Australian Bachelor's degree completed after 3 years study therefore entitling you to commence on the 3 year trained teachers classification scale (C2101).

 As academic frameworks vary from country to country the Australian Qualifications Framework (AQF) may not be the direct equivalent of another country.

 Should you disagree with Education Queensland's assessment of your degree you have the option to contact the National Office of Overseas Skills Recognition (NOOSR) and ask them for a comparative assessment."  (Exhibit 1, RB-9, 10)

  1. [16]
    On 6 May 2013, the Applicant sent an email to Ms Johnston asking which Australian three year bachelors degree one could complete after three years of study which would entitle someone to teach in Queensland.  The Applicant said she was not aware of such a degree.  (Exhibit 1, RB-11)
  1. [17]
    Later that day, Ms Johnston replied:

"The National Office of Overseas Skills Recognition comparative assessment has determined that your qualification is the equivalent of an Australian Bachelor Degree (i.e. Bachelor of Science) completed after 3 years study within the Australian Qualifications Framework (AQF), the comparative assessment is based on the quality and practises of the New Zealand Educational Institution and is not necessarily dependent on your particular field of study.

Although new minimum requirements for new beginning teachers now exist the Bachelor of Teaching which was a 3 year course was offered by many Higher Education Institutions within Australia and may be used as the basis to teach within Education Queensland.

Further to my email below, if you would like further clarification or a reassessment of your Bachelor of Education (Teaching) then I would contact the National Office of Overseas Skills Recognition (NOOSR) and ask them for a comparative assessment."  (Exhibit 1, RB-12)

  1. [18]
    After communications between the Queensland Teachers' Union (on the Applicant's behalf) and the Respondent, an officer of the Union advised the Applicant by email on 18 June 2013 that the Respondent was not prepared to grant her four-year trained status under clause 5.2.2(a) of the Teachers' Award - State 2003.  Correspondence from the Respondent indicated that the Teacher's Classification team had checked the Applicant's qualifications on NOOSR and stated that her qualification "equates to a         3 year bachelor degree in Australia according to NOOSR."  The Union advised the Applicant to consider seeking an assessment of the qualifications from NOOSR on the basis that such an assessment "would be more detailed" than the one undertaken by the Respondent as NOOSR "would assess the subjects and their credit point value."  (Exhibit 1 RB-14)
  1. [19]
    In February 2014, the Applicant made email inquiries about what additional studies she would need to complete in order to be on the four-year trained teacher pay scale.   In an email to the Applicant dated 19 February 2014, Rebecca Bartlett (Senior HR Services Officer, Teacher Classifications, Payroll services with the Respondent) wrote:

"As advised previously, your New Zealand Bachelor of Education is equivalent to a 3 year Australian Bachelor degree, therefore you have been recognised as a 3 year trained teacher with Queensland Department of Education.

To be recognised as a 4 year trained teacher, you are required to complete additional study.  This can be either:

2 Graduate Certificates

Master

Graduate Diploma

If you disagree with our assessment of your qualification, please contact National Office of Overseas Skills Recognition (NOOSR) on the details below."  (Exhibit 1, RB-15, RB-16, emphasis added)

  1. [20]
    In response to a further enquiry from the Applicant, Ms Bartlett advised by email dated 25 February 2014 that the Applicant could complete a Graduate Diploma "in a field other than Education."  (Exhibit 1, RB-17, RB-18)
  1. [21]
    On 13 May 2015, the Applicant sent an email to an officer of the Respondent making further enquiries about her status, including a reference to the following statement in the Trans-Tasman Mutual Recognition Agreement: "a person registered to practise an occupation in Australia is entitled to practise an equivalent occupation in New Zealand and vice versa, without the need for further testing or examination."  In light of that statement, and on the basis that the QCT had deemed the New Zealand Bachelor of Education "equivalent" to the relevant Queensland qualification and had granted her Queensland Teacher registration, the Applicant questioned why she was being paid less than her teacher colleagues.  She also described as "fictitious" the          "2 and 3 year trained" teacher's salary scale as there is "no 2 and 3 year training here in Australia."  She suggested that the scale "seems to exist solely for the discrimination of New Zealanders!"  (Exhibit 1, RB-19)
  1. [22]
    Ms Bartlett replied to the Applicant by email on 15 May 2015, stating that:
  1. (a)
    the QCT had confirmed that the Trans-Tasman Mutual Recognition Agreement is in place for registration purposes only;
  1. (b)
    the QCT is responsible for teacher registration only and is a separate entity to the Respondent;
  1. (c)
    any recognition used for registration purposes "does not have any bearing on" the Applicant's salary classification;
  1. (d)
    as previously advised, the Applicant holds a three year Bachelor of Education from New Zealand which is equivalent to a three year Australian Bachelor and, based on that, the Applicant's current classification as a three-year trained teacher, Band 1 Step 4 is "correct;"
  1. (e)
    if the Applicant wished to be classified as a four-year trained teacher, she was required to complete one of the specified additional qualifications (i.e., two Graduate Certificates, Master, or Graduate Diploma) and she would be reclassified from the date she completed the additional qualifications;
  1. (f)
    if the Applicant disagreed with that assessment, she could contact NOOSR.  (Exhibit 1, RB-20)
  1. [23]
    In subsequent correspondence on 12 June  2015, Ms Bartlett confirmed that, in order to reach the higher banding, the Applicant would have to complete a full degree or diploma (not part of it). (Exhibit 1, RB-21, RB-22)
  1. [24]
    In an email to the Applicant dated 1 June 2015, Thalia Edmonds (an Industrial Advocate for the Queensland Teachers' Union) advised that she had reviewed the Applicant's situation and noted the advice provided to her by her organiser and the Respondent.  She advised that the "only remaining avenue left open to" the Applicant was to have her overseas qualifications assessed through the NOOSR, and recommended that the Applicant contact NOOSR to arrange for such an assessment.  (Applicant's submission Attachment L) 
  1. [25]
    The Applicant contacted the Overseas Qualifications Unit, which provided information previously supplied by NOOSR.  In a letter to her dated 13 July 2015, Les Retford (Principal Program Officer, Training and Skills Investment with the Respondent) provided advice with regards to her qualifications, together with an excerpt from the Country Education Profile for New Zealand to help her understand how the Overseas Qualification Unit made its decision.  The Overseas Qualification Assessment Advice was:

"On the basis of assessment guidelines published by the Australian Government Department of Education and Training in the Country Education Profile for New Zealand, the Bachelor of Education (Teaching) issued by the University of Auckland is assessed as comparable to the educational level of an: Australian (AQF) Bachelor Degree."  (Exhibit 1, RB-23)

  1. [26]
    In an email dated 19 July 2015, the Applicant advised Ms Bartlett that, having contacted NOOSR, her qualification was assessed by the Respondent.  The Applicant wrote, among other things that:
  1. (a)
    her Bachelor Degree had been assessed as "equivalent[2] to an Australian Bachelor Degree;"
  1. (b)
    she attached the Australian Qualifications Framework;
  1. (c)
    there is no differentiation between a Bachelor Degree completed in three years and a Bachelor Degree completed in four years on the framework, and both are classified as a Bachelor Degree;
  1. (d)
    the only prerequisite is that the qualification requires at least three years of study.

 As the Respondent had assessed her qualification as equivalent to an Australian Bachelor of Education and the Respondent also classifies her for payroll purposes, the Applicant asked Ms Bartlett to contact Mr Retford to confirm that her degree was the same as a degree gained in Australia and that there is no difference in classification between a three-year and four-year Bachelor Degree.  The Applicant also advised that she would be "pursuing a re-classification and back pay with vigour."  (Exhibit 1, RB-23)

  1. [27]
    Ms Bartlett advised the Applicant on 20 July 2015 that she had forwarded the Applicant's request to the Teacher Classifications Team for further investigation and response.  (Exhibit 1, RB-24, RB-25) 
  1. [28]
    In an email to the Applicant dated 23 July 2015, Tarnie Sauer (A/Manager, Payroll, Human Resources):
  1. (a)
    advised that she had reviewed the salary classification level assigned to the Applicant upon commencement with the Respondent in 2011 and agreed with the initial assessment that the Applicant's Bachelor of Education from New Zealand entitles her to be classified as a three-year trained teacher;
  1. (b)
    noted that the Applicant had been advised in 2013, 2014 and 2015 that only completion of further study may qualify her to progress to a four-year trained teacher classification level;
  1. (c)
    stated that she had included Ms Edmonds into the response as the Queensland Teachers' Union had also sent an enquiry on behalf of the Applicant.  (Applicant's submission Attachment O)
  1. [29]
    The Applicant sent an email dated 25 July 2015 to the AQF outlining her circumstances, quoting the definitions of "Three-year trained teachers" and "Four-year trained teachers" in the Teachers' Award - State 2012, stating that her qualifications had been assessed as "comparable to the educational level of an Australian (AQF) Bachelor Degree" and that the Respondent's payroll classification insist that her degree is somehow "less than" the Australian qualification.  She asked whether a Bachelor of Education gained in three years is any less than a Bachelor of Education that took four years to obtain.
  1. [30]
    In an email in reply dated 28 July 2015, an officer of the Governance, Quality and Access Branch in the Higher Education Group of the Australian Government Department of Education and Training ("the Australian DET") advised:

"The Australian and Qualifications Framework (AQF) is the national policy on qualification types, maintained by the Australian Government Department of Education and Training.

For the purposes of the AQF, the volume of learning of a Bachelor Degree is typically three to four years of full-time study.  A three-year AQF Bachelor Degree is not in any way inferior to a four-year AQF Bachelor Degree, nor is a three-year AQF Bachelor Degree a sub-classification of a four-year AQF Bachelor Degree."  (Applicant's submission Attachment P)

  1. [31]
    On 28 July 2015, the Applicant forwarded the information to Ms Sauer and requested documentary evidence on which Ms Sauer was basing the Applicant's "Three-year trained teacher" status.  She repeated that request by email on 30 July 2015 (Applicant's submission Attachment Q). 
  1. [32]
    By email dated 31 July 2015, Ms Sauer advised the Applicant that, in order to finalise her enquiry into the salary classification level assigned to her, they would request advice from the Overseas Qualification Unit, Office of Multicultural Affairs (formerly NOOSR).  In particular, they would request a determination of the equivalency of the Applicant's qualification in Australia using credit points to ascertain whether the Respondent's initial assessment was correct.  Ms Sauer stated that she would forward to the Applicant the response and any appropriate documentation (Applicant's submission Attachment R).  The Applicant states that she has not received any such response.
  1. [33]
    On 31 July 2015, the Applicant wrote in detail to the Director-General of the Respondent disputing her classification as a three-year trained teacher and asserting she should be (and should always have been) classified as a four-year trained teacher (Applicant's submissions Attachment S). 
  1. [34]
    The Director-General replied on 23 October 2015 stating that, while the Respondent recognises that her Bachelor of Education (Teaching) degree qualifies her to teach in Queensland, her qualification being three-year teacher training determines the salary scale which is paid.  The Applicant was advised that to be classified as a four-year trained teacher she would be required to undertake further training, as specified by the Award, for at least one more year.  (Exhibit 1, RB-27)
  1. [35]
    On 29 October 2015, the Applicant wrote to Vicki Anderson (the Director, Workforce Relations and Review, in the Human Resources Branch of the Respondent) with reference to the response received that day from the Director-General.  According to the Applicant, the Respondent had not provided her with any evidence as to how she did not meet the criterion for a "Four-year trained teacher" that the person "holds an approved degree from a recognised tertiary institution."  The Applicant stated that she had forwarded her complaint to the Queensland Ombudsman.
  1. [36]
    Ms Anderson responded by email on 23 November 2015 quoting in full the definition of "Four-year trained teachers" clause 5.2.2 of the Teachers' Award - State 2012 and stating that the "proviso" in that clause "means that a 3 year approved degree or equivalent tertiary qualification, becomes 4 years of training with the extra year of teacher education.  You do not have this extra year and are thus not a four-year trained teacher.  Your University of Auckland degree is a three year degree."  (Exhibit 1, RB-30)
  1. [37]
    The Applicant replied to Ms Anderson by email on 23 November 2015, contending that Ms Anderson had "emphasised the wrong part of the paragraph" and reiterating that the Applicant has "an approved degree from a recognised tertiary institution."  She asked Ms Anderson to provide detailed evidence as to how the Applicant does not meet this criterion.  She noted that a three-year or four-year degree is not mentioned in clause 5.2.2.  The Applicant also stated that her level 7 (AQF) Bachelor Degree is not equivalent to a level 5 Diploma, so she should not be on the same pay scale as someone with that qualification.  (Exhibit 1, RB-31)
  1. [38]
    Concurrently with that exchange of correspondence, the Applicant contacted the Queensland Ombudsman on 19 October 2015 and made a complaint.  The Applicant was kept updated by the Ombudsman and had a meeting early in 2016. 
  1. [39]
    As part of that process, Emma Armstrong (a Senior Investigator from the Office of the Queensland Ombudsman) contacted the Respondent seeking advice about five specific matters (Exhibit 1, RB-27). In that letter, Ms Armstrong referred to clause 5.2.2 of the Teachers' Award - State 2012 which defines "Four-year trained teachers." (See [10] above).  She wrote that clause 5.2.2 provides that a four-year trained teacher will mean "a person appointed as a teacher who holds:
  1. (i)
    an approved degree from a recognised tertiary education institution or;
  1. (ii)
    an approved equivalent tertiary qualification plus at least one year of teacher education or such other qualifications recognised by the employer as equivalent to one year of teacher education."

The significance of the formatting of that clause, at least as far as the Respondent is concerned, is apparent from later correspondence (see [41] below).

  1. [40]
    Ms Bartlett prepared responses to those questions which she sent by email to                 Ms Anderson on 12 November 2015.  Ms Bartlett concluded:

"The department has always considered Auckland University, New Zealand, to be a recognised tertiary institution.  I have attached information from the University of Auckland Web site which clearly states that the Bachelor of Teaching is a 3 year degree, therefore Ms Stidwill does not have a case against the department to be classified as a 4 year trained teacher.

I am not sure that there is anything else that can be provided to show how the department came to the conclusion that Ms Stidwill is a 3 year trained teacher."  (Exhibit 1, RB-29, emphasis added)

  1. [41]
    By letter to Ms Armstrong at the Office of the Queensland Ombudsman dated                    25 November 2015, Cathy Heffernan (Assistant Director-General, Human Resources of the Respondent) replied to the questions asked in the email dated 5 November 2015.  As a threshold issue, Ms Heffernan stated that the Respondent did not concur with the way Ms Armstrong had set out in clause 5.2.2 in the earlier email.  Ms Heffernan wrote:

  "You have applied the proviso of:

 plus at least one year of teacher education or such other qualifications recognised by the employer as equivalent to one year of teacher education

 only to:

 an approved equivalent tertiary qualification.

 The Department submits that the proviso of:

 plus at least one year of teacher education or such other qualifications recognised by the employer as equivalent to one year of teacher education

 applies to both

 an approved degree from a recognised tertiary institution

 and to

     an approved equivalent tertiary qualification.

 The proviso means that a three year approved degree or equivalent tertiary qualification, becomes four years of training with the extra years of teacher education."  (Exhibit 1, RB-32)

  1. [42]
    In reply to the five questions, Ms Heffernan provided answers consistent with the advice given  by Ms Bartlett on 12 November 2015.  Ms Heffernan wrote, in part:
  1. "Ms Stidwill's qualification is an approved degree from a recognised tertiary institution.  However, Ms Stidwill completed three years of study (2007 - 2009) and graduated with a Bachelor of Teaching, which meets the requirements to be classified as a three year trained teacher under the Teachers Award - State 2012.  Enclosed is information from the University of Auckland website which clearly shows that the Bachelor of Teaching is a three year degree."  (Emphasis added)
  1. "The Department of Education and Training refers to the Australian Qualifications Framework (AQF) and Overseas Qualification Unit, Office of Multicultural Affairs (formally [sic - formerly] National Office of Overseas Skills Recognition (NOOSR)) when assessing qualifications. NOOSR is referred to when assessing overseas qualifications, as it provides a comprehensive list of tertiary education institutions, qualifications, and how these equate to an Australian qualification."
  1. "As Ms Stidwill the completed a 3 year Bachelor of Teaching, she can only be considered to be a three year trained teacher under the Teachers Award -State 2012.  To be considered as a four year trained teacher, she must have completed either a four year Bachelor of Education, or a three year Bachelor Degree plus one year of teacher education."  (Emphasis added)
  1. "A 3 year trained teacher commences on Band 1 Step 1 and increments to the next step after each year of full time equivalent service until they reach Band 3, where they must complete 2 years of full time equivalent service on each step of Band 3 (in-service progression may reduce this to 1 year where conditions are met).  Ms Stidwill has completed three years of study, and graduated with a Bachelor of Teaching.  On the classification schedule, this equates to her commencing on Band 1 Step 1."  (Emphasis added)
  1. "In summary, Ms Stidwill applied for registration with Queensland College of Teachers (QCT) under the Trans-Tasman Mutual Recognition Arrangement which … states that:

 'a person registered to practice [sic] an occupation in Australia is entitled to practice [sic] an equivalent occupation in New Zealand, and vice versa, without the need for further testing or examination'.

 QCT has confirmed that the Trans-Tasman Mutual Recognition Arrangement is used for teacher registration purposes only, and does not extend to classification. … 

 The Department does not assess salary classifications based on the provisions that QCT use to assess registration. … 

 The Department has always considered Auckland University, New Zealand, to be a recognised tertiary institution.  As referred to earlier, enclosed is information from the University of Auckland website which shows that the Bachelor of Teaching is a three-year degree. 

 Therefore Ms Stidwill does not have a case against the Department to be classified as a four year trained teacher."  (Exhibit 1, RB-32, Emphasis added.)[3]

  1. [43]
    In a letter to Nick Seeley (Executive Director, Office of the Director-General of the Respondent) dated 21 January 2016, Kylie Faulkner (Acting Assistant Ombudsman, Investigation and Resolution Unit) advised that she had decided not to take further action in relation to the Applicant's complaint on the basis that the Award provides for unresolved disputes relating to the interpretation or implementation of the Award to be referred to the Queensland Industrial Relations Commission ("the Commission").  Ms Faulkner also advised that she had informed the Applicant that the Ombudsman's office would not be investigating her complaint further as she considered it more appropriate that the Applicant follow the dispute settling procedures in the Award and apply to the Commission to settle or determine the outstanding dispute between her and the Respondent.  (Exhibit 1, RB-33)
  1. [44]
    In responses to queries from the Respondent about the advice given by DET to the Applicant on 28 July 2015 (see [30]), Billy Crawford of the Australian DET replied on 10 February 2016:

"The advice provided earlier is correct.  A three-year AQF Bachelor Degree is not in any way inferior to a four-year AQF Bachelor Degree, nor is a three-year AQF Bachelor Degree a sub-classification of a four-year AQF Bachelor Degree.

The AQF was written as a 'framework' to ensure flexibility and innovation in the provision of education toward the awarding of qualifications.

The New Zealand and Australian Governments have recently aligned their qualifications systems.  The report can be found here: http://www.nzqa.govt.nz/assets/About-us/Our-role/Enhancing-mobility.pdf"[4]

and

"The AQF advice is general in nature.  There has been no assessment made of the learning outcomes associated with Ms Sidwell's [sic] education.  Any such assessment and comparison would be a matter for your department and                     Ms Sidwell [sic]."  (Applicant's submission Attachment P)

The broader implications of the dispute

  1. [45]
    The dispute was not resolved at a conference before a Deputy President of the Commission.  Subsequently the matter was referred for arbitration.
  1. [46]
    Although the Commission is asked to arbitrate only in relation to the Applicant's circumstances, it is clear that the outcome of these proceedings might have much broader implications.  At the directions hearing on 7 June 2016, Mr Patterson for the Respondent described this as "quite a significant matter for the state" and a "very important matter for the state" with "broader ramifications" because it "could affect hundreds of employees."
  1. [47]
    The Respondent's written submissions contain detailed statistics[5] that put the implications of this matter in context.  From those statistics, I note that of the 2,929 teachers who are classified and paid as three-year trained teachers, 234 have qualifications from countries other than Australia (including 173 who have qualifications from New Zealand).  Of those 173 teachers, 84 hold either a Bachelor of Education, Bachelor of Teaching or Bachelor of Teaching and Learning from a recognised New Zealand tertiary institution and are classified for pay purposes as three-year trained teachers (on the basis that these qualifications all comprised three years full-time teacher education).
  1. [48]
    Mr Hunt gave evidence that, if the Applicant is successful, the State could be liable for significant amounts of money in back pay and increased remuneration for the Applicant and similarly affected employees who have been appointed and paid as three-year trained teachers rather than as four-year trained teachers.[6]
  1. [49]
    According to Mr Hunt, when the Teaching in State Education Award - State 2016 takes effect, the Applicant will remain classified as a three-year trained teacher and will be remunerated accordingly (Exhibit 5 paragraphs 36-38).  Any relevance of that Modern Award for these proceedings is considered later in these reasons for decision (see [145] to [148], and [194]).
  1. [50]
    The fact that the outcome of these proceedings might be significant for many other teachers who hold qualifications similar to those of the Applicant, and might have substantial financial implications for the Respondent, cannot determine the outcome.  In particular, those implications cannot be the basis for finding whether the Applicant should be classified as a "Four-year trained teacher" as defined in clause 5.2.2(a) of the Teachers' Award - State 2012.  The implications for the Respondent of a finding in favour of the Applicant might, however, explain the extent of the resources devoted by the Respondent to the conduct of these proceedings.

 The questions to be answered

  1. [51]
    In accordance with Directions Orders dated 12 May 2016, the Applicant provided a draft series of questions for the Commission to answer relevant to the matter in issue in the proceedings.  The Respondent replied with proposed amendments to those questions. 
  1. [52]
    Following a directions hearing on 7 June 2016, the Commission directed that the following questions be answered:
  1. Does Andrea Helen Stidwill meet the criteria for the classification of "Four year trained teacher" pursuant to clause 5.2.2 of the Teachers' Award - State 2012, which states:
  1. "Four year trained teacher" will mean a person appointed as a teacher who holds an approved degree from a recognised tertiary education institution or an approved equivalent tertiary qualification plus at least one year of teacher education or such other qualifications as recognised by the employer as equivalent to one year of teacher education.
  2. A 4 year trained teacher will be appointed at Band 2 Step 1"?
  1. Is the Overseas Qualifications Unit, Department of Education, Training and Employment, the appropriate governing body to assess overseas qualifications for employment in Australia?
  1. Is the Australian Qualifications Framework the appropriate framework by reference to which Andrea Helen Stidwill's qualifications should be measured for the purposes of employment in Australia?
  1. Is the advice given by the Governance, Quality and Access Branch of the Higher Education Group, Australian Government Department of Education and Training as quoted below relevant to the determination of whether Andrea Helen Stidwill should be classified as a four-year trained teacher as defined in clause 5.2.2 of the Teachers' Award - State 2012:

  "For the purposes of the AQF, the volume of learning of a Bachelor Degree is typically three to four years of full-time study. A three-year AQF Bachelor Degree is not in any way inferior to a four-year AQF Bachelor Degree, nor is a three-year AQF Bachelor Degree a sub-classification of a four-year AQF Bachelor degree"?

  1. Is there a clear distinction between "3 years of teacher education" and "an approved degree" in the clauses below:
  1. 5.2.1"Three-year trained teachers
  1. (a)
    "Three year trained teacher" will mean a person appointed as a teacher with 3 years of teacher education or such other qualifications as may be recognised by the employer for this purpose.
  1. (b)
    A 3 year trained teacher will be appointed at Band 1 Step 1.

…

  1. 5.2.2Four-year trained teachers
  1. (a)
    "Four-year trained teacher" will mean a person appointed as a teacher who holds an approved degree from a recognised tertiary education institution or an approved equivalent tertiary qualification plus at least one year of teacher education or such other qualifications recognised by the employer as equivalent to one year of teacher education.
  1. (b)
    A 4 year trained teacher will be appointed at Band 2 Step 1"?
  1. If the answer to Question 1 is Yes:
  1. (a)
    Should Andrea Helen Stidwill's employment with the Department of Education have commenced on pay scale Band 2 Step 1 pursuant to clause 5.2.2(b) of the Teachers' Award - State 2012?
  1. (b)
    Has Andrea Helen Stidwill been underpaid since 2011?
  1. (c)
    Does that underpayment, if any, include salary, sick pay, pay leave loading and superannuation contributions?
  1. (d)
    Was the advice given to Andrea Helen Stidwill to take on further study in order to achieve "four-year trained teacher" status incorrect and should Andrea Helen Stidwill be compensated financially for paying $2,000 to study a Graduate Certificate unnecessarily?
  1. [53]
    The outcome of this application will be determined by the answer to Question 1.  Questions 2 to 5 are supplementary questions, but answering them may assist in determining the answer to Question 1.  Question 6 refers to the possible consequences of Question 1 being answered in favour of the Applicant. 
  1. [54]
    Before answering each of those questions, it is appropriate to:
  1. (a)
    mention some aspects of the conduct of the proceedings; and
  1. (b)
    set out the appropriate approach to resolving the issues in these proceedings.

 The conduct of the proceedings

  1. [55]
    Each party provided detailed written submissions and supplemented those submissions orally at the hearing.
  1. [56]
    The Applicant represented herself at all stages of these proceedings.  She provided detailed, well ordered, written submissions supported by related documentation.  Her submissions included evidence that would usually be provided by way of an affidavit.  Having regard to s 320 of the Act, her submissions were received after she gave brief evidence in relation to the evidentiary parts of the document.  The Applicant was not cross-examined in relation to that evidence.  However, the Respondent provided a detailed list of objections to specific paragraphs of the document, submitting that for various reasons those paragraphs were inadmissible as evidence.  Those objections were provided to the Commission and the Applicant at the commencement of the hearing.  The Applicant did not have time, and was not in a position, to respond to those specific objections without notice of them. 
  1. [57]
    Rather than rule on the objections at the hearing (apart from directing the redaction of two paragraphs of the written submissions), I have considered the objections in the course of assessing the Applicant's submissions and deciding whether some of the evidence on which she relies is irrelevant to the issues before the Commission or is otherwise objectionable.  I note that, despite those objections, the Respondent's written submissions deal in detail with the Applicant's submissions.  Although the Respondent objected to opinions expressed by the Applicant being admitted as evidence, opinions that are in effect submissions can be assessed as such.

The appropriate approach to resolving the issues

  1. [58]
    Although neither party was represented by a lawyer at the hearing, the Respondent's written submissions were prepared for the Crown Solicitor by senior and junior Counsel. 
  1. [59]
    The Respondent submitted that, when construing the relevant parts of clause 5.2 of the Award, the Commission should apply the rules of statutory interpretation.  In particular, the Respondent referred to:
  1. (a)
    s 14A(1) of the Acts Interpretation Act 1954 which provides that, in the interpretation of a provision of an Act, "the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation;" and
  1. (b)
    s 331(a) of the Industrial Relations Act 1999 which provides that the Commission may, in an industrial cause, make a decision it considers just, and include in the decision a provision it considers appropriate for dealing with the industrial matter.
  1. [60]
    The Respondent also submitted that context and purpose are important when interpreting an industrial instrument.
  1. [61]
    No party referred to any judicial or Commission decisions that provide guidance about the proper approach to resolving the matters in issue.  In my view, however, it is useful to set out briefly some key propositions from previous decisions that give some such guidance.
  1. [62]
    In United Voice, Industrial Union of Employees, Queensland v State of Queensland (Department of Education, Training and Employment),[7] the Commission was referred to the following decisions of the Commission, the Industrial Relations Court of Australia, and the Federal Court of Australia, to inform the approach that the Commission should take to answering the questions: Kucks v CSR Ltd,[8] Short v F W Hercus Pty Ltd,[9] Australian Workers' Union of Employees, Queensland v James Hardie Australia Pty Ltd,[10] and United Firefighters' Union of Australia, Union of Employees Queensland v Department of Community Safety - Queensland Fire and Rescue Service.[11]
  1. [63]
    The propositions relevant to this case that emerge from those authorities are, in summary:
  1. (a)
    deciding what an existing award means is a process quite different from deciding what might fairly be put into an award;[12]
  1. (b)
    narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely to be of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon;[13]
  1. (c)
    ordinary or well-understood words are in general to be accorded their ordinary or usual meaning;[14]
  1. (d)
    such meaning may be found in a reputable dictionary;[15]
  1. (e)
    extrinsic materials may be used in the interpretation of a certified agreement to resolve an ambiguity in the meaning of a clause[16] or if the language is susceptible of more than one meaning;[17]
  1. (f)
    evidence of prior negotiations to establish objective background facts which were known to both parties and the subject matter of the agreement is admissible;[18]
  1. (g)
    evidence consisting of statements and actions of the parties which are reflective of their actual intentions and expectations is not receivable.[19]
  1. [64]
    I note also that a Full Bench of the Fair Work Commission in The Australasian Meat Industry Employees Union v Golden Cockerel Pty Ltd[20] set out a list of principles to assist in the interpretation of an enterprise agreement. Relevant to this case are the following principles:
  1. (a)
    if the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement;
  1. (b)
    if the language of the agreement is ambiguous or susceptible to more than one meaning then evidence of the surrounding circumstances will be admissible to aide interpretation of the agreement;
  1. (c)
    admissible evidence of the surrounding circumstances is evidence of the objective framework of fact and will include:
  1. evidence of prior negotiations to the extent that the negotiations tended to establish objective background facts known to all parties and the subject matter of the agreement;
  2. notorious facts of which knowledge is to be presumed;
  3. evidence of matters in common contemplation and constituting a common assumption;
  1. (d)
    the resolution of a disputed construction of an agreement will turn on the language of the agreement understood having regard to its context and purpose.
  1. [65]
    I approach the issues in these proceedings with those propositions in mind, adapting them as referring to the interpretation of an award.

Registration v classification:  the implications of the Trans-Tasman Mutual Recognition Arrangement for the Applicant practising as a teacher in Queensland

  1. [66]
    At the outset it is appropriate to ascertain the implications, if any, of the Trans-Tasman Mutual Recognition Arrangement for the conditions under which the Applicant is employed by the Respondent and, in particular, the terms of clause 5.2 of the Teachers' Award - State 2012.
  1. [67]
    The Trans-Tasman Mutual Recognition Arrangement that underpins the Applicant's case is given effect by Commonwealth and Queensland legislation.
  1. [68]
    The Trans-Tasman Mutual Recognition (Queensland) Act 2003 (Qld) operated at all relevant times.                The purpose of that Act is to adopt in Queensland the Trans-Tasman Mutual Recognition Act 1997 (Cwlth) ("the Commonwealth Act")[21] as originally enacted and as amended from time to time by regulations made under the Commonwealth Act.[22]  The text of the Commonwealth Act is attached to the Trans-Tasman Mutual Recognition (Queensland) Act 2003 (Qld).
  1. [69]
    The principal purpose of the Commonwealth Act is to recognise within Australia regulatory standards adopted in New Zealand regarding goods and occupations.  The legislation is as contemplated by the Trans-Tasman Mutual Recognition Arrangement entered into on 9 July 1996 between the Commonwealth of Australia, New Zealand and the Australian States and Territories.[23]
  1. [70]
    The Trans-Tasman mutual recognition principle and the provisions of the Commonwealth Act may be taken into consideration in proceedings of any kind and for any purpose.[24]
  1. [71]
    For present purposes it is sufficient to note the following legislative provisions about the operation of the scheme as it affects the recognition and registration in Australia (and hence in Queensland) of people with relevant occupations.  In summary:
  1. (a)
    the relevant Trans-Tasman mutual recognition principle is that a person who is registered in New Zealand for an occupation[25] is, by virtue of the Commonwealth Act, entitled after notifying the local registration authority[26] of an Australian jurisdiction for the equivalent occupation:[27]
  1. to be registered in the jurisdiction for the equivalent occupation; and
  1. pending such registration, to carry on the equivalent occupation in the jurisdiction;[28]
  1. (b)
    the Commonwealth Act sets out the process for a person who is registered in New Zealand for an occupation to lodge a written notice with the local registration authority of an Australian jurisdiction (e.g. Queensland)[29] seeking registration for the equivalent occupation in accordance with the Trans-Tasman mutual recognition principle;[30]
  1. (c)
    a person who lodges such a notice is entitled to be registered in the equivalent occupation as if the law of the jurisdiction that deals with the registration expressly provided that registration in New Zealand is a sufficient ground of "entitlement to registration;"[31]
  1. (d)
    the local registration authority may impose "conditions on registration," but may not impose conditions that are more onerous than would be imposed in similar circumstances (having regard to relevant qualifications and experience) if it were registration effected apart from Part 3 of the Commonwealth Act,[32] unless they are conditions that apply to the person's registration in New Zealand or that are necessary to achieve equivalence of occupations;[33]
  1. (e)
    it is the duty of each local registration authority:
  1. to facilitate the operation of Part 3 of the Commonwealth Act in relation to occupations for which the authorities responsible, and in particular to make use of the power to impose conditions in such a way as to promote the Trans-Tasman mutual recognition principle;
  1. to prepare and make available guidelines and information regarding the operation of Part 3 in relation to the occupations for which the authority is responsible[34] (Emphasis added)
  1. [72]
    It is clear from that summary of relevant provisions of the Commonwealth Act that the focus of the scheme is on registration in Australia of people from New Zealand who practise an equivalent occupation. 
  1. [73]
    The scheme is expressly not concerned with, and does not affect the operation of laws that regulate, the manner of carrying on an occupation in an Australian jurisdiction.[35]  That proposition operates so long as those laws:
  1. (a)
    apply equally to all persons carrying on or seeking to carry on the occupation under the law of the jurisdiction; and
  1. (b)
    are not based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation.[36]
  1. [74]
    Hence, for example, A Users' Guide To the Mutual Recognition Agreement (MRA) and the Trans-Tasman Mutual Recognition Arrangement (TTMRA) published by the Commonwealth of Australia, states that the Trans-Tasman Mutual Recognition Agreement does not affect the operation of laws that regulate the manner of carrying on an occupation such as laws that include requirements relating to continuing education.[37]
  1. [75]
    Professor Goos gave evidence that if a person holds current teacher registration in New Zealand, they can apply for registration in Queensland under the relevant legislation without the qualification being scrutinised.  Applicants merely need to provide evidence of their current registration.  The function of the QCT is exclusively registration based.  The Trans-Tasman Mutual Recognition Arrangement does not extend to determining pay brackets or anything other than registration of teachers in Queensland (Exhibit 3 paragraphs 27, 28).
  1. [76]
    The distinction between what is required to be registered as a teacher under the Trans-Tasman Mutual Recognition Arrangement and the regulation of the practice of teaching in Queensland is clearly illustrated by the approach taken when the Applicant applied for registration as a teacher in Queensland and responses to her subsequent inquiries about classification and pay scales.
  1. [77]
    The Respondent notes that when the Applicant obtained registration with the QCT, the QCT did not require details of her academic qualifications and she did not provide them.  That was because the right to teacher registration in Queensland, pursuant to the mutual recognition provisions under the Trans-Tasman Mutual Recognition (Queensland) Act 2003, is enlivened not by qualifications but by the fact of registration in New Zealand.[38]
  1. [78]
    The Applicant's qualifications were assessed by the Respondent for Award classification purposes when she obtained employment with the Respondent.  That assessment was undertaken by Ms Bartlett, who gave evidence that:
  1. (a)
    in her role as Senior Payroll Officer, she was responsible for dealing with qualifications and classification assessments in assigning classifications to teachers under the Teachers' Award - State 2012;
  1. (b)
    having received a qualification and/or service recognition information from a newly-employed teacher, the first step is to assess the qualification, e.g. to look at the institution at which a Bachelor of Education was completed to ensure that it is an institution that is approved by the Respondent;
  1. (c)
    in Australia, a Bachelor of Education is currently a four-year degree and hence it can be assumed that a teacher who holds an approved Bachelor of Education from an Australian Tertiary Institution obtained since about 1997 would satisfy the definition of a "four year trained teacher" for the purposes of the Teachers' Award - State 2012;
  1. (d)
    before about 1997 such qualifications were obtained after three years, and a teacher who is so qualified and has maintained their registration (but has not subsequently updated their qualifications) remains in the "three year trained teacher" classification for the purposes of the Teachers' Award - State 2012;
  1. (e)
    if there is any uncertainty about a teacher's qualifications or length of training, it might be useful also to look at the credit points or contact the university through which the qualification was obtained for clarification;
  1. (f)
    Payroll Services had developed a "Recognition of Qualifications for Teachers" document to assist with the assessment of qualifications and classification of teachers;
  1. (g)
    where a teacher provides the Respondent with an overseas qualification, the Respondent applies a similar process and, to determine the nature of an overseas qualification, utilises a Country Education Profile ("CEP") which informs the Respondent as to whether an overseas degree is equivalent to a Bachelor Degree in Australia (but does not inform whether the overseas degree is equivalent to a three-year degree or four-year degree);
  1. (h)
    because the CEP does not indicate whether the overseas degree is equivalent to a three-year degree or four-year degree, the Respondent also looks at information from the Qualifications Recognition Policy Section, International Mobility Branch, International Group, Australian Government Department of Education and Training (which information was previously supplied by NOOSR) and seeks clarification from other sources such as the subject university's website;
  1. (i)
    in relation to the Applicant's application for a teacher employment with the Respondent, Ms Bartlett considered the Bachelor of Education degree from the University of Auckland (which had been ascertained to be the equivalent of a three-year teaching qualification in Australia) and the Applicant's academic transcript (which was equivalent to 6 semesters of full-time study) and confirmed that her Bachelor of Education degree was a three year degree (see Exhibit 1 paragraphs 3-21).
  1. [79]
    The "Recognition of Qualifications for Teachers" document (which, Ms Bartlett said, was in place at the time when the Applicant's qualifications were assessed by Payroll Services), states in the Overview:

"All training for teachers in Australia is undertaken through Universities and the most common qualifications awarded on successful completion of studies are:

  • Bachelor of Education degree - four-year trained degree
  • Bachelor Degree in at least one discipline/subject field suitable for teaching in schools plus a one or two year professional education programme such as a Graduate Diploma in Education/Teaching or a two-year Bachelor of Teaching making them four year trained
  • Bachelors of Learning Management (Central Queensland University) - four-year trained degree however students normally take an accelerated program over three years.

While all current teaching graduates have completed a 4 year full-time education qualification, including at least a year of pre-service teacher training, there may be some older applicants seeking re-employment, or overseas trained applicants who may only have completed a three-year course of study." (Exhibit 1 RB-1, emphasis in original)

  1. [80]
    The "Recognition of Qualifications for Teachers" document makes separate provision (i.e. other than by reference to the Australian Qualifications Framework) for Overseas Qualifications.  It states:

"Overseas qualifications are assessed according to the Country Education Profiles issued by the Australian Education International - National Office of Overseas Skills Recognition (AEI-NOOSR).

Qualifications from the UK, USA, Canada and New Zealand are broadly comparable to Australian qualifications.  Some exceptions include:

  • Bachelor degree with Honours from the UK - this is not comparable to an Australian Bachelor Degree with Honours as there is no additional study undertaken, or thesis required.  Please Note: some Canadian Honours degrees do have a Thesis therefore a transcript is required.
  • Bachelor of Education (Teaching) from New Zealand - is only a three-year course and would be comparable to an Australian Diploma course.

A certified copy of the qualification, as well as an official translation if required should be sent to Teachers Classification for assessment.  Overseas qualifications are then matched to Australian equivalents using the Country Education Profile for that country."  (Exhibit 1 RB-1, emphasis in original)

  1. [81]
    It appears from Mr Hunt's evidence that the information about overseas qualifications that was supplied previously by NOOSR is now provided by the Qualifications Recognition Policy Section, International Mobility Branch, International Group, Australian Government Department of Education and Training (Exhibit 5 para 11(c)).
  1. [82]
    The distinction between the qualifications or criteria for teacher registration and for classification was made in correspondence with the Applicant.  As noted earlier:
  1. (a)
    on 15 May 2015, Ms Bartlett advised the Applicant that the QCT had confirmed that the Trans-Tasman Mutual Recognition Agreement is in place for registration purposes only, the QCT is responsible for teacher registration only and is a separate entity to the Respondent, and any recognition used for registration purposes does not have any bearing on the Applicant's salary classification;
  1. (b)
    on 23 October 2015 the Director-General advised the Applicant that, while the Respondent recognises that her Bachelor of Education (Teaching) degree qualifies her to teach in Queensland (i.e. to obtain registration), her qualification being three-year teacher training determines the salary scale which is paid.
  1. [83]
    Applicant's submissions:  The Applicant submits, in essence, that her Bachelor of Education (Teaching) has been assessed as equivalent to an Australian Bachelor Degree, she has been registered to teach in Queensland since 2011, and her degree falls within the description of "an approved degree from a recognised tertiary institution."  Consequently, she comes within the definition of "Four-year trained teachers" in clause 5.2.2(a) of the Teachers' Award - State 2012 and hence should be paid, and should always have been paid, on that basis. 
  1. [84]
    In relation to the "Recognition of Qualifications for Teachers" document, the Applicant contends that:
  1. (a)
    the reference to a Bachelor of Education (Teaching) from New Zealand as comparable to an Australian Diploma course; and
  1. (b)
    the "Cheat Sheet" note in the same document that the degree should be assessed as three years and describing the Diploma of Teaching as an "older degree" equated to three-year trained,

are incorrect information, given that:

  1. (a)
    the Overseas Qualifications Unit assessed her qualification as "equivalent"  to an Australian Bachelor Degree;[39] and
  1. (b)
    a Bachelor of Education (classified as a Level 7 qualification) should not be equated with a Diploma of Teaching (classified as a Level 5 qualification). 

Consequently, she submits, the Respondent is relying on incorrect information in the "Recognition of Qualifications for Teachers" document to make decisions.

  1. [85]
    Respondent's submissions:  The Respondent draws a clear distinction between:
  1. (a)
    the Applicant's registration as a teacher under the Trans-Tasman Mutual Recognition Arrangement; and
  1. (b)
    the level of remuneration to which the Applicant is entitled (once registered in Queensland) by reference to her tertiary qualifications.
  1. [86]
    The Respondent submits that, because the Applicant's registration with the QCT was based on mutual recognition of New Zealand registration and not on an assessment of academic qualifications, that registration is not material to the interpretation of clauses 5.2.1 and 5.2.2 of the Teachers' Award - State 2012. 
  1. [87]
    Consideration: Having regard to:
  1. (a)
    the purpose of the Trans-Tasman Mutual Recognition registration scheme and the legislative provisions summarised above;
  1. (b)
    the fact that the scheme is not concerned with, and does not affect the operation of laws that regulate, the manner of carrying on an occupation in an Australian jurisdiction; and
  1. (c)
    the fact that the Applicant secured registration by the QCT as a teacher in Queensland without reference to, or need for reference to, her Bachelor of Education (Teaching) degree,

I have concluded that the process and criteria for registration in Queensland of New Zealand trained teachers are relevant only to that registration.  They have no bearing on the employment conditions (including scales of pay) which apply to a New Zealand trained teacher in Queensland.  In particular, they are not relevant to the interpretation of the Teachers' Award - State 2012, including clauses 5.2.1 and 5.2.2 of that Award.

Australian Qualifications Framework

  1. [88]
    In support of her case, the Applicant relied on specific statements in the Australian Qualifications Framework ("AQF") and the letter dated 13 July 2015 from Mr Retford stating that the Bachelor of Education (Teaching) was assessed as "comparable" to the educational level of an AQF Bachelor Degree.  Before considering those statements it is relevant to note key aspects of the AQF.[40]
  1. [89]
    The AQF is the national policy for regulated qualifications in Australian education and training.  It was introduced to underpin the national system of qualifications in Australia encompassing higher education, vocational education and training and schools.  In 2011 it was revised to, among other things, enable national and international portability and comparability of Australian qualifications.  It also enables the alignment of the AQF with international qualifications frameworks.[41]
  1. [90]
    The primary audiences for the publication are organisations that develop qualifications and those that are authorised through government legislation in Australia to accredit and/or issue AQF qualifications and must use AQF for these purposes.[42]
  1. [91]
    The AQF adopts an approach designed to enable consistency in the way in which qualifications are described, as well as clarity about the differences and relationships between qualification types.  So, for example, "AQF qualification type" is the nomenclature used in the AQF to describe each discipline-free category of AQF qualifications.  Each qualification type is defined by a descriptor expressed as learning outcomes.  There are 14 AQF qualification types from across all education and training sectors and each (with the exception of the Senior Secondary Certificate of Education) is located at one of 10 levels.[43]  Each qualification type is described by reference to its purpose, knowledge, skills, application of knowledge and skills, and volume of learning.  A Bachelor Degree is described as Level 7, with a volume of learning "typically 3-4 years."  A Bachelor Degree is ranked between an Associate Degree (Level 6, with a volume of learning typically two years) and a Bachelor Honours Degree (Level 8, with a volume of learning typically one year following a Bachelor Degree or an additional year in the Bachelor Degree).[44]  A Masters Degree is Level 9.
  1. [92]
    The principal users of the AQF Qualification Type Specifications are described as accrediting authorities[45] in each education and training sector which are responsible for the accreditation of AQF qualifications, the developers of AQF qualifications in each education and training sector, and the authorized issuing organisations in each education and training sector.[46]
  1. [93]
    The "Recognition of Qualifications for Teachers" document states that the AQF "was developed to provide a nationally consistent yet flexible framework for all qualifications in post-compulsory education and training."  Having been established in 1995 and fully implemented in 1999, the first edition of the AQF was released in July 2011.  A later addendum had amended qualification types.
  1. [94]
    The "Recognition of Qualifications for Teachers" document states that qualifications at Level 5 and above would be used to determine a teacher's classification.  Beginning teachers' qualifications would be Level 7.  If an employee's teaching qualification is at Level 5, then completing further qualifications at Level 6 and above would reclassify them to the appropriate status.
  1. [95]
    As noted earlier, the "Recognition of Qualifications for Teachers" document makes separate provision (i.e. other than by reference to the Australian Qualifications Framework) for Overseas Qualifications (see [80]). 
  1. [96]
    Professor Goos gave evidence that, pursuant to the AQF, universities are required to demonstrate that the degree programs adhere to certain prescribed criteria.  Although the AQF provide specifications for qualifications at different levels (e.g. a Bachelor Degree must be designed to meet the AQF Level 7 requirements in terms of the knowledge, skills, and application of knowledge and skills expected to of a graduate with a Bachelor Degree), the AQF cannot distinguish between qualifications within their area prescribed classification level (e.g. the AQF does not distinguish within the class of Bachelor Degrees).  Hence, the AQF cannot be used to distinguish between a Bachelor of Arts and a Bachelor of Education within AQF Level 7.  Although these qualifications may comprise similar learning intensities and outcomes, they are completely different qualifications (Exhibit 3, paragraphs 16-21, Exhibit 4 paragraph 4).
  1. [97]
    According to Professor Goos, while the AQF provides the framework for designing programs which meet the AQF specifications for qualifications at certain levels, the AQF does not approve, credit or set standards for teaching education programs in Queensland or nationally (Exhibit 4 paragraph 4). 
  1. [98]
    Applicant's submissions:  The Applicant refers to the Assessment Advice with the letter from Mr Retford dated 13 July 2015 that "the Bachelor of Education (Teaching) issued by the University of Auckland is assessed as comparable to the educational level of an: Australian (AQF) Bachelor Degree." 
  1. [99]
    The Applicant also refers to the following advice given to her by Australian DET on 28 July 2015 (and confirmed to the Respondent on 10 February 2016):

"For the purposes of the AQF, the volume of learning of a Bachelor Degree is typically three to four years of full-time study.  A three-year AQF Bachelor Degree is not in any way inferior to a four-year AQF Bachelor Degree, nor is a three-year AQF Bachelor Degree a sub-classification of a four-year AQF Bachelor Degree." 

  1. [100]
    In addition, the Applicant quotes Principle 3 in Enhancing mobility: Referencing the Australian and New Zealand Qualifications Frameworks (published in 2015):

"There is a clear and demonstrable link between the qualifications levels of the NZQF and the AQF."

  1. [101]
    As noted earlier, she submits that (by reference to the AQF) her degree falls within the description of "an approved degree from a recognised tertiary institution."  Consequently, she comes within the definition of "Four-year trained teachers" in clause 5.2.2(a) of the Teachers' Award - State 2012 and hence should be paid, and should always have been paid, on that basis. 
  1. [102]
    Respondent's submissions: The Respondent submits in relation to the letter from           Mr Retford that:
  1. (a)
    Mr Retford was not part of the educational arm of the Respondent;
  1. (b)
    while his assessment might be relevant to employment prospects and the qualifications for entry into various disparate trades and professions, it was not advice which expressed an opinion as to whether the holder of a particular degree was to be considered three-year trained or four-year trained for the purposes of the Teachers' Award - State 2012;
  1. (c)
    his assessment advice did not relate to Award interpretation for the purposes of determining whether the Applicant is to be treated as three-year trained or four-year trained for classification and pay purposes.
  1. [103]
    With respect to:
  1. (a)
    the statement dated 28 July 2015 from the Commonwealth Department of Education and Training that a three-year AQF Bachelor Degree is not in any way inferior to a four-year AQF Bachelor Degree; and
  1. (b)
    its statement dated 10 February 2016 that AQF advice is "general in nature" and there had been no assessment of the learning outcomes associated with the Applicant's education,

the Respondent submits that the advice does not go into the relative learning outcomes of the degrees.

  1. [104]
    Finally, the Respondent submits that the advice of Mr Retford and the advice of the Australian DET:
  1. (a)
    do no more than confirm that the Applicant's qualifications had met the AQF Level 7 specification (which provides for both three-year and four-year Bachelor Degrees in a combined category); and
  1. (b)
    did not declare that a student who completes three years of full-time study in the field graduates with the same depth of learning as a student who completes four years of full-time study.

Furthermore, the AQF cannot distinguish between qualifications within the class of Bachelor Degrees. 

  1. [105]
    Consideration:  It is apparent from that brief synopsis earlier at [88] to [94] that the focus of the AQF is on regulating qualifications in Australian education and training to, among other things, enable national (and international) portability of Australian qualifications.  It also enables the alignment of the AQF with international qualifications frameworks.  It is not expressly concerned with qualifications for specific disciplines, or any distinctions between Bachelor Degrees (within or between disciplines) for such purposes as pay scales.
  1. [106]
    The Commission was not directed to any part of the AQF that suggested that the intention or effect of the AQF is to provide a means of assessing the relative status of educational or vocational qualifications obtained outside Australia, or classifying the holder of such qualifications for the purpose of determining their salary and other conditions when practising in the discipline for which they are qualified.
  1. [107]
    Enhancing mobility: Referencing the Australian and New Zealand Qualifications Frameworks does not advance the Applicant's case.  That document is a report on referencing of the Australian and New Zealand qualifications frameworks, released by the Australian DET and the New Zealand Qualifications Authority.  It contains findings of a joint project undertaken by those two bodies.  It is not prescriptive and does not comprise a framework. It reports that, based on a detailed technical and contextual analysis of the learning outcomes of the two frameworks, tested through social effect and independent comparative processes and agreed by expert communities of practice, each of the qualification Levels 1 to 10 in the AQF is "comparable" to qualification Levels 1 to 10 in the NZQF.
  1. [108]
    The document describes NQFs as being designed for many purposes, but "mostly they are designed to clarify the map of qualifications in a country for its citizens."  They are also attractive to people in other countries as a "quick reference" to qualifications in countries with NQFs.  Accordingly, people can draw "rough conclusions" when comparing qualifications across borders.[47]  The referencing project focused on the comparability of the level outcomes in the two qualifications frameworks, but expressly made "no judgement about the compatibility of individual qualifications within those frameworks."[48]
  1. [109]
    Such language illustrates a degree of commonality at some levels whilst expressly acknowledging different local historical contexts and emphases, and the absence of any prescriptive operation of the document in relation to the circumstances such as give rise to the present dispute.  It does not provide a basis for resolving the dispute.
  1. [110]
    It follows from that conclusion that the description of a Bachelor Degree in the AQF should not be invoked in these proceedings for the purpose of ascertaining the meaning of clause 5.2 of the Teachers' Award - State 2012 or the operation of that clause when distinguishing between people who hold Bachelor Degrees awarded after three years of full-time study or four years of full-time study.
  1. [111]
    Awards in other states and territories:  The Applicant's submissions also refers to the provisions in other States and the Northern Territory in Australia about the employment of teachers, including pay scales.  She does so on the basis that, with the AQF being a national framework and the Mutual Recognition Act 1992 (Cth) allowing teachers registration in all other States (except New South Wales) based on their registration, it would be negligent to omit consideration of pay scales and classification in other States.  (Submission 3.40)
  1. [112]
    The Applicant refers to provisions for registration as a graduate teacher in Western Australia, the Northern Territory, South Australia, Tasmania and Victoria, and seeks to demonstrate that had she obtained registration in each of those jurisdictions she would have been paid an annual salary well in excess of what she is paid in Queensland.  The Applicant further submits that, had she been classified from the outset as a "Four-year trained teacher" in Queensland, she would now be paid a salary in line with other Australian jurisdictions.  (Submission 3.42-3.48)
  1. [113]
    The Respondent objects to the Applicant's submissions regarding the registration regimes and industrial instruments covering State schoolteachers in other States on the basis that they are irrelevant to the issues in dispute regarding the Applicant's Award classification.
  1. [114]
    Consideration:  The comparative material might indicate that, were she teaching in another Australian State or Territory, the Applicant would be paid more than her annual salary in Queensland.  However, that material has no bearing on the interpretation of the Teachers' Award - State 2012 or the Applicant's classification under that Award. 

 Question 1

  1. [115]
    Having put to one side factors that are not relevant to determining the Applicant's classification under the Teachers' Award - State 2012, it is appropriate to turn to the question whether the Applicant meets the criteria for classification of a "Four-year trained teacher" pursuant to clause 5.2.2 of that Award.  Given the alternative contention by the Respondent, it is also relevant to consider whether she meets the criteria for classification as a "Three-year trained teacher".
  1. [116]
    The relevant parts of clause 5.2 provide:

"5.2  Salaries - teachers

The scale of minimum salaries in schedule 2 will apply to teachers.

5.2.1 Three-year trained teachers

  1. (a)
    "Three year trained teacher" will mean a person appointed as a teacher with 3 years of teacher education or such other qualifications as may be recognised by the employer for this purpose.
  1. (b)
    A 3 year trained teacher will be appointed at Band 1 Step 1.

…

5.2.2 Four-year trained teachers

  1. (a)
    "Four year trained teacher" will mean a person appointed as a teacher who holds an approved degree from a recognised tertiary education institution or an approved equivalent tertiary qualification plus at least one year of teacher education or such other qualifications recognised by the employer as equivalent to one year of teacher education.
  1. (b)
    A 4 year trained teacher will be appointed at Band 2 Step 1.

…

5.2.3 Completion of qualifications to attain 4 year trained status

  1. (a)
    Progression after further tertiary study

A 3 year trained teacher who successfully completes further tertiary study to achieve the status of 4 year trained teacher will have the appropriate salary Step determined according to the following table …"

  1. [117]
    The parties sought to advance their respective cases by reference to three separate but related ways of considering those parts of clause 5.2:
  1. (a)
    interpreting clause 5.2 by reference to the history of the Teachers' Award - State since 1984;
  1. (b)
    construing clause 5.2.2(a) in its own terms and in the context of clauses 5.2.1 and 5.2.3; and
  1. (c)
    assessing the relative value of the Applicant's Bachelor of Education (Teaching) by reference to the Bachelor of Education awarded by the University of Queensland and by reference to the AQF Bachelor Degree criteria.
  1. [118]
    Evidence about the history of the Teachers' Award - State:  Both the Applicant and the Respondent referred to the history of the relevant provisions in the Teachers' Award - State 2012.  It is appropriate to outline that history in order to understand the context in which those provisions were developed and, potentially, as a tool for interpreting them.
  1. [119]
    The Respondent notes[49] that, historically in Queensland, teachers have been registered based on their attainment of two, three or four year qualifications.  An employee's pay point classification under the Teachers' Award is ultimately determined on course length.  For example, in earlier times, a teacher in Queensland could have:
  1. (a)
    a Certificate of Teaching (two years full-time); or
  1. (b)
    a Bachelor of Teaching offered by some Queensland universities, or a Diploma of Teaching (each three years full-time).
  1. [120]
    The changes to the relevant qualifications for Queensland teachers are reflected in the successive versions of the Teachers' Award - State of 1984, 1999 and 2012.  Relevant provisions of those Awards are summarised below.
  1. [121]
    The Teachers' Award - State of 1984 applied to teachers "of at least two-year trained status" appointed, seconded or employed in specified ways (clause 1).  It specified the minimum salaries payable to Classified Teachers (two-year trained) and Classified Teachers (three-year trained) at each of 10 steps (clause 6).  The criteria for each category were, in summary, as follows:
  1. (a)
    Classified Teachers (two-year trained) had two years of teacher training or any lesser period recognised by the employer for this purpose; and
  1. (b)
    Classified Teachers (three-year trained) had three years of teacher training or such other qualifications recognised by the employer for this purpose.
  1. [122]
    A Classified Teacher (two-year trained) was deemed to be a Classified Teacher (three-year trained) if they completed three years of satisfactory service at Step 9 or completed 12 years of satisfactory service, whichever was the lesser.  They could progress by one further annual increment to step 10 without obtaining further academic qualifications.  Alternatively, a Classified Teacher (two-year trained) would be deemed to be a Classified Teacher (three-year trained) on satisfactory completion of one year of an approved tertiary course or its equivalent in addition to two years of teacher training (or any lesser period recognised by the employer) or on satisfactory completion of the equivalent of the first and second year of an approved tertiary course in addition to a two-year special scholarship (one year University, one year Teachers' College).  A Classified Teacher (three-year trained) could progress to higher pay on completion of specified types of tertiary study.
  1. [123]
    Teachers who attained those qualifications worked, and continue to work, alongside teaching colleagues who had attained a qualification based on four years of teacher education (or a combination of non-teacher education and teacher education). 
  1. [124]
    In 1999, new standards were implemented in Queensland which provided that prospective teachers seeking registration would be required to complete at least four years of teacher education, such as a four-year Bachelor of Education.  That reform only applied to new teachers entering the field.  Current teachers who had completed two-year or three-year courses were not required to update their qualifications by undertaking additional teacher education.  Those teachers were allowed to remain teaching on the two-year and three-year qualifications provided that, in general terms, they continued to teach and continued to update the registration as required by the QCT.  However, if a teacher took a significant break from teaching and let their teacher's registration lapse, they would need to be reassessed against the current standard to obtain teacher registration.  Such persons are normally required to undertake additional teacher education to be eligible for registration. 
  1. [125]
    The Teachers' Award - State of 1999 applied to teachers "of at least two-year trained status" appointed, seconded or employed in specified ways (clause 1).  Different provisions in relation to salaries were made for three-year trained teachers and for four-year trained teachers.  Clause 6 of the Award included the following definitions:
  1. (a)
    "'Three year trained teacher' shall mean a person appointed as a teacher with three years of teacher education or such other qualifications as may be recognised by the Employer for this purpose."
  1. (b)
    "'Four year trained teacher' shall mean a person appointed as a teacher who holds an approved degree from a recognised tertiary education institution or an approved equivalent tertiary qualification plus at least one year of teacher education or such other qualifications recognised by the Employer as equivalent to one year of teacher education."

A three year trained teacher was appointed at Band 1 Step 1, and a four-year trained teacher was appointed at Band 2 Step 1.  Other provisions were made for progression to steps in Band 1, Band 2 and Band 3. 

  1. [126]
    The 1999 reprint of the Award was the first time that the words "approved degree" were used in the description of a four year trained teacher.  That coincided with the new teacher registration laws that took effect in 1999.  The Education (Teacher Registration) By-law 1999 implemented the then Board of Teacher Registration's four-year policy which required new applicants to have at least four years full-time academic study to gain registration.  Implementation of the four-year policy was mentioned in the Board's 1999 annual report:

"From 1 January 1998 the Board introduced a new standard for admission to the Register.  New applicants are now required to have at least four years of teacher education, including professional studies amounting to the equivalent of not less than two years of full-time study.  This new standard is in line with developments in teaching education interstate and overseas, and reflects the growing complexity of the teaching task.

…

The 'four years including two years' standard was translated into legislation and gazetted."

  1. [127]
    The Education (Teacher Registration) By-law 1999 provided that a person had the qualifications and experience for full registration as a teacher if:
  1. (a)
    the person:
  1. had successfully completed a prescribed course of higher education; and
  2. had successfully completed one year of teaching service, or the equivalent of one year of teaching service, to the satisfaction of the Board; and
  3. had the prescribed level of English proficiency; or
  1. (b)
    the Board considered the person's education, abilities, experience and contribution to education were of sufficient merit to warrant full registration.
  1. [128]
    A "prescribed course of higher education" meant any of the following courses:
  1. (a)
    a course of preservice teacher education at an Australian higher education institution that was at least four years academic study, including professional studies that were at least two years of academic study;
  1. (b)
    a postgraduate course of preservice teacher education at an Australian higher education institution consisting of professional studies that are least two years of academic studies;
  1. (c)
    another course of teacher education at a higher education institution that the board was satisfied was the equivalent of a course mentioned in (a) or (b).

A "higher education institution" meant an institution providing higher education within the meaning of the Higher Education (General Provisions) Act 1993.

  1. [129]
    Section 3 of the Higher Education (General Provisions) Act 1993 defined "higher education" to mean education:

"(a) that is provided by a university; or

(b) that is provided by a non-university provider and—

(i) is accredited by the Minister under this Act; or

(ii) is accredited or otherwise recognised under another Act, or an Act of the Commonwealth, another State or a Territory, as being higher education; or

(iii) is accredited or otherwise recognised under the law of a foreign country as being higher education; or

(iv) is accredited or otherwise recognised as being higher education by the authority in a foreign country that, in the Minister’s opinion, is the competent authority."

  1. [130]
    "University" was defined in s 3 to mean:

"a higher education institution—

(a) that is—:

(i) established or recognised as a university under an Act; or

(ii) established or recognised as a university under an Act of the Commonwealth, another State or a Territory; or

(b) that is—

(i) established in a foreign country; and

(ii) recognised as a university by the authority in the foreign country that, in the Minister’s opinion, is the competent authority for the purpose; or

(c) that is recognised by regulation to be a university."

  1. [131]
    Professor Goos gave evidence that, when the length of teacher qualifications was increased, universities introduced programs that upgraded the qualifications of those teachers who had completed a lesser length qualification such as a Diploma in Teaching.  For example, the University of Queensland previously offered a program named a Bachelor of Education.  This program was designed for teachers who had only undertaken two years of training and, due to the lengthening of teacher training, required extra years of teacher preparation in order to satisfy the new teacher registration requirements (Exhibit 3 paragraph 12).
  1. [132]
    The current format of three-year trained and four-year trained teacher classifications first appeared in the Teachers' Award - State in the late 1990s, at a time when three-year full-time teaching courses were being phased out in Queensland and replaced by four-year full-time Bachelor Degrees across the State.  The Respondent submits that providing three-year trained and four-year trained teacher classifications recognised the longer duration of study undertaken by graduates.  It was also consistent with a new system in which graduates with four-year degrees had a greater volume of learning.
  1. [133]
    At that time, the two-year trained teacher classification was removed from the Award, and all previously classified two-year trained teachers were deemed to be three-year trained teachers for the purposes of the Award.[50]
  1. [134]
    The Applicant submits that the purpose of providing a three-year and four-year trained teacher classification must have been to recognise the specific level of study undertaken by graduates.
  1. [135]
    The Applicant also notes that:
  1. (a)
    the Diploma of Teaching (a three-year course) was phased out and no individual has been able to register as a teacher with just that qualification since 1 January 1998; and
  1. (b)
    a Bachelor of Education degree has been the only undergraduate qualification accepted by the QCT for registration as a teacher in Queensland since 1 January 1998;
  1. (c)
    the only other pathway to registration is with an unrelated Bachelor Degree with a one-year course of teacher education such as a Diploma of Education, which is a postgraduate course.  (Submission 3.2, 3.3, 3.55)
  1. [136]
    The Teachers' Award - State 2012 continued the classifications of three-year trained teachers and four-year trained teachers in clause 5.2, quoted at [116].
  1. [137]
    The Applicant submits that the "Three-year trained teachers" classification in clause 5.2.1 of the Award is obsolete because no one has been able to register in Queensland with those qualifications since 1 January 1998.  Any teachers who registered with a Diploma of Teaching or Bachelor of Teaching have moved through the pay scale significantly and could no longer be on Band 1.
  1. [138]
    Further, she submits, the "Three-year trained teachers" pay scale has remained in place to classify people with old qualifications which are not degree level (and not Level 7 on the AQF).  Hence, there is a clear differentiation between clause 5.2.1 (which refers to "qualification") and clause 5.2.2 (which refers to a "degree"). 
  1. [139]
    In reply, the Respondent submits that, far from being obsolete, the "three year trained teacher" classification is still utilised for almost 3,000 teachers, including 173 trained in New Zealand. 
  1. [140]
    Mr Hunt gave evidence that the most common examples of qualifications that fall within clause 5.2.1(a) are:
  1. (a)
    Diploma of Teaching, which was offered by the College of Advanced Education and which was phased out in about the late 1980s/early 1990s;
  1. (b)
    Bachelor of Teaching, which was offered by some universities until around the late 1990s; and
  1. (c)
    overseas qualifications which are of three years full-time duration, such as the Bachelor of Education from the University of Auckland (Exhibit 5 paragraph 12).
  1. [141]
    Additional data quoted by Mr Hunt shows that:
  1. (a)
    1103 teachers have completed additional teacher education to become four-year trained teachers since being employed by the Respondent;
  1. (b)
    16 of those teachers hold qualifications from New Zealand and have completed additional teacher education to become a four-year trained teacher; and
  1. (c)
    six of the 1103 teachers hold qualifications from either the United Kingdom or the United States of America and have completed additional teacher education to become a four-year trained teacher since being employed by the Respondent (Exhibit 5 paragraph 30).
  1. [142]
    The Applicant notes that no other State has a "three-year trained teacher" scale and that all registered teachers commence on the same pay scale in every other state.  Accordingly, she submits, the "three-year trained teacher" scale in the Teachers' Award - State 2012 is "long obsolete." 
  1. [143]
    In response, the Respondent submits that:
  1. (a)
    the structure of the classification and pay rates in the Queensland Teachers' Award do not depend on the provisions of the industrial instruments applicable in other States, but are the result of the way the Commission and parties have historically dealt with the presence of registered teachers in Queensland schools having degrees, diplomas and other qualifications following differing periods of study in Australia or overseas; and
  1. (b)
    the interpretation of the current Award is not to be influenced by the presence or absence of a "three-year trained teacher" classification in the industrial instruments covering State School teachers in other Australian States. 
  1. [144]
    Rather, the Respondent relies on the history of teachers' qualifications in Queensland to inform the construction of clause 5.2.2(a) and submits that:
  1. (a)
    the three-year trained and four-year trained teacher classifications and definitions first appeared in the Teachers' Award - State in the late 1990s, at a time when three year full-time teaching courses were being phased out and replaced by four-year full-time Bachelor Degrees across the State;
  1. (b)
    the purpose of providing separate three-year trained teacher and four-year trained teacher classifications was to recognise and pay according to the specific duration of study undertaken by graduates;
  1. (c)
    the provision at clause 5.2.2(a) of the Teachers' Award - State 2012 did not contemplate a situation in which a person would be able to obtain an "approved degree" in any less than four years of full-time study; and
  1. (d)
    the provision at clause 5.2.2(a) of the Teachers' Award - State 2012 did not contemplate a situation in which a person would be able to satisfy the four-year trained teacher classification without completing four years of full-time study in an education or teaching discipline. 
  1. [145]
    Finally, the Respondent invokes the counterpart provision of the Teaching in State Education Award - State 2016 ("the Modern Award") to assist in the construction of clause 5.2.2 of the Teachers' Award - State 2012.  The Respondent notes that the Modern Award continues to differentiate, for pay purposes, between three-year and four-year trained teachers.
  1. [146]
    Clause 12.3 of the Modern Award provides for minimum salary levels for teachers, heads of program and school leaders engaged by the Respondent ("the THSL Stream").  It states at clause 12.3.2:

  "(b) A 3 year trained teacher will be appointed at Band 1 Step 1.

   (c) A 4 year trained teacher will be appointed at Band 2 Step 1."

  1. [147]
    "Teacher" is defined in clause 3 to mean a two, three or four-year trained teacher as defined in clauses S1.1.1 and S1.1.2 of Schedule 1 to the Modern Award.  That Schedule includes the following Classification Descriptors:

 "S1.1.1 Three year trained teacher

 Three year trained teacher will mean a person appointed as a teacher who holds an approved three-year full-time equivalent degree from a recognised tertiary education institution or such other qualifications as may be recognised by DET for this purpose.  Types of teachers may include a classroom teacher, instrumental music teacher/instructor or, specialist teacher, an advisory visiting teacher, teacher-librarian, teachers seconded for special duties to another part of DET or related statutory authorities, and teachers seconded as Education Officers (Special Duties). 

  S1.1.2 Four year trained teacher

  Four year trained teacher will mean a person appointed as a teacher who holds:

  1. (h)
    an approved four year full-time equivalent degree from a recognised tertiary education institution that includes at least one year of teacher education; or
  1. (i)
    an approved full-time equivalent tertiary qualification plus:
  1. (A)
    at least one year of teacher education; or
  1. (B)
    such other qualifications recognised by DET as equivalent to one year of teacher education.

 Types of teachers may include a classroom teacher, instrumental music teacher/instructor, specialist teacher, advisory visiting teacher, teacher-librarian, teachers seconded for special duties to another part of DET or related statutory authorities, and teachers seconded as Education Officer (Special Duties)."

  1. [148]
    The Respondent submits that the Modern Award, which was made by consent of the parties to it, can clarify how the two provisions have been operating and sheds light on the intention of the provision.  More particularly, the Respondent submits, the relevant provisions of the Modern Award go to show that if the intent of the two parties in making that Award is written there it could also be that that was always the intent of the two parties when putting forward submissions in the making of prior awards.
  1. [149]
    Construction of clause 5.2.2 - text and context:  Putting to one side for the moment the historical context of and antecedents to the Teachers' Award - State 2012, it is appropriate to look at the definitions of "Four-year trained teachers" and "Three-year trained teachers" in clause 5.2 to assess whether it is possible to determine the classification of the Appellant by reference only to the words and phrases used in those definitions.
  1. [150]
    The Applicant submits that the classification headings in clauses 5.2.1 and 5.2.2 of the Award do not form part of the definitions, and full note should be given to the terms of the definitions.  She observes that nowhere in the Award is there mention of a "three-year degree" or a "four-year degree". Rather, the Award refers to "3 years of teacher education" and "an approved degree from a recognised tertiary institution."  In her submission, it is important to note the terms of the definitions rather than the headings to them. 
  1. [151]
    In support of that submission, the Applicant points to examples of:
  1. (a)
    two-year trained teachers being deemed to be "Three year trained teachers" under the Teachers' Award - State of 1999; and
  1. (b)
    upgraded qualifications which would satisfy the definition of "Four year trained teachers" which, she calculates, can be completed in three years of study or after five years of study.
  1. [152]
    Furthermore, she submits that:
  1. (a)
    an employee with an AQF Level 7 Qualification in teacher education would satisfy the "Four-year trained teacher" classification in clause 5.2.2 because they have an "approved degree" from a "recognised tertiary education institution;"  and
  1. (b)
    because she has an "approved degree" from a "recognised tertiary institution" she satisfies the classification in clause 5.2.2.
  1. [153]
    The Applicant refers to and relies on the statements by Ms Heffernan that:
  1. (a)
    the Applicant's qualification is "an approved degree from a recognised tertiary institution" and that the Respondent "has always considered Auckland University, New Zealand to be a recognised tertiary institution;" and
  1. (b)
    the Respondent refers to the AQF and the Overseas Qualifications Unit when assessing qualifications,

to submit that her qualification was assessed using an approved assessing authority against an approved qualifications framework.

  1. [154]
    In terms of the construction of clause 5.2.2, the Respondent submits that three significant elements of the definition confer on the employer rights to determine the effect that a specific degree has on a teacher's classification and pay rate.  In summary:
  1. (a)
    the expression "Four year trained teacher" is part of the definition, and reflects a very clear intent on behalf of the Award maker that four-year trained teachers are to be paid at a higher rate than three-year trained teachers;
  1. (b)
    there can be no entitlement to classification as a four-year trained teacher when (as in the case of the Applicant) the teacher has not been "appointed" as such; and
  1. (c)
    the Applicant does not hold a degree which is "approved" by the employer, i.e., the Respondent.
  1. [155]
    In relation to point (b), the Respondent submits that it is of "critical importance" that the Applicant was appointed as a three-year trained teacher and that at no material time has she been appointed as a four-year trained teacher. 
  1. [156]
    In relation to point (c) and what is an "approved degree" for the purpose of clause 5.2.2(a), Mr Hunt gave evidence that the Respondent's payroll staff are required to "approve" a degree for this purpose if the degree requires the person to have undertaken four years of full-time teacher education from an accredited course and recognised tertiary education provider.  He cited as the "obvious and most common example" a four-year full-time Bachelor of Education course, whether it be attained in Queensland, interstate or overseas (Exhibit 5 paragraph 14).
  1. [157]
    In relation to "equivalent tertiary qualifications" for the purpose of clause 5.2.2(a), payroll will "approve" qualifications that arise from an accredited course from a recognised higher education provider (e.g. a Bachelor of Teaching or a Diploma of Teaching).  Employees will also need to have completed at least one year of full-time teacher education or such other qualification recognised by the Respondent as being equivalent to one year full-time teacher education.  An example is what is sometimes described as a one-year conversion course (Exhibit 5 paragraph 16-18).
  1. [158]
    Mr Hunt gave evidence that, although the Applicant's degree is an accredited course from a "recognised tertiary education institution," it is not an "approved" degree under clause 5.2.2 because it did not require the Applicant to complete four years of teacher education (Exhibit 5 paragraph 34). 
  1. [159]
    The Respondent submits that:
  1. (a)
    the Applicant did not complete a degree "approved" by the employer;
  1. (b)
    accordingly, although the Applicant's Bachelor of Education (Teaching) is from a "recognised tertiary education institution", it is not an "approved degree" for the purpose of clause 5.2.2(a) because the Applicant was not required to complete four years of teacher education to obtain that degree;
  1. (c)
    the Applicant's qualification does not satisfy the "four-year trained teacher" classification at clause 5.2.2 because she has not completed four years of full-time equivalent study in an education and teaching discipline;
  1. (d)
    the Applicant's qualification satisfies the three-year trained teacher classification at clause 5.2.1 because she has completed three years of full-time equivalent study in an education and teaching discipline. 
  1. [160]
    On the basis that, in an industrial instrument, context and purpose are important, the Respondent submits that the context sets out a fundamental contrast between three-year trained and four-year trained teachers.  The contrast is emphasised by the presence of a mechanism (described in clause 5.2.3) whereby a three-year trained teacher can, with the benefit of a further year of teacher education, upgrade to the four-year classification.  As noted earlier, clause 5.2.3(a) provides:

"Progression after further tertiary study

A 3 year trained teacher who successfully completes further tertiary study to achieve the status of 4 year trained teacher will have the appropriate salary Step determined according to the following table:…" (Emphasis added)

The Respondent highlights the two references to "further tertiary study" which, it submits, recognised that there are tertiary degree graduate teachers on the three-year trained award classification[51] who can undertake further tertiary study to obtain a four-year trained salary classification.  The Respondent submits that this provision would have no work to do if the Applicant's proposition (that any Bachelor Degree holder was entitled to the four-year trained classification) were correct.

  1. [161]
    The Respondent submits that the words "approved degree" in clause 5.2.2(a) should be read to enable the provision to give effect to the scheme of rewarding teachers who have longer tertiary training.  By implication, "approved degree" means a degree approved by the employer.  Not to read it that way would lead to a result so inconsistent with the rest of the Award that it would be absurd.
  1. [162]
    The Respondent also submits that clause 5.2.2(a) did not contemplate a situation in which a person would be able to:
  1. (a)
    obtain a degree in any less than four years of full-time study and be able to compel the employer to employee that person on the four-year trained classification; or
  1. (b)
    satisfy the four-year trained teacher classification without completing four years of full-time study in an education or teaching discipline.
  1. [163]
    Relative value of different Bachelor Degrees:  The Applicant made detailed submissions in an attempt to demonstrate the extent  of comparability between her Bachelor of Education (Teaching) and a Bachelor of Education from the University of Queensland (Submission 3.29-3.39). Professor Goos provided detailed opinion evidence and supporting data to demonstrate the extent of the similarities of, and differences between, the two degrees (see Exhibit 3 paragraphs 30-48, and Exhibit 4 paragraphs 5-7). 
  1. [164]
    The Respondent submits that the calculations made by the Applicant are erroneous, being based on inaccurate information, and are not supported by any expert analysis and evidence.  The Respondent also submits that the evidence of Professor Goos should be preferred because she is an expert in the area, has extensive relevant professional experience, and is independent.[52]
  1. [165]
    It is not necessary to consider that evidence and the associated submissions in any detail.  What is clear from that material is that it is difficult to make a precise comparison between such things as the course components and hours of contact time that precede the award of each degree.  However, there is no issue that the Applicant's degree was granted after three years of full-time study and the Queensland degree is granted after four years of full-time study. As Professor Goos put it, the fact of the "one year difference between the UQ Degree and Auckland Degree means that the UQ Degree includes an extra year of courses that the Auckland Degree simply does not have"  (Exhibit 4 paragraph 7(b)).
  1. [166]
    It is apparent from the correspondence that, during the period from May 2013 until late 2015, the Applicant received what she construed as inconsistent advice about the status of her Bachelor of Education (Teaching) degree.  For example, she was advised by the Respondent that her degree:
  1. (a)
    was equivalent of an Australian Bachelor degree completed after three years of study;[53]
  1. (b)
    entitled her to be classified as a three-year trained teacher,[54] and that determined the salary she is paid;[55] and
  1. (c)
    is a three year degree and hence she is not a four-year trained teacher,[56]

and yet she was also advised that her degree was comparable to the educational level of an Australian (AQF) Bachelor Degree.[57]

  1. [167]
    As noted earlier, on 28 July 2015 an officer of the Australian DET advised the Applicant:

"For the purposes of the AQF, the volume of learning of a Bachelor Degree is typically three to four years of full-time study.  A three-year AQF Bachelor Degree is not in any way inferior to a four-year AQF Bachelor Degree, nor is a three-year AQF Bachelor Degree a sub-classification of a four-year AQF Bachelor Degree."

That advice was confirmed by another officer of the Australian DET in correspondence with the Respondent in response to queries about that advice.

  1. [168]
    As also noted earlier, the Applicant refers to and relies on the statements by                   Ms Heffernan that:
  1. (a)
    the Applicant's qualification is "an approved degree from a recognised tertiary institution" and that the Respondent "has always considered Auckland University, New Zealand to be a recognised tertiary institution;" and
  1. (b)
    the Respondent refers to the AQF and the Overseas Qualifications Unit when assessing qualifications,

to submit that her qualification was assessed using an approved assessing authority against an approved qualifications framework. 

  1. [169]
    The Applicant also submits that the repeated (incorrect) references in the Respondent's correspondence to her Bachelor of Teaching rather than her Bachelor of Education (Teaching) has added to the confusion and might explain why the Respondent feels that the Applicant should be classified as "three-year trained." 
  1. [170]
    At the hearing of this dispute, the Respondent conceded that there was an inconsistency between:
  1. (a)
    the statements by Ms Heffernan[58] that the Applicant's qualification is "an approved degree from a recognised tertiary institution" and the Respondent "has always considered Auckland University, New Zealand, to be a recognised tertiary institution;" and 
  1. (b)
    the affidavit evidence of Mr Hunt that, for the purpose of clause 5.2.2(a) of the Teachers Award - State 2012, the Applicant's qualification is not an "approved" degree because, although it is an accredited course from a recognised tertiary education institution, it did not require the Applicant to complete four years of teacher education (Exhibit 5 paragraph 34).

The Respondent submitted that Mr Hunt's evidence should be preferred as he is the most senior employee of the two (and Ms Heffernan reports directly to him) and he was not called for cross-examination. 

  1. [171]
    The Respondent also submits that it is necessary to read in context the two sentences from Ms Heffernan's letter on which the Applicant relies.  Those sentences were part of a letter of 3 ½ pages which broke up and explained the relevant parts of the definition of "Four-year trained teacher."  In particular, the letter emphasised that the definition enables the teacher to qualify for the classification and pay scale by having "an approved equivalent tertiary qualification plus at least one year of teacher education or such other qualifications recognised by the employer as equivalent to one year of teacher education."  The Respondent submits that the passages quoted by the Applicant do no more than recognise that the degree from the University of Auckland is one which, when supplemented by a further year of teacher education, can be used to qualify a teacher for the four-year trained classification. 
  1. [172]
    Furthermore, the Respondent submits, this is not the case where the language of the Award should be strained so as to avoid a glaring anomaly or to avoid an absurd, unjust outcome.  In its submission, there is no anomaly and no unjust or absurd outcome.  In support of that submission, the Respondent contends that:
  1. (a)
    the Applicant's Bachelor of Education (Teaching) degree entails a three-year full-time course of study and has less relevant content than the four-year degree offered by the University of Queensland;
  1. (b)
    the additional course content offered by the University of Queensland degree is of two kinds (additional discipline knowledge, and additional discipline specific pedagogical studies); and
  1. (c)
    the Applicant has been treated no differently from other overseas trained teachers employed by the Respondent who have qualifications similar to the Applicant's qualifications.
  1. [173]
    In relation to (c), the Respondent refers to and relies on statistics provided in the affidavit of Mr Hunt,[59] some of which are set out at [47] and [141] of these reasons for decision.  The relevance of those statistics for this part of the Respondent's submission is that they show that the great majority of the teachers employed by the Respondent (39,035 or about 93 percent) are classified and paid as four-year trained teachers.  However, they also show that the distinction between three-year trained and four-year trained teachers has practical implications because many teachers are still paid under clause 5.2.1(a) of the Teachers' Award - State 2012. Among them are 84 teachers who have qualifications from New Zealand and hold either a Bachelor of Education, Bachelor of Teaching, or Bachelor of Teaching and Learning from a recognised New Zealand tertiary institution.  They are classified for pay purposes as three-year trained teachers (on the basis that these qualifications all comprised three years full-time teacher education).
  1. [174]
    Consideration:  When answering Question 1, it is appropriate to start with the words and phrases used in, and structure of, clauses 5.2.1 and 5.2.2 of the Teachers' Award - State 2012. 
  1. [175]
    The definitions of "Three-year trained teachers" and "Four-year trained teachers" respectively contain alternative qualifications to satisfy each definition.  The use of "or" and "plus" signal the disjunctive and conjunctive components of each definition.  Breaking those definitions down into their respective components can assist in:
  1. (a)
    interpreting each definition in isolation or independently of the other;
  1. (b)
    interpreting the definition of "Four-year trained teachers" in the context of the preceding sub-clause.
  1. [176]
    Having regard to the use of "or" in the former definition, the elements of that definition can be separated as follows:

"Three year trained teacher" will mean a person appointed as a teacher with:

  • 3 years of teacher education; or
  • such other qualifications as may be recognised by the employer for this purpose.
  1. [177]
    Having regard to the use of "or" and "plus" in the latter definition, the elements of that definition can be separated as follows:

"Four year trained teacher" will mean a person appointed as a teacher who holds:

  • an approved degree from a recognised tertiary education institution; or
  • an approved equivalent tertiary qualification plus:
  • at least one year of teacher education; or
  • such other qualifications recognised by the employer as equivalent to one year of teacher education.
  1. [178]
    That is not the only way of separating the elements of the definition of "Four year trained teacher."  An alternative approach would be that "Four-year trained teacher" will mean a person appointed as a teacher who holds:
  • an approved degree from a recognised tertiary education institution, plus:
  • at least one year of teacher education; or
  • such other qualifications recognised by the employer as equivalent to one year of teacher education;

or

  • an approved equivalent tertiary qualification, plus
  • at least one year of teacher education; or
  • such other qualifications recognised by the employer as equivalent to one year of teacher education.
  1. [179]
    As noted at [42], in her letter dated 25 November 2015 to the Office of the Queensland Ombudsman, Ms Heffernan expressly asserted the latter approach.  However her letter appeared to proceed on the basis that the expression "approved degree" meant a three year approved degree.  That is contrary to the submission made by the Respondent in these proceedings.  It is also contrary to the approach apparently adopted by the Respondent's payroll officers.
  1. [180]
    According to Mr Hunt's affidavit, payroll implement clause 5.2.2(a) on the basis that there are two categories of employees who are four-year trained teachers:
  1. (a)
    Category 1 - a person who is appointed as a teacher and who holds an approved four-year degree from a recognised tertiary education institution; and
  1. (b)
    Category 2 - a person who is appointed as a teacher who holds an approved equivalent tertiary qualification plus at least one year of teacher education or such other qualifications recognised by the employer as equivalent to one year of teacher education (Exhibit 5 paragraph 10).
  1. [181]
    Having regard to the drafting of clause 5.2.2(a) and the approach taken by payroll when implementing it, I will proceed on the basis that the preferable approach to construing clause 5.2.2(a) is as set out in [177].  The question then becomes whether "approved degree" must be read to mean "approved four-year degree."
  1. [182]
    As the Applicant points out, the definitions of "Three-year trained teacher" and "Four-year trained teacher" do not include any reference to the number of years of study required to obtain the relevant qualifications.  Only the definition of "Four-year trained teacher" includes the word "degree." 
  1. [183]
    At most, and consistently with the Respondent's submissions, one might conclude that there is meant to be a material distinction between three-year trained and four-year trained teachers, because separate and specific clauses provide for them and because  another clause describes how a teacher with three-year training might achieve the status of a four-year trained teacher.  One could also readily accept that clause 5.2.2(a) did not contemplate a situation in which a person who does not satisfy the criteria in that clause could compel the employer to employ them on the four-year trained classification. 
  1. [184]
    Even so, it is not apparent from clause 5.2:
  1. (a)
    whether "3 years of teacher training" includes tertiary qualifications such as a three-year degree;
  1. (b)
    who "approved" the degree (or degrees) and other tertiary qualifications referred to in clause 5.2.2(a);
  1. (c)
    what "equivalent" means in clause 5.2.2(a), given that a person holding "equivalent tertiary qualifications" must obtain additional qualifications in order to be classified and paid at the same level as a person holding an "approved degree."
  1. [185]
    It is also clear that some qualifications are prescribed by the Award.  "Such other qualifications" as are or may be "recognised by the employer" are only relevant when the person:
  1. (a)
    does not hold the first prescribed qualification (in the case of a "Three year trained teacher"); or
  1. (b)
    needs an additional qualification (in the case of a "Four year trained teacher"). 
  1. [186]
    Having considered the Respondent's submissions about the three significant elements of the definition in clause 5.2.2(a), I have concluded, by reference to the words and phrases only, that:
  1. (a)
    the presence of the expression "Four year trained teacher" at the start of the definition does not govern what follows (in the sense of compelling the conclusion that "approved degree" means "approved four-year degree") but, rather, what follows defines the meaning of that expression;
  1. (b)
    although the word "appointed" refers to "a teacher" (or, possibly, a teacher with the alternative qualifications that precede or follow the word "or"), the fact that a contract or contracts of employment indicate that the Applicant was not appointed as a four-year trained teacher cannot govern the meaning of the definition in clause 5.2.2(a);
  1. (c)
    the word "approved" in the expression "approved degree" does not necessarily mean that the employer is the person or body that gives the approval, particularly if there is some other body that grants or withholds such approval.  That conclusion is supported by the explicit use of "recognised by the employer" in relation to "other qualifications" that are "equivalent to one year of teacher education."
  1. [187]
    Those conclusions do not necessarily provide the answer to Question 1.  At this point in the analysis it is appropriate to recall that the propositions summarised earlier as a guide to the interpretation of an award[60] include the following:
  1. (a)
    narrow or pedantic approaches to the interpretation of an award are misplaced;
  1. (b)
    the search is for the meaning intended by the framers of the document, bearing in mind that such framers were likely to be of a practical bent of mind and more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment then with legal niceties or jargon;
  1. (c)
    if the language of the award is ambiguous or susceptible to more than one meaning then evidence of the surrounding circumstances will be admissible to aide interpretation of it;
  1. (d)
    the resolution of a disputed construction of an award will turn on the language of the award understood having regard to its context and purpose.
  1. [188]
    Accordingly, it is appropriate to look at the history of clause 5.2 and the context in which it was inserted in the Teachers' Award - State 2012.
  1. [189]
    Having regard to the historical material, including the provisions of previous versions of the Teachers' Award - State and governing legislation, it is apparent that:
  1. (a)
    historically, teachers in Queensland have been registered, classified and paid by reference to the duration of the courses by which they obtained qualifications relevant to teaching;
  1. (b)
    in particular:
  1. there was a distinction between the classifications of two-year trained and three-year trained teachers in the Teachers' Award - State of 1984, and provision was made for two-year trained teachers to progress to the three-year trained classification if specific conditions were met (including additional training);
  1. from 1999, prospective teachers seeking registration were required to complete at least four years of teacher education (e.g. a four-year Bachelor of Education) while current teachers who had completed two-year or three-year courses were not required to update their qualifications by undertaking additional teacher education but were allowed to remain teaching;
  1. if a two-year or three-year trained teacher took a significant break from teaching and their registration lapsed, they would need to be reassessed against the current standard to obtain teacher registration and would normally be required to undertake additional teacher education to be eligible for registration;
  1. under the Teachers' Award - State of 1999 different provisions in relation to salaries were made for "Three year trained teachers" and "Four year trained teachers," and the definitions of those expressions were almost identical to the definitions in the Teachers Award - State 2012;
  1. that classification of three-year trained teachers and four-year trained teachers occurred at a time when three-year full-time teaching courses were being phased out in Queensland and replaced by four-year full-time Bachelor Degrees across the State (in which students had a greater volume and content of learning);
  1. (c)
    the expression "approved degree" was introduced to the 1999 version of the Teachers' Award in circumstances where new teacher registration laws required new applicants to have at least four years of full-time at academic study to gain registration;
  1. (d)
    the "Three-year trained teachers" category is not obsolete but applies to 2,929 teachers, of whom 2,695 (or 92 per cent) have obtained their qualifications (including degrees and diplomas) in Queensland or interstate;
  1. (e)
    having regard to that history (and the interrelationship of clauses 5.2.1(a) and 5.2.3(a)), the definition of "Three-year trained teachers" includes teachers with relevant tertiary qualifications (such as a Bachelor of Teaching or a Diploma of Teaching).
  1. [190]
    The history of longer periods of formal training being required to secure registration as a teacher in Queensland, including the distinction between teachers with three years of training and those with four years of training expressed in the Teachers' Award - State of 1999, gives clear support to what is otherwise apparent from the ordinary meaning of the expressions. The definitions of "Three-year trained teachers" and "Four-year trained teachers" refer to teachers with three years of full-time training and teachers with four years of full-time training respectively.
  1. [191]
    On that basis, I am satisfied that it is appropriate to construe clause 5.2.2(a) to mean that, in order to be classified as a "Four-year trained teacher," a person must either:
  1. (a)
    hold a relevant four-year full-time equivalent degree that is approved by the employer, such as a Bachelor of Education from the University of Queensland; or
  1. (b)
    hold another tertiary qualification that has been approved by the relevant Queensland authority and also have at least one year of teacher education or such other qualifications recognised by the employer as equivalent to one year of teacher education.[61]
  1. [192]
    It follows that the Applicant's Bachelor of Education (Teaching) can be characterised as:
  1. (a)
    three years of teacher education, or another qualification recognised by the employer for this purpose (clause 5.2.1(a)); or
  1. (b)
    an approved equivalent tertiary qualification (clause 5.2.2(a)).
  1. [193]
    However, it is not "an approved degree from a recognised tertiary education institution" for the purpose of clause 5.2.2(a).  Without more (i.e., at least one year of teacher education or such other qualifications recognised by the employer as equivalent to one year of teacher education), the Applicant does not satisfy the definition of "Four-year trained teacher."  Her qualification entitles her to be classified, and be paid, as a "Three-year trained teacher."
  1. [194]
    I have reached that conclusion by reference to the terms of the Teachers' Award - State 2012 and the history of teacher education Queensland and previous Teachers' Awards.  It has not been necessary to refer to the Modern Award.  I observe, however, that the comparable provisions of the Modern Award continue the approach taken in its antecedents to classify and pay teachers by reference to the length of relevant study.  That continuity provides support for the conclusions already reached in relation to clause 5.2 of the Teachers' Award - State 2012.  The drafting of the Classification Descriptors in the Modern Award (including explicit reference to the full-time duration of each approved equivalent degree) seems to have removed the textual ambiguity that provided a fertile ground for debate in these proceedings.

 Question 2

  1. [195]
    Applicant's submissions:  The Applicant submits that the answer to the question is Yes, because the Respondent suggested that she have her qualification assessed by the Overseas Qualification Unit and because the Respondent's payroll section have stated that they use it.  In her submission, it is the only appropriate governing body to assess overseas qualifications. 
  1. [196]
    Respondent's submissions: The Respondent submits that the answer to this question is No.
  1. [197]
    Consideration:  This question is expressed broadly and the answer to it may be different depending on circumstances of the person seeking employment in Australia.  Accordingly, I choose to answer the question by reference to the circumstances of the Applicant.  It is clear that:
  1. (a)
    her registration as a teacher in Australia was obtained pursuant to the Trans-Tasman Mutual Recognition Arrangement, without the QCT having to consider her tertiary qualification; and
  1. (b)
    her classification for employment as a teacher in Queensland and the relevant pay scale was determined by reference to the Teachers' Award - State 2012.
  1. [198]
    Consequently, so far as the Applicant is concerned, the answer to Question 2 is No.

 Question 3

  1. [199]
    Applicant's submissions:  The Applicant submits that the answer to the question is Yes.  The AQF is the national qualifications framework and there is no other framework.  It also forms part of the Respondent's internal documentation. 
  1. [200]
    Respondent's submissions: The Respondent submits that the answer to this question is No.
  1. [201]
    Consideration:  This matter is considered earlier (see [88] to [110]).  For the reasons set out there, it is clear that the AQF was not relevant to the Applicant's registration as a teacher in Queensland nor to her classification and pay scale under the Teachers' Award - State 2012.  By reference to those aspects of her employment in Australia, Question 3 is answered No.

 Question 4

  1. [202]
    Applicant's submissions:  The Applicant submits that the answer to the question is Yes.  For the purposes of the AQF, the volume of learning in a Bachelor Degree is typically three to four years of full-time study.  She received advice from the Australian DET that a three-year degree is not in any way inferior to a four-year degree, nor is a three-year degree a sub-classification of a four-year degree. 
  1. [203]
    Respondent's submissions: The Respondent submits that the answer to this question is No.
  1. [204]
    Consideration:  It will be clear from my conclusions, set out earlier, that the advice given by the Australian DET about a three year degree was not relevant to the determination of whether the Applicant should be classified as a four-year trained teacher as defined in clause 5.2.2 of the Teachers' Award - State 2012.  Consequently the answer to Question 4 is No.

 Question 5

  1. [205]
    Applicant's submissions:  The Applicant submits that the answer to the question is Yes.
  1. [206]
    Respondent's submissions: The Respondent submits that the answer to this question is Yes.
  1. [207]
    Consideration:  The criteria by which a teacher is classified as "three-year trained" or "four-year trained" and the historical reasons for the different classifications are considered in detail in these reasons for decision.  The answer to Question 5 is Yes.

 Question 6

  1. [208]
    As is clear from [52], Question 6 is actually four separate questions.
  1. [209]
    Applicant's submissions: The Applicant submits that the answer to each question is Yes.
  1. [210]
    Respondent's submissions: The Respondent submits that the answer to each question is No.
  1. [211]
    Consideration: Given that the answer to Question 1 is No, it is not strictly necessary to answer Questions 6(a) to (d).  However, it is a consequence of the answer to Questions 1 that each of Questions 6(a) to (d) must be answered No.

Conclusions

  1. [212]
    The range of issues raised in these proceedings and the number of questions to be answered suggested that the matters in dispute were rather more complex than they are.  Once legally irrelevant considerations are put to one side, the issue is whether the Applicant should be classified as a "Four-year trained teacher" or a "Three-year trained teacher" as those expressions are defined in clause 5.2 of the Teachers' Award - State 2012.  That issue is resolved by reference to the text and context of those definitions, and the historical circumstances in which the Teachers' Award - State 2012 was developed.
  1. [213]
    In answer to Question 1, I have decided that the Applicant does not meet the criteria for the classification of "Four year trained teacher" pursuant to clause 5.2.2 of the Teachers' Award - State 2012.
  1. [214]
    For the reasons set out above, the Questions listed at [52] are answered as follows:

Question 1:  No

Question 2:  No

Question 3:  No

Question 4:  No

Question 5:  Yes

Question 6 (a):  No

Question 6(b):  No

Question 6(c):  No

Question 6(d):  No

  1. [215]
    I have concluded that because the Applicant holds a Bachelor of Education (Teaching) from the University of Auckland she is properly classified as a "Three-year trained teacher" for the purposes of the Teachers' Award - State 2012.
  1. [216]
    Order accordingly.

Footnotes

[1] Pursuant to the Trans-Tasman Mutual Recognition (Queensland) Act 2003 (Qld).

[2] Although the Applicant uses the word "equivalent", Mr Retford described her qualification as "comparable" to the educational level of an Australian Bachelor Degree.

[3] The responses referred incorrectly to Mrs Stidwill having completed a Bachelor of Teaching degree.

[4] Enhancing mobility: Referencing of the Australian and New Zealand Qualifications Frameworks was published by the Australian Government Department of Education and Training and the New Zealand Qualifications Authority in 2015.

[5] The statistics are drawn from the affidavit of Jeffrey Michael Hunt, the Deputy Director-General, Corporate Services with the Respondent (Exhibit 5).

[6] There is a difference of $8,925.00 per year between the starting pay points for a three-year trained teacher and a four-year trained teacher.

[7] United Voice, Industrial Union of Employees, Queensland v State of Queensland (Department of Education, Training and Employment) [2014] QIRC 107

[8] Kucks v CSR Ltd (1996) 66 IR 182.

[9] Short v F W Hercus Pty Ltd (1993) 40 FCR 511.

[10] Australian Workers' Union of Employees, Queensland v James Hardie Australia Pty Ltd [2001] 167 QGIG 280.

[11] United Firefighters' Union of Australia, Union of Employees Queensland v Department of Community Safety - Queensland Fire and Rescue Service (D/2013/84) - Decision .

[12] Kucks v CSR Limited (1996) 66 IR 182, 184 (Madgwick J).

[13] Kucks v CSR Limited (1996) 66 IR 182, 184 (Madgwick J).

[14] Kucks v CSR Limited (1996) 66 IR 182, 184 (Madgwick J).

[15] Kucks v CSR Limited (1996) 66 IR 182, 185 (Madgwick J), including reference to the "estimable" Macquarie Dictionary.

[16] Australian Workers' Union of Employees, Queensland v James Hardie Australia Pty Ltd [2001] 167 QGIG 280, 281 (Hall P).

[17] Short v F W Hercus Pty Ltd (1993) 40 FCR 511, 519 (Burchett J); Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337, 352 (Mason J); United Firefighters' Union of Australia, Union of Employees Queensland v Department of Community Safety - Queensland Fire and Rescue Service (D/2013/84) - Decision , [42], [91]-[93] (Industrial Commissioner Thompson).

[18] Australian Workers' Union of Employees, Queensland v James Hardie Australia Pty Ltd [2001] 167 QGIG 280, 281 (Hall P), quoting Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337, 352 (Mason J); see also Short v F W Hercus Pty Ltd (1993) 40 FCR 511, 518, 520 (Burchett J); United Firefighters' Union of Australia, Union of Employees Queensland v Department of Community Safety - Queensland Fire and Rescue Service (D/2013/84) - Decision , [70]-[71] (Industrial Commissioner Thompson).

[19] Australian Workers' Union of Employees, Queensland v James Hardie Australia Pty Ltd [2001] 167 QGIG 280, 281 (Hall P), quoting Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337, 352 (Mason J); United Firefighters' Union of Australia, Union of Employees Queensland v Department of Community Safety - Queensland Fire and Rescue Service (D/2013/84) - Decision , [70]-[71] (Industrial Commissioner Thompson).

[20] The Australasian Meat Industry Employees Union v Golden Cockerel Pty Ltd [2014] FWCFB 7447, [41].

[21] Trans-Tasman Mutual Recognition (Queensland) Act 2003 (Qld) s 3.

[22] Trans-Tasman Mutual Recognition (Queensland) Act 2003 (Qld) s 5; see also the Commonwealth of Australia Constitution Act s 51(xxxvii)

[23] Trans-Tasman Mutual Recognition Act 1997 (Cwlth) s 3.

[24] Trans-Tasman Mutual Recognition Act 1997 (Cwlth) s 51(1).

[25] "Occupation" is defined in s 4(1) of the Trans-Tasman Mutual Recognition Act 1997 (Cwlth).

[26] "Local registration authority" is defined in s 4(1) of the Trans-Tasman Mutual Recognition Act 1997 (Cwlth).

[27] As to what is an "equivalent occupation" see Trans-Tasman Mutual Recognition Act 1997 (Cwlth) ss 4(1), 27-31.

[28] Trans-Tasman Mutual Recognition Act 1997 (Cwlth) s 16(1), see also s 15.

[29] See Trans-Tasman Mutual Recognition Act 1997 (Cwlth) s 50, and the definitions of "Australian jurisdiction" and "participating jurisdiction" in s 4(1).

[30] Trans-Tasman Mutual Recognition Act 1997 (Cwlth) s 18.

[31] Trans-Tasman Mutual Recognition Act 1997 (Cwlth) s 19(1).

[32] Part 3 of the Trans-Tasman Mutual Recognition Act 1997 (Cwlth) deals with Occupations.

[33] Trans-Tasman Mutual Recognition Act 1997 (Cwlth) s 19(5).

[34] Trans-Tasman Mutual Recognition Act 1997 (Cwlth) s 39.

[35] The parties to the Arrangement Relating to Trans-Tasman Mutual Recognition signed in June 1996 expressly acknowledged that "the scheme does not seek to affect regulation by the Parties of initial requirements for the registration of Occupations, such as requirements relating to qualifications, conduct or the practise of Occupations."

[36] Trans-Tasman Mutual Recognition Act 1997 (Cth) s 16(2).

[37] A Users' Guide To the Mutual Recognition Agreement (MRA) and the Trans-Tasman Mutual Recognition Arrangement, Commonwealth of Australia 2006, revised 2014, page 13.

[38] See Affidavit of David Graham Dupree (Exhibit 2), particularly paragraphs 9, 14, 16.

[39] As noted earlier, the assessment was that her degree was "comparable to the educational level" of an Australian Bachelor Degree.

[40]Reference is made to the second edition of the AQF dated January 2013.

[41] AQF pages 8, 9.

[42] AQF page 7.

[43] AQF page 11.

[44] AQF pages 16, 18, 47-49.

[45] And "accrediting authority" is either authorised under legislation or has been given responsibility to accredit programmes of learning leading to AQF qualifications and/or to register providers to issue AQF qualifications: AQF page 91, see the list of accrediting authorities on page 21.

[46] AQF pages 21, 47.

[47] Enhancing mobility: Referencing of the Australian and New Zealand Qualifications Frameworks, 2015, page 6.

[48] Enhancing mobility: Referencing of the Australian and New Zealand Qualifications Frameworks, 2015, page 7.

[49] By reference to Mr Hunt's affidavit (Exhibit 5 paras 19-23).

[50] Clause 6(d)(v) provided "Teachers classified as Classified Teachers (two year trained) according to clause 6(2) of the Teachers' Award - State prior to 1 December 1990 shall be deemed to be three year trained teachers and may progress according to the terms of this Award."

[51] Mr Hunt's affidavit notes that three-year trained teachers include people who hold a Bachelor of Teaching (which was offered by some universities until around the late 1990s) or a Diploma of Teaching (which was offered by Colleges of Advanced Education until the late 1980s/early 1990s) (see Exhibit 5 paragraph 12).

[52] Professor Goos is employed at the University of Queensland in the position of Professor and Head of School in the School of Education.  She has been employed at the University in various capacities since 1992, has various academic qualifications including a PhD from that University in 2000.  She has overall responsibility for the academic programs offered by the School and quality assurance of those programs, and has to ensure that the School complies with the University's requirements and also any external accreditation requirements.  She has been involved, among other things, in curriculum design including undergraduate and postgraduate coursework and program coordination.  (See Exhibit 4 paragraphs 1-6)

[53] Correspondence from S Johnston dated 2 May 2013, 6 May 2013; R Bartlett 19 February 2014.

[54] Correspondence from T Sauer dated 23 July 2015.

[55] Correspondence from Director-General dated 23 October 2015.

[56] Correspondence from V Anderson dated 23 November 2015.

[57] Correspondence from L Retford dated 13 July 2015.

[58] In her letter to Ms Armstrong dated 25 November 2015 (Exhibit 1, RB-32).

[59] Exhibit 5 at paragraphs 26 to 29.

[60] See [63] to [64]

[61] Which, it seems, currently comprise two Graduate Certificates, or a Masters Degree, or a Graduate Diploma.

Close

Editorial Notes

  • Published Case Name:

    Stidwill v State of Queensland (Department of Education and Training)

  • Shortened Case Name:

    Stidwill v State of Queensland (Department of Education and Training)

  • MNC:

    [2016] QIRC 91

  • Court:

    QIRC

  • Judge(s):

    Neate IC

  • Date:

    25 Aug 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Australian Meat Industry Employees Union v Golden Cockrel Limited [2014] FWCFB 7447
2 citations
Jump To
Cite 1 - [2014] FWCFB 7447
Cite 2 - [2014] FWCFB 7447
Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 C.L R. 337
4 citations
Jump To
Cite 1 - (1982) 149 C.L R. 337
Cite 2 - (1982) 149 C.L R. 337
Cite 3 - (1982) 149 C.L R. 337
Cite 4 - (1982) 149 C.L R. 337
Kucks v CSR Ltd (1996) 66 IR 182
6 citations
Jump To
Cite 1 - (1996) 66 IR 182
Cite 2 - (1996) 66 IR 182
Cite 3 - (1996) 66 IR 182
Cite 4 - (1996) 66 IR 182
Cite 5 - (1996) 66 IR 182
Cite 6 - (1996) 66 IR 182
Queensland v James Hardie Australia Pty Ltd (2001) 167 QGIG 280
5 citations
Jump To
Cite 1 - (2001) 167 QGIG 280
Cite 2 - (2001) 167 QGIG 280
Cite 3 - (2001) 167 QGIG 280
Cite 4 - (2001) 167 QGIG 280
Cite 5 - (2001) 167 QGIG 280
Short v F W Hercus Pty Ltd (1993) 40 FCR 511
4 citations
Jump To
Cite 1 - (1993) 40 FCR 511
Cite 2 - (1993) 40 FCR 511
Cite 3 - (1993) 40 FCR 511
Cite 4 - (1993) 40 FCR 511
United Voice, Industrial Union of Employees, Queensland v State of Queensland (Department of Education, Training and Employment) [2014] QIRC 107
2 citations
Jump To
Cite 1 - [2014] QIRC 107
Cite 2 - [2014] QIRC 107

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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