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TAFE Queensland v Together Queensland, Industrial Union of Employees[2025] QIRC 120

TAFE Queensland v Together Queensland, Industrial Union of Employees[2025] QIRC 120

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

TAFE Queensland v Together Queensland, Industrial Union of Employees & Anor [2025] QIRC 120

PARTIES:

TAFE Queensland

Applicant

v

Together Queensland, Industrial Union of Employees

First Respondent

&

Queensland Teachers Union of Employees

Second Respondent

CASE NO:

B/2024/58

PROCEEDING:

Application for interpretation of an industrial instrument

DELIVERED ON:

12 May 2025

MEMBER:

Pratt IC

HEARD AT:

On the papers

ORDERS:

  1. The answer to the first issue raised by the parties is that TAFE Queensland managers do have discretion to approve or not approve the taking of non-attendance time.
  1. The answer to the second issue raised by the parties is that there are conditions imposed in the industrial instruments which constrain the exercise of the discretion to approve non-attendance time.
  1. The answer to the third issue raised by the parties is that TAFE Queensland is entitled to require information from Educators regarding how the Educator plans to utilise their non-attendance time, where the Educator will be physically located when absent on non-attendance time and if/how the Educator can be contacted during their absence on non-attendance time.
  1. The answer to the fourth issue raised by the parties is that the jurisdiction created by s 467 of the Industrial Relations Act 2016 (Qld) does not extend to determining whether TAFE Queensland has all legal responsibilities (for example under workers' compensation and work health and safety legislation) towards Educators who are absent upon approved non-attendance time that it normally would have for such employees performing work on campus.
  1. The answer to the fifth issue raised by the parties is that there is no entitlement to take non-attendance time in a particular calendar year if an Educator will not be undertaking any course delivery in that calendar year, but will instead be absent on approved leave for the entire year.

CATCHWORDS:

INDUSTRIAL LAW – INDUSTRIAL INSTRUMENTS – AWARDS – AGREEMENTS – INTERPRETATION OF INDUSTRIAL INSTRUMENTS – application for interpretation of industrial instruments – non-attendance time for TAFE Queensland Educators pursuant to the  TAFE Queensland Award – State 2016 ('Award') and the TAFE Queensland Educators Certified Agreement 2023 ('Agreement') – agreed set of issues to be answered by the Commission – consideration of the principles for the construction of awards and agreements – consideration of what discretion TAFE Queensland managers hold to approve, or not, the taking of non-attendance time – consideration of what conditions are imposed on any such discretion that exists – consideration of whether TAFE Queensland can require certain information from Educators about how non-attendance time is to be used such as where the Educator plans to be located and if and how they will be contactable during non-attendance time – consideration of the scope of s 467 of the Industrial Relations Act 2016 (Qld) and whether that includes the Commission interpreting what legal responsibilities under workers' compensation and health and safety legislation TAFE Queensland holds while Educators are on non-attendance time – consideration of whether an entitlement to non-attendance time exists for Educators not doing course delivery work in a year due to being on approved leave for that year – held that TAFE Queensland managers have discretion to approve, or not, the taking of non-attendance time – held that conditions are imposed on that discretion – held that TAFE Queensland can require certain information from Educators about how non-attendance time is to be used including where the Educator plans to be located and if/how they will be contactable during – held that the jurisdiction created by s 467 of the Industrial Relations Act 2016 (Qld) does not extend to determining whether TAFE Queensland has all legal responsibilities under workers' compensation and work health and safety legislation towards Educators who are absent upon approved non-attendance time that it normally would have for such employees performing work on campus – held that there is no entitlement to take non-attendance time for Educators not doing course delivery work in a year due to being on approved leave for that year.

LEGISLATION & OTHER INDUSTRIAL INSTRUMENTS:

Industrial Relations Act 2016 (Qld) s 389, 467, ch2, pt 5-6, schedule 5

Statutory Instruments Act 1992 (Qld) s 7

Acts Interpretation Act 1954 (Qld) s 14A, s 14B, s 32A, s 32AA

TAFE Queensland Award – State 2016 cl 3, 19

TAFE Queensland Educators Certified Agreement 2023 cl 3, cl 31, cl 33, cl 34, cl 56, cl A5.8

Workers' Compensation and Rehabilitation Act 2003 (Qld)

Work Health and Safety Act 2011 (Qld)

CASES:

Australian Manufacturing Workers' Union v Berri Pty Ltd (2017) 268 IR 285

Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCAFC 50

Brisbane City Council v Queensland Services, Industrial Union of Employees [2021] QIRC 5

Chief Executive, Department of the Premier and Cabinet v Australian Education Union (SA) (2010) 193 IR 1

Gattellaro v Westpac Banking Corporation (2004) 78 ALJR 394

Holland v Jones (1917) 23 CLR 149

James Cook University v Ridd [2020] FCAFC 123

Queensland Professional Officers' Association, Union of Employees and Another v Department of Employment, Vocational Education, Training and Industrial Relations (1991) 136 QGIG 502

Re Australian Education Union (284V) [2023] FWC 391

State of Queensland (Department of Health) v Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees [2023] QIRC 061

Reasons for Decision

Introduction

  1. [1]
    This is an application by TAFE Queensland seeking an interpretation of two industrial instruments pursuant to s 467 of the Industrial Relations Act 2016 (Qld) ('IR Act'): the TAFE Queensland Award – State 2016 ('Award') and the TAFE Queensland Educators Certified Agreement 2023 ('Agreement'). The Applicant, TAFE Queensland, and the First Respondent, Together Queensland, Industrial Union of Employees ('Together Queensland') and the Second Respondent, the Queensland Teachers Union of Employees ('QTU'), have agreed on a set of five issues to be determined by the Commission.

Issues

  1. [2]
    The five issues are:
  1. Whether TAFE Queensland managers have discretion to approve or not approve the taking of non-attendance time.
  1. If there is managerial discretion, whether there are conditions imposed in the industrial instruments which constrain the exercise of that discretion.
  1. Whether TAFE Queensland is entitled to require any information from Educators regarding how they plan to utilise their non-attendance time, where the Educator will be physically located when absent on non-attendance time and if and how the Educator can be contacted during their absence on non-attendance time.
  1. Whether TAFE Queensland has any legal responsibilities (for example under workers' compensation and work health and safety legislation) towards Educators who are absent upon approved non-attendance time.
  1. Whether there is an entitlement to take non-attendance time if the Educator will not be undertaking any course delivery in a calendar year, but will instead be absent on approved leave.

Relevant law as to the interpretation of awards

  1. [3]
    In Brisbane City Council v Queensland Services, Industrial Union of Employees, ('BCC'),[1] his Honour, Merrell DP, relevantly said of the interpretation of awards:[2]
  1. [35]
    First, the task of construction begins with the consideration of the ordinary meaning of its words.
  2. [36]
    Secondly, regard must be paid to the context and purpose of the provision or expression being construed. The context:
  • may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction;
  • is not confined to the words of the relevant Act or instrument surrounding the expression to be construed, and it may extend to the entire document of which it is a part or other documents with which there is an association and may also include ideas that gave rise to an expression in a document from which it has been taken; and
  • extends to the origins of the particular clause, however, frequently and perhaps most often, the immediate context is the clearest guide.
  1. [37]
    Thirdly, awards made by the Queensland Industrial Relations Commission are statutory instruments within the meaning of s 7 of the Statutory Instruments Act 1992. This is because they are instruments made under an Act and are instruments of the type referred to in s 7(3) of the Statutory Instruments Act 1992, namely an instrument of a public nature by which the entity making the instrument (the Commission) unilaterally affects a right or liability of another entity. By virtue of pt 4 of the Statutory Instruments Act 1992, certain provisions of the Acts Interpretation Act 1954 apply in the construction of awards, including:
  • section 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;
  • section 14B of the Acts Interpretation Act 1954, as modified by s 15 of the Statutory Instruments Act 1992, which provides that consideration may be given to extrinsic material capable of assisting in interpretation in particular circumstances;
  • section 32A of the Acts Interpretation Act 1954, which provides that definitions in or applicable to an Act apply except so far as the context or subject matter otherwise indicates or requires; and
  • section 32AA of the Acts Interpretation Act 1954, which provides that a definition in or applying to an Act applies to the entire Act.
  1. [38]
    Fourthly, an award should not be interpreted in a vacuum divorced from industrial realities.
  2. [39]
    Fifthly, there is a long tradition of generous construction over a strictly literal approach which at least means that courts and tribunals will not make too much of infelicitous expression in the drafting of an award nor be astute to discern absurdly or illogicality or apparent inconsistencies.
  3. [40]
    Sixthly, while narrow or pedantic approaches to the construction task are misplaced, a court is not free to give effect to some anteriorly derived notion of what is fair or just regardless of what has been written in the award.
  4. [41]
    Seventhly, while the context and purpose are relevant, ultimately, the task is to give effect to the meaning of the instrument as expressed in its words, objectively construed.
  5. [42]
    Finally:
  • the construction of an award can be affected by a common understanding of the parties to it about a particular state of affairs, and if such a common understanding existed when the award was made, it should not be departed from when the court comes to construe the award at a subsequent time;
  • however, care must be taken to distinguish a common understanding from common inadvertence in that there can be no meeting of the minds, no consensus, if no one has thought about the issue;  and
  • evidence of the conduct of the parties subsequent to the making of an award cannot be relied upon to construe it.

Relevant law as to the interpretation of enterprise agreements

  1. [4]
    In State of Queensland (Department of Health) v Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees ('ASMOFQ'),[3] a Full Bench of this Commission adopted the following principles,[4] as originally set out in James Cook University v Ridd,[5] for the interpretation of enterprise agreements:[6]
  1. [65]
    The relevant principles applicable to the interpretation of an enterprise agreement may be stated as follows:
  1. The starting point is the ordinary meaning of the words, read as a whole and in context.
  1. A purposive approach is preferred to a narrow or pedantic approach - the framers of such documents were likely to be of a "practical bent of mind". The interpretation "turns upon the language of the particular agreement, understood in the light of its industrial context and purpose".
  1. Context is not confined to the words of the instrument surrounding the expression to be construed. It may extend to "... the entire document of which it is a part, or to other documents with which there is an association".
  1. Context may include "... ideas that gave rise to an expression in a document from which it has been taken".
  1. Recourse may be had to the history of a particular clause "Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form ..."
  1. A generous construction is preferred over a strictly literal approach but "Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties".
  1. Words are not to be interpreted in a vacuum divorced from industrial realities but in the light of the customs and working conditions of the particular industry.
  1. [5]
    The Full Bench went on to note that regard can be had to extrinsic material to resolve ambiguity where provisions are capable of more than one meaning; however, whether there is in fact a genuine ambiguity needs to be considered objectively.[7]

Relevant clauses in the Award

  1. [6]
    Clause 3 of the Award defines non-attendance time:

non-attendance time means those periods of time where Educators are not required to be in attendance at a campus

  1. [7]
    Clause 19 of the Award outlines various aspects of non-attendance time:

19.  Non-attendance time – Educators

  1. Educators, excluding casual employees, are entitled to 5 weeks' non-attendance time for each completed calendar year of service with TAFE Queensland.
  1. As a guide, the allocation, programing (sic) and approval of non-attendance time will facilitate the opportunity for employees to prepare all necessary work required prior to the commencement of education delivery.
  1. The entitlement to non-attendance time will be on a pro rata basis for part-time employees and employees who have completed less than a calendar year of service.
  1. Non-attendance time will be approved at the discretion of the General Manager, ensuring:
  1. the efficient operation of the Region, courses and programs;
  1. the teaching team is consulted; and
  1. the period of non-attendance time to be taken will provide the employee with the opportunity to complete preparation prior to the commencement of delivery.
  1. The General Manager may decide when an employee is to take non-attendance time and will provide the employee with a minimum of 4 weeks' notice or a lesser period by agreement.
  1. A minimum of one week's non-attendance time will be taken up to a maximum of 4 weeks at any one time.
  1. A minimum of 2 periods of non-attendance time will be taken per year separated by a maximum of 21 weeks.
  1. Non-attendance time and annual leave may be taken concurrently, up to a maximum of 8 weeks, in any one period.
  1. Non-attendance time is exclusive of any public holiday that falls during a period of non-attendance time taken by an employee.
  1. The General Manager will ensure employees are provided with the teaching program/s prior to the commencement of non-attendance time.
  1. An Educator may defer a maximum of 2 weeks' non-attendance time to the next calendar year by agreement made at least 2 weeks prior to commencement of the next calendar year. Any deferred non-attendance time not taken within 6 months of the new calendar year will be forfeited.
  1. On termination of employment, an employee shall be paid the equivalent of any pro rata non-attendance time that has not been taken during the calendar year.

Relevant clauses in the Agreement

  1. [8]
    Clause 3 of the Agreement modifies the Award definition of non-attendance time slightly:[8]

Non-attendance time means those periods of time where Educators are not required to be in attendance at a campus or their usual delivery location.

  1. [9]
    Clause 31 of the Agreement imposes obligations on Educators to be prepared to deliver training before that training commences:

31.  Preparation

Educators will ensure all necessary activities as required for the half yearly plan and delivery timetable, are completed prior to the commencement of delivery including:

  1. Confirming understanding of the packaging rules and requirements of the training package and/or accredited course units to be delivered and ensuring that planned training activity will meet those requirements;
  1. Review, update and/or develop course-related information at a qualification and/or unit level, including but not limited to:
  1. Qualification Guide;
  1. Unit of Study Guide/s;
  1. Learner Guide/s;
  1. Assessment tools and instruments, including marking criteria, observation checklist, benchmark answers and mapping matrix;
  1. Recognition of Prior Learning assessment tools including candidate guide, assessor guides and mapping matrix;
  2. Content delivery schedule/lesson plans;
  1. Learning and training resources;
  1. Course orientation materials for existing or future programs; and
  1. Preparing for workplace learning, such as ensuring the templates for Provider Risk Assessments and the Logbook for Vocational Placements are up to date for future issue.
  1. Uploading all relevant learning and assessment resources and undertake all other requirements for the learning management system ready for delivery and assessment or organise printing of resources ready for distribution.
  1. [10]
    Clause 33 of the Agreement outlines the nature of non-attendance time:

33.  Non-attendance time

  1. Educators will use their discretion to determine how they will utilise non-attendance time. Educators may choose, but are not required to, conduct their normal programmed time duties during non-attendance time.
  1. TAFE Queensland and the teaching team will ensure the yearly plan and delivery timetable, for the six months after the return from non-attendance time, are agreed and available to Educators no less than four weeks prior to the commencement of non- attendance time. This is to facilitate the Educators' preparation as prescribed in clause 31 of this Agreement.
  1. An Educator is required to be reasonably contactable by TAFE Queensland while on approved periods of non-attendance time.
  1. Upon return from non-attendance time Educators will be prepared to commence delivery.
  1. [11]
    Clause 34 of the Agreement creates an entitlement to 10 days of professional development leave. At subclause 34(c) of the Agreement, professional development leave is expressly stated to be "differentiated from the normal programmed duties of Educators, including … (iv) non-attendance time".
  1. [12]
    The Agreement also provides for "preparation and administration time" for Educational Team Leaders, as outlined at clause A5.8 of Appendix 5 of the Agreement:

A5.8  Preparation and Administration Time (PAT)

  1. Educational Team Leaders are entitled to five weeks of preparation and administration time for each completed calendar year of service as an Educational Team Leader with TAFE Queensland.
  2. Preparation and administration time is allocated to Educational Team Leaders in lieu of Non- Attendance Time, however, the preparation requirements detailed in clause 31 of this Agreement and the requirement for an Educational Team Leader to be prepared to commence delivery upon return, are maintained.
  3. In addition to clause A5.8(b), Educational Team Leaders are to use their allocated preparation and administration time to undertake team leadership responsibilities associated with the management of the team/s and other administrative work.
  4. Preparation and administration time will be performed on campus, unless otherwise authorised by the employee's supervisor prior to the time being accessed.
  5. Preparation and administration time is in addition to non-contact time which is performed as part of an Educational Team Leader's weekly timetable.
  6. An Educational Team Leader will be reasonably contactable by TAFE Queensland during preparation and administration time, if performed off campus.
  7. The entitlement to preparation and administration time will be on a pro rata basis for part-time Educational Team Leaders and those who have completed less than a calendar year of service.
  8. Preparation and administration time will be approved at the discretion of the General Manager, ensuring the efficient operation of the Region, courses and programs; the teaching team is consulted; and the period of preparation and administration time to be taken will provide the Educational Team Leader with the opportunity to complete preparation and teaching team leadership duties prior to the commencement of delivery.
  9. The General Manager may decide when an employee is to take preparation and administration time and will provide the employee with a minimum of 4 weeks' notice or a lesser period by agreement.

Each issue considered in turn

  1. [13]
    It is appropriate to determine each issue one at a time by considering the relevant provisions in the Award and Agreement. I have read and considered all of the parties' submissions and supporting material. I refer only to those parts of the material in these reasons that are most relevant to setting out my determination of the issues.

The first issue – managerial discretion to approve taking non-attendance time

  1. [14]
    The first issue is whether TAFE Queensland managers have discretion to approve or not approve the taking of non-attendance time.
  1. [15]
    The QTU admits that TAFE Queensland has a discretion to approve the taking of non-attendance time but emphasises that this discretion is subject to the entitlement of 5 weeks non-attendance time per year. That submission is not developed, however. Together Queensland appears also to admit that there is a conditional discretion to approve the taking of non-attendance time referring to subclause 19(d) of the Award. It seems to me to be agreed between all of the parties that there is an accrual of 5 weeks of non-attendance time per calendar year, which does not accumulate from year to year. But that is not the issue to be determined here. The issue is instead about whether the employer is entitled to refuse applications for taking of non-attendance time, as distinct from the issue of how much, or if, non-attendance time accrues.
  1. [16]
    Both unions put forward the position is that non-attendance time is a form of leave. Together Queensland argues that this is the prevailing view. It and the QTU compare non-attendance time to annual leave in that both must be applied for and may be granted by the employer having regard to certain conditions, both accrue over the year and can do so on a pro rata basis, and both are paid out upon termination. The unions contend that a plain reading of clause 19 of the Award supports this view because it provides that the only precondition to the entitlement of non-attendance time is the completion of a calendar year of service by the relevant Educator.
  1. [17]
    A great deal of emphasis is placed by Together Queensland and the QTU on what each says is the purpose of non-attendance time. The purpose of non-attendance time might, but will not necessarily, have an impact on what activities an Educator can be required to carry out during the absence and what information TAFE Queensland can require of an Educator seeking to take non-attendance time. However, I am mindful of the guidance from his Honour, Merrell DP, in BCC: that while it is relevant to have regard to the context and purpose of an award provision, "ultimately, the task is to give effect to the meaning of the instrument as expressed in its words, objectively construed".
  1. [18]
    Subclause 19(b) of the Award says:
  1. As a guide, the allocation, programing and approval of non-attendance time will facilitate the opportunity for employees to prepare all necessary work required prior to the commencement of education delivery.
  1. [19]
    Approaching this issue from the perspective of purpose, Together Queensland submits that this clause should be construed such that non-attendance time may be used, but does not have to be used, by the relevant employee to prepare for upcoming education delivery. In support of that submission, the words "as a guide" and "facilitate the opportunity for employees to prepare…" are said to provide a non-mandatory opportunity for Educators to carry out this work if they want to. Or in other words, the construction advanced is that non-attendance time can be used for such preparation if the Educator wants to do so but that this is short of a requirement on the Educator to carry out such work during that time. Together Queensland argues that such an interpretation is consistent with interpreting non-attendance time as a form of leave.
  1. [20]
    Whether non-attendance time is a form of leave is clearly an argument about its purpose. Evidence and submission have been put on by all of the parties tracing the history of non-attendance time and arguing whether its purpose is or was a form of leave. That material includes minutes of agreement negotiations as well as submissions made before the Commission about what non-attendance time is, or is not, and what it used to be.
  1. [21]
    For example, in its materials filed, the QTU included extracts of transcripts containing part of a discussion between the Commission and various advocates during the relevant award case in 1991 ('1991 Award case').[9] Together Queensland referred to hearings in other jurisdictions such as a 2010 decision of a Full Bench of the Industrial Relations Commission of South Australia arbitrating an award in Chief Executive, Department of Premier and Cabinet v Australian Education Union (SA) ('AEU').[10] That case was argued as being demonstrative of a historical purpose of non-attendance time being aligned to recreation leave.  Together Queensland submits that this case supports the argument that non-attendance time has historically been aligned with recreation leave and that the provision of this entitlement in Queensland was for the same purpose.
  1. [22]
    Together Queensland also referred to the decision in Re Australian Education Union (284V) containing evidence from a witness in that case before the Fair Work Commission ('FWC') as to the purpose of non-attendance time in different states according to the witness.[11] That witness claimed that non-attendance time's purpose was closer to a form of leave where the Educator has discretion to decide what activities they will do while on such leave. The relevant passage of that judgement was a description of some of the evidence before the FWC, however. It was not a finding of the FWC and Together Queensland does not represent it as such. 
  1. [23]
    Together Queensland and the QTU argue that the first issue, and second, should be resolved by a finding that TAFE Queensland managers only have a discretion to approve the taking of non-attendance time, subject to the provisions of subclause 19(d) of the Award.
  1. [24]
    As to this first issue, TAFE Queensland submits that clause 19(d) of the Award is key and should be taken at its plain meaning. That subclause says:
  1. Non-attendance time will be approved at the discretion of the General Manager, ensuring:
  1. the efficient operation of the Region, courses and programs;
  1. the teaching team is consulted; and
  1. the period of non-attendance time to be taken will provide the employee with the opportunity to complete preparation prior to the commencement of delivery.
  1. [25]
    TAFE Queensland says that General Managers clearly have "discretion" to approve non-attendance time that Educators might apply for. It argues that the word "discretion" in subclause 19(d)'s overarching and introductory phrase means what it says. The submission is that a discretionary decision is one where the criterion to be applied tolerates a range of outcomes and that one such outcome may be that an application for non-attendance time is refused. TAFE Queensland further develops this submission by pointing out that to interpret otherwise would make the power in subclause 19(e) of the Award unusable by denying General Managers the discretion to refuse an application by an employee to take non-attendance time at a particular time. Subclause 19(e) of the Award says:
  1. The General Manager may decide when an employee is to take non-attendance time and will provide the employee with a minimum of 4 weeks' notice or a lesser period by agreement.
  1. [26]
    TAFE Queensland submits that those provisions need to also be read in the context of subclause 19(b) regarding the words "as a guide". The submission is that subclause 19(b) of the Award provides guidance on the allocation, programming and approval by the General Manager of non-attendance time. In particular, the allocation, programming and approval should be, as a guide, such that gives employees the opportunity to prepare all work they need to prepare before they have to deliver training. TAFE Queensland argues that the General Manager's power to allocate and program non-attendance time would be effectively useless if the General Manager has no discretion whether to approve an application for non-attendance time.
  1. [27]
    TAFE Queensland further submits that clause 19 of the Award plainly provides TAFE Queensland a discretion to decide what non-attendance time will be taken having regard to the obligation to ensure that Educators have sufficient time to perform the preparatory work that non-attendance time is partly purposed for. That is, so the submission goes, necessary to the operation of subclause 19(d) which requires programming and approving of non-attendance time at the discretion of the General Manager.

Consideration of the first issue

  1. [28]
    As noted above, the first step is to objectively review the relevant words in the instruments. They should be given their plain meaning having regard to the words themselves, the context of the relevant clause and the instrument as a whole. Regard should be had to broader context, including purpose but it needs to be remembered that the task is to give effect to the meaning of the instrument as expressed in its words, objectively construed.[12] If there is a genuine ambiguity, then recourse can be had to extrinsic materials.
  1. [29]
    On this first issue, the submission advanced by the union parties is that the wording of subclause 19(b) of the Award effectively grants Educators the right to choose whether they use non-attendance time to prepare for course delivery only if they wish. The words "as a guide", which open that subclause, are relied on heavily, as are the words "facilitate the opportunity for employees to prepare". The unions argue that the word "guide" is not obligatory and the words "facilitate the opportunity" imply choice, not compulsion, to carry out the preparation work for a particular course or courses.
  1. [30]
    Taking a closer look at the other words in subclause 19(b) of the Award, in my opinion it is clear that what the drafters of the subclause are providing guidance on is the tasks of allocation, programming and approval of non-attendance time. They are not providing guidance on whether the Educator can choose to not carry out any work at all whilst on non-attendance time. The words "as a guide" are given meaning by those that follow. They are, "…the allocation, programming and approval of non-attendance time will facilitate the opportunity for employees to prepare all necessary work required prior to the commencement of education delivery". On my reading of the clause, what the drafters are providing guidance on is when and how non-attendance time should be programmed, allocated and approved. That is, such that should facilitate Educators being able to prepare for the relevant training they are to deliver. An obvious demonstration of the sort of guidance the drafters are conveying in 19(b) is that non-attendance time to prepare for a course to be delivered in February should not be allocated, programmed and approved to occur in March. That is because allocating, programming and approving non-attendance time to occur after the relevant course has already been delivered will not facilitate the Educators preparing for delivery of that course.
  1. [31]
    Whilst subclause 19(a) of the Award describes employees being "entitled" to 5 weeks non-attendance time per year, I do not consider non-attendance time to be a form of "leave" such as the union parties are advocating. In my opinion, subclause 19(b) of the Award makes it clear that non-attendance time is a period of time designated for the purpose of performing a type of work, generally off site. As noted above, the emphasis of subclause 19(b) is the allocation, programming and approval of non-attendance time such that will facilitate the opportunity for employees to prepare all necessary work required prior to commencement of education delivery".  On any objective assessment, that passage of words cannot be describing a period of "leave" in the sense that the word indicates the employee being free to rest and rejuvenate, as is the case for annual leave, or in the sense of convalesce, as is the case for sick leave.
  1. [32]
    Subclause 19(d)(iii) of the Award provides that "the period of non-attendance time to be taken will provide the employee with the opportunity to complete preparation prior to commencement of delivery". I cannot accept that the use of the word "opportunity" implies that employees are free to decide they will not avail themselves of the "opportunity" to carry out this preparatory work and therefore treat the time as a form of paid annual leave by another name. In my opinion, the use of the word "opportunity" means that the non-attendance time provides the employee with the opportune time to complete the necessary, and not optional, preparatory work on full pay.
  1. [33]
    Subclause 19(d)(i) of the Award provides relevant considerations that the General Manager must have regard to when exercising the discretion to approve such absences. As noted above, those considerations are ensuring the efficient operation of the Region, courses and programs. The discretion, while broad, is not unfettered. By way of illustration, the General Manager would be acting in conflict with those considerations if she or he approved the taking of a period of non-attendance time if doing so did not ensure efficient operation of the Region courses and programs. I can think of no better example than the General Manager approving non-attendance time for Educators knowing those Educators were not intending to carry out any preparation or other work at all. It might be said that those Educators might return from such a period of non-attendance time refreshed and well-rested, which would promote more efficient delivery of their training courses. Such an argument must be rejected because those Educators would not have prepared to deliver the training that the non-attendance time is, in my opinion, clearly designed to facilitate them preparing for.
  1. [34]
    Subclause 19(d)(iii) of the Award obliges the General Manager, when considering when non-attendance time will be taken, to ensure that it is taken at times that will give the relevant Educator the opportunity to do the necessary preparatory work before they start delivering the training. I therefore cannot accept the submission advanced by the unions that the wording of subclauses 19(b) and 19(d)(i) and (iii) of the Award effectively grants Educators the right to choose whether they use non-attendance time to prepare for course delivery only if they wish. For the foregoing reasons, these provisions do not, in my opinion, grant Educators the right to decide whether they will carry out any work at all during non-attendance time.
  1. [35]
    The difficulty I have in accepting the submissions regarding the AEU case argument is that it has little relevance to the current Award and Agreement provisions. What a tribunal considered as relevant to interpreting the submissions and evidence of parties to a dispute in another State, albeit one that touched on this issue, is not material that assists in construing the relevant words in this case. Similarly, I do not see that the parties' references in the 1991 Award case to non-attendance as a form of "leave" as being helpful. Referring to something as "a form of leave" does not itself amount to the relevant period constituting the type of time off work where the employee is free to do whatever they wish and the employer is not entitled to know what the employee proposes to do during that time. For example, the word "leave" is used in "industrial relations training leave" provided for in clause 41 of the Award. But that does not render that time away from work to be such that the employee is free to do what they please and the employer is not entitled to know what the employee plans to do with the time before approving the proposed absence on full pay.
  1. [36]
    I accept TAFE Queensland's submissions that there is express provision in subclause 19(d) of the Award for a "discretion" held by the General Manager to approve applications for non-attendance time. I accept the submission that that necessarily means that this subclause also provides for a discretion not to approve such applications within the constraints discussed below.

The second issue – conditions for managerial discretion to approve taking non-attendance time

  1. [37]
    The second issue is, if there is managerial discretion, whether there are conditions imposed in the industrial instruments which constrain the exercise of that discretion.
  1. [38]
    As to the second issue, both unions seem to agree that the exercise of the above-mentioned discretion does have constraints. TAFE Queensland also notes that there are constraints on the ability to take non-attendance time. These constraints include how much non-attendance time can be taken, how many periods of non-attendance time can be taken in a particular year and how non-attendance time can be taken concurrently with annual leave.
  1. [39]
    In my opinion, the General Manager's discretion is broad but not unfettered. Some constraints on the discretion are built into the relevant provisions that I have discussed above, including the need to ensure the efficient operation of the Region, courses and programs when exercising the discretion. But there are other constraints as well. Under clause 19(e) of the Award, for example, no less than four weeks' notice can be given unless otherwise agreed. Clause 19(f) of the Award constrains this discretion by requiring that, at any one time, there be a minimum of one week's non-attendance time and a maximum of four weeks non-attendance time. Interestingly, clause 19(h) of the Award provides the condition that non-attendance time and annual leave can be taken concurrently up to a maximum of eight weeks in any one period. It is immediately apparent to me from clause 19(h) of the Award that a period of annual leave and period of non-attendance time are distinguished from each other by the drafters making it clear that these two different forms of paid time away from the workplace can be taken concurrently.
  1. [40]
    Accordingly, I conclude that the second issue should be answered in the affirmative. I conclude this on the basis that clause 19 of the Award serves the purpose of placing conditions on the discretion to approve non-attendance time that the General Manager must have regard to when exercising the discretion to grant or refuse applications for non-attendance time.

The third issue – information required of Educators regarding non-attendance time utilisation

  1. [41]
    The third issue is whether TAFE Queensland is entitled to require any information from Educators regarding how they plan to utilise their non-attendance time, where the Educator will be physically located when absent on non-attendance time and if/how the Educator can be contacted during their absence on non-attendance time.
  1. [42]
    As to the third issue, both unions argue that TAFE Queensland is not entitled to any information from Educators regarding how they plan to utilise their non-attendance time. I discuss these arguments in more detail below. However, in summary, that is largely based on the alternative interpretation that non-attendance time is a form of leave, comparable to annual leave.
  1. [43]
    TAFE Queensland says that it is entitled to require information from Educators regarding how they plan to utilise their non-attendance time, where the Educator will physically be located when absent on non-attendance time and if or how the Educator can be contacted during their absence on non-attendance time. TAFE Queensland points to the obligations of the General Manager to ensure efficient operations and that each period of non-attendance time that is proposed to be taken will adequately provide the employee with enough time to prepare for the commencement of delivery. TAFE Queensland submits that for the General Manager to discharge that obligation she or he needs to be able to reasonably contact the relevant employee and to know where the relevant employee will be located during non-attendance time and how they plan to utilise that time. In support of this submission, TAFE Queensland points to clause 33(c) of the Agreement which says that "[a]n Educator is required to be reasonably contactable by TAFE Queensland while on approved periods of non-attendance time." TAFE Queensland submits that this allows TAFE Queensland to be satisfied that, at the conclusion of the relevant period of non-attendance time, the Educator will be prepared to commence delivery in accordance with the obligations set out within clauses 31 and 33 of the Agreement.
  1. [44]
    TAFE Queensland also argues that knowing where the Educator will physically be located, and how they can be contacted, goes to the obligations of the General Manager set out in clause 19(d) of the Agreement. In its reply submissions, TAFE Queensland poses the example of whether the Educator is planning to carry out his or her non-attendance time preparation work in Brisbane or in Bali. If the latter, TAFE Queensland argues that it would be reasonable for the General Manager to enquire of that employee how they propose to conduct the relevant preparatory work in order to discharge the obligations attached to non-attendance time. TAFE Queensland contends therefore that there is a right for TAFE Queensland to require of an Educator information as to how that employee plans to utilise their non-attendance time, where the Educator will physically be located when they are on non-attendance time and how they can be contacted.

Consideration of the third issue

  1. [45]
    Much of the argument presented on this issue focuses on whether non-attendance time is a form of leave, akin to annual leave. The purpose of the clause is relevant. However, the primary focus on the purpose of these provisions – whether non-attendance time is a form of leave – is presented as an answer to what the union parties argue is an ambiguity.

Ambiguity and regard to extrinsic materials

  1. [46]
    A provision will not ambiguous merely because the parties put forward different interpretations of that provision. There needs to be a genuine ambiguity in the sense that the relevant provisions are properly capable of more than one meaning. Whether there is in fact a genuine ambiguity needs to be assessed objectively.[13] The Full Bench in ASMOFQ on this point cited and followed the decision of the Full Court of the Federal Court of Australia in Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union ('Bianco Walling').[14] The Court relevantly said in Bianco Walling:[15]

[70]  It may well be the case that the mere existence of rival contentions as to the meaning or application of a provision or provisions in an enterprise agreement is not sufficient to indicate ambiguity or uncertainty for the purposes of s 217: Tenix Defence Systems Pty Limited Certified Agreement 2001‑2004 [2002] AIRC 531 at [49]. Instead, the FWC is to consider the matter objectively: Beltana No. 1 Salaried Staff Certified Agreement 2001 [2003] AIRC 608 at [23]. In that objective consideration, an assessment of the matters relied upon for the competing contentions will be important, including evidence that the parties to the agreement had a common understanding as to the meaning of the terms they used in their agreement. A reading of the enterprise agreement as a whole may indicate ambiguity or uncertainty in one or more of its clauses. And, as was noted by the Full Bench in Tenix, "the [FWC] will generally err on the side of finding an ambiguity or uncertainty where there are rival contentions advanced and an arguable case is made out for more than one contention", at [31].

  1. [47]
    I respectfully agree with and adopt that approach. The mere advancing of an alternative proposed meaning of a provision or provisions does not itself oblige the court or tribunal to have regard to extrinsic materials. Whilst erring on the side of caution and thus somewhat leaning into finding ambiguity is appropriate, there needs to be an arguable case for the proposed alternative view. That needs to be assessed objectively.
  1. [48]
    Here, the ambiguity is said to reside in numerous provisions. But the ambiguity could generally be summarised neatly: whether non-attendance time is a form of leave entitlement where Educators do not need to perform any work, or a form of paid time for performing preparatory work away from the usual workplace.
  1. [49]
    Having regard to clause 19 of the Award, and those other related provisions that I have mentioned above, the plain meaning of the clause, and indeed its purpose, seems very obvious to me. The entitlement to non-attendance time provides access for Educators to paid time away from the workplace to carry out preparatory work necessary to efficiently deliver training, subject to approval by TAFE Queensland.
  1. [50]
    Informing what I consider to be the plain meaning of the words in that clause, there is some relevant context. Not just the surrounding words of clause 19 of the Award themselves but also the industry within which both the Award and Agreement operate. Educators deliver training in this industry. As noted above, the Agreement at clause 31 expressly obliges Educators to carry out work in the form of preparing for the delivery of that training before the training is to be delivered. I take judicial notice of the fact that training is most effectively delivered where the Educator has had a reasonable chance to carry out the necessary preparatory work. That is a fact that is so commonly known that it can safely be assumed as a fact despite evidence in these proceedings not being received.[16] It is also a fact safely inferred from relevant provisions such as clause 31 of the Agreement and clause 19 of the Award which, on my reading of them, are purposed towards ensuring that preparation for delivering training occurs before the delivery of that training. I do not see an ambiguity that warrants recourse to extrinsic material here. The alternative view that non-attendance time is a form of leave for rest and relaxation cannot be objectively sustained in my opinion.
  1. [51]
    Even if there was a genuine ambiguity, the union parties have pointed to extraneous material they say supports their alternative view. The case of AEU referred to by Together Queensland was an award arbitration case decided by a Full Bench of the Industrial Relations Commission of South Australia. In that case, there was a new classification structure proposed. The Full Bench relevantly considered an argument by the union party that the 29 non-attendance days for employees at all levels of the classification structure should be maintained. The employer party argued that non-attendance day allocations should be linked to teaching load and therefore different amounts of non-attendance days should be allocated to different classifications. Essentially, the employer argued that non-attendance days were linked to teaching and a form of accommodating the work teachers did out of hours.[17] That has some similarity to the position argued by the employer party in the present case. In AEU, the union party argued that the entitlement formed part of holidays, which is also the position advanced by the union parties to the present case. In AEU, the Full Bench cited a judgment given in transcript by Allen J which carried some weight, although the tribunal was ultimately unable to determine the rationale for non-attendance days.[18] So this decision does not assist, even if there was ambiguity.
  1. [52]
    Witness for the QTU, Mr David Terauds, filed an affidavit in support of the argument that non-attendance time was a form of leave. Mr Terauds deposed that although it predated his tenure, non-attendance time emerged from negotiations in response to efficiency gains sought by the Department of Education in the early 1970's. That was in the form of an increase in the number of weeks that a technical college could be utilised to provide teaching services each year. Mr Terauds then outlined the history of several predecessors of the Agreement and the Award as they pertain to non-attendance time. Mr Terauds advocated that these provisions support the view that non-attendance time was a form of leave. Furthermore, Mr Terauds included excerpts of some submissions presented to the Commission in the 1991 Award case. In it the position advanced by the Department of Education's advocate was that non-attendance time was a form of leave, separate from the annual leave which accrued leave loading.
  1. [53]
    Even taking a cautious approach as to ambiguity, I am not satisfied that the abovementioned 1991 Award case assists. In the 1991 Award case there is no detailed analysis of what non-attendance time's purpose is because there was acceptance by the Commission of an agreed position. Some overlap between the concepts of non-attendance time and "leave" was observed by that Full Bench. But that was the Full Bench setting out how the parties presented their submissions rather than any consideration and determination of a contest on what the purpose of non-attendance time is. Mr Terauds' evidence does not assist in interpreting the current provisions either. Nor does the evidence presented by other parties such as bargaining negotiation minutes and similar. That history does not aid in resolving any ambiguity as I construe the words themselves in the current provisions. That is because I do not find the mere use by a party of the word "leave" as influencing how the relevant words in this case should be construed.

Conclusions on the third issue

  1. [54]
    In my opinion, the key to this issue is understanding the General Manager's obligations and functions in considering applications for non-attendance time. As explained above, clause 19(d)(i) of the Award gives the General Manager the discretion is to consider whether to approve applications to take non-attendance time. In my opinion, the purpose of non-attendance time is for the Educator to carry out preparatory work in order to be able to effectively deliver the relevant training. The General Manager, in exercising the discretion, is under the obligation prescribed by clause 19(d)(i) of the Award to ensure the efficient operation of the Region, courses and programs. The General Manager is therefore under an obligation to refrain from granting an application for non-attendance time if doing so is at odds with the efficient running of the Region, courses or programs. In my opinion, in order for the General Manager to satisfactorily meet that obligation, TAFE Queensland must be able to ascertain whether the relevant employee can adequately carry out the necessary work of preparing for the delivery of upcoming training.
  1. [55]
    I am influenced in reaching that conclusion by my reading of clause 33(c) of the Agreement, which expressly states that the relevant Educator is required to be reasonably contactable by TAFE Queensland during a period of non-attendance time. I construe clause 33(c) to mean that the Educator is to provide the employer with contact information such as a telephone number or other messaging services that the employer can reach the Educator on while they are on non-attendance time. I construe that the Educator is reasonably contactable where she or he is able to engage meaningfully in two-way communications with the relevant TAFE Queensland staff.
  1. [56]
    An important consideration in deciding whether an Educator will be reasonably contactable, and whether they can effectively carry out the required work, has to include where they propose to be located during the non-attendance time. By way of illustration, if the relevant Educator was proposing to be located on the other side of the world, out of mobile phone and internet range, that would be an extremely important consideration. The only way to meet the abovementioned obligations when deciding applications for non-attendance time, is to know where the Educator will be, how they propose to carry out the work and how they will be contactable. It is therefore necessary for TAFE Queensland to know this information as part of weighing up applications for non-attendance time. Additionally, how the Educator plans to utilise the non-attendance time and also where they intend to be during that time are all necessary pieces of information that TAFE Queensland should know if it is to discharge the obligations set by clause 19(d)(i) of the Award.
  1. [57]
    I conclude that the third issue should be answered in the affirmative. It is clear to me that the Award and Agreement, properly construed, provide for TAFE Queensland being able to require from Educators information about how the Educators plan to utilise the non-attendance time being sought, including where the Educator plans to be physically located when on that non-attendance time and how the Educator can be contacted during non-attendance time.

The fourth issue – legal obligations to employees on non-attendance time

  1. [58]
    The fourth issue is whether TAFE Queensland has any legal responsibilities (for example under workers' compensation and work health and safety legislation) towards Educators who are absent upon approved non-attendance time.
  1. [59]
    The position advanced by both unions concerning the fourth issue is that it is not a matter that can be dealt with by the Commission pursuant to s 467 of the IR Act. The union parties argue that the scope of s 467 is limited to interpreting, in this case, the Award and the Agreement and that determining this issue goes well beyond that and into the realms of interpreting statutes and common law.
  1. [60]
    TAFE Queensland queries the unions' submissions when the fourth issue was agreed to be put to the Commission for determination as part of these proceedings under s 467 of the IR Act. TAFE Queensland argues that non-attendance time is not a period of leave but rather a period of time where the employee is to perform preparatory work, usually away from campus, in order to ensure they are ready to deliver the relevant training. TAFE Queensland concludes that this is not a leave entitlement. It is distinctly different and sits apart from the provisions of the relevant industrial instruments that do provide for leave. A distinction is drawn by TAFE Queensland by comparing non-attendance time provisions with clause 56 of the Agreement. It deals with the right to disconnect in respect of rest time, weekends and leave/vacation periods. Clause 56(d) says:
  1. Managers will encourage Educators to disconnect from digital technologies and communication when accessing rest time, weekends and leave/vacation periods, except in exceptional circumstances (e.g. natural disaster).
  1. [61]
    TAFE Queensland notes the conspicuous absence of non-attendance time in that list of times when the Managers should encourage Educators to disconnect as support for the submission that non-attendance time is not a period of leave. TAFE Queensland submits therefore that it still holds all of the usual legal responsibilities and obligations in respect of Educators who are carrying out work during non-attendance time. That includes obligations under workers' compensation and workplace health and safety legislation.

Consideration of the fourth issue

  1. [62]
    There is agreement between all three of the parties that this issue be put before the Commission for determination. However, that does not prevent any of the parties from arguing that the answer to this issue that it is not something that the Commission can determine pursuant to s 467 of the IR Act.
  1. [63]
    The question posed within this issue is to what extent the employer is encumbered with duties under statute and common law relating to health and safety of employees on approved non-attendance time as compared to all other work directed by the employer. As noted above, the submission advanced by the union parties is that answering this question would require interpreting the relevant statutes and common law, which goes well beyond interpreting the two relevant industrial instruments. There is considerable force to that submission as explained below.
  1. [64]
    Section 467 of the IR Act confines the Commission's powers to interpreting the "industrial instruments". Schedule 5 of the IR Act exhaustively defines "industrial instrument" as meaning an award, a certified agreement, an arbitration determination, a code of practice under s 389 or an order under chapter 2, part 5 or 6. Note, however, that the same schedule defines an "industrial law" as the IR Act or another Act regulating the relationships between employers and employees. The Workers' Compensation and Rehabilitation Act 2003 ('WRC Act') and the Work Health and Safety Act 2011 (Qld) ('WHS Act') are examples of Acts that regulate the relationship between employers and employees. Answering any question that arises under those acts would necessarily involve interpreting those Acts.
  1. [65]
    Answering those questions would also raise complex legal and factual issues unique to each case and the particular legislation in question. But most importantly, resolving the many questions embedded within this issue would require interpreting "industrial laws". In my opinion that is well outside the power vested in the Commission by s 467 of the IR Act. Accordingly, the submission advanced by the union parties is correct. This is not an issue that can be determined under s 467 of the IR Act.

The fifth issue – non-attendance time when no course delivery in the year

  1. [66]
    The fifth issue is whether there is an entitlement to take non-attendance time if the Educator will not be undertaking any course delivery in a calendar year, but will instead be absent on approved leave.
  1. [67]
    As to the fifth and final issue, the submission from Together Queensland is that:

There is an entitlement to 5 weeks [non-attendance time] if the Educator has met the requirements of clause 19 (a), i.e. they have completed a calendar year of service with TAFE Queensland, which may include paid leave. How that entitlement is then accessed is only limited by the provisions in clause 19 (d) which regulates when [non-attendance time] may be taken, not if it is taken.

  1. [68]
    The QTU contends that because TAFE Queensland's employee leave entitlements policy provides that leave is credited as "service", then an employee who takes a complete calendar year off on approved leave is entitled to non-attendance time because they have provided a year of "service". This is even in a case where the Educator is not delivering any educational training programs during the year in question.
  1. [69]
    TAFE Queensland answers the fifth issue in the negative. It argues that the relevant provisions discussed above make it clear that the purpose of non-attendance time is to prepare for course delivery. TAFE Queensland argues that it must follow that if there is no prospective course delivery, non-attendance time is of no purpose, and it is not a form of leave. TAFE Queensland submits that the General Manager may exercise the discretion to refuse an application for non-attendance time by an Educator who is not scheduled to undertake any course delivery in the future.

Consideration of the fifth issue

  1. [70]
    As I have found above, a key purpose of non-attendance time as set out in the Award and the Agreement is to carry out work in preparing for the delivery of training. If the relevant Educator has the entire calendar year off on approved leave, and is delivering no training whatsoever, then there is no training delivery for which to prepare in that year. There is no basis to an application for time to prepare for the delivery of training that will never be delivered. Approving such an application would be at odds with the obligation in clause 19(d)(i) to ensure efficient operation of the Region, courses and programs in my opinion. That is because approving such an application would be effectively granting a period of time off purportedly in order to carry out work that could not be carried out.
  1. [71]
    I accept that there is enough breadth in the General Manager's discretion to approve a period of non-attendance time towards the end of a calendar year during which the Educator has been on approved leave in order for the Educator to prepare for delivering training in the new year. However, that will depend on the facts, such as the nature of the training, including its complexity and duration, and whether non-attendance time could practically be taken early in the following calendar year.
  1. [72]
    In my opinion, the Award and the Agreement, properly construed, provide no entitlement to take non-attendance time in a case where there is no training delivery to prepare for in the relevant calendar year. That would conflict with the obligation on the employer within clause 19(d)(i) of the Award to ensure efficient operation of the Region, courses and programs when allocating, programming and approving the taking of non-attendance time. I conclude therefore that the fifth issue should be answered in the negative. Where an Educator is on approved leave for an entire calendar year and will therefore not be undertaking any course delivery work that year, there is no entitlement to take non-attendance time in that year.

Conclusions

  1. [73]
    I do not see the relevant provisions of the Award and the Agreement as being genuinely ambiguous. Their purpose is to facilitate and regulate the amount of paid time that Educators may use, away from the distractions of the workplace, to prepare for delivery of training. That is obvious on any reasonable reading of the relevant provisions in my opinion.
  1. [74]
    I conclude that the General Manager does hold a discretion to approve applications for non-attendance time. That discretion is broad but not unfettered. Guidance as to how it is exercised is principally derived from clause 19 of the Award. The Award and the Agreement also entitle TAFE Queensland to require Educators to inform it how the Educator plans to utilise their non-attendance time, where they will be located during that non-attendance time and how the Educator will be contactable during the period of proposed non-attendance time. Properly construed, the Agreement and the Award relevantly provide that non-attendance time is not leave, but is a period of specific work normally done away from the usual workplace. Whatever statutory and common law obligations TAFE Queensland is encumbered with whilst Educators are on non-attendance time is not a matter that can be determined under s 467 of the IR Act. The Award and the Agreement provide no entitlement to take non-attendance time in a calendar year where an Educator is on approved leave for that entire calendar year and therefore will not be undertaking any course delivery work that year. I order accordingly.

Orders

  1. The answer to the first issue raised by the parties is that TAFE Queensland managers do have discretion to approve or not approve the taking of non-attendance time.
  1. The answer to the second issue raised by the parties is that there are conditions imposed in the industrial instruments which constrain the exercise of that discretion.
  1. The answer to the third issue raised by the parties is that TAFE Queensland is entitled to require information from Educators regarding how the Educator plans to utilise their non-attendance time, where the Educator will be physically located when absent on non-attendance time and if/how the Educator can be contacted during their absence on non-attendance time.
  1. The answer to the fourth issue raised by the parties is that the jurisdiction created by s 467 of the Industrial Relations Act 2016 (Qld) does not extend to determining whether TAFE Queensland has all legal responsibilities (for example under workers' compensation and work health and safety legislation) towards Educators who are absent upon approved non-attendance time that it normally would have for such employees performing work on campus.
  1. The answer to the fifth issue raised by the parties is that there is no entitlement to take non-attendance time in a particular calendar year if an Educator will not be undertaking any course delivery in that calendar year, but will instead be absent on approved leave.

Footnotes

[1] [2021] QIRC 5, [34]-[42] ('BCC').

[2] Footnotes omitted.

[3] [2023] QIRC 061 ('ASMOFQ').

[4] Ibid [39].

[5] [2020] FCAFC 123.

[6] Footnotes omitted.

[7] ASMOFQ (n 3) [40], citing Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCAFC 50, [70] ('Bianco Walling').

[8] My underlining.

[9] Queensland Professional Officers' Association, Union of Employees and Another v Department of Employment, Vocational Education, Training and Industrial Relations (1991) 136 QGIG 502.

[10] (2010) 193 IR 1 ('AEU').

[11] [2023] FWC 391.

[12] BCC (n 1) [41].

[13] ASMOFQ (n 3) [40]-[42] citing Australian Manufacturing Workers' Union v Berri Pty Ltd (2017) 268 IR 285, [114] and Bianco Walling (n 7) [70] ('Bianco Walling').

[14] Bianco Walling (n 7).

[15] Ibid [70].

[16] See, for example, Holland v Jones (1917) 23 CLR 149 and Gattellaro v Westpac Banking Corporation (2004) 78 ALJR 394, [15]-[18].

[17] AEU (n 10) [568].

[18] AEU (n 10) [669], [674].

Close

Editorial Notes

  • Published Case Name:

    TAFE Queensland v Together Queensland, Industrial Union of Employees & Anor

  • Shortened Case Name:

    TAFE Queensland v Together Queensland, Industrial Union of Employees

  • MNC:

    [2025] QIRC 120

  • Court:

    QIRC

  • Judge(s):

    Pratt IC

  • Date:

    12 May 2025

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
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union (AMWU) v Berri Pty Ltd (2017) 268 IR 285
2 citations
Jump To
Cite 1 - (2017) 268 IR 285
Cite 2 - (2017) 268 IR 285
Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCAFC 50
2 citations
Jump To
Cite 1 - [2020] FCAFC 50
Cite 2 - [2020] FCAFC 50
Brisbane City Council v Queensland Services, Industrial Union of Employees [2021] QIRC 5
2 citations
Jump To
Cite 1 - [2021] QIRC 5
Cite 2 - [2021] QIRC 5
Chief Executive, Department of the Premier and Cabinet v Australian Education Union (SA) (2010) 193 IR 1
2 citations
Jump To
Cite 1 - (2010) 193 IR 1
Cite 2 - (2010) 193 IR 1
Gattellaro v Westpac Banking Corporation (2004) 78 ALJR 394
2 citations
Jump To
Cite 1 - (2004) 78 ALJR 394
Cite 2 - (2004) 78 ALJR 394
Holland v Jones (1917) 23 CLR 149
2 citations
Jump To
Cite 1 - (1917) 23 CLR 149
Cite 2 - (1917) 23 CLR 149
James Cook University v Ridd [2020] FCAFC 123
2 citations
Jump To
Cite 1 - [2020] FCAFC 123
Cite 2 - [2020] FCAFC 123
Queensland Professional Officers' Association, Union of Employees and Another v Department of Employment, Vocational Education, Training and Industrial Relations (1991) 136 QGIG 502
2 citations
Jump To
Cite 1 - (1991) 136 QGIG 502
Cite 2 - (1991) 136 QGIG 502
Re Australian Education Union [2023] FWC 391
2 citations
Jump To
Cite 1 - [2023] FWC 391
Cite 2 - [2023] FWC 391
State of Queensland (Department of Health) v Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees [2023] QIRC 61
2 citations
Jump To
Cite 1 - [2023] QIRC 61
Cite 2 - [2023] QIRC 61

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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