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Fair Work Act 2009
s.739 - Application to deal with a dispute
Australian Education Union
v
State of Victoria (Department of Education)
(C2022/7922)
DEPUTY PRESIDENT COLMAN MELBOURNE, 9 JUNE 2023
Pursuant to ss.739 and 535 of the Fair Work Act 2009 (Cth), and clause 28 of the Victorian
Government Schools Agreement 2022 (VGSA 2022), the Fair Work Commission makes the
following determination, by consent, noting that the following reflects the parties' common
understanding and intention as to the application of clauses 24(8) and 24(9) of the VGSA 2022
in respect of School Camps as defined below:
[1] In this Determination, the following definitions apply:
Dispute means the dispute notified to the Fair Work Commission on 1 December 2022
(matter number C2022/7922).
education support class employee has the same meaning as provided by clause 6 of
the VGSA 2022.
Employees means teachers and education support class employees employed under Part
2.4 of the Education and Training Reform Act 2006 (Vic).
Overnight means the period between 11.00pm to 7.00am.
School Camp means any school camp other than:
(i) an overseas school camp; or
(ii) any period of a school camp occurring during a school holiday period.
teacher has the same meaning as provided by clause 6 of the VGSA 2022.
VGSA 2022 means the Victorian Government Schools Agreement 2022.
[2] Employees who are required by the principal (or delegate) to attend a School Camp
Overnight will be treated by the Secretary for the purposes of clause 24(8)(a)(iii) or 24(9)(c)(v)
(as applicable) of the VGSA 2022, in respect of that Overnight period, as if they are either:
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DETERMINATION
AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/awardsandorders/pdf/pr762936.pdf
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(a) 'on call and available to perform duties' for the purposes of clause 24(8)(a)(iii) or
24(9)(c)(v) (as applicable) of the VGSA 2022; or
(b) 'performing duties' for the purposes of clause 24(8)(a)(iii) or 24(9)(c)(v) (as
applicable) of the VGSA 2022.
[3] For the avoidance of doubt, the effect of paragraph 2 above is that:
(a) the relevant Employee will, at a minimum, be eligible to accrue four hours of time
in lieu under clause 24(8)(a)(iii) or 24(9)(c)(v) (as applicable) of the VGSA 2022 in
respect of each eight-hour period of Overnight attendance on the School Camp
which is required by the principal (or delegate); and
(b) if the Employee is performing duties for some of the Overnight period, then greater
than four hours of time in lieu will accrue in respect of that Overnight period because
a 100% accrual rate applies for the time during which the Employee is performing
duties (whereas a 50% accrual rate applies for time where the Employee is on call
and available to perform duties).
[4] For the purposes of paragraphs 2(b) and 3(b) above, an Employee is only to be regarded
as 'performing duties' for the purposes of clause 24(8)(a)(iii) or 24(9)(c)(v) (as applicable) of
the VGSA 2022 if the Employee is:
(i) specifically rostered, allocated or otherwise designated by the principal (or
delegate) to be performing duties; or
(ii) otherwise becomes aware of circumstances which require them to act in
accordance with their duty of care, and acts in accordance with that duty of care,
provided that this time is subsequently recognised by the principal (or delegate)
as time when the Employee was performing duties.
[5] The Secretary will, where the individual Employee agrees, compensate the Employee
for the minimum four hours of time in lieu referred to in paragraph 2(a) above by paying them
for that time in lieu at:
(i) for teachers – the Employee's normal rate of pay; and
(ii) for education support class employees – 150% of the Employee's normal rate of
pay.
Any balance of time in lieu for an Overnight period as contemplated by paragraph 3(b) above
will be taken as time in lieu or (if agreed between the principal and the Employee) paid out in
accordance with the VGSA 2022.
[6] Payment in accordance with paragraph 5 above constitutes payment for time in lieu in
accordance with clause 24(8)(d) or 24(9)(c)(iv) (as applicable) of the VGSA 2022. Paragraph
5 above does not otherwise impact upon the operation of clause 24(8)(e) or 24(9)(d) (as
applicable) of the VGSA 2022 dealing with the circumstance of time in lieu that has not been
granted or paid out by 1 March of the following year.
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[7] If an Employee is required by the principal (or delegate) to attend a School Camp outside
of 11.00pm to 7.00am, and outside normal hours of attendance, those hours of attendance will
only be regarded as 'performing duties' and attract time in lieu under clause 24(8)(a)(iii) or
24(9)(c)(v) (as applicable) of the VGSA 2022 if the Employee falls within one of the following
categories:
(a) specifically rostered, allocated or otherwise designated by the principal (or delegate)
to be performing duties; or
(b) otherwise becomes aware of circumstances which require them to act in accordance
with their duty of care, and acts in accordance with that duty of care, provided that
this time is subsequently recognised by the principal (or delegate) as time when the
Employee was performing duties.
[8] If an Employee is required by the principal (or delegate) to attend a School Camp outside
of 11.00pm to 7.00am, and outside normal hours of attendance, and is not 'performing duties',
those hours of attendance are to be regarded as 'on call and available to perform duties' for the
purposes of clause 24(8)(a)(iii) or 24(9)(c)(v) (as applicable) of the VGSA 2022 for those
periods where the attendance is necessary in order to maintain the staffing levels determined by
the principal or delegate (in accordance with Department policy requirements), but not
otherwise (even if the Employee remains at the camp).
[9] Disputes as to the application of paragraphs 1 to 8 above are to be dealt with under the
dispute resolution procedure in clause 28 of the VGSA 2022 consistent with the terms of
paragraphs 1 to 8 above.
[10] The arrangements described in this Determination will apply from 1 January 2023 until
the date when the VGSA 2022 ceases to operate in accordance with section 54(2) of the Fair
Work Act 2009 (Cth).
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
WORK COMMISSION THE SEAL OF THE F
