Too much work, too many students, or hurt at work? What the agreements and the law say.

Class sizes in the schools agreement are planning figures. Schools "are to plan not to exceed" the Table A sizes, and a principal can go above them with extra support. A teacher asked to take a larger class can lodge a grievance. TAFE class sizes are not in the lecturers' agreement; they are in a separate agreed policy.

TAFE lecturers work 37.5 ordinary hours a week, of which up to 21 are lecturing, and the college must keep workloads "fair, manageable and without risk to health and safety". A Workload Dispute Panel deals with disputes.

On safety, the Department or college must keep you safe so far as is reasonably practicable, including from psychosocial hazards such as aggression and excessive workload. You can stop work facing a serious and immediate risk, and an elected health and safety representative can direct work to stop or issue a provisional improvement notice. Principals have powers to remove and ban threatening parents and visitors, but those powers are not a way of dealing with a school's own students.

If you are injured at work, including by an assault or through a psychological injury, you can claim workers' compensation within 12 months. There is no special presumption for teachers. A stress claim that arises mainly from reasonable performance or disciplinary action is excluded.

Source: SCH013 cl 12.2, Tables A and B and their footnotes.

A practical class is one "where issues of safety and workspace are critical to meeting duty of care", as determined by the principal; secondary outdoor education, home economics, woodwork, metalwork and automotive classes are designated practical classes (cl 12.3).

Going above Table A

"Schools will seek to keep class sizes at or below those in Table A", but school and student needs may require variation, provided that (SCH013 cl 12.4):

(a) the principal, in consultation with the affected teachers, "will provide additional support to ensure workloads are distributed as equitably as possible" (cl 12.4(a));

(b) a teacher "requested to accept a class size greater than those referred to in Table A can utilise the grievance procedures if they feel aggrieved by any proposed variation" (cl 12.4(b));

(c) both of those are "to be within available physical and human resources" (cl 12.4(c)).

Additional support takes into account the notional class size, how many students are on individual plans and the degree of student need (cl 12.5). Each school manages class sizes within its own resources (cl 12.6), and a school that has kept classes lower will try to maintain that (cl 12.7). The annual audit report on class sizes goes to the Employee Relations Executive Committee (EREC) "for information and consideration" (cl 12.8).

So the agreement sets planning figures and a grievance right. It does not say that a class above Table A is a breach, and it does not set a number that can never be exceeded.

What is policy rather than agreement

(a) Inclusion: class sizes may be adjusted to support students with special needs "within the available resources provided to each school and current guidelines" (SCH013 cl 61.1). The guidelines themselves are not in the agreement.

(b) Physical and outdoor education: the teacher to student ratios are in the Department's Recreation and Outdoor Education Activities for Public Schools Procedures, which the parties "acknowledge"; a change to those procedures "will only be as agreed between the Parties" (cl 61.2). The ratios are in the procedures, not the agreement.

(c) The student behaviour management strategy includes "targeted reduction in class sizes" (cl 69.3(a)), without numbers.

TAFE class sizes

WES337 contains no class size table. Class sizes are a matter for the SSTUWA TAFE Employee Relations Committee (STERC), "with respect to the agreed Memorandum of Understanding" (WES337 cl 15.2(k)), and the STERC policy on "Class Sizes (first agreed 2005)" is "to be reviewed by the parties during the life of this Agreement" (cl 15.3(f)). We have not read that policy. Class sizes are also one of the factors a Workload Dispute Panel must consider (cl 16.10(c)).

Any averaging arrangement under which lecturers lecture more than 25 hours a week, other than by agreement, is reported to the College Joint Consultative Committee (cl 38.14).

The workload management clause

(WES337 cl 16)

(a) The Managing Director "will not require lecturers to undertake an unreasonable workload in the ordinary discharge of their duties" (cl 16.1).

(b) The Managing Director "will ensure workload allocation is fair, manageable and without risk to health and safety" (cl 16.2), and "will take reasonable steps to ensure that lecturers do not work excessive or unreasonable hours" (cl 16.3).

The right to disconnect

Lecturers "are not required to access work related information or respond to communications such as text messages and emails outside their ordinary hours" (WES337 cl 41.2). The college may still send communications "in the case of an emergency situation, genuine health and welfare concerns or for relief lecturing" (cl 41.3).

1. Informally, and through the Workload Advisory Committee. Raise it with your line manager or principal first; the committee can be used as the informal stage of a workload grievance (SCH013 cl 55.6(a); Sch H).
2. A formal grievance under cl 55. It covers worksite matters within the employer's control (cl 55.1). (a) Lodge it in writing within three weeks, clearly stating the relief you seek (cl 55.6(b)(i), (iii)). (b) Level One is the school consultative committee: the principal or line manager and the school's union representative, within five working days. You may bring a support person, who can advise but not represent you (cl 55.8(a)–(c)). (c) If Level One cannot agree, you have five working days to go to Level Two, and must tell the union and the Director of Education (cl 55.8(f)). (d) Level Two is a Regional Grievance Committee of a senior employee nominated by the Director General and a union member nominated by the SSTUWA President, constituted within ten working days (cl 55.9(e)). Its resolutions "are binding on all parties to the grievance" (cl 55.10). (e) While the grievance runs, the status quo before it was lodged stays in place, unless agreed or impractical (cl 55.3). (f) You have "the right to raise legitimate grievances without threat of repercussion" (cl 55.5(e)).
3. The award dispute procedure, for a requirement to work outside the normal school day (award cl 12(6)). It runs through the manager, the manager's superior and the employer, and then either party may go to the WAIRC (award cl 67).
4. The safety route. The grievance procedure excludes "work health and safety" matters, along with sexual harassment, equal opportunity, Commissioner's Instructions and the Code of Ethics, performance and disciplinary matters and criminal behaviour (SCH013 cl 55.2), and the agreement says safety issues "remain subject to the WHS Act" (cl 78.3). If the concern is that the workload is a risk to health, raise it with your health and safety representative or through the school's safety processes (see Work health and safety).

The agreement's dispute settlement procedure (cl 56) is between the Department and the union, about the agreement's interpretation, system-wide policies, conditions and safety matters. It is the union's route for a problem across many schools: local discussion within two weeks of a request, referral to EREC after six weeks or at any time, then the WAIRC (cl 56.2–56.7). A grievance with system-wide implications can also be referred to EREC (cl 55.6(b)(viii)).

TAFE lecturers

(WES337 cl 16.4–16.13)

1. Raise it with your manager, alone or as a group. Management "will consider the workload issues raised" and, where necessary, act (cl 16.4). A request for review is made to the manager in writing (cl 16.5).
2. If it is not resolved within five days, it goes to a Workload Dispute Panel, which either side can ask the college's Director Human Resources to set up (cl 16.6–16.7).
3. The panel is formed within one week. It is the Director Human Resources and a nominee of the lecturers (who may be a union representative), who is not, and cannot be seen to be, a party to the dispute (cl 16.9).
4. It must consider factors including lecturer health and wellbeing, the agreed timetabling principles, class sizes, the number and timing of units and their marking, the student cohort, other roles and the lecturer's personal circumstances (cl 16.10). It can propose interim solutions (cl 16.11).
5. It recommends to the Managing Director within two weeks, and the Managing Director decides within one week of receiving the recommendations (cl 16.12).
6. If that does not settle it, use the dispute and grievance procedure: discussion with the manager within five working days, with a union officer if needed; written referral to the Managing Director and the union President; and, if unresolved ten working days after that referral, the WAIRC (cl 12.1). You may have a union representative at every stage (cl 12.2).

Parents, carers and visitors: the school's powers

The School Education Act gives government schools tools against people who are not students. Students can be ordered to leave only when the school is not open for instruction, and a prohibition order cannot be made against a student at the school or a member of staff.

(a) Leave for 24 hours. A principal or other authorised person who reasonably suspects that a non-student has "used threatening, abusive or insulting language towards a teacher acting in an official capacity", or has substantially disrupted (or is likely to disrupt) the school, may require the person to give their name and address and to leave the premises and stay away for 24 hours (School Education Act 1999 (WA) s 120(1)). Failing to comply carries a fine of $5,000, and the person can be detained until delivered to police (s 120(2)–(3)).

(b) Orders to leave. An authorised person may order a non-student to leave the premises for up to 24 hours, on reasonably suspecting (among other grounds) that the person has used or is about to use "threatening, abusive or insulting language" or "threatening or violent behaviour" towards anyone on the premises (School Education Regulations 2000 (WA) r 75(1), r 76(b)). A student can be ordered to leave only when the school is not open for instruction (r 75(2)).

(c) Prohibition orders. The principal may ban a person from entering the school without permission for up to 60 days from service, if satisfied that the person would otherwise be likely to "cause physical harm to, or apprehension or fear in, another person" on the premises (or damage property) and that an order is appropriate (r 78(1)–(2)). The order takes effect only when personally served (r 78(4)). It cannot be made against a student at the school or against teaching or other staff of any government school (r 79). The person banned can ask the Director General to review it, and the review is completed within 14 days (r 100, r 101(1)(b)).

Students

Apart from an order to leave when the school is not open for instruction (r 75(2)), the powers above do not reach a school's own students. What applies to aggression by students in this guide is the employer's safety duty and the psychosocial regulations (below), the student behaviour management strategy in the agreement, and the criminal law. The School Education Act's student discipline, suspension and exclusion powers are not covered in this guide yet.

What the agreements say

(a) Schools: the Department commits to the student behaviour management and discipline strategy for the life of the agreement, including targeted class size reductions, "a minimum of 20 FTE Teacher Consultants", professional development in behaviour management and school-based programs (SCH013 cl 69).

(b) Both agreements require the employer to "do what is reasonably practicable to eliminate or minimise risks to psychological health and safety in the workplace", to assess and implement controls in consultation with the WHS committee, and to train managers to prevent and manage harm from psychosocial risks (SCH013 cl 35.14–35.16; WES337 cl 51.8).

(c) Neither agreement has a clause specifically about assaults on staff by students or parents.

The employer's duties

(a) The Department or college, as the person conducting the business or undertaking, "must ensure, so far as is reasonably practicable, the health and safety of" its workers (s 19(1)), including a work environment without risks to health and safety and safe systems of work (s 19(3)(a), (c)).

(b) It must manage psychosocial risks (WHS Regulations r 55C) and eliminate them, or if that is not reasonably practicable minimise them, so far as is reasonably practicable (r 55D(1)). In deciding how, it must have regard to "the duration, frequency and severity of the exposure", how hazards "interact or combine", job demands, how work is "managed, organised and supported", "workplace interactions or behaviours", and the information, training, instruction and supervision given to workers (r 55D(2)). Aggression from students or parents is a workplace interaction or behaviour that may cause psychological harm, and excessive workload arises from the design or management of work, so both fall within the definition in r 55A on its words.

(c) It must consult, so far as is reasonably practicable, workers who are or are likely to be directly affected by a health or safety matter (s 47(1)).

Everyone else's duties

Workers must take reasonable care for their own and others' safety and follow reasonable safety instructions and policies (s 28). Any "person at a workplace", which includes students, parents and visitors, must take reasonable care for their own safety, take reasonable care not to harm others, and comply so far as reasonably able with reasonable instructions from the employer (s 29).

Health and safety representatives

(a) Any worker may ask the employer to facilitate an election of one or more health and safety representatives (s 50).

(b) A representative represents the work group on health and safety, monitors the employer's compliance, investigates complaints and inquires into risks; they may inspect the workplace after reasonable notice, or at any time without notice after an incident or where there is a serious risk from an immediate or imminent hazard (s 68(1)–(2)).

(c) Both agreements require a register of representatives, with their training, to be kept and given to the union every six months (SCH013 cl 79; WES337 cl 88.6–88.8). Representatives are entitled to training and paid time off as the WHS laws prescribe (WES337 cl 88.3).

Stopping unsafe work

(a) You may cease, or refuse to carry out, work if you have "a reasonable concern" that it would expose you or anyone else to "a serious risk to their health or safety emanating from an immediate or imminent exposure to a hazard" (s 84(1)).

(b) If you stop work, tell the employer as soon as practicable (unless a representative directed you to stop), and remain available for suitable alternative work (s 86). The employer may direct you to safe and appropriate alternative work until you can resume (s 87). Stopping work does not affect the continuity of your engagement, provided you have not unreasonably refused suitable alternative work (s 88).

(c) A trained health and safety representative may direct a worker in their work group to cease work on the same kind of concern (s 85(1), (6)). Ordinarily they must first consult the employer and try to resolve the matter under the Act's issue resolution process, unless the risk is so serious and immediate that consulting first is not reasonable (s 85(2)–(3)).

(d) The representative, the employer or the worker may ask the regulator to send an inspector to help resolve the issue (s 89).

Provisional improvement notices

A trained health and safety representative who reasonably believes the employer is contravening the WHS Act, or has done so in a way likely to continue or be repeated, may issue a provisional improvement notice requiring it to remedy the contravention (s 90(1)–(2), (4)). The representative must consult the employer first (s 90(3)). The notice must be in writing and state the provision, how it is being contravened and a date to remedy it that is no earlier than the 8th day after it is issued (s 91, s 92). The employer must display it near the affected work (s 97(1)).

Protection for raising safety concerns

An employer must not dismiss you, or otherwise put you to detriment, for a prohibited reason; it is an offence where that reason is the dominant reason (s 104(1)–(2), s 105). The prohibited reasons include being a health and safety representative, exercising a power under the Act, and raising or proposing to raise "an issue or concern about work health and safety" with the employer, an inspector, a representative or another worker (s 106(a)–(h)).

What counts as a work injury

(a) A personal injury by accident is an injury from employment if it "arises out of or in the course of the employment" (s 6(2)). A physical injury from an assault by a student or parent at school fits this test.

(b) A disease, or the aggravation of an existing one, is an injury from employment if it was contracted in the course of the employment and "the employment contributed to a significant degree" to it (s 6(3)). The factors include the duration and nature of the work, the likelihood of the condition arising anyway, and the worker's health and activities outside work (s 6(4)).

The Act does not say which test a psychological condition from workload or repeated aggression falls under in a given case; that depends on the medical evidence.

Psychological injury and the administrative action exclusion

A psychological or psychiatric disorder "is not an injury from employment if it results wholly or predominantly from" administrative action, "not being administrative action that is unreasonable and harsh on the part of the employer", or from the worker's expectation of administrative action (s 7(2)). Administrative action includes a performance appraisal, suspension, disciplinary action, and anything done in connection with demotion, dismissal, retrenchment, or failing to get a promotion, reclassification, transfer or other benefit (s 7(1)).

So a claim for stress arising from a substandard performance or discipline process will fail unless the process was "unreasonable and harsh", or the injury did not result wholly or predominantly from it. The list of administrative action is not exhaustive ("includes"), so whether another management decision, such as how work is allocated, counts is decided on the facts of the case. Violence and trauma at work are not administrative action.

No presumption for teachers

None of the Act's presumptions, which treat certain illnesses as work-related unless the employer proves otherwise, is written for teaching, and none covers a psychological injury in teaching. The disease presumptions in WCIM Regulations Schedule 1 depend on exposure (for example, contact with human waste or bodily fluids), not on occupation. The post-traumatic stress disorder presumption is for paramedics, ambulance officers and ambulance call-takers, Crown firefighters and fire communications officers (WCIM Regulations r 10(2)); the cancer presumption is for firefighters (WCIM Act s 11). A teacher or lecturer claims under the ordinary tests in s 6.

How to claim

1. See a doctor and get a certificate of capacity.
2. Give your employer a completed claim form in the approved form and the certificate. That is when the claim is "made" (s 25(2)).
3. Do this within 12 months after the injury occurs (s 25(1)). A late or defective claim is not invalid if the failure came from mistake, absence from the State or another reasonable cause, or would not prejudice the employer's defence (s 25(5)). For a psychological condition that builds up over time, the day it "occurs" may be hard to pin down, so a claim made promptly avoids that question.
4. The employer must give the claim to its insurer within 7 days (s 26(1)); if it does not, you can give it to the insurer yourself (s 27(1)–(2)).
5. Within 14 days of receiving the claim, the insurer must accept it, accept it with liability questions, dispute it, or tell you the decision is deferred (s 28(1)–(4)). If it does none of these, it is taken to have accepted liability (s 28(6)). A deferred decision must be made before the day after 120 days from receipt, or liability is again taken to be accepted (s 29(1), (3); Regulations r 19).
6. A disputed claim can be decided by an arbitrator (s 30(1)).

The claim form includes an authority to release your medical information. Giving it is optional (s 25(4)).

Pay while the claim is decided, and after

(a) While the claim is decided, you are granted paid personal leave to the extent of your credits. If the claim succeeds, the personal leave is reinstated and the absence is treated as income compensation (schools) or workers' compensation (TAFE) (SCH013 cl 35.51; WES337 cl 51.15(a)).

(b) Once liability is accepted, the first income compensation payment is due within 14 days, including arrears from your first day of incapacity (s 47(2)(a)).

(c) Income compensation is your pre-injury weekly rate of income for the first 26 weeks in which it is payable, then 85% of it, except as provided in s 56 and s 57 (s 55(2)–(3)).

(d) Service and leave. For teachers, an absence on a compensable injury does not affect the anniversary dates for personal leave, long service leave or annual leave "to the extent defined in" s 61(2)(d) of the Act (SCH013 cl 35.52). For lecturers, "An Employee's absence on workers compensation counts as continuous service and does not affect the anniversary date of increments or the anniversary date and accrual of leave entitlements" (WES337 cl 51.15(b)). The Act itself also provides that a worker accrues annual leave, long service leave and sick leave for any period of income compensation (WCIM Act s 61(2)(d)). See the TAFE case example below on the earlier wording.

Returning to work, and protection from dismissal

(a) The employer must ensure a return to work program is set up, in consultation with you as far as reasonably practicable, as soon as practicable after your doctor certifies you as partly fit or advises in writing that one should be set up (s 160(2)–(3)).

(b) For 12 months from the day you first have an incapacity for work, the employer must give you your pre-injury position or, if that is not reasonably practicable or you cannot do it, a suitable position most comparable in status and pay. This does not apply if you are lawfully dismissed (s 166(1)–(3)).

(c) During those 12 months the employer must not dismiss you solely or mainly because you are incapacitated, and must not dismiss you for any reason without first giving at least 28 days' notice of intention to dismiss in the approved form. Each is an offence carrying a fine of up to $10,000 (s 168(2)–(4)). These protections sit alongside your other rights (s 168(5)).

For dismissal, medical retirement and the routes to challenge them, see our page on discipline and dismissal for WA teachers and lecturers.