development per year, and five days or equivalent of administration, preparation,
co-ordination, departmental or related activities and community, parent and
whanau contact and liaison per year, when the school is not open for instruction,
either at the school or elsewhere.
[131] To allow the employer to prescribe times at which a teacher is required to be
at school or elsewhere outside of timetabled teaching, was a concession for the
union and a benefit for the employer.
[132] The evidence of the union was that it was a significant concession both in
1996 and in 1999, given the members’ views on their workload and the offence
taken at what they saw as the questioning of their professionalism and the
suggestion that they did not already work outside timetabled hours. The evidence
from the Ministry is that they wanted an ability to require teachers to attend at
school during vacations.
[133] The requirement that actual and reasonable costs be reimbursed does not
take the commercial and industrial analysis further. While pitched as a benefit to
the union at the time, I consider it to be neutral. That, however, does not
undermine the bargain that the Ministry achieved. Reimbursement of expenses
incurred is by no means a windfall; it simply ensures that teachers are not
financially disadvantaged by having to attend school or elsewhere.
58 The union’s evidence was that they did undertake such work.
[134] What was achieved in 1996 was an ability for boards of trustees to require
teachers, before 8.30 am and after 4.30 pm on days during the school term, on
weekends, public holidays, Easter Tuesday and vacations, to attend professional
development opportunities for up to a total of five days, provided also that the
needs of the individual teacher and the teacher’s own initiatives are taken into
account. After 1999, they could also require such attendance for up to five days (or
equivalent) for administrative purposes. They did not have that ability previously.
It may not have been the bargain that was initially sought by the Ministry but it
still had value. The natural and ordinary meaning of the clause that I have set out
above does not undermine that value. It is consistent with the commercial and
industrial structure of the bargain reached.
Specialised meaning
[135] Parties to contracts will sometimes use words that have specialised meanings
within a particular profession, industry, trade or locality and the Court is entitled
to receive evidence which demonstrates that the parties have negotiated such a
meaning.59
[136] As noted above, there was no evidence that the parties mutually intended the
words to have the specialised meaning of “vacation”.
[137] While Mr Cranney did not go so far as to suggest that “open for instruction”
had a specialised meaning per se, his submission was that the parties intended that
the phrase have the meaning prescribed in pt 7 of the Education Act, being that a
school is “open for instruction” every year for the number of half-days prescribed
by the Minister,60 and therefore “not open for instruction”61 at any other time.
[138] While the statutory meaning aids in interpretation, it is not the end of the
exercise. Taking into account the purpose of the provision, the contractual intent
and the wording of the provision itself, the meaning of “open for instruction” is
broader than the narrow definition of half-day in the statute.
59 Firm PI, above n 29, at [84].
60 Education Act 1989, s 65A.
61 Emphasis added.