New Zealand Post Primary Teachers' Association v  
Board of Trustees for Rodney College [2022]  
NZEmpC 118 (4 July 2022)  
Last Updated: 7 July 2022  
IN THE EMPLOYMENT COURT OF NEW ZEALAND AUCKLAND  
I TE KŌTI TAKE MAHI O AOTEAROA TĀMAKI MAKAURAU  
IN THE MATTER  
OF  
a challenge to a determination of the Employment Relations  
Authority  
BETWEEN  
NEW ZEALAND POST PRIMARY TEACHERS’ ASSOCIATION  
Plaintiff  
AND  
BOARD OF TRUSTEES FOR RODNEY COLLEGE  
First Defendant  
AND  
THE SECRETARY FOR EDUCATION  
Second Defendant  
Hearing:  
22–25 March 2021  
Further submissions filed on 26 July, 2 and 9 August 2021 (Heard at  
Wellington)  
Appearances: P Cranney, counsel for plaintiff No appearance for first defendant  
S Hornsby-Geluk and M Vant, counsel for second defendant  
Judgment:  
4 July 2022  
JUDGMENT OF JUDGE KATHRYN BECK  
[1] This challenge relates to a dispute about the interpretation and application of cl  
5.4 of the Secondary Teachers’ Collective Agreement 2019–2022 (the 2019 STCA).  
[2] Clause 5.4.3 of the 2019 STCA provides that where teachers are required to  
attend school or elsewhere when the school is not open for instruction pursuant to  
cls 5.4.1 and 5.4.2, they should be reimbursed for any actual and reasonable costs  
incurred.  
NEW ZEALAND POST PRIMARY TEACHERS’ ASSOCIATION v BOARD OF TRUSTEES FOR  
RODNEY COLLEGE [2022] NZEmpC 118 [4 July 2022]  
[3] The parties do not agree on what the words “when the school is not open for  
instruction” mean.  
[4] The first iteration of the provision was negotiated into the 1996–1998  
Secondary Teachers’ Collective Employment Contract in 1996 (the 1996 STCEC).  
In 1999 it was negotiated into its current form and has remained the same since,  
although the agreement has changed around it.1  
[5] The dispute arose in 2012, 16 years after the first iteration of the provision  
appeared. This case was heard 25 years after the first iteration was negotiated and  
approximately 10 collective agreements later. Resolving interpretation issues in  
these circumstances is not uncommon in this Court but it brings with it its own  
unique issues including as to the ongoing nature of the relationship and the  
passage of time.  
[6] The parties have quite different views on what the words “when the school is  
not open for instruction” mean.  
[7] The New Zealand Post Primary Teachers’ Association (PPTA)2 says it means  
periods other than the “half-day” periods of two hours or more as defined in s 60 of  
the Education Act 1989.  
[8] The second defendant says “not open for instruction” means vacation or school  
holiday periods.  
[9] The Employment Relations Authority found in the defendants’ favour.3 The  
focus of the Authority was on the 2011–2013 collective agreement in the context of  
specific claims for reimbursement at Rodney College.  
[10] The plaintiff has challenged the determination. The focus of this challenge is  
on the 2019 STCA and the correct interpretation of “not open for instruction” in  
that  
1 Secondary Teachers’ Collective Employment Contract 1999–2001 (the 1999 STCEC).  
2 I refer to the plaintiff as the PPTA or the union interchangeably in this judgment.  
3. New Zealand Post Primary Teachers Assoc v Board of Trustees for Rodney College  
[2018] NZERA Auckland 11 (Member Tetitaha).  
agreement. The first defendant now plays no part, and the matter is being pursued solely as a  
dispute as to interpretation.  
[11] What does “not open for instruction” mean in cl 5.4 of the 2019 STCA?  
[12] To determine that, it is necessary to consider:  
(a) the factual background;  
(b) the statutory context;  
(c) the principles of contractual interpretation; and  
(d) the application of these principles to the clause.  
Factual background  
[13] The history of the clause is relevant to understanding its meaning. An extract  
from the 1994–1995 Secondary Teachers’ Collective Employment Contract (the  
1994 STCEC) headed “Part Four – Hours of work” is attached as Appendix A to  
this judgment.4  
1996 STCEC  
[14] Bargaining for the 1996 STCEC began in November 1995. Both parties agree  
that the bargaining was protracted and robust, involving strike action. It took place  
in a relatively hostile period of industrial relations.  
[15] The key issues were remuneration and salary progression. The union was also  
concerned about workload, and retention and recruitment.  
[16] Included in the early claims by the State Services Commission (SSC), the lead  
agency for the 1995 to 1996 negotiations, was a claim for a clause that allowed  
boards  
4. The emphasis in Appendix A and the subsequent appendices is mine and highlights the  
predecessor clause and changes to the clause.  
of trustees to require teachers to undertake up to 10 days of professional development per year  
in vacation time. The union rejected that claim.  
[17] Between March and August 1996 negotiations, including over call backs for  
professional development, continued. The notes and correspondence provided to  
me in the course of the hearing illustrated how fraught the negotiations were. They  
went down to the wire and the final wording of the professional development  
clause was not settled until the last minute.  
[18] At around about 4.30 am on Friday 16 August 1996, the parties agreed  
settlement terms including a provision in relation to professional development.  
[19] It was agreed that cl 4.6.2 of the 1994 STCEC be replaced with cl 5.6.2 of the  
1996 STCEC.5 Clause 4.6 of the 1994 STCEC stated:  
4.6 Division of Year into Terms and Holidays  
4.6.1 For the purposes of organising their educational programmes it is noted  
that schools are permitted to divide the school year into teaching terms and  
holidays (vacations) in accordance with Part VII of the Education Act 1989.  
4.6.2 The parties to this contract acknowledge that teachers may attend  
school during vacation time for the purposes of school administration or for  
preparation and co-ordination with colleagues for the next term; and that  
teachers use vacation time away from school for such purposes as curriculum  
or technical refreshment and for the preparation of resources or programmes  
for the next teaching term.  
[20] Clause 5.6 of the 1996 STCEC stated:  
5.6 Division of Year into Terms and Holidays  
5.6.1 For the purposes of organising their educational programmes it is noted that  
schools are permitted to divide the school year into teaching terms and holidays  
(vacations) in accordance with Part VII of the Education Act 1989.  
5.6.2 The employer may require teachers to participate in professional  
development opportunities at times when the school is not open for instruction  
provided that no teacher shall be required to attend for more than five days per  
annum and provided also that the needs of the individual teacher are taken into  
account and the teacher’s own initiatives in undertaking professional development  
during time when the school is closed for instruction is considered. Teachers who  
5 1996 STCEC, pt 5 is set out in full in Appendix B.  
participate in terms of this requirement shall be reimbursed for any actual and reasonable  
costs incurred in accordance with Part Seven of this contract.  
2022_11800.jpg  
Note: This provision shall not apply to teachers in the Correspondence School. The  
provisions applying to those teachers are contained in Part Eleven of this contract.  
[21] No other changes were made to “Part Four” (then Five) “Hours of Work”.  
1999 STCEC  
[22] The Ministry of Education (the Ministry) took over as the lead agency for the  
negotiation of the next STCEC.6  
[23] Bargaining for a replacement STCEC formally commenced with an offer of  
settlement from the Ministry to the union in a letter dated 12 August 1998. Among  
the matters dealt with in the offer was a proposal to substitute the words “five days  
per annum” with “10 days per annum” in cl 5.6.2.  
[24] I note that this aspect of the offer followed on the heels of what had been  
agreed with NZEI Te Riu Roa as part of the Primary Teachers’ (including Deputy  
and Assistant Principals and other Unit Holders) Collective Employment Contract  
which stated:7  
2.9 Hours of Work/Leave  
2.9.1 Employees shall work such hours as may be reasonably required of  
them to enable them to properly fulfil their responsibilities as teachers  
whether or not such hours exceed 40 hours per week. The normal hours of  
work for employees should as far as practicable however not exceed 40 hours  
per week Monday to Friday.  
2.9.2 It is acknowledged that employees are required to undertake such  
duties as:  
– preparation, evaluation and assessment time generated by  
classes/sessions and the students within them, or by other  
requirements such as the need to report on the progress of individual  
students;  
– counselling of students;  
– administrative responsibilities of individual teachers;  
– attending courses and meetings;  
6 Bargaining was from August 1998 to June 1999.  
7. Primary Teachers’ (including Deputy and Assistant Principals and other Unit Holders)  
Collective Employment Contract, effective from1 February 1998 until 30 April 2001.  
– professional development  
in addition to their normal class contact time, and that these factors have been taken into  
consideration in determining the employee’s hours of work and leave entitlements.  
2.9.3 Except as provided in 2.9.1 employees shall not be required to attend school  
during any time when the school is officially closed for instruction. However  
Boards may require employees to attend school or elsewhere, when the school is  
closed for instruction (except on weekends or public holidays unless by agreement)  
for up to ten days per school year (or the equivalent) for all or any of the following  
purposes – school administration, school preparation and co- ordination, pre-term  
planning curriculum and/or technical refreshment and/or professional  
development. The employer will endeavour to arrange matters at the school in  
such a way that any requirement under this section is not unreasonable and that  
employees’ individual needs are taken into account. Employees’ own initiatives in  
undertaking work for the above purposes shall be counted when applying this  
clause.  
2.9.4 Where employees are required to attend school or elsewhere when the  
school is closed pursuant to 2.9.3 they shall be reimbursed for any actual and  
reasonable costs incurred in accordance with Part 7 of this contract.  
[25] The PPTA responded rejecting the Ministry’s proposal to replace five days  
with 10 days in cl 5.6.2.  
[26] Negotiations were ongoing and difficult. In early May 1999 the union  
presented a settlement package. It did not include an increase in requirements to  
participate in professional development days. The union’s position was that  
inclusion of such a claim would not be ratifiable – the membership regarded it as  
professionally insulting and industrially unacceptable. To not have an increase in  
days was equally unacceptable to the Ministry.  
[27] As with the negotiations for the 1996 STCEC, there were bigger issues and  
areas of focus for the negotiations as a whole. The Ministry was proposing that  
boards of trustees have the ability to opt out of the collective contract and negotiate  
their own employment arrangements with their staff, to introduce professional  
standards and expectations linked to pay, as well as proposing the removal of  
union fee deductions and paid union meetings. Pay rates and workload were also  
major areas of disagreement.  
[28] Also, as with the previous set of negotiations, even when progress was made  
on other issues, there were final sticking points – the extent to which the employer  
could require staff to attend at school or elsewhere when the school is not open for  
instruction, for certain duties including professional development, was such an  
issue.  
[29] I was provided with notes of bargaining and internal communications where it  
appears that the parties went backwards and forwards over a few days in May  
1999, trying to deal with the apparent impasse on the extent of call backs. I did not  
find these notes and internal communications helpful except to show that it is  
apparent that there were a number of false starts, with both parties being told by  
their respective stakeholders to try again.  
[30] A settlement agreement was reached on 10 June 1999 to then go to  
ratification.  
[31] Clause 5.6.2 of the 1996 STCEC was deleted and a new cl 5.3 was added:8  
5.3 Duties When Schools Are Not Open For Instruction  
during time when the school is  
not open  
5.3.2 The employer may require teachers to attend school or elsewhere when  
the school is not open for instruction for up to five days or equivalent per  
annum for all or any of the following purposes – school administration,  
preparation and coordination, departmental or related activities and  
community, parent and whanau contact and liaison. The employer will  
endeavour to arrange matters at the school in such a way that any requirement  
under this section is not unreasonable and that teachers’ individual needs are  
taken into account. Teachers’ own initiatives in undertaking work for the above  
purposes shall be counted when applying this clause.  
5.3.3 Where teachers are required to attend school or elsewhere when the  
school is not open for instruction pursuant to 5.3.1 and 5.3.2 above,  
they shall be reimbursed for any actual and reasonable costs incurred.  
5.3.1 The employer may require teachers to participate in professional development  
opportunities at times when the school is not open for instruction provided that no teacher  
shall be required to attend for more than five days or equivalent per annum and provided also  
that the needs of the individual teacher are taken into account and that the teacher's own  
initiatives in undertaking professional development  
for instruction are considered.  
Note: This provision shall not apply to teachers in the Correspondence School. The  
provisions applying to those teachers are contained in Part Eleven of this contract.  
8 1999 STCEC, “Part Five” is set out in full in Appendix C.  
[32] These changes shifted the clause from under the heading “Division of Year  
into Terms and Holidays” and created a new and standalone clause entitled  
“Duties When Schools Are Not Open For Instruction”.  
[33] Clause 5.3.1 was similar to the previous cl 5.6.2 with some amendments.9  
[34] Clause 5.3.2 was new. It allowed the employer to require teachers to attend  
school, or elsewhere, when a school is not open for instruction for up to an  
additional five days or equivalent per annum for what are commonly referred to as  
administrative purposes.  
[35] Clause 5.3.3 was previously at the end of cl 5.6.2 but was now slightly  
amended and separated out.  
[36] The clause has remained unchanged since, although “Part Five” has changed  
around it and it is now cl 5.4 of the 2019 STCA.10  
[37] The clause has been the subject of proposals from the Ministry in bargaining  
in 2015 and 2018. The first proposed the insertion of the words “during holidays  
(vacations)” after the words “when the school is not open for instruction”.  
Alternatively, the Ministry proposed that the words “on a day” replace “at times”  
before “when the school is not open for instruction.” These proposals were not  
accepted. These proposals illustrate the difficulty with the wording but were made  
after the dispute arose, and so I do not attribute them with any force other than  
being an attempt to resolve the issues through negotiation.  
The history of the dispute  
[38] As previously indicated, these proceedings were initially filed in the Authority  
in late 2012 in relation to an issue over reimbursement of various expenses  
incurred by teachers when they were required to attend school after 3 pm during  
term time for parent teacher meetings, prize-giving and open school evenings.  
9 Refer block text.  
10 2019 STCA, pt 5 is set out in full in Appendix D.  
[39] However, that was not the first time the parties had questioned the  
application and/or interpretation of the clause. On 25 June 1999 Chris Wells, from  
the Ministry, wrote to Kevin Bunker, for the union, in relation to the “PPTA News”  
dated 10 June 1999,11 which was sent out prior to the ratification meetings for the  
1999 STCEC. Mr Wells took issue with the statement that “[the five days] includes  
report evenings, open nights and the like”.12  
[40] He advised that the Ministry negotiators were of the view that this did not  
reflect the meaning or intent of the provision and stated that “[t]he term open for  
instruction is defined with reference to the number of half days a school is required  
to be open for instruction” and that report evenings etc, which take place on days  
on which the school is open for instruction, would not fall within the parameters of  
the clause.  
[41] The union and the Ministry met that same day, after which Andrew Kear, co-  
advocate for the union, sent a fax to Mr Wells attaching the pages of the PPTA  
instruction/guidelines, issued in 1996 after the 1996 STCEC was settled. Mr Kear  
noted that the instructions/guidelines had been run past the SSC before they were  
issued, and it had approved the words. I accept that this occurred and that the SSC,  
as bargaining agent, was aware of the instructions/guidelines.  
[42] Under the heading “What does ‘not open for instruction’ mean?”, the PPTA’s  
1996 instructions/guidelines stated:  
Any time when the school is not open to students for teaching it is closed for instruction.  
A school is open for instruction for 380 half days per year. A school half day is defined by the  
Education Act as either two hours prior to mid-day or two hours following mid-day.  
Any time outside these 380 half days can be counted in the five day limit. This will include  
vacation periods and weekends but also any time after timetabled instruction ends on a school  
day.  
11 “Contract Update”.  
12 Referring to the additional five days the employer would be able to require teachers to  
attend school or elsewhere for school administration, preparation and coordination,  
departmental or related activities and community, parent and whanau contact and liaison  
purposes.  
[43] Once the 1999 STCEC was ratified, the Ministry issued its own guidelines on 2  
July 1999. It did not discuss or dispute what “not open for instruction” meant but  
noted that the additional requirement of five days for administration purposes  
under cl 5.3.2 of the 1999 STCEC was “intended to be for attendance over and  
above what would normally be part of teachers’ duties such as parent teacher  
evenings and prize- givings.”  
[44] On 16 July 1999, the union wrote to the Ministry,13 stating that there had  
been consistency in the union’s approach to how the terms “open for instruction”  
and “half day” were applied. On that basis, it asserted that report evenings, open  
nights and the like constituted, in general, an out-of-the-ordinary or extra  
involvement outside the period when the school was open for instruction.  
[45] The union issued its own further advice on the application of cl 5.3 of the 1999  
STCEC, in particular as it related to the operation of cl 5.3.2, in relation to the five  
days for administration purposes. It took the view that while a full application of  
the clause meant “not open for instruction” was any time before the first period of  
the day and any time after the last period of the day, this would be practically  
absurd and it wished to operate the clause in a sensible fashion. That was (in  
general terms) to regard the school day as being from 8.30 am to 4.30 pm, with  
times outside of that falling into the category of times when the school is not open  
for instruction.  
[46] There was no evidence of the parties reaching an agreed position on the  
meaning of the words at that time.  
[47] The matter seems not to have been taken any further. Later, issues that arose  
in relation to the operation of the clause (July 2000 and May 2006) focused on  
other aspects of the operation of the clause – the scope of the requirement to  
reimburse14 and the requirement to have regard to individual development needs  
– not the meaning of “not open for instruction”.  
13. On the basis that Mr Kear’s fax of 25 June 1999 did not necessarily constitute a full and  
complete response to the Ministry’s letter of the same day.  
14 Whether or not it included childcare.  
[48] In an ideal world of industrial relations, such issues are resolved either by  
reaching agreement as to what the meaning is, or renegotiation of the clause. In  
this case, it appears that the Ministry and the union made the call to rely on  
collaborative relationships within the schools to work it out on a day-to-day basis.  
Both sets of guidelines encourage this. That approach was effective for at least 12  
years.  
[49] As the union noted in evidence, problems over the application of call backs15  
tended to be symptomatic of an underlying industrial problem rather than a  
problem in its own right.  
[50] Whether the dispute at Rodney College falls into that category or not is not for  
decision here, but it appears to have brought the dispute to a head. Even then,  
however, the trigger for the dispute was a debate over the entitlement to  
reimbursement, as opposed to the requirement to work or the timing of that  
requirement. Nevertheless, it is now for the Court to determine the meaning of the  
phrase “not open for instruction” in cl 5.4 of the 2019 STCA.  
[51] To do so it is necessary to not only look at the factual and contractual context  
of the clause, but also the statutory context.  
Statutory context  
[52] Within “Part Five” of the 2019 STCA, cl 5.3.1(a) provides that “Half-day” shall  
have the meaning implied by its use in the Education (Salaries and Staffing)  
Regulations 1957. As set out in the 1981 reprint of those regulations, under the part  
titled “Grading and Staffing of Post-Primary Schools”, reg 51 provided, inter alia:  
“Half day”, in relation to any post-primary school, means the whole of any period during  
which the school is normally open for the instruction of pupils:  
“Period” means a morning period, an afternoon period, or an evening period, of not less than  
2 hours duration:  
“Morning period” means a period commencing before noon on any day:  
“Afternoon period” means a period commencing during the afternoon and ending not later  
than 6 pm on any day:  
15 The colloquial term coined by the union to refer to the ability in the clause for a board of  
trustees to require teachers to participate in professional development or administration when  
the school is not open for instruction.  
“Evening period” means a period commencing not earlier than 5 pm of any day:  
...  
“Teaching half day” means the services for a half day of a full time or a part time teacher in  
charge of an approved class or of approved classes; and for the purpose of computing the  
number of teaching half days of part time teachers in any week, 2 hours’ teaching (whether  
continuously or in the aggregate) during evening periods or on a Saturday, and 2 1/2 hours’  
teaching (whether continuously or in the aggregate) at other times shall count as a teaching  
half day.  
[53] Regulation 51 was not subject to amendment, although the clauses around it  
were. The regulations were revoked from 17 May 2006 by s 61(4)(a) of the  
Education Amendment Act 2006. Nevertheless, reference to the regulations  
remains in the 2019 STCA and was also in the predecessor agreements. The  
regulations and the statutory context within which the provision was negotiated  
are relevant to the interpretive exercise.  
[54] The Education Act was the operative statute at the time of the initial insertion  
of what would become cl 5.4 of the 2019 STCA and at the time of the negotiations  
for the 2019 STCA. That Act has subsequently been replaced by the Education and  
Training Act 2020. The transitional provisions of the Education and Training Act  
require that the provisions of the Education Act continue to apply to this matter as  
if they had not been repealed or replaced by the new Act.16  
[55] When the first iteration of the provision was negotiated into the 1996 STCEC,  
the Education Act referred to the term “open for instruction” in both s 65A, under  
the heading “Length of School Year”, and s 65B, under the heading “Terms”, with  
reference to both when a school is “open for instruction” and “not open for  
instruction”.17  
[56] Section 65A provided, for the purposes of the length of the school year, that  
the Minister may prescribe the number of “half-days” on which schools must be  
open during the next year and stated that every board shall ensure that each school  
it administers was “open for instruction” on the number of half days required.18  
16 Education and Training Act 2020, sch 1, cl 2.  
17 Education Act 1989, ss 65A and 65B (as at 25 June 1993).  
18. The hyphens in “half-days” in ss 65A and 65B were removed and added at various times  
during the life of these sections.  
[57] Section 65B provided, for the purposes of a school term, that the Minister may  
prescribe, by reference to dates, days, or half-days, the terms that schools must  
observe during the next year.19 It required that every board ensure that any school  
it administers was “open for instruction” on every day during the terms prescribed.  
To that end it stated:20  
65B Terms  
...  
(2) Except as provided in this Act, every Board shall ensure that the schools it  
administers are in every year open for instruction on every day during the terms  
prescribed, ascertained, or determined for the year under subsection (1) of this  
section.  
(3) For the purposes of s 65A and subsection (2) of this section–  
(a) On any day, a school is open for instruction for a half-day only, if–  
(i) It is in fact open for instruction for 2 hours or more before noon; but is not in fact  
open for instruction for 2 hours or more after noon; or  
(ii) It is in fact open for instruction for 2 hours or more after noon; but is not in fact  
open for instruction for 2 hours or more before noon; and  
(b) On any day, a school is not open for instruction at all if it is not in fact open for  
instruction for 2 hours or more before noon and for 2 hours or more after noon.  
...  
[58] Section 65C required that schools be “closed” on Saturdays and Sundays and  
public holidays (subject to limited exceptions).  
[59] The Education Legislation Act 2016 made a number of changes to the  
Education Act. It inserted the definition of a half-day into s 60:21  
half-day, in relation to a school, means a period of 2 hours or more during which the school  
is open for instruction  
[60] Section 65A remained largely unchanged.22  
19. Education Act 1989, s 65B (as from 1993 before amendment on 20 May 2010 by s 18 of  
the Education Amendment Act 2010).  
20. Education Act 1989, s 65B (as from 1993 before amendment on 20 May 2010 by s 18 of  
the Education Amendment Act 2010).  
21 Education Legislation Act 2016, s 6 (emphasis added).  
22. Education Act 1989, s 65A (as from 20 May 2010). Section 65A(2A) had been added to  
clarify the situation during strikes and lockouts.  
[61] Section 65B in relation to school terms by then stated:23  
...  
(2) Every board must ensure that each school it administers is open for instruction for 1 half-  
day that finishes at or before noon and 1 half-day that starts at or after noon on every day  
during the terms prescribed, ascertained, or determined under subsection (1).  
...  
[62] As at 2016, s 65B provided boards with some flexibility, by entitling them to  
vary the time at which any one or more half-days took place. The section continued  
to set out that a school was “not open for instruction at all” if it was open for less  
than one half-day.24  
[63] Section 65C remained in substance the same, requiring that every board must  
ensure that its schools are “closed” on the weekend and public holidays (subject to  
limited exceptions).25  
[64] It is apparent, within the regulations referenced in the 2019 STCA, and its  
predecessors, and the statutory context, that the phrase “open for instruction” is  
heavily linked to the period when a school is open and the statutory concept of a  
half- day before and/or after noon. The phrase “not open for instruction” has a  
corollary meaning, with a school “not open for instruction at all” if it was open for  
less than one half-day.  
Principles relevant to interpretation  
[65] The Court has recently considered the principles of contractual interpretation  
in Vulcan Steel Ltd v Manufacturing & Construction Workers Union.26  
[66] As set out in Vulcan Steel,27 the Supreme Court confirmed in New Zealand  
Airline Pilots’ Association Inc v Air New Zealand Ltd that interpretation principles  
relating to contracts should apply to employment agreements.28  
23 Education Act 1989, s 65B(2) (as from 29 October 2016) (emphasis added).  
24 Section 65B(3C).  
25 Education Act 1989, s 65C (as at 1 January 2014).  
26 Vulcan Steel Ltd v Manufacturing & Construction Workers Union [2022] NZEmpC 78.  
27 At [27].  
28. New Zealand Air Line Pilots’ Association Inc v Air New Zealand Ltd [2017] NZSC 111,  
[2017] 1 NZLR 948, [2017] ERNZ 428 at [74]–[78].  
[67] The key principles of contractual interpretation were articulated by that Court  
in Firm PI 1 Ltd v Zurich Australian Insurance Ltd as follows: 29  
... the proper approach is an objective one, the aim being to ascertain “the meaning which the  
document would convey to a reasonable person having all the background knowledge which  
would reasonably have been available to the parties in the situation in which they were at the  
time of the contract. This objective meaning is taken to be that which the parties intended.  
While there is no conceptual limit on what can be regarded as “background”, it has to be  
background that a reasonable person would regard as relevant. Accordingly, the context  
provides by the contract as a whole and any relevant background informs meaning.  
[61] The requirement that the reasonable person have all the background  
knowledge known or reasonably available to the parties is a reflection of the fact  
that contractual language, like all language, must be interpreted within its overall  
context, broadly viewed. Contextual interpretation of contracts has a significant  
history in New Zealand, although for many years it was restricted to situations of  
ambiguity. More recently, however, it has been confirmed that a purposive or  
contextual interpretation is not dependent on there being an ambiguity in the  
contractual language.  
[62] It should not be over-looked, however, that the language of many commercial  
contracts will have features that ordinary language (even a “serious utterance”) is  
unlikely to have, namely that it will result from a process of negotiation, will  
attempt to record in a formal way the consensus reached and will have the  
important purpose of creating certainty, both for the parties and for third parties  
(such as financiers). The fact that parties are aware their contract might be relied  
upon by a third party may justify a more restrictive approach to the use of  
background in some instances, the parties’ awareness being itself part of the  
relevant background. ...  
[63] While context is a necessary element of the interpretive process and the focus  
is on interpreting the document rather than particular words, the text remains  
centrally important. If the language at issue, construed in the context of the  
contract as a whole, has an ordinary and natural meaning, that will be a powerful,  
albeit not conclusive, indicator of what the parties meant. ...  
[68] In Bathurst Resources Ltd v L&M Coal Holdings Ltd, the Supreme Court  
made clear it would not revisit those principles.30 In its substantive decision it also  
affirmed the approach to contractual interpretation in Firm PI 1 Ltd.31 Relevantly  
for this case, it also addressed the issue of admissibility of evidence of prior  
negotiations and subsequent conduct concerning a contract. It concluded that the  
determination of the  
29 Firm PI 1 Ltd v Zurich Australian Insurance Ltd [2014] NZSC 147, [2015] 1 NZLR 432 at  
[60]–  
[63] (footnotes omitted).  
30 Bathurst Resources Ltd v L&M Coal Holdings Ltd [2020] NZSC 73 at [1](a).  
31 Bathurst Resources Ltd v L&M Coal Holdings Ltd [2021] NZSC 85, [2021] 1 NZLR 696 at  
[43]–[46], [232]–[233] and [250]. The majority cautions that the courts are not necessarily  
well placed to assess the commercial common sense of a contractual provision.  
admissibility or otherwise of extrinsic material, is to be regarded as an evidential issue. It is  
therefore to be determined in accordance with the law of evidence, in light of the substantive  
law on contractual interpretation,32 applying the fundamental principles as set out in ss 7 and  
8 of the Evidence Act 2006 (the EA).33  
[69] Accordingly, consideration of these provisions of the EA assists in the task of  
resolving what evidence should be considered when proving anything relevant to  
the notional reasonable person. It follows that evidence which shows only a party’s  
subjective intentional belief as to the meaning of words, or an undeclared  
negotiating stance or position, should, under that Act, be inadmissible.  
[70] The Court’s approach to these issues is set out in Vulcan Steel:34  
[29] In Maritime Union of New Zealand v TLNZ Ltd, this Court discussed  
the application of EA principles in this way:  
... Although the Employment Court is noticeable by its absence from the schedule of Courts to  
which the Evidence Act applies expressly, the Evidence Act’s principles and contents are  
nevertheless an important source of reference whenever the admissibility of evidence is  
challenged or otherwise in question. ...  
[30] More recent cases have emphasised that the equity and good conscience test  
under s 189(2) of the Employment Relations Act 2000 is the focus of the enquiry.  
Nevertheless, it is clear that, in the interests of justice, hearings should not be  
bogged down with evidence which is irrelevant. As this is also the purpose of ss 7  
and 8 of the EA, we consider it appropriate in this case to rely on the statements of  
the Supreme Court as to admissibility.  
[71] As in Vulcan Steel, it is appropriate in this case to rely on the statements of the  
Supreme Court as to admissibility.  
[72] The parties were invited to make submissions on the impact of Bathurst on  
this case.35 Both took the opportunity to do so. The submissions largely focused on  
assertions as to what evidence was not subjective and what was communicated.  
Issues had arisen during the hearing about the admissibility of pre-negotiation  
material. Some material relating to subjective intention was excluded, although  
some remained  
32 Bathurst, above n 31, at [57] and [232].  
33 At [62]–[68], [75]–[76] and [232].  
34 Vulcan Steel, above n 26, at [29]–[30] (footnotes omitted).  
35 Which was decided after the hearing was concluded.  
as it had already been referred to in evidence. I agree with what is said in Vulcan Steel and  
have not found the uncommunicated internal communications of either party relevant.  
[73] Both parties sought to rely on the advice they wrote to their respective  
stakeholders as proof of what the clause was intended to mean. This material was  
not helpful in the interpretive exercise. In almost all instances the material was not  
shared with the other party and does not assist with an objective interpretation of  
the provision in context. What is apparent from the history set out above is that the  
final iteration of the clause was the product of significant negotiation and  
compromise. The initial so-called “bottom lines” that the parties, and in particular  
the Ministry, refer to, were not helpful in the context of fraught and lengthy  
negotiations where “bottom lines” were constantly revised on both sides and  
bargaining went to the wire.  
[74] For the purposes of this analysis, I have found material that was part of the  
communications between the parties (the contents of which were therefore known  
to both of them), or widely published guidelines issued by each of them to all  
schools, helpful. As noted above, I have also found the statutory context in which  
the provision was negotiated and the regulations expressly referred to in the 2019  
STCA, relevant.  
[75] Finally, it is not unusual, when considering the background circumstances of a  
collective agreement, to have regard to the fact that a given provision has a long  
history, adopted in successive collective agreements. Those agreements and  
surrounding documents are extrinsic evidence which, in this case, are part of the  
background like any other contextual evidence. Applying the principles of ss 7 and  
8 of the EA, the earlier collective agreements and contracts are relevant and  
admissible.  
Analysis  
Clause in a contractual context  
[76] As noted in Firm PI,36 the context provided by the contract as a whole  
informs meaning. If the language at issue construed in the context of the contract  
as a whole  
36 Firm PI, above n 29, at [60].  
has an ordinary and natural meaning, that will be a powerful, albeit not conclusive, indicator  
of what the parties meant.37  
[77] Accordingly, it is helpful to begin by assessing the ordinary and natural  
meaning of cl 5.4 in its contractual context and then move on to consider whether  
the structure of the bargain, any specialised meaning, the history of the clause or  
considerations of commercial absurdity affect that assessment.38  
[78] Part five of the collective employment agreement within which cl 5.4 sits is set  
out in full at Appendix D. For ease of reference, I set out the clause again:  
5.4 Duties When Schools Are Not Open For Instruction  
5.4.1 The employer may require teachers to participate in professional  
development opportunities at times when the school is not open for  
instruction provided that no teacher shall be required to attend for more than  
five days or equivalent per annum and provided also that the needs of the  
individual teacher are taken into account and that the teacher’s own  
initiatives in undertaking professional development during time when the  
school is not open for instruction are considered.  
5.4.2 The employer may require teachers to attend school or elsewhere when  
the school is not open for instruction for up to five days or equivalent per  
annum for all or any of the following purposes – school administration,  
preparation and coordination, departmental or related activities and  
community, parent and whanau contact and liaison. The employer will  
endeavour to arrange matters at the school in such a way that any  
requirement under this section is not unreasonable and that teachers’  
individual needs are taken into account. Teachers’ own initiatives in  
undertaking work for the above purposes shall be counted when applying this  
clause.  
5.4.3 Where teachers are required to attend school or elsewhere when the  
school is not open for instruction pursuant to 5.4.1 and 5.4.2 above, they shall  
be reimbursed for any actual and reasonable costs incurred.  
Note: This provision shall not apply to teachers in Te Aho o Te Kura Pounamu. The  
provisions applying to those teachers are contained in Part Eleven of this agreement.  
[79] At this point the Court is simply attempting to ascertain the meaning of the  
clause, interpreted in the context of the agreement as a whole – the approach must  
be that of a reasonable person, having all the background knowledge which would  
have reasonably been available to the parties in the situation they were in at the  
time of the  
37 At [63].  
38 At [64].  
agreement. The background knowledge which would reasonably have been available for both  
parties therefore includes knowledge of the previous agreements and a significant level of  
understanding of the statutory context within which they were operating, the secondary school  
environment and the process of collective bargaining.  
[80] Part five of the 2019 STCA sets out the various factors that influence the hours  
of work of individual teachers and identifies the guidelines and requirements that  
apply when setting the hours of opening of schools and the structure of timetables.  
That is apparent from, for example, the fact that “Part Five” is titled “Hours of  
Work”.  
[81] The phrase “not open for instruction” is not defined by the parties. In order to  
ascertain the meaning of “when the school is not open for instruction”, it is  
therefore helpful to look at when the school is “open for instruction”.  
[82] When read in conjunction with the Education Act and the regulations,  
secondary schools are “open for instruction” during the two half-days per day, 10  
half- days per week and 380 half-days per year, as set out in the Education Act.39  
Schools are “closed” and therefore not open for instruction on Saturdays, Sundays,  
Easter Tuesday and public holidays.40 They are open for instruction during the  
whole of any period during which the school is normally open for the instruction of  
pupils.41  
[83] “Not open for instruction” must then, on the face of it, incorporate vacation  
time but also weekends, public holidays and Easter Tuesday.  
[84] The general provision at the beginning of “Part Five”, throughout all iterations  
of the contract, sets out the factors influencing the hours of work of individual  
teachers, over and above the number of classes they may be timetabled to teach. By  
the time this dispute arose and in the 2019 STCA, cl 5.1.2 specifically acknowledges  
and accepts that the hours of opening of schools are designed to meet the  
curriculum and pastoral needs of students and are determined according to “well-  
understood national guidelines or specific legal requirements”. Clause 5.1.3 states  
that the clauses  
39 Education Act 1989, ss 65A and 65B.  
40 Education Act 1989, s 65C.  
41 Education (Salaries and Staffing) Regulations 1957, reg 51.  
which follow identify the guidelines and requirements upon which the decisions in individual  
schools are made. Clause 5.4 must be read within that context.  
[85] Clause 5.1A requires a timetabling policy. Clause 5.2 deals with non-contact  
time allocations for teachers and acknowledges the importance of duties other than  
classroom teaching, which teachers are required to undertake while schools are  
“open for instruction”. Non-contact time is based on individual teachers’  
timetabled hours comprising a total of 25 hours per week.  
[86] Clause 5.2 sets out the non-contact time allocations for teachers. It states that  
non-contact time is based on timetabled periods of 25 hours per week or a  
combination of “periods of time” equivalent to 25 hours per week. It goes on to  
state that non- contact time may be a combination of differing periods of time.  
[87] Clause 5.3 sets out definitions for the purposes of the clause. A “Half day” has  
the meaning implied by its use in the Education (Salaries and Staffing) Regulations  
1957. As set out above, this states that a half-day in relation to any post primary  
school, means the whole of any period during which the school is normally “open  
for the instruction” of pupils. “Overtime” means any timetabled teaching time in  
excess of two half-days on any one day or 10 half-days in any one week and  
includes timetabled teaching on Saturdays and Sundays, public holidays or  
vacation times.  
[88] Clause 5.4, headed “Duties When Schools Are Not Open For Instruction”, is  
directly after the definitions clause. Provisions relating to the length of a school  
day, a school week, or a school year, all follow directly after.  
[89] Clause 5.5 relates to the length of a school day, which is determined according  
to the requirement that students are required to be in attendance for two half-days,  
one before noon, the other after noon. It notes that the normal teaching load in  
respect of any one day is therefore related to that requirement.  
[90] Clause 5.6 sets out that the length of a school week is determined according to  
the requirement that students are normally required to be in attendance for 10  
half-  
days on the days Monday-Friday inclusive. Again, the normal teaching load is related to that  
requirement.  
[91] Clause 5.7, which deals with the length of a school year, sets out that schools  
are required to be “open for instruction” at least 380 half-days in any one calendar  
year. Again, the normal teaching load in respect of any one year is related to that  
requirement.  
[92] At cl 5.8 which is headed “Division of Year into Terms and Holidays”, it is  
noted that schools are permitted to divide the school year into teaching terms and  
holidays (vacations) in accordance with pt 7 of the Education Act.  
[93] It is apparent from the above that the concept of half-days, before and after  
noon, are at the heart of the legal requirements relating to the operation of a school  
day. That must necessarily impact on a teacher’s hours of work.  
[94] The evidence of both parties was that they had avoided setting fixed hours of  
work, including start and finish times for teachers, in the collective agreement  
because the nature of the work meant that teachers would often work outside of  
the hours of instruction (either at school or outside of school, depending on  
timetabling) to undertake the wide-ranging duties of their positions. The union’s  
unchallenged evidence was that, in practical terms (depending on timetabling),  
teachers are required to be on site from 9 am to 3 pm but, in general, are there  
from about 8.30 am to 4.30 pm.  
[95] All of this leads to a plain reading, in context, that during the term, there are  
periods of time during a day when a school is open for instruction and periods of  
time when it is not. This can be contrasted with vacations, weekends or public  
holidays when, for the whole day (as opposed to times), a school is not open or is  
closed for instruction.  
[96] The reference to “five days or equivalent”42 in both cls 5.4.1 and 5.4.2  
contemplates that the five days may be made up of blocks of time.  
42 Emphasis added.  
[97] Further, the provision refers to “at times when the school is not open for  
instruction”, not “days”.43 By referring to “times”, the wording contemplates  
periods (times) during a day when a school is open for instruction and periods  
(times) when it is not.  
[98] Accordingly, the wording of the provision, “at times when the school is not  
open for instruction”, in the context of the legislation and the whole of “Part Five”,  
supports the plaintiff’s interpretation. That, however, is not the end of the exercise.  
Do the words “not open for instruction” in cl 5.4 refer only to vacation time?  
[99] Mx Hornsby-Geluk submits that the second defendant’s negotiators,44 at all  
times, intended the ability to call back teachers for the purposes of professional  
development (in the 1996 STCEC), administration purposes (in the 1999 STCEC)  
and the consequential ability to claim reimbursement for reasonable costs  
incurred, would only apply in relation to vacation time. They say this was a bottom  
line for the second defendant’s negotiators at the time and that they would not and  
did not move from this position. They submit that was what the parties intended  
the words “not open for instruction” to mean and the clause should be interpreted  
consistent with this (they say) shared intention.  
[100] In support of this submission, substantial evidence was produced in relation  
to the aims of the bargaining from the second defendant’s negotiators’ perspective.  
Most of this evidence (Cabinet papers, correspondence between the negotiators  
and to interested Ministers including the Minister for Education) was not available  
to the plaintiff at the time and therefore is only evidence of subjective intent.  
Accordingly, I do not attribute that material with relevance for the purposes of  
establishing a shared intention as part of this interpretive exercise.  
[101] That said, it is not disputed that the 1996 STCEC claim from the SSC was that  
10 days (later negotiated to five days) would be taken from vacation time and it  
was well known that this claw-back of holidays was an important claim for the  
Government  
43 Emphasis added.  
44 The SSC for the 1996 STCEC and the Ministry for the 1999 STCEC and subsequent  
negotiations.  
of the day. Equally, however, the evidence is clear that the claim was unacceptable to the  
union and its members and this was communicated to the SSC at the time.  
[102] In relation to the 1996 STCEC, the negotiating stances of the parties do not  
greatly assist in the interpretation exercise. Contracts are often a product of  
compromise. The ‘give’ in bargaining is not always in the same clause as the ‘take’  
and, as was the case here, there is often no agreement until everything is agreed.  
[103] It is correct that cl 5.6.2 of the 1996 STCEC was put under the heading  
“Division of Year into Terms and Holidays”. It replaced cl 4.6.2 in the 1994 STCEC,  
which acknowledged that teachers may attend school during vacation time for the  
purposes of school administration or for preparation and co-ordination with  
colleagues for the next term. The Ministry says the 1996 STCEC, and therefore the  
1999 clauses and the current clause, by inference, also refer to vacations.  
[104] However, cl 5.6.2 of the 1996 STCEC, unlike the previous cl 4.6.2, does not  
refer to vacation time at all. It uses the phrase “at times when the school is not  
open for instruction”.  
[105] These were sophisticated bargaining parties. It is reasonable to take the  
words used (or not used) as deliberate. The parties could have retained reference  
to vacations. They did not.  
[106] Further, the movement of the clause in the second iteration of the provision  
does not support the proposition that the provision only refers to vacations.45 It  
was moved away from underneath the heading “Division of Year into Terms and  
Holidays” and into a standalone provision headed “Duties When Schools Are Not  
Open For Instruction”. The clause has remained in that position since.  
[107] Mx Hornsby-Geluk put much emphasis on the witnesses’ agreement that  
what the words meant in the 1999 STCEC was the same as what was agreed in the  
1996 STCEC. Of course, that begs the question of what was agreed in 1996. The  
Ministry says it agreed that “not open for instruction” meant vacation time, and  
that shifting the  
45 1999 STCEC.  
clause and changing the wording (as occurred in the bargaining for the 1999 STCEC) is of no  
consequence.  
[108] That cannot be correct, particularly given that, with this collective contract,  
as with most collective contracts, people other than the negotiators will read the  
agreement and interpret it, often years later. It is even more important, in those  
circumstances, that we look at the text of the clause construed in the context of the  
document as a whole. Readers cannot be expected to go back 25 years to work out  
what the provisions mean.  
[109] Further, it is reasonable to assume that moving and renaming the clause was  
consistent with the (unchanged) understanding at the time.  
[110] There is nothing in the (then new) wording of the clause that would indicate  
that the parties intended to limit the employer’s right to require attendance to only  
be able to be exercised in vacation time.  
[111] It is not sufficient to look only at the heading that the clause sat under as at  
1996; it is necessary to look at the whole part within which it now sits, as discussed  
above.46  
[112] To the extent that the meaning of the words remained the same between both  
agreements, that meaning was not that it only applied to vacations.  
[113] When “Part Five” of the 2019 STCA is read as a whole with the knowledge of  
the history of the clause and consistent with its purpose, the argument that the  
words “not open for instruction” in cl 5.4 can be said to relate only to vacation  
times, is unsustainable. The meaning is inclusive of, but broader than, “vacations”.  
46 At [78]–[97].  
Do the words “open for instruction” only refer to the two-hour, two half-days on a day a  
school is open?  
[114] Mr Cranney submits that the meaning of the phrase “open for instruction” in  
the 2019 STCA, and in the education legislation, is the same and that the phrase  
“not open for instruction” has a consequential meaning.  
[115] He says it is inconceivable that the negotiators at the time were unaware of  
the statutory provisions. Further, the wording “open for instruction” is specifically  
picked up elsewhere in the agreement.47  
[116] On that basis Mr Cranney submits that the period “when a school is open for  
instruction” is as set out in the Education Act.48 It is the 380 half-days before and  
after noon during the week (Monday to Friday) during term time. He says that it  
excludes all Saturdays and Sundays (unless appropriate statutory exemption has  
been obtained), public holidays and Easter Tuesday49 because a board must  
ensure schools are closed on these days. It is common ground and he also accepts  
that it excludes the term breaks (vacations).  
[117] Mr Cranney goes further. He says it must also exclude periods prior to the  
school opening for instruction for the morning half-day and after the school closes  
after the post noon half-day.  
[118] The Ministry says that meaning is not what was intended by the parties at the  
time of negotiation and would result in a commercially absurd outcome. The  
evidence of Ms Holsted50 was that once the school was open for instruction on a  
day – that is, it had been open for at least two hours before or after noon – that  
rendered the whole day as “open for instruction”.51  
47 2019 STCA, cl 5.7. See also 1996 STCEC, cl 5.5 and 1999 STCEC, cl 5.6.  
48 Education Act 1989, ss 60, 65A and 65B.  
49 Section 65C.  
50 Now the Chief Executive of the Ministry of Education and also referred to as the Secretary  
for Education, but then a Senior Adviser in the Education Sector Group and the State Services  
Commissioner’s legal negotiator.  
51 Despite it logically following from this approach that weekends, public holidays and Easter  
Tuesday would not be times when the school is open for instruction and, therefore, times to  
which the clause would apply, Ms Holsted maintained the view that the clause only related to  
vacations, as that was the intention at the time. I have already dealt with that view above; it is  
unsustainable.  
[119] The problem for the Ministry is that Ms Holsted’s view – that once a school  
had been open for instruction for at least one half-day, it was open for instruction  
for the whole day (beginning at 12 am and ending at midnight) – is also  
commercially absurd but, more importantly, inconsistent with the provisions of  
“Part Five” in terms of the definition of overtime,52 and the length of a school  
day.53  
[120] The plaintiff’s argument, however, has some attraction. On the face of it, it is  
consistent with the wording of “Part Five” as a whole, the clause in question and  
the statutory framework within which it is operating.  
[121] It is also consistent with the guidelines that were published by the PPTA in  
1996 and circulated to its members with the approval of the SSC.54 In those  
guidelines, “not open for instruction” is said to mean any time a school is open  
outside the 380 half-days per year that a school is required to be open for  
instruction, which “will include vacation periods and weekends but also any time  
after timetabled instruction ends on a school day.”  
[122] However, while it is attractively simple to interpret the wording in the  
manner proposed by Mr Cranney, it goes too far and would ignore the other  
provisions of “Part Five”.  
The natural and ordinary meaning of the words  
[123] Both parties’ legal positions in relation to the provision are inconsistent with  
the tenet of “Part Five” as a whole, which is to retain flexibility for both schools and  
teachers in how they manage the delivery of the curriculum and meet the pastoral  
needs of the students within certain guidelines and legal requirements. It  
recognises that much of a teacher’s work is performed away from the workplace  
and outside the 25 hours that they are individually timetabled to deliver.55  
52 2019 STCA, cl 5.3.1.  
53 2019 STCA, cl 5.5.  
54 At [41]–[42] above.  
55 Including periods of both contact and non-contact time.  
[124] Clause 5.1.2 of the 2019 STCA specifically acknowledges and accepts that the  
hours of opening of schools are designed to meet the curriculum and pastoral  
needs of students. Each employer must have a timetabling policy,56 which  
incorporates non- contact entitlements based on timetabled hours comprising a  
total of 25 hours or a combination of periods of time equivalent to 25 hours per  
week.57 This presumes that a teacher is at school and working for more than the  
four hours per day, 20 hours per week, that Mr Cranney’s two half-day analysis  
would allow.  
[125] The union’s witnesses’ evidence was that, while formal instruction commonly  
starts at 9 am and finishes at approximately 3-3.15 pm, for practical purposes, a  
teacher’s working day will generally be from approximately 8.30 am to 4.30 pm.  
Accordingly, taking into account the many factors influencing the work of teachers  
as set out at cl 5.1.1, those are the times when a school is open for instruction.  
Despite the union’s stated legal position, its witnesses considered times outside of  
that (slightly broader) timeframe to be the times when the school is not open for  
instruction.  
[126] This also makes sense in terms of the natural and ordinary meaning of the  
words.  
[127] The purpose of the clause was to enable the employer to require teachers to  
be at school or elsewhere for professional development or administrative purposes  
at times when they would not generally be required to be at work. To interpret the  
natural and ordinary meaning of the words “times when the school is not open for  
instruction” as being before 8.30 am and after 4.30 pm on days during the school  
term, weekends, public holidays, Easter Tuesday and vacations, is entirely  
consistent with that purpose and the context of “Part Five” of the collective  
agreement.  
[128] Having made that assessment of the meaning of the words in the contractual  
context and history of the provision, it is necessary to move on to consider whether  
the structure of the bargain, any specialised meaning or consideration of  
commercial absurdity affect that assessment.  
56 2019 STCA, cl 5.1A.1.  
57 2019 STCA, cl 5.2.2.  
Commercial/industrial structure of the bargain  
[129] Prior to what would become cl 5.4 being introduced, there was no ability to  
call teachers back to work during the vacations, weekends or any other time when  
the school was not open for instruction. Teachers may well have undertaken work  
during these times,58 but the hours of work provision did not allow them to be  
directed to do so.  
[130] Clause 5.4 of the 2019 STCA confers on a board of trustees an express right  
to require teachers to undertake five days or equivalent of professional  
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.  
Commercial/industrial absurdity  
[139] The Ministry submitted that to interpret the words “open for instruction” in  
the way proposed by the union (to mean only the two two-hour, half-day periods  
on a day the school is open) was commercially absurd. It pointed to the union’s  
own recognition of this in its guidelines issued after the 1999 STCEC. That  
interpretation has not been accepted as the natural and ordinary meaning of the  
words.  
[140] Where contractual language, viewed in the context of the whole contract, has  
a natural and ordinary meaning, a conclusion that it provides a commercially  
absurd result should only be reached in the most obvious and extreme case.62 This  
is not such a case.  
[141] The Court’s interpretation does not inhibit school activities.63 There is  
nothing to prevent a school scheduling courses or events and requiring attendance  
by the teacher at times during the school week but when the school is not open for  
instruction. It simply means that the time should be credited towards either their  
professional development or administration days and if reasonable costs were  
actually incurred as a result, they be reimbursed.  
[142] The interpretation of this Court set out above does not result in any  
commercial/industrial absurdity.64  
Conclusion  
[143] Construed in the agreement as a whole, the ordinary and natural meaning of  
clause 5.4 is that the words “times when the school is not open for instruction”  
mean weekends, public holidays, Easter Tuesday, vacations and times before 8.30  
am and after 4.30 pm on days during the school term.  
[144] This meaning is consistent with the purpose of the clause itself, which was to  
enable the employer to require teachers to be at school or elsewhere for  
professional  
62 Firm PI, above n 29, at [93]. See also Bathurst, above n 31.  
63 At [95] and [127].  
64 At [95] and [127].  
development or administrative purposes at times when they could not previously be required  
to be at the workplace. It is also consistent with “Part Five” more broadly, which was to retain  
flexibility for both schools and teachers in how to manage the delivery of the curriculum and  
meet the pastoral needs of the students within certain guidelines and legal requirements.  
[145] The determination of the Authority is set aside and this decision of the Court  
stands in its place.  
[146] Costs are reserved. The parties are encouraged to agree costs. If, however, the  
parties cannot reach agreement on this issue, an application for costs should be  
lodged within 21 days; any response should be filed 21 days thereafter.  
Kathryn Beck Judge  
Judgment signed at 2.30 pm on 4 July 2022  
APPENDIX A  
1994–1995 STCEC  
Part Four: Hours of Work  
4.1 General  
4.1.1 As well as the number of classes a teacher may be timetabled to teach, the  
hours of work of individual teachers are influenced by factors such as:  
(a) the preparation, evaluation and assessment time that may be generated  
by those classes and the students within them or by other requirements such  
as external examination prescriptions or the need to report on the progress of  
individual students;  
(b) the counselling and pastoral needs of students;  
(c) the administrative responsibilities of individual teachers either in respect  
of their curriculum or pastoral responsibilities or in respect of the general  
administration of the school; and  
(d) the extent to which individual teachers may participate in the extra-  
curricular programmes of the school.  
4.1.2 For the foregoing reasons the parties to this contract further acknowledge and  
accept that the hours of opening of schools, the structure of the timetables and like  
matters are designed to meet the curriculum and pastoral needs of students and  
are determined within each school (according to well understood national  
guidelines or specific legal requirements).  
4.1.3 The clauses which follow identify the guidelines and requirements upon  
which the decisions in individual schools are made.  
4.2 Definitions  
4.2.1 For the purposes of this clause, unless the context otherwise requires:  
(a) “Half day” (HD) shall have the meaning implied by its use in the  
Education (Salaries and Staffing) Regulations 1957.  
(b) “Overtime” shall mean any timetabled teaching time in excess of two half  
days on any one day, or in excess of 10 half days in any one week, and shall  
include any timetabled teaching time scheduled on a Saturday or a Sunday  
except where the timetabled teaching time is correspondingly reduced, and  
any timetabled teaching time scheduled for any statutory or other full holiday  
specified in this contract or during any vacation fixed in accordance with Part  
VII of the Education Act 1989.  
(c) The term “teaching time” can include supervision, non- scheduled  
supervision time of students, teacher non-contact time, administrative duties  
or other directed or non-directed duties.  
4.3 Length of School Day  
4.3.1 For each school the length of the “school day” shall be determined according  
to the requirement that students are normally required to be in attendance for two  
half days, one before noon, the other after noon.  
4.3.2 The normal teaching load in respect of any one day is therefore related to that  
requirement and takes account of the normal timetabling practices of each school.  
4.4 Length of School Week  
4.4.1 Except where interrupted by any statutory holiday or any other holiday  
allowed for in accordance with Part VII of the Education Act 1989 or by any  
provision in this contract authorising the absence of teachers, the length of the  
school week for each school shall be determined according to the requirement that  
students are normally required to be in attendance for 10 half days on the days  
Monday to Friday inclusive.  
4.4.2 The normal teaching load in respect of any one week is therefore related to  
that requirement.  
4.4.3 As noted in subclause 4.2.1(b) the 10 half days in any one week may include  
timetabled teaching time scheduled for a Saturday or a Sunday.  
4.5 Length of School Year  
4.5.1 Except where reduced by any lawful decision of the employer to close the  
school to students, the length of the school year for each school shall be  
determined according to the requirement that schools are required to be open for  
instruction at least 380 half days in any one calendar year.  
4.5.2 The normal teaching load of teachers in respect of any one year is therefore  
related to that requirement.  
4.6 Division of Year into Terms and Holidays  
4.6.1 For the purposes of organising their educational programmes it is noted that  
schools are permitted to divide the school year into teaching terms and holidays  
(vacations) in accordance with Part VII of the Education Act 1989.  
4.6.2 The parties to this contract acknowledge that teachers may attend school  
during vacation time for the purposes of school administration or for preparation  
and co-ordination with colleagues for the next term; and that teachers use vacation  
time away from school for such purposes as curriculum or technical refreshment  
and for the preparation of resources or programmes for the next teaching term.  
APPENDIX B  
1996–1998 STCEC  
Part Five: Hours Of Work  
5.1 General65  
5.2.1 As well as the number of classes a teacher may be timetabled to teach, the  
hours of work of individual teachers are influenced by factors such as:  
a. the preparation, evaluation and assessment time that may be generated by  
those classes and the students within them or by other requirements such as  
external examination prescriptions or the need to report on the progress of  
individual students;  
b. the counselling and pastoral needs of students;  
c. the administrative responsibilities of individual teachers either in respect of  
their curriculum or pastoral responsibilities or in respect of the general  
administration of the school; and  
d. the extent to which individual teachers may participate in the extra-  
curricular programmes of the school.  
5.2.2 For the foregoing reasons the parties to this contract further acknowledge  
and accept that the hours of opening of schools, the structure of the timetables and  
like matters are designed to meet the curriculum and pastoral needs of students  
and are determined within each school according to well understood national  
guidelines or specific legal requirements.  
5.2.3 The clauses which follow identify the guidelines and requirements upon  
which the decisions in individual schools are made.  
5.2 Definitions  
5.2.1 For the purposes of this clause, unless the context otherwise requires:  
a. “Half day” (HD) shall have the meaning implied by its use in the Education  
(Salaries and Staffing) Regulations 1957.  
b. “Overtime” shall mean any timetabled teaching time in excess of two half  
days on any one day, or in excess of 10 half days in any one week, and shall  
include any timetabled teaching time scheduled on a Saturday or a Sunday  
except where the timetabled teaching time is correspondingly reduced, and  
any timetabled teaching time scheduled for any statutory or other full holiday  
specified in this contract or during any vacation fixed in accordance with Part  
VII of the Education Act 1989.  
c. The term “teaching time” can include supervision, non-scheduled supervision  
time of students, teacher non-contact time, administrative duties or other  
directed or non-directed duties.  
65 These clauses have erroneously been numbered 5.2.1–5.2.3 instead of 5.1.1–5.1.3.  
5.3 Length of School Day  
5.3.1 For each school the length of the “school day” shall be determined according  
to the requirement that students are normally required to be in attendance for two  
half days, one before noon, the other after noon.  
5.3.2 The normal teaching load in respect of any one day is therefore related to that  
requirement and takes account of the normal timetabling practices of each school.  
5.4 Length of School Week  
5.4.1 Except where interrupted by any statutory holiday or any other holiday  
allowed for in accordance with Part VII of the Education Act 1989 or by any  
provision in this contract authorising the absence of teachers, the length of the  
school week for each school shall be determined according to the requirement that  
students are normally required to be in attendance for 10 half days on the days  
Monday to Friday inclusive.  
5.4.2 The normal teaching load in respect of any one week is therefore related to  
that requirement.  
5.4.3 As noted in subclause 5.2.1(b) the 10 half days in any one week may include  
timetabled teaching time scheduled for a Saturday or a Sunday.  
5.5 Length of School Year  
5.5.1 Except where reduced by any lawful decision of the employer to close the  
school to students, the length of the school year for each school shall be  
determined according to the requirement that schools are required to be open for  
instruction at least 380 half days in any one calendar year.  
5.5.2 The normal teaching load of teachers in respect of any one year is therefore  
related to that requirement.  
5.6 Division of Year into Terms and Holidays  
5.6.1 For the purposes of organising their educational programmes it is noted that  
schools are permitted to divide the school year into teaching terms and holidays  
(vacations) in accordance with Part VII of the Education Act 1989.  
5.6.2 The employer may require teachers to participate in professional  
development opportunities at times when the school is not open for instruction  
provided that no teacher shall be required to attend for more than five days per  
annum and provided also that the needs of the individual teacher are taken into  
account and the teacher’s own initiatives in undertaking professional development  
during time when the school is closed for instruction is considered. Teachers who  
participate in terms of this requirement shall be reimbursed for any actual and  
reasonable costs incurred in accordance with Part Seven of this contract.  
Note: This provision shall not apply to teachers in the Correspondence School. The  
provisions applying to those teachers are contained in Part Eleven of this contract.  
APPENDIX C  
1999–2001 STCEC  
Part Five: Hours of Work  
5.1 General  
5.1.1 As well as the number of classes a teacher may be timetabled to teach, the  
hours of work of individual teachers are influenced by factors such as:  
a. the preparation, evaluation and assessment time that may be generated by  
those classes and the students within them or by other requirements such as  
external examination prescriptions or the need to report on the progress of  
individual students;  
b. the counselling and pastoral needs of students;  
c. the administrative responsibilities of individual teachers either in respect of  
their curriculum or pastoral responsibilities or in respect of the general  
administration of the school; and  
d. the extent to which individual teachers may participate in the extra-  
curricular programmes of the school.  
5.1.2 For the forgoing reasons the parties to this contract further acknowledge and  
accept that the hours of opening to schools, the structure of the timetables and like  
matters are designed to meet the curriculum and pastoral needs of students and  
are determined within each school according to well-understood national  
guidelines or specific legal requirements.  
5.1.3 The clauses which follow identify the guidelines and requirements upon  
which the decisions in individual schools are made.  
5.2 Definitions  
5.2.1 For the purposes of this clause, unless the context otherwise requires:  
a. “Half day” (HD) shall have the meaning implied by its use in the Education  
(Salaries and Staffing) Regulations 1957.  
b. "Overtime" shall mean any timetabled teaching time in excess of two half  
days on any one day, or in excess of 10 half days in any one week, and shall  
include any timetabled teaching time scheduled on a Saturday or a Sunday  
except where the timetabled teaching time is correspondingly reduced, and  
any timetabled teaching time scheduled for any statutory or other full holiday  
specified in this contract or during any vacation fixed in accordance with Part  
VII of the Education Act 1989.  
5.3 Duties When Schools Are Not Open For Instruction  
The term "teaching time" can include supervision, non-scheduled supervision time of  
students, teacher non-contact time, administrative duties or other directed or non-directed  
duties.  
5.3.1 The employer may require teachers to participate in professional development  
opportunities at times when the school is not open for instruction provided that no teacher  
shall be required to attend for more than five days or equivalent per annum and provided also  
that the needs of the  
5.3.2 The employer may require teachers to attend school or elsewhere when the  
school is not open for instruction for up to five days or equivalent per annum for all  
or any of the following purposes – school administration, preparation and  
coordination, departmental or related activities and community, parent and  
whanau contact and liaison. The employer will endeavour to arrange matters at the  
school in such a way that any requirement under this section is not unreasonable  
and that teachers’ individual needs are taken into account. Teachers' own  
initiatives in undertaking work for the above purposes shall be counted when  
applying this clause.  
5.3.3 Where teachers are required to attend school or elsewhere when the school is  
not open for instruction pursuant to 5.3.1 and 5.3.2 above, they shall be  
reimbursed for any actual and reasonable costs incurred.  
nd that the teacher's own initiatives during time when the school is not  
individual teacher are taken into account a in undertaking professional development open for  
instruction are considered.  
Note: This provision shall not apply to teachers in the Correspondence School. The  
provisions applying to those teachers are contained in Part Eleven of this contract.  
5.4 Length of School Day  
5.4.1 For each school the length of the "school day" shall be determined according  
to the requirement that students are normally required to be in attendance for two  
half days, one before noon, the other after noon.  
5.4.2 The normal teaching load in respect of any one day is therefore related to that  
requirement and takes account of the normal timetabling practices of each school.  
5.5 Length of School Week  
5.5.1 Except where interrupted by any statutory holiday or any other holiday  
allowed for in accordance with Part VII of the Education Act 1989 or by any  
provision in this contract authorising the absence of teachers, the length of the  
school week for each school shall be determined according to the requirement that  
students are normally required to be in attendance for 10 half days on the days  
Monday to Friday inclusive.  
5.5.2 The normal teaching load in respect of any one week is therefore related to  
that requirement.  
5.5.3 As noted in subclause 5.2.1(b) the 10 half days in any one week may include  
timetabled teaching time scheduled for a Saturday or a Sunday.  
5.6 Length of School Year  
5.6.1 Except where reduced by any lawful decision of the employer to close the  
school to students, the length of the school year for each school shall be  
determined according to the requirement that schools are required to be open for  
instruction at least 380 half days in any one calendar year.  
5.6.2 The normal teaching load of teachers in respect of any one year is therefore  
related to that requirement.  
5.7 Division of Year into Terms and Holidays  
5.7.1 For the purposes of organising their educational programmes it is noted that  
schools are permitted to divide the school year into teaching terms and holidays  
(vacations) in accordance with Part VII of the Education Act 1989.  
APPENDIX D  
2019–2022 STCA  
PART FIVE: Hours of Work  
5.1 General  
5.1.1 As well as the number of classes a teacher may be timetabled to teach, the  
hours of work of individual teachers are influenced by factors such as:  
(a) The preparation, evaluation and assessment time that may be generated  
by those classes and the students within them or by other requirements such  
as external examination prescriptions or the need to report on the progress of  
individual students;  
(b) The counselling and pastoral needs of students;  
(c) The administrative responsibilities of individual teachers either in respect  
of their curriculum or pastoral responsibilities or in respect of the general  
administration of the school; and  
(d) The responsibilities of individual teachers arising from their appointment  
to a Kāhui Ako Teacher role;  
(e) The extent to which individual teachers may participate in the extra-  
curricular programmes of the school.  
5.1.2 For the foregoing reasons the parties to this agreement further acknowledge  
and accept that the hours of opening of schools, the structure of the timetables and  
like matters are designed to meet the curriculum and pastoral needs of students  
and are determined within each school according to well-understood national  
guidelines or specific legal requirements.  
5.1.3 The clauses which follow identify the guidelines and requirements upon  
which the decisions in individual schools are made.  
5.1A Timetabling Policy  
5.1 A.1 Each employer must have a policy on timetabling, developed in consultation  
with its teaching staff. This policy shall incorporate:  
(a) The non-contact entitlements of 5.2.3 to 5.2.6 below as relevant for the  
type of school;  
(b) Class size matters, including the class size provisions of clause 5.9 below;  
(c) Reference to other matters, including hours of duty outside of timetabled  
hours, which impact on timetabling practices;  
(d) A process providing for circumstances where, for genuine reason during  
timetabling or at short notice, it is not possible to provide the non-contact  
time entitlements described in 5.2.3(a), 5.2.4(a), 5.2.5(a) and 5.2.6(b) and  
where the employer has used reasonable endeavour and is unable to achieve  
the class size provision in 5.9.2.  
5.2 Non-Contact Time  
5.2.1 The non-contact time allocations for secondary teachers are an  
acknowledgement of the importance to quality education of the duties other than  
classroom teaching (such as those referred to in 5.1.1(a to d) above) which teachers  
are required to undertake while schools are open for instruction.  
5.2.2 For the purposes of 5.2, non-contact time is based on individual teachers’  
timetabled hours comprising a total of 25 hours or a combination of periods of  
time equivalent to 25 hours per week.  
5.2.3 (a) The employer shall provide five timetabled non-contact hours within each  
school week to each full-time teacher subject to 5.1A above. The non-contact time  
may be a combination of differing periods of time which total no less than the  
equivalent of five non-contact hours.  
(b) The individual time allowances provided under clause 3.7 (Te Atakura), 3.8 (Beginning  
Teacher), 3.8A (Head of Department Beginning Teacher Time Allowance) and 3.8B (Specialist  
Classroom Teacher) of this Agreement shall be in addition to the non-contact time  
entitlements above.  
5.2.4 Specialist Secondary Teachers of Technology  
Specialist secondary teachers of technology who come within the coverage in clause 1.4(a).  
(a) The employer shall timetable each full-time specialist secondary teacher of  
technology for no more than 20 contact hours within each school week subject to  
5.1A above. The contact time may be a combination of differing periods of time  
which total no more than the equivalent of twenty contact hours.  
(b) The maximum classroom contact hours of each full time specialist secondary  
teacher of technology provided above shall be reduced by any individual time  
allowances provided under clause 3.8 (Beginning Teacher) of this Agreement.  
5.2.5 Permanent Unit Holders  
(a) The employer shall provide as a minimum the following non-contact time  
entitlement to each teacher allocated permanent unit(s) in addition to the  
non-contact time entitlements set out in 5.2.3 and 5.2.4:  
(i) one hour per week for holders of one permanent unit;  
(ii) two hours per week for holders of two permanent units; and  
(iii) three hours per week for holders of three or more permanent units.  
(b) The non-contact time allocations expressed in 5.2.5(a)(i-iii) are minimum  
entitlements. For the fourth and subsequent permanent unit(s) the employer  
will endeavour to provide one hour for each additional permanent unit. The  
employer may continue to provide additional non-contact time above this for  
senior management positions in accordance with school policies.  
(c) The individual time allowances provided under clause 3.7 (Te Atakura),  
3.8 (Beginning Teacher), 3.8A (Head of Department Beginning Teacher Time Allowance) and  
3.8B (Specialist Classroom Teacher) of  
this Agreement shall be in addition to the non-contact time entitlements above. The Beginning  
Teacher Time allowance (Clause 3.8) is calculated before the non-contact time entitlements  
are calculated.  
5.2.6 Part-time Teachers  
The timetabled hours of part-time teachers shall be determined according to the following  
provisions. Attention is drawn to clause 4.5.1 which sets out the basis of the establishment of a  
part-time teacher’s FTTE proportion as the sum of their timetabled class contact hours and  
any allocated timetabled non- contact time.  
(a) The employer will endeavour to provide non-contact time for part time teachers  
who are employed between 0.48 FTTE and 0.89 FTTE to allow such teachers non-  
contact time that is proportionate to that provided to full-time teachers (five hours  
per week under clause 5.2.3). The timetabled non-contact time outlined in the  
table in (b) shall continue to operate as a minimum entitlement.  
(b) The minimum timetabled non-contact time of part-time teachers (including  
specialist secondary teachers of technology who come within the coverage in clause  
1.4(a)) subject to 5.1A is outlined in the table below:  
FTTE  
Minimum timetabled non-contact hours per week  
0.89  
3.0  
0.87 – 0.88 2.5  
0.85 – 0.86 2.0  
0.83 – 0.84 1.5  
0.75 – 0.82 1.0  
0.72 – 0.74 0.5  
Below 0.72 None  
(c) The placement of each part-time teacher’s timetabled non-contact hours within  
the timetable shall be in discussion with the individual teacher and recognise the  
distribution of the individual’s timetabled class contact hours. The teacher is  
required to be available in the school during their timetabled non-contact time.  
(d) Nothing in (a) – (c) above shall operate to reduce current agreements around  
the proportion of a full-time position to which a part-time teacher is appointed.  
Fixed-term arrangements with respect to all or part of a part-time teacher’s hours  
of work shall continue according to their current basis, including any agreement to  
revision of these hours.  
(e) The individual time allowances provided under clause 3.7 (Te Atakura),  
3.8 (Beginning Teacher), 3.8A (Head of Department Beginning Teacher Time Allowance),  
3.8B (Specialist Classroom Teacher) and 5.2.5(a) (Permanent Unit Holders) of this Agreement  
shall be in addition to the non-contact time entitlements above.  
5.2.7 Inquiry time  
A board in an approved Kāhui Ako will be entitled to allocate a number of hours of inquiry  
time in each school year which will be generated by the relevant Staffing Order. The board will  
determine the allocation of the inquiry time following consultation with its teaching staff and  
the person in the Kāhui Ako Leadership role.  
5.3 Definitions  
5.3.1 For the purposes of this clause, unless the context otherwise requires:  
(a) “Half day” (HD) shall have the meaning implied by its use in the  
Education (Salaries and Staffing) Regulations 1957.  
(b) “Overtime” shall mean any timetabled teaching time in excess of two half  
days on any one day, or in excess of 10 half days in any one week, and shall  
include any timetabled teaching time scheduled on a Saturday or a Sunday  
except where the timetabled teaching time is correspondingly reduced, and  
any timetabled teaching time scheduled for any public or other full holiday  
specified in this agreement or during any vacation fixed in accordance with  
Part 7 of the Education Act 1989.  
(c) The term “teaching time” can include supervision, non-scheduled  
supervision time of students, teacher non-contact time, administrative duties  
or other directed or non-directed duties.  
5.4 Duties When Schools Are Not Open For Instruction  
5.4.1 The employer may require teachers to participate in professional  
development opportunities at times when the school is not open for instruction  
provided that no teacher shall be required to attend for more than five days or  
equivalent per annum and provided also that the needs of the individual teacher  
are taken into account and that the teacher’s own initiatives in undertaking  
professional development during time when the school is not open for instruction  
are considered.  
5.4.2 The employer may require teachers to attend school or elsewhere when the  
school is not open for instruction for up to five days or equivalent per annum for all  
or any of the following purposes – school administration, preparation and  
coordination, departmental or related activities and community, parent and  
whanau contact and liaison. The employer will endeavour to arrange matters at the  
school in such a way that any requirement under this section is not unreasonable  
and that teachers’ individual needs are taken into account. Teachers’ own  
initiatives in undertaking work for the above purposes shall be counted when  
applying this clause.  
5.4.3 Where teachers are required to attend school or elsewhere when the school is  
not open for instruction pursuant to 5.4.1 and 5.4.2 above, they shall be  
reimbursed for any actual and reasonable costs incurred.  
Note: This provision shall not apply to teachers in Te Aho o Te Kura Pounamu. The  
provisions applying to those teachers are contained in Part Eleven of this agreement.  
5.5 Length of School Day  
5.5.1 For each school the length of the “school day” shall be determined according  
to the requirement that students are normally required to be in attendance for two  
half days, one before noon, the other after noon.  
5.5.2 The normal teaching load in respect of any one day is therefore related to that  
requirement and takes account of the normal timetabling practices of each school.  
5.6 Length of School Week  
5.6.1 Except where interrupted by any public holiday or any other holiday allowed  
for in accordance with Part 7 of the Education Act 1989 or by any provision in this  
agreement authorising the absence of teachers, the length of the school week for  
each school shall be determined according to the requirement that students are  
normally required to be in attendance for 10 half days on the days Monday to  
Friday inclusive.  
5.6.2 The normal teaching load in respect of any one week is therefore related to  
that requirement.  
5.6.3 As noted in subclause 5.3.1(b) the 10 half days in any one week may include  
timetabled teaching time scheduled for a Saturday or a Sunday.  
5.7 Length of School Year  
5.7.1 Except where reduced by any lawful decision of the employer to close the  
school to students, the length of the school year for each school shall be  
determined according to the requirement that schools are required to be open for  
instruction at least 380 half days in any one calendar year.  
5.7.2 The normal teaching load of teachers in respect of any one year is therefore  
related to that requirement.  
5.8 Division of Year into Terms and Holidays  
5.8.1 For the purposes of organising their educational programmes it is noted that schools are  
permitted to divide the school year into teaching terms and holidays (vacations) in accordance  
with Part 7 of the Education Act 1989.  
5.9 Class Size  
5.9.1 Clause 5.1A requires each employer to have a policy on timetabling,  
developed in consultation with its teaching staff. This policy shall incorporate  
reference to class size.  
5.9.2 It is expected that employers will use reasonable endeavour to achieve, for  
each individual teacher with more than one class, an average class size (based upon  
the teacher’s timetabled classes and the roll of each of those classes) of no more  
than 26 students and where this cannot occur 5.1A.1(d) shall apply.  
Note: This does not preclude averages of less than 26 students.  


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