| [2020] FWCFB 2357 |
| FAIR WORK COMMISSION |
STATEMENT |
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
4 yearly review of modern awards
(AM2019/17)
JUSTICE ROSS, PRESIDENT |
MELBOURNE, 5 MAY 2020 |
4 yearly review of modern awards – finalisation of Exposure Drafts and draft variation determinations – Tranche 3 awards – Educational Services (Teachers) Award 2010
[1] On 2 September 2019 we published a decision 1 providing an overview of the status of the 4 yearly review of modern awards and setting out the process for finalising the Exposure Drafts and the consequent variation of each award.
[2] On 29 January 2020 Exposure Drafts and draft variation determinations were published for each of the Tranche 3 modern awards. On the same day we published a decision 2 (the January 2020 Decision) in which we expressed the provisional view that the variation of the modern awards in Tranche 3 in accordance with the draft variation determinations was, in respect of each of these awards, necessary to achieve the modern awards objective.
[3] Interested parties were invited to comment on our provisional view and on the Tranche 3 Exposure Drafts and draft variation determinations.
[4] The Educational Services (Teachers) Award 2010 (the Teachers Award) is one of the Tranche 3 awards. Submissions in relation to the Teachers Award were filed by:
• Australian Business Industrial & NSW Business Chamber Limited (ABI) –
6 March 2020; in Reply submission 7 April 2020
• Association of Independent Schools (AIS) – 3 March 2020; in Reply 20 April 2020
• Independent Education Union of Australia (IEU) – 4 March 2020
[5] On 23 March 2020 we published a Statement 3 (the March 2020 Statement) and a Background Paper (the Tranche 3 BP) which:
• summarised the submissions filed in respect of the Tranche 3 awards, including the Teachers Award;
• some minor drafting errors and omissions in the exposure drafts and draft variation determinations, which we proposed to correct;
• some provisional views in response to submissions put; and
• invited interested parties to comment on certain submissions.
[6] The IEU and the AIS (the Joint parties) agreed to the following amendments to the Exposure Draft and draft variation determinations.
(i) Meal breaks
[7] Two changes are proposed. The first is the deletion of clause 16.1(a) and inserting:
‘(a) An employer is required to provide an unpaid meal break of not less than 30 consecutive minutes to an employee who is engaged or rostered to work for more than 5 hours on a day. Such meal break will start no later than 5 hours after the employee commenced work on that day.’
[8] The second change is to delete Schedule A.3.1(a) and replace it with the following:
‘An employer is required to provide a paid meal break of between 20 and 30 consecutive minutes to an employee, who is engaged or rostered to work for more than 5 hours on a day. Such meal break will start no later than 5 hours after the employee commenced work on that day.’
(ii) Payment of wages
[9] Clause 18.1 of the Exposure Draft states:
18.1 All monies payable will be paid:
(a) once each fortnight;
(b) once every four 4 weeks at the end of the first fortnight which includes payment for two 2 weeks in arrears and two 2 weeks in advance; or
(c) once every month with the payment being made as nearly as possible on the middle of each month which includes one half month in arrears and one half month in advance.
[10] The Joint parties submitted that clause 18.1(a) should be varied to ensure payment of wages fortnightly by adding the words ‘with the payment being made no later than the last working day of each fortnight.’
(iii) Redundancy notice period
[11] Clause 33.2 of the Exposure Draft states:
33.2 Employee leaving during redundancy notice period
(a) An employee given notice of termination in circumstances of redundancy may terminate their employment during the minimum period of notice prescribed by section 117(3) of the Act.
(b) The employee is entitled to receive the benefits and payments they would have received under clause 33 or under sections 119–123 of the Act had they remained in employment until the expiry of the notice.
(c) However, the employee is not entitled to be paid for any part of the period of notice remaining after the employee ceased to be employed.
[12] The Joint parties submitted that clause 33.2 should be amended to be consistent with the non-standard notice period of 7 weeks applying in the award. The IEU seeks variation to clause 33.2 by deleting the words ‘section 117(3) of the Act’ in sub clause (a) and replacing with the words ‘this award.’
[13] At [73] of the Tranche 3 BP we expressed the provisional view that the Exposure Draft and the draft variation determination be amended as proposed by the Joint parties.
[14] ABI did not agree with our provisional view to the extent it deals with the proposed variations to the payment of wages clause. ABI opposes the proposed variation to clause 18.1 on the grounds that it is unnecessary and creates ambiguity.
[15] Clause 18.1(a) currently deals with the frequency of payments and simply requires that an employee is paid on a regular basis, once a fortnight. This is distinct from clauses 18.1(b) and 18.1(c) which also impose additional requirements in relation to the specific pay periods that must be included in the payments (e.g. clause 18.1(b) requires payment of two weeks in arrears and two in advance).
[16] ABI contends that it is common practice for employers to make payments a few days after the relevant pay period e.g. payments for a pay period that runs from Monday 1 to Sunday 14 may be processed and paid on Tuesday 16. ABI is concerned that the proposed wording would require payment for work performed within any given fortnight to be made within that same fortnight and submits that:
‘The proposed variation could be seen to introduce requirements similar to those in clauses 18.1(b) and (c). If this were the case, employers would be required to pay employees partly in arrears and partly in advance in order to comply.
While this may not be too problematic for salaried teachers working consistent hours, it is impractical for employers of casual teachers, something that is particularly prevalent in the children’s services and early childhood education industry.
ABI and NSWBC are unsure exactly what mischief the amendment I seeking to remedy. IEU submit that the proposed change is required so ‘it is clear when payment is due’. 4
Our clients submit that the current wording of the clause clearly requires payment to be made once per fortnight.’ 5
[17] ABI does not oppose varying clause 18.1(a) so that it:
(a) required payments to be made no later than the same day each fortnight; or
(b) required payments to be made on a working day.
[18] As to the redundancy notice period, ABI did not oppose the proposed variation to clause 33.2 in its current form.
[19] ABI notes that the non-standard notice period of 7 weeks does not apply to employees who are not employed in schools and so it is appropriate to use the generic words ‘this award’.
[20] The IEU raised one further issue which is not the subject of the agreement between the parties.
(i) Schedule B
[21] The IEU submitted that there are errors contained in the tables located in Schedules B.1.1 and B.1.2, which do not apply the 4% loading contained in clause 17.2 of the award.
[22] Clause 17.2 of the Exposure Draft states:
17.2 A full-time employee who works in a children’s or early childhood service which usually provides services over a period of at least eight 8 hours each day for 48 weeks or more (such as a long day care centre) will be paid an additional 4% on the rates set out in clause 17.1 on the basis that the employee is not covered by the provisions of clause 15—Ordinary hours of work.
[23] The IEU submits that tables B.1.1 and B.1.2 in Schedule B be amended as follows:
(i) by adding a new column in B.1.1 for teachers employed in early childhood services operating for at least 48 weeks per year who are not shift workers;
(ii) by varying the rates contained in columns 2-5 of B.1.1 to include the 4% loading; and
(iii) by adding a new column in B.1.2 for teachers employed in early childhood services operating for at least 48 weeks per year.
[24] The AIS was asked to confirm its position in reply submissions.
[25] In its submission of 20 April 2020 the AIS oppose the variations sought by the IEU and submit that the non application of the 4% loading is ‘not an error but rather represents the current interpretation of the current Award’.
[26] A conference will be convened shortly in an effort to resolve the outstanding issues in dispute.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR719135>
5 ABI submission 7 April 2020 at paras. 30-33