| [2020] FWCFB 5531 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
4 yearly review of modern awards – Award stage – Children’s Services Award 2010 – Educational Services (Teachers) Award 2020 – Finalisation of substantive claims
(AM2018/18; AM2018/20)
JUSTICE ROSS, PRESIDENT |
MELBOURNE, 19 OCTOBER 2020 |
4 yearly review of modern awards – Award stage – Group 4 awards – Children’s Services Award 2010 and Educational services (Teachers) Award 2020 – Finalisation of substantive claims.
[1] On 10 June 2020 we issued a decision 1 (the June 2020 decision) dealing with substantive claims to vary the Children’s Services Award 2010 (Children’s Award) and the Educational Services (Teachers) Award 2020 (Teachers Award)2 as part of the 4 yearly review of modern awards (the Review).
[2] On 29 September 2020 we issued a decision 3 (the September 2020 decision) dealing with four outstanding substantive claims to vary the Children’s Award and the Teachers Award. The four outstanding claims are:
• Part-time employment: means of communicating ad hoc agreed changes
• Educational Leaders: additional 2 hours non-contact time per week
• Minimum engagement
• Coverage
(collectively, the outstanding issues).
[3] In the September 2020 decision we invited interested parties to file a written submission addressing a range of matters regarding the outstanding issues.
[4] The following submissions were filed in response to the September 2020 decision:
• United Workers Union (UWU) (9 October 2020);
• Australian Federation of Employers and Industry (AFEI) (9 October 2020);
• Independent Education Union of Australia (IEU) (9 October 2020);
• Community Connections Solutions Australia (CCSA) (9 October 2020); and
• Australian Childcare Alliance and others (ECEC Employers) (9 October 2020).
[5] In a Statement 4 published on 13 October 2020 (the October statement) we summarised the various submissions and expressed a range of provisional views. This decision should be read in conjunction with the June 2020 decision, the September 2020 decision and the October 2020 statement.
[6] The outstanding matters were the subject of a conference before Commissioner Lee at 10am on Friday, 16 October 2020 and a hearing was held at 11:30am on the same day. The transcript of the hearing is available here.
[7] The purpose of the conference before Commissioner Lee was to:
1. Seek the views of the parties in relation to AFEI’s submission regarding the part time employment draft variation determination (see [17] and [20] of the October statement).
2. Seek the views of the parties in relation to our provisional view regarding the non-contact time clause (see [26] and [31] of the October statement) and to seek clarification from the ECEC Employers as to whether they press their proposed inclusion of the reference to ‘A Room Leader’.
3. See if any consensus can be reached in relation to the clarification of the minimum engagement term.
4. Seek the views of the parties about the IEU’s alternate proposal to deal with the coverage issue and CCSA’s proposed insertion of a new clause 4.8 (see [61], [63] and [65] of the October statement).
[8] We now turn to each of the outstanding issues.
2.1 Part-time employment
[9] Clause 10.4(d)(i) of the Children’s Award provides:
‘10.4 Part-time employment
(d) (i) Changes in the agreed regular pattern of work may only be made by agreement in writing between the employer and employee. Changes in the days to be worked or in starting and/or finishing times (whether on-going or ad hoc) may also be made by agreement in writing.’
[10] In the September 2020 decision we set out a plain language re-draft of clauses 10.4 and 21.7, which incorporated the confirmation of our provisional view that the variation of clauses 10.4(d) and 21.7(b) of the Children’s Award in similar terms to clause 22.6(f) of the Aged Care Award 2010 is necessary to ensure that the award achieves the modern awards objective.
[11] A draft variation determination (at Attachment A to the September 2020 decision) set out the proposed changes to clauses 10.4 and 21.7, as follows:
‘1. By deleting clause 10.4(d)(i) and inserting:
Changes in the agreed regular pattern of work may only be made by agreement in writing between the employer and employee. Changes in the days to be worked or in starting and/or finishing times (whether on-going or ad hoc) may also be made by agreement in writing. An agreement in writing may be made by any electronic means of communication.
2. By deleting clause 10.4(d)(iii) and inserting the following:
(iii) The employer is not required to provide the full 7 days’ notice of change of the days an employee is to work where the employer makes the change as a result of an emergency outside of the employer’s control.
3. By inserting a new clause 10.4(d)(iv) and (v) as follows:
(iv) In the circumstance in clause 10.4(d)(iii), the employer must pay the employee at overtime rates for the additional time the employee remains at the workplace.
(v) In clause 10.4(d)(iii), emergency means:
• a situation or event that poses an imminent or severe risk to the persons at an education and care service premises (for example, a fire at the education and care services premises); or
• a situation that requires the education and care service premises to be locked-down (for example, an emergency government direction).
…
6. By deleting clause 21.7(b)(i) and inserting:
An employer may change an employee’s rostered hours, but only by giving the employee seven days’ notice. In the absence of such notice overtime will be paid until seven days have elapsed from the date the notice was given. However, an employee and employer may agree to waive or shorten this notice period in a particular case. Such agreement may be made by electronic means of communication and must be recorded in the time and wages records.
7. By deleting clause 21.7(b)(ii) and inserting the following:
(ii) The employer is also not required to provide the full 7 days’ notice where the employer makes the change as a result of an emergency outside of the employer’s control.
8. By deleting clause 21.7(b)(iii) and inserting the following:
(iii) It is not an emergency for the purposes of clause 21.7(b) (ii) if an employee
is required to stay beyond their rostered hours because a parent fails to arrive on time to collect a child.
9. By inserting a new clause 21.7(b)(iv) and (v) as follows:
(iv) In the circumstances in clause 21.7(b)(ii), the employer must pay the employee at overtime rates for the additional time the employee remains at the workplace.
(v) In clause 21.7(b)(ii), emergency means:
• a situation or event that poses an imminent or severe risk to the persons at an education and care service premises (for example, a fire at the education and care services premises); or
• a situation that requires the education and care service premises to be locked-down (for example, an emergency government direction).’
[12] Parties were invited to comment on the draft variation determination.
[13] CCSA and the ECEC Employers agreed with the proposed drafting for clauses 10.4 and 21.7. The UWU did not oppose the wording in the draft variation determination.
[14] AFEI was the only party to oppose this aspect of the draft variation determination. AFEI opposed the obligation to make overtime payment in the circumstances set out in new clause 21.7(b)(iv) on the ground that the proposed variations:
‘amount to a substantive variation of the award. Current clauses 10.4 and 21.7 do not require the payment of overtime in the circumstances as set out in 4(a) and 4(b) above. The payment of overtime amounts to a new financial obligation on employers that is inconsistent with section 134(f) Fair Work Act 2009 (Cth).’ 5
[15] AFEI submitted that current clauses 10.4(f) and 23.1(b) prescribe when overtime rates apply for part-time employees performing additional hours. Clause 10.4(f) provides ‘a part-time employee who agrees to work in excess of their normal hours will be paid at ordinary time for up to eight hours provided that the additional time worked is during ordinary hours of operation of the early childhood service. No part-time employee may work in excess of eight hours in any day without the payment of overtime’ (emphasis added). On this basis AFEI contended that the proposed variation is therefore unnecessary.
[16] AFEI also submitted that the proposed variations ought to include the option for changes and agreements to be made by telephone.
[17] In the October 2020 statement we rejected AFEI’s proposed inclusion of variation by telephone as it would be inconsistent with the terms of clause 10.4(d)(i), which provides that changes in the agreed regular pattern of work ‘may only be made by agreement in writing between the employer and employee’ (emphasis added).
[18] The other parties were invited to comment on AFEI’s submission in respect of the obligation to make an overtime payment in circumstances where a change to an employee’s rostered hours is made as a result of an emergency outside of the employee’s control. This matter was the subject of discussions at the conference before Commissioner Lee.
[19] After the conference and prior to the hearing the UWU drew the parties’ (and the Commission’s) attention to the terms of clause 23.2, which bears on the issue in contention.
[20] Clause 23.2(b) of the Children’s Award provides:
‘23.2 Overtime rates
(b) Where, due to a genuine and pressing emergency situation, an employee is required to remain at work after their normal finishing time such time will be paid at the ordinary rate for the employee’s classification. Provided that such emergency overtime does not exceed one hour per week. For the purposes of this subclause an emergency situation may include a natural disaster affecting a parent, another employee or the centre/service, the death of a child or parent, or a child requiring urgent hospitalisation or medical attention.’
[21] During the course of the hearing consideration was given to the application of clause 23.2(b) to the circumstance where, because of an emergency outside the employer’s control, an employer does not provide the full 7 days’ notice of a change in the days on which a part time employee is to work (i.e. the circumstance in clause 10.4(d)(iii)). A general consensus emerged in support of the proposition that the terms of clause 23.2(b) apply in the circumstances envisaged in clause 10.4(d)(iii). We agree. It is sensible to apply the same set of rules regarding the application of overtime in emergency situations. We will vary clauses 10.4(d) and 21.7(b)(iv) to give effect to that view.
[22] In the June 2020 decision we dismissed the UWU’s claim to increase the prescribed non-contact time in clause 21.5 from two hours to four hours but went on to decide to provide Educational Leaders with an entitlement to an additional 2 hours non-contact time per week, for the reasons set out in Section 6.3.2.
[23] A draft variation determination to give effect to the June 2020 decision was set out at Attachment A of the September 2020 decision. The draft variation determination incorporated the UWU’s proposed rewording of clause 21.5 and the provision of an additional two hours per week non-contact time for Educational Leaders, as follows:
‘5. By deleting clause 21.5(a) and inserting the following:
(a) Non-contact time will be provided for the purpose of planning, preparing, evaluating and programming activities. During non-contact time, an employee will not be required to supervise children or perform other duties as directed by the employer.
(i) An employee responsible for the preparation, implementation and/or evaluation of a developmental program for an individual child or group of children will be entitled to a minimum of two hours non-contact time per week.
(ii) The Educational Leader will be entitled to a minimum of four hours non-contact time per week.
NOTE: Educational leader is defined in Regulation 118 of the Education and Care Services National Regulations (2011).’
[24] Parties were invited to comment on the draft determination. The submissions received in response to the proposal are summarised in the October 2020 statement and need not be repeated here.
[25] For present purposes we need only mention that CCSA submitted that while it would be common practice for the Educational Leader of a service to also be responsible for the ‘preparation, implementation and/or evaluation of a developmental program for an individual child or group of children’, there is no absolute requirement that this be the case and that, as currently drafted, item 5 of the draft variation determination assumes that the Educational Leader always has both responsibilities. CCSA submitted that it is also possible that the new clause 21.5(a) will be misinterpreted so that the programming and Educational Leader non-contact times, 2 and 4 hours per week respectively, are treated as being cumulative (i.e. 6 hours per week) rather than the 2 hours of programming being included in the Educational Leader’s 4 hours of non-contact time.
[26] To address these concerns CCSA proposed that item 5 of the draft variation determination be varied as follows:
‘5. By deleting clause 21.5(a) and inserting the following:
(a) An employee responsible for the preparation, implementation and/or evaluation of a developmental program for an individual child or group of children will be entitled to a minimum of two hours non-contact time per week. During non-contact time, an employee will not be required to supervise children or perform other duties as directed by the employer.
(b) An employee appointed as the Educational Leader will be entitled to a minimum of two hours non-contact time per week. During non-contact time, an employee will not be required to supervise children or perform other duties as directed by the employer.
NOTE: Educational leader is defined in Regulation 118 of the Education and Care Services National Regulations (2011).
NOTE: The entitlements at sub-clauses (a) and (b) are cumulative. An Educational Leader who also has programming responsibilities for an individual child or group of children will be entitled to a minimum of four hours non-contact time per week.
By renumbering clause 21.5(b) as clause 21.5(c).’
[27] In the October 2020 statement we expressed the provisional view that the award be varied in the terms proposed by CCSA. This matter was the subject of a discussion at the conference before Commissioner Lee, at which all parties indicated support for our provisional view. The position of the respective parties was confirmed at the hearing.
[28] We confirm our provisional view and will vary the Children’s Award in the manner proposed by CCSA.
[29] For completeness we also note that the ECEC Employers decided not to press the inclusion of the reference to ‘A Room Leader’ in clause 21.5(a).
2.3 Clothing allowance
[30] At [545] of the June 2020 decision we decided to vary clause 15.2(c), as set out below:
‘Where an employee is required to wear protective clothing or equipment such as hats and sunscreen lotion, goggles, aprons or gloves, the employer will either supply such clothing or equipment or reimburse the employee for the cost of their purchase.’
[31] A draft variation determination to give effect to the June 2020 decision was set out at Attachment A of the September 2020 decision as follows:
‘4. By deleting clause 15.2(c) and inserting the following:
(c) Where an employee is required to wear protective clothing or equipment such as hats and sunscreen lotion, goggles, aprons or gloves, the employer will either supply such clothing or equipment or reimburse the employee for the cost of their purchase.’
[32] Parties were invited to comment on the draft determination.
[33] The UWU, ECEC Employers and AFEI did not oppose, or agreed with, the wording in the draft variation determination.
[34] CCSA supported the draft variation determination but submitted that to fully implement [545] of the June 2020 decision, item 4 of the draft variation determination also include the sentence ‘Reimbursement will be limited to reasonable costs incurred.’.
[35] In the October 2020 statement we agreed with CCSA and will add the sentence ‘Reimbursement will be limited to reasonable costs incurred’ at the end of clause 15.2(c).
[36] For the reasons given in the June 2020 decision and the October 2020 statement we will vary the Children’s Award by deleting clause 15.2(c) and inserting:
(c) Where an employee is required to wear protective clothing or equipment such as hats and sunscreen lotion, goggles, aprons or gloves, the employer will either supply such clothing or equipment or reimburse the employee for the cost of their purchase. Reimbursement will be limited to reasonable costs incurred.’
2.4 Minimum Engagement
[37] Clause 14.5 of the Teachers Award provides as follows:
‘14.5 Casual employee
(a) The salary payable to a casual employee will be:
(i) no higher than the salary at Level 8 in clause 14.1 where the employee is engaged for less than five consecutive days; or
(ii) where the employee is engaged for five or more consecutive days the salary will be the appropriate salary for the classification as specified in clause 13—Classifications,
calculated in accordance with the table below:
Full day Weekly rate calculated in accordance with clause 14.3 divided by 5 plus 25%
Half day Weekly rate calculated in accordance with clause 14.3 divided by 10 plus 25%
Quarter day Weekly rate calculated in accordance with clause 14.3 divided by 20 plus 25%
(b) Provided that:
(i) a casual employee in a school will be paid for a minimum of half a day; where a day is the usual required attendance time for an employee at that school and a half day is half the usual required attendance time; and
(ii) a casual employee in a children’s service or early childhood education service may be paid for a minimum of a quarter day.’
[38] In the June 2020 decision we agreed with the ECEC Employers’ characterisation of the clause, noting that it is unnecessarily complex. But we were not persuaded that the deficiencies in the clause were satisfactorily addressed in the IEU’s proposed variation.
[39] In the September 2020 decision we expressed the provisional view that clause 14.5 of the Teachers Award be varied to:
• provide that casual employees are paid the appropriate minimum classification rate plus a 25 percent casual loading for all time worked; and
• provide minimum engagement periods, consistent with the current award term.
[40] We also expressed the provisional view that there was utility in harmonising the casual minimum payment provisions relating to ECEC employers by providing that casual early childhood teachers working in early childhood services be subject to a two hour minimum engagement period (as specified in clause 10.5(c) of the Children’s Award).
[41] Parties were invited to comment on these provisional views. We summarised the submissions in the October 2020 statement and need not repeat them here.
[42] In relation to the IEU submission we made it clear that it was not our intention to vary the minimum engagement term in a manner that would reduce the minimum payments payable to casual teachers. We went on to note the following:
• the recent insertion of the half day and quarter day rates schedule has made the practical application of the existing minimum engagement term simpler;
• there is no direct evidence of employers breaching the current minimum engagement term;
• the ECEC Employers initially submitted that a variation to the minimum engagement term was unnecessary and that the evidence filed by the IEU was insufficient to warrant a change on the basis of ambiguity; 6 and
• in response to our provisional view in the June 2020 decision the IEU submitted that no change to the minimum engagement term was necessary (despite having initially raised the issue).
[43] In the October 2020 statement we expressed the following view in relation to this issue:
‘In these circumstances [that is in the circumstances set out in [37] above] we do not propose to vary the current minimum engagement term unless the parties are able to arrive at a consent position regarding the form of such a variation. We initially endeavoured to simplify the current term, without changing its substantive effect. It is apparent that this endeavour has not succeeded and given the present lack of consensus about the form of any variation and the absence of cogent evidence of a problem, we do not propose to take any further action in respect of this issue, absent a consensus between the major parties.’ 7
[44] This matter was the subject of a discussion at the conference before Commissioner Lee, at which the CCSA proposed the following variations to clause 17.5:
1. Delete reference to quarter day rates in the table at cl 17.5(b);
2. Amend cl 17.5(c) of the Educational Services (Teachers) Award 2020 to read:
17.5 Casual employee rates
(c) Minimum payments
(i)Where a day is the usual required attendance time for an employee at a particular school and a half day is half the usual required attendance time; a casual employee in a school will be paid for a minimum of half a day.
(ii) A casual employee in a children’s service or early childhood education service will be paid for a minimum of:
(x) where they are required to work for up to 2 hours, 2 hours;
(xx) where they are required to work for more than 2 hours and up to 4 hours, 4 hours; and
(xxx) where they are required to work for more than 4 hours and up to a full day, the full day rate, based on their appropriate hourly rate.
NOTE: The relevant full day rate is shown at Table B.1.1 and the relevant 2 hour and 4 hour rates are shown at Tables B.1.3 and B.1.4.
NOTE: Appropriate hourly rate is calculated by dividing the relevant full day rate by 7.6.
3. Amend Table B.1.2 by deleting the column for quarter day rate for All employees (excluding Schedule A)and deleting both columns for Teachers employed in early childhood services operating for at least 48 weeks per year (Schedule A)and renaming as B.1.2 Casual employees – half day rates;
4. Insert new table:
Table B.1.3 Casual employees – minimum rates of pay for teachers employed in early childhood services NOT operating for at least 48 weeks per year
Level |
2 hour rate ($) |
4 hour rate ($) |
Level 1 |
66.10 |
132.20 |
Level 2 |
67.46 |
134.92 |
Level 3 |
69.28 |
138.56 |
Level 4 |
71.78 |
143.56 |
Level 5 |
74.28 |
148.56 |
Level 6 |
76.62 |
153.24 |
Level 7 |
78.94 |
157.88 |
Level 81 |
81.44 |
162.88 |
Level 9 |
83.94 |
167.88 |
Level 10 |
86.44 |
172.88 |
Level 11 |
88.96 |
177.92 |
Level 12 |
91.46 |
182.92 |
1Where an employee is engaged for less than 5 consecutive days, the minimum rate payable to a casual employee will be no higher than the wage at Level 8.
5. Insert a new table:
Table B.1.4 Casual employees – minimum rates of pay for teachers employed in early childhood services operating for at least 48 weeks per year
Level |
2 hour rate ($) |
4 hour rate ($) |
Overtime hourly rate beyond 8hr in a day @ 150% (First 3 hours) |
Overtime hourly rate beyond 8hr in a day @ 200% (Subsequent hours) |
Level 1 |
68.74 |
137.48 |
51.56 |
68.74 |
Level 2 |
70.16 |
140.32 |
52.62 |
70.16 |
Level 3 |
72.06 |
144.12 |
54.05 |
72.06 |
Level 4 |
74.66 |
149.32 |
56.00 |
74.66 |
Level 5 |
77.26 |
154.52 |
57.95 |
77.26 |
Level 6 |
79.68 |
159.36 |
59.76 |
79.68 |
Level 7 |
82.10 |
164.20 |
61.58 |
82.10 |
Level 81 |
84.70 |
169.40 |
63.53 |
84.70 |
Level 9 |
87.30 |
174.60 |
65.48 |
87.30 |
Level 10 |
89.90 |
179.80 |
67.43 |
89.90 |
Level 11 |
92.50 |
185.00 |
69.38 |
92.50 |
Level 12 |
95.10 |
190.20 |
71.33 |
95.10 |
1Where an employee is engaged for less than 5 consecutive days, the minimum rate payable to a casual employee will be no higher than the wage at Level 8.
[45] The UWU, IEU and the ECEC Employers supported the variation proposed by CCSA. AFEI neither supported nor opposed the proposal.
[46] We agree with the CCSA’s proposed variation; it expresses the existing entitlement in a manner which is simpler and easier to understand.
2.5 Coverage
[47] In the June 2020 decision we raised an issue on our own initiative, regarding the administrative issues for ECEC employers arising from multiple award coverage.
[48] At [559] of the June 2020 decision we addressed this issue:
‘We see no good reason why the operator of an ECEC centre should have to refer to two awards in order to determine the terms and conditions applicable to the employees at their centre. It is our provisional view that the relevant part of the Teachers Award be transferred to the Children’s Services Award’.
[49] We invited submissions in response to our provisional view.
[50] In the September 2020 decision we acknowledged that the IEU and all but one of the employer organisations did not support our provisional view that the relevant part of the Teachers Award be transferred to the Children’s Award. Given the views expressed we decided not to press our provisional view; but went on to say:
‘while the industrial parties participating in this case do not support the transfer of parts of the Teachers Award to the Children’s Award, there may be an alternative means of addressing this issue – namely by replicating the relevant wage rates from the Teachers Award in a schedule to the Children’s Award and by providing a cross reference to the other applicable clauses in the Teachers Award (with a hyperlink to those clauses). Such an approach would obviate the need for an ECEC employer to access two awards while retaining all relevant terms in the Teachers Award. An illustration of such an approach is set out at Item 11 in the draft variation determination set out at Attachment A.’ 8
[51] Interested parties were invited to comment on this proposal. The submissions received in response to the proposal are summarised in the October 2020 statement and need not be repeated here. Suffice to say that no party supported the proposal set out in the September 2020 decision.
[52] For present purposes we need only mention that while the IEU opposed our proposal it went on to advance an alternate proposition:
‘The proposal is better expressed as a note to cl.14, ideally with a hyperlink, indicating that wage rates for teachers are found in the Teachers Award. This would seem to achieve the stated goal of simplicity and ease of use, without sacrificing security of employee entitlements.
Alternatively, a note could be included directing employers to the convenient wage schedules produced by the Fair Work Ombudsman, by which employers – noting that multiple award coverage is far from unusual, and not an anomaly unique to the ECEC sector – can easily check the appropriate wage rates for all of their employees. The convenience and ease of this, as well as the reality of whether the present system causes actual inconvenience for employers, are matters which the IEU would have put into evidence had this issue been live during the hearing of this matter. In the event that this is controversial, the IEU would seek leave to put on such material.’ 9
[53] Further, CCSA proposed that the issue we had raised be addressed by inserting a new clause 4.8 of the Children’s Services Award 2010 to include the following additional awards, including hyperlinks to those awards:
‘4.8 This award does not cover an employee in an early childhood service who is covered by:
(a) the Clerks – Private Sector Award 2020 (for administrative staff)
(b) the Educational Services (Teachers) Award 2020 including Schedule A (for early childhood teachers employed as such in early childhood services operating for at least 48 weeks per year)
(c) the Educational Services (Teachers) Award 2020 not including Schedule A (for early childhood teachers employed as such in preschools / kindergartens)
(d) the Health Professional and Support Services Award 2020 (for health professionals employed as such in early childhood intervention and other early childhood services)
(e) the Social, Community, Home Care and Disability Services Industry Award 2010 (for employees in the family day care and social and community services streams)
[54] In support of this proposal CCSA submitted that:
‘small businesses are better served by having the terms and conditions of their employees clearly delineated in specific awards, rather than trying to amalgamate all the various conditions into an omnibus document which tends to cause confusion.’ 10
[55] Interested parties were invited to comment on the IEU’s alternative proposal and CCSA’s proposed insertion of a new clause 4.8. This matter was the subject of discussions at the conference before Commissioner Lee.
[56] During the course of the hearing a general consensus emerged to the effect that no variation be made to the Children’s Award. Given the views of the parties we do not propose to vary the awards to address the issue we raised in the June 2020 decision.
[57] For the reasons given we propose to vary the Children’s Award in the manner set out in Attachment A and the Teachers Award in the manner set out in Attachment B. The amendments set out at Attachment A and B will also be issued as separate variation determinations.
[58] As noted in the June 2020 decision, 11 the claims for an Educational Leader Allowance and a Responsible Person Allowance will be listed for mention after the Full Bench in C2013/333 and AM2018/9 has handed down its decision.
PRESIDENT
Appearances
Mr J Arndt and Ms S Whish for the ECEC Employers
Ms L Stevens and Ms G Kavanagh for the United Workers Union
Mr J Gunn for Community Connections Solutions Australia Ltd
Ms S Lo for Australian Federation of Employers and Industry
Mr M Wright for the Independent Education Union
Hearing details:
By telephone.
2020.
October 16.
Printed by authority of the Commonwealth Government Printer
<PR723620>
MA000120 PRXXXXXX
Fair Work Act 2009
s.156—4 yearly review of modern awards
4 yearly review of modern awards
(AM2018/18)
CHILDREN’S SERVICES AWARD 2010
[MA000120]
Children's services | |
JUSTICE ROSS, PRESIDENT |
MELBOURNE, 19 OCTOBER 2020 |
4 yearly review of modern awards – Award stage – Group 4 awards – Children’s Services Award 2010 – Substantive issues.
A. Further to the Full Bench decisions issued by the Fair Work Commission on 10 June 2020 [[2020] FWCFB 3011] and 19 October 2020 [[2020] FWCFB 5531], the above award is varied as follows:
1. By deleting clause 10.4(d) and inserting:
(d) (i) Changes in the agreed regular pattern of work may only be made by agreement in writing between the employer and employee. Changes in the days to be worked or in starting and/or finishing times (whether on-going or ad hoc) may also be made by agreement in writing. An agreement in writing may be made by any electronic means of communication.
(ii) Where agreement cannot be reached, the employer may change the days the employee is to work by giving seven days’ notice in advance of the change in accordance with clause 21—Ordinary hours of work and rostering.
(iii) The employer is not required to provide the full 7 days’ notice of change of the days an employee is to work where the employer makes the change as a result of an emergency outside of the employer’s control.
(iv) If the employer changes the roster in an emergency, the overtime provisions in clause 23.2–Overtime rates apply.
(v) In clause 10.4(d)(iii), emergency means:
• a situation or event that poses an imminent or severe risk to the persons at an education and care service premises (for example, a fire at the education and care services premises); or
• a situation that requires the education and care service premises to be locked-down (for example, an emergency government direction).
2. By deleting clause 15.2(c) and inserting the following:
(c) Where an employee is required to wear protective clothing or equipment such as hats and sunscreen lotion, goggles, aprons or gloves, the employer will either supply such clothing or equipment or reimburse the employee for the cost of their purchase. Reimbursement will be limited to reasonable costs incurred.
3. By deleting clause 21.5(a) and inserting the following:
(a) An employee responsible for the preparation, implementation and/or evaluation of a developmental program for an individual child or group of children will be entitled to a minimum of two hours non-contact time per week. During non-contact time, an employee will not be required to supervise children or perform other duties as directed by the employer.
(b) An employee appointed as the Educational Leader will be entitled to a minimum of two hours non-contact time per week. During non-contact time, an employee will not be required to supervise children or perform other duties as directed by the employer.
NOTE 1: Educational leader is defined in Regulation 118 of the Education and Care Services National Regulations (2011).
NOTE 2: The entitlements at clauses 21.5(a) and 21.5(b) are cumulative. An Educational Leader who also has programming responsibilities for an individual child or group of children will be entitled to a minimum of four hours non-contact time per week.
4. By renumbering clause 21.5(b) as clause 21.5(c).
5. By deleting clause 21.7(b) and inserting:
(d) (i) Changes in the agreed regular pattern of work may only be made by agreement in writing between the employer and employee. Changes in the days to be worked or in starting and/or finishing times (whether on-going or ad hoc) may also be made by agreement in writing. An agreement in writing may be made by any electronic means of communication.
(ii) Where agreement cannot be reached, the employer may change the days the employee is to work by giving seven days’ notice in advance of the change in accordance with clause 21—Ordinary hours of work and rostering.
(iii) The employer is not required to provide the full 7 days’ notice of change of the days an employee is to work where the employer makes the change as a result of an emergency outside of the employer’s control.
(iv) If the employer changes the roster in an emergency, the overtime provisions in clause 23.2–Overtime rates apply.
(v) In clause 21.7(b)(ii), emergency means:
• a situation or event that poses an imminent or severe risk to the persons at an education and care service premises (for example, a fire at the education and care services premises); or
• a situation that requires the education and care service premises to be locked-down (for example, an emergency government direction).
B. This determination comes into operation from 1 November 2020. In accordance with s.165(3) of the Fair Work Act 2009 this determination does not take effect in relation to a particular employee until the start of the employee’s first full pay period that starts on or after 1 November 2020.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
ATTACHMENT B
MA000077 PRXXXXXX
Fair Work Act 2009
s.156—4 yearly review of modern awards
4 yearly review of modern awards
(AM2018/20)
EDUCATIONAL SERVICES (TEACHERS) AWARD 2020
[MA000077]
Educational services | |
JUSTICE ROSS, PRESIDENT |
MELBOURNE, 19 OCTOBER 2020 |
4 yearly review of modern awards –Award stage – Group 4 awards – Educational Services (Teachers) Award 2020 – Substantive issues.
A. Further to the Full Bench decisions issued by the Fair Work Commission on 10 June 2020 [[2020] FWCFB 3011] and 19 October 2020 [[2020] FWCFB 5531], the above award is varied as follows:
1. By deleting the table appearing at clause 17.5(b) and inserting :
Full day |
Weekly rate calculated in accordance with clause 17.3 divided by 5 plus 25% |
Half day |
Weekly rate calculated in accordance with clause 17.3 divided by 10 plus 25% |
2. By deleting clause 17.5(c) and inserting:
(c) Minimum payments
(i) Where a day is the usual required attendance time for an employee at a particular school and a half day is half the usual required attendance time; a casual employee in a school will be paid for a minimum of half a day.
(ii) A casual employee in a children’s service or early childhood education service will be paid for a minimum of:
• where they are required to work for up to 2 hours, 2 hours;
• where they are required to work for more than 2 hours and up to 4 hours, 4 hours; and
• where they are required to work for more than 4 hours and up to a full day, the full day rate, based on their appropriate hourly rate.
NOTE 1: The relevant full day rate is shown at Table B.1.1 and the relevant 2 hour and 4 hour rates are shown at Tables B.1.3 and B.1.4.
NOTE 2: The appropriate hourly rate is calculated by dividing the relevant full day rate by 7.6.
3. By deleting the table appearing at clause B.1.2 and inserting the following table:
B.1.2 Casual employees—half day rates
All employees (excluding Schedule A) | |
All employees |
Half day rate |
$ | |
Level 1 |
125.58 |
Level 2 |
128.16 |
Level 3 |
131.65 |
Level 4 |
136.40 |
Level 5 |
141.15 |
Level 6 |
145.58 |
Level 7 |
150.00 |
Level 82 |
154.75 |
Level 9 |
159.50 |
Level 10 |
164.25 |
Level 11 |
169.01 |
Level 12 |
173.75 |
4. By inserting a new clause B.1.3:
B.1.3 Casual employees – minimum rates of pay for teachers employed in early childhood services NOT operating for at least 48 weeks per year
Level |
2-hour rate |
4-hour rate |
$ |
$ | |
Level 1 |
66.10 |
132.20 |
Level 2 |
67.46 |
134.92 |
Level 3 |
69.28 |
138.56 |
Level 4 |
71.78 |
143.56 |
Level 5 |
74.28 |
148.56 |
Level 6 |
76.62 |
153.24 |
Level 7 |
78.94 |
157.88 |
Level 81 |
81.44 |
162.88 |
Level 9 |
83.94 |
167.88 |
Level 10 |
86.44 |
172.88 |
Level 11 |
88.96 |
177.92 |
Level 12 |
91.46 |
182.92 |
1Where an employee is engaged for less than 5 consecutive days, the minimum rate payable to a casual employee will be no higher than the wage at Level 8.
5. By inserting a new clause B.1.4:
B.1.4 Casual employees – minimum rates of pay for teachers employed in early childhood services operating for at least 48 weeks per year
Level |
2-hour rate |
4-hour rate |
Overtime - first 3 hours |
Overtime - after 3 hours |
% of minimum hourly rate | ||||
150% |
200% | |||
$ |
$ |
$ |
$ | |
Level 1 |
68.74 |
137.48 |
51.56 |
68.74 |
Level 2 |
70.16 |
140.32 |
52.62 |
70.16 |
Level 3 |
72.06 |
144.12 |
54.05 |
72.06 |
Level 4 |
74.66 |
149.32 |
56.00 |
74.66 |
Level 5 |
77.26 |
154.52 |
57.95 |
77.26 |
Level 6 |
79.68 |
159.36 |
59.76 |
79.68 |
Level 7 |
82.10 |
164.20 |
61.58 |
82.10 |
Level 81 |
84.70 |
169.40 |
63.53 |
84.70 |
Level 9 |
87.30 |
174.60 |
65.48 |
87.30 |
Level 10 |
89.90 |
179.80 |
67.43 |
89.90 |
Level 11 |
92.50 |
185.00 |
69.38 |
92.50 |
Level 12 |
95.10 |
190.20 |
71.33 |
95.10 |
1Where an employee is engaged for less than 5 consecutive days, the minimum rate payable to a casual employee will be no higher than the wage at Level 8.
B. This determination comes into operation from 1 November 2020. In accordance with s.165(3) of the Fair Work Act 2009 this determination does not take effect in relation to a particular employee until the start of the employee’s first full pay period that starts on or after 1 November 2020.
PRESIDENT
2 The 2020 Teachers Award came into operation on 1 October 2020, see [2020] FWCFB 4875.
5 AFEI submission at para 5.
6 See [2020] FWCFB 3011 at [495] – [500].
7 [2020] FWCFB 5459 at [54].
8 [2020] FWCFB 5176 at [78].
9 IEU submission, at paras 13 – 14.
10 CCSA submission, at page 4.
11 See [2020] FWCFB 3011 at [17], [18], [554], [555].