MA000077  PR722695
FAIR WORK COMMISSION

DETERMINATION

Fair Work Act 2009
s.156—4 yearly review of modern awards

4 yearly review of modern awards
(AM2020/24)

EDUCATIONAL SERVICES (TEACHERS) AWARD 2010
[MA000077]

Educational services

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT CLANCY
COMMISSIONER BISSETT

SYDNEY, 10 SEPTEMBER 2020

4 yearly review of modern awards – Educational Services (Teachers) Award 2010 – modern award varied and renamed Educational Services (Teachers) Award 2010.

A. Further to the decision [[2020] FWCFB 4875] issued by the Full Bench of the Fair Work Commission on 10 September 2020, the Educational Services (Teachers) Award 2010 is varied as follows:

1. By deleting all clauses, schedules and appendices.

2. By inserting the clauses and schedules attached.

B. This determination comes into operation from 1 October 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 October 2020.

al of the Fair Work Commission with Member's signature.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

Educational Services (Teachers) Award 2020

Table of Contents

Part 1— Application and Operation of this Award 3
1. Title and commencement 3
2. Definitions 3
3. The National Employment Standards and this award 5
4. Coverage 5
5. Individual flexibility arrangements 6
6. Requests for flexible working arrangements 8
7. Facilitative provisions 9
Part 2— Types of Employment and Classifications 10
8. Types of employment 10
9. Terms of engagement 10
10. Full-time employees 11
11. Part-time employees 11
12. Casual employees 11
13. Fixed term employees 12
14. Classifications 12
Part 3— Hours of Work 13
15. Ordinary hours of work 13
16. Breaks 14
Part 4— Wages and Allowances 15
17. Minimum rates 15
18. Payment of wages 17
19. Allowances 18
20. Superannuation 20
Part 5— Leave and Public Holidays 22
21. Annual leave 22
22. Pro rata payment of salary inclusive of annual leave 22
23. Annual leave loading 24
24. Personal/carer’s leave and compassionate leave 25
25. Parental leave and related entitlements 25
26. Community service leave 25
27. Unpaid family and domestic violence leave 25
28. Public holidays 25
Part 6— Consultation and Dispute Resolution 26
29. Consultation about major workplace change 26
30. Consultation about changes to rosters or hours of work 27
31. Dispute resolution 27
Part 7— Termination of Employment and Redundancy 28
32. Termination of employment 28
33. Redundancy 29
Schedule A —Hours of Work and Related Matters—Teachers employed in early childhood services operating for at least 48 weeks per year 32
Schedule B —Summary of Rates of Pay 40
Schedule C —Summary of Monetary Allowances 42
Schedule D —Agreement for Time Off Instead of Payment for Overtime 44
Schedule E —Agreement to Take Annual Leave in Advance 45
Schedule F —Agreement to Cash Out Annual Leave 46
Schedule G —Part-day Public Holidays 47

Part 1—Application and Operation of this Award

1. Title and commencement

1.1 This award is the Educational Services (Teachers) Award 2020.

1.2 This modern award commenced operation on 1 January 2010. The terms of the award have been varied since that date.

1.3 A variation to this award does not affect any right, privilege, obligation or liability that a person acquired, accrued or incurred under the award as it existed prior to that variation.

2. Definitions

In this award, unless the contrary intention appears:

3. The National Employment Standards and this award

3.1 The National Employment Standards (NES) and this award contain the minimum conditions of employment for employees covered by this award.

3.2 Where this award refers to a condition of employment provided for in the NES, the NES definition applies.

3.3 The employer must ensure that copies of the award and the NES are available to all employees to whom they apply, either on a notice board which is conveniently located at or near the workplace or through accessible electronic means.

4. Coverage

4.1 This industry award covers employers throughout Australia in the school education industry, children’s services and early childhood education industry and their employees as defined in clause 2Definitions to the exclusion of any other modern award.

4.2 For the purposes of this award:

(a) school education industry means the provision of education, including preschool or early childhood education, in a school registered and/or accredited under the relevant authority in each State or Territory or in an early childhood service operated by a school and includes all operations of the school. Where the provision of school education is directed, managed and/or controlled by a central or regional administration of a system of schools it may also include the persons involved in providing such services to schools; and

(b) children’s services and early childhood education industry means the industry of long day care, occasional care (including those occasional care services not licensed), nurseries, childcare centres, day care facilities, family based childcare, out-of-school hours care, vacation care, adjunct care, in-home care, kindergartens and preschools, mobile centres and early childhood intervention programs.

4.3 This award covers any employer which supplies labour on an on-hire basis in the school education industry and the children’s services and early childhood education industry in respect of on-hire employees in classifications covered by this award, and those on-hire employees, while engaged in the performance of work for a business in those industries. Clause 4.3 operates subject to the exclusions from coverage in this award.

4.4 This award does not cover:

(a) a person engaged solely to instruct students on an individual basis for example, in the areas of music, language, dance and/or to instruct students in choir, band, string ensemble or other similar small group (but not including an employee teaching the school curriculum);

(b) a sports coach, assistant, or trainer (other than a member of the teaching staff of a school);

(c) a person employed as a teacher/integration aide, helper, classroom assistant, or director/supervisor in or in connection with childcare, preschool, long day care centres, childminding centres or outside of school hours care services (other than a university qualified early childhood teacher);

(d) a member of a recognised religious teaching order and/or Minister of Religion (other than a teacher who is not engaged in that capacity) or a person engaged for the purpose of religious instruction, supervision of prayers, or to undertake other religious duties of a non-teaching nature; or

(e) a principal or deputy principal, however named.

4.5 The award does not cover:

(a) an employee excluded from award coverage by the Act;

(b) employees who are covered by a modern enterprise award, or an enterprise instrument (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees;

(c) who are covered by a State reference public sector modern award, or a State reference public sector transitional award (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees;

4.6 Where an employer is covered by more than one award, an employee of that employer is covered by the classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.

5. Individual flexibility arrangements

5.1 Despite anything else in this award, an employer and an individual employee may agree to vary the application of the terms of this award relating to any of the following in order to meet the genuine needs of both the employee and the employer:

(a) arrangements for when work is performed; or

(b) overtime rates; or

(c) penalty rates; or

(d) allowances; or

(e) annual leave loading.

5.2 An agreement must be one that is genuinely made by the employer and the individual employee without coercion or duress.

5.3 An agreement may only be made after the individual employee has commenced employment with the employer.

5.4 An employer who wishes to initiate the making of an agreement must:

(a) give the employee a written proposal; and

(b) if the employer is aware that the employee has, or reasonably should be aware that the employee may have, limited understanding of written English, take reasonable steps (including providing a translation in an appropriate language) to ensure that the employee understands the proposal.

5.5 An agreement must result in the employee being better off overall at the time the agreement is made than if the agreement had not been made.

5.6 An agreement must do all of the following:

(a) state the names of the employer and the employee; and

(b) identify the award term, or award terms, the application of which is to be varied; and

(c) set out how the application of the award term, or each award term, is varied; and

(d) set out how the agreement results in the employee being better off overall at the time the agreement is made than if the agreement had not been made; and

(e) state the date the agreement is to start.

5.7 An agreement must be:

(a) in writing; and

(b) signed by the employer and the employee and, if the employee is under 18 years of age, by the employee’s parent or guardian.

5.8 Except as provided in clause 5.7(b), an agreement must not require the approval or consent of a person other than the employer and the employee.

5.9 The employer must keep the agreement as a time and wages record and give a copy to the employee.

5.10 The employer and the employee must genuinely agree, without duress or coercion to any variation of an award provided for by an agreement.

5.11 An agreement may be terminated:

(a) at any time, by written agreement between the employer and the employee; or

(b) by the employer or employee giving 13 weeks’ written notice to the other party (reduced to 4 weeks if the agreement was entered into before the first full pay period starting on or after 4 December 2013).

5.12 An agreement terminated as mentioned in clause 5.11(b) ceases to have effect at the end of the period of notice required under that clause.

5.13 The right to make an agreement under clause 5 is additional to, and does not affect, any other term of this award that provides for an agreement between an employer and an individual employee.

6. Requests for flexible working arrangements

6.1 Employee may request change in working arrangements

6.2 Responding to the request

(a) the needs of the employee arising from their circumstances;

(b) the consequences for the employee if changes in working arrangements are not made; and

(c) any reasonable business grounds for refusing the request.

6.3 What the written response must include if the employer refuses the request

(a) Clause 6.3 applies if the employer refuses the request and has not reached an agreement with the employee under clause 6.2.

(b) The written response under section 65(4) must include details of the reasons for the refusal, including the business ground or grounds for the refusal and how the ground or grounds apply.

(c) If the employer and employee could not agree on a change in working arrangements under clause 6.2, then the written response under section 65(4) must:

6.4 What the written response must include if a different change in working arrangements is agreed

6.5 Dispute resolution

7. Facilitative provisions

7.1 A facilitative provision provides that the standard approach in an award provision may be departed from by agreement between an employer and an individual employee, or an employer and the majority of employees in the enterprise or part of the enterprise concerned.

7.2 Facilitative provisions in this award are contained in the following clauses:

Clause

Provision

Agreement between an employer and:

28.2

Substitution of public holidays

An individual

A.1.3

Ordinary hours of work—teachers employed in early childhood services

An individual

A.4.2

Time off instead of overtime payment

An individual

A.6.1

Annual leave in advance

An individual

A.6.2

Cashing out of annual leave

An individual

   

Part 2—Types of Employment and Classifications

8. Types of employment

8.1 Employees under this award will be employed in one of the following categories:

(a) full-time employment;

(b) part-time employment;

(c) casual employment; or

(d) fixed term employment.

9. Terms of engagement

9.1 On appointment, the employer will provide the employee (other than a casual employee) with a letter of appointment stating:

(a) the classification and rate of salary applicable on commencement;

(b) the employee’s face-to-face teaching load; and

(c) details of their extra curricular commitment.

9.2 In the case of a part-time employee, the letter of appointment will include the employee’s teaching load expressed as a percentage of a full-time load in the school and state their extra curricular commitment will generally be, on balance, in the same proportion to their teaching load as that of a full-time teacher.

9.3 Where the employer engages the employee on a fixed term basis, the letter of appointment will inform the employee of:

(a) the reason the employment is fixed term;

(b) the date of commencement; and

(c) the period of the employment.

10. Full-time employees

A full-time employee is engaged to work an average of 38 ordinary hours per week.

11. Part-time employees

11.1 A part-time employee is an employee who is engaged to work on a regular basis for less than, but not more than 90% of, the hours of a full-time employee in the school, children’s service, or early childhood education service.

11.2 If the hours of a part-time employee rise above 90% of the hours of a full-time employee, the employee will be considered full-time.

11.3 A part-time employee who requests to work above 90% of full-time hours, but less than full-time, will not be considered to be full-time and will be remunerated for the actual hours worked.

11.4 A part-time employee is entitled to the benefits under this award on a pro rata basis. The pro rata basis will be calculated by dividing the number of face-to-face teaching hours prescribed for the part-time employee from time to time by the usual number of face-to-face teaching hours prescribed for a full-time employee in the school, children’s service or early childhood education service.

11.5 An employer cannot vary a part-time employee’s teaching load or days of attendance unless:

(a) the employee consents; or

(b) where such a variation is required as a result of a change in funding, enrolment or curriculum, the employer provides 7 weeks’ notice in writing in the case of a school teacher or 4 weeks’ notice in the case of an early childhood teacher, or where the change would result in a reduction in salary, the salary of the teacher is maintained for a period of 7 weeks in the case of a school teacher or 4 weeks in the case of an early childhood teacher.

12. Casual employees

12.1 Casual employment means employment on a day-to-day basis for a period of not more than 4 consecutive weeks, or 4 consecutive term weeks in the case of a teacher in a school or preschool.

12.2 A casual engagement may be extended by agreement between the teacher and the employer provided the total period of the engagement:

(a) does not exceed one school term in the case of teachers in a school or preschool; or

(b) a total of 10 weeks in any other case.

12.3 The rates of pay for a casual employee are contained in clause 17.5.

13. Fixed term employees

13.1 An employee may be employed for a fixed period of time for a period of at least 4 weeks but not more than 12 months on either a full-time or part-time basis to:

(a) undertake a specified project for which funding has been made available;

(b) undertake a specified task which has a limited period of operation; or

(c) replace an employee who is on leave, performing other duties temporarily or whose employment has terminated after the commencement of the school year.

13.2 Where the replacement arrangement under clause 13.1(c) extends beyond 12 months, the fixed term employment may be extended for up to a further 12 months.

14. Classifications

14.1 Duties of an employee

The duties of a teacher may, include, in addition to teaching, activities associated with administration, review, development and delivery of educational programs and co-curricular activities.

14.2 Recognition of previous service

(a) On appointment, an employee will be classified and placed on the appropriate level on the wage scale in clause 17Minimum rates, according to their qualifications and teaching experience. For the purpose of this award teaching experience does not include employment as a teacher in a TAFE program (unless the teacher is employed to teach a Vocational and Educational Training (VET) program) or in an English Language School.

(b) Service as a part-time teacher will normally accrue on a pro rata basis according to the percentage of a full-time teaching load undertaken in any year. However, subject to clause 11.3, where the hours are more than 90% of a full-time load, service will count as a full-time year.

(c) In the case of a casual employee, the equivalent of a full-time year of teaching service is 200 full casual days in Australian schools.

(d) In the case of an early childhood/preschool teacher, the following will count as service:

14.3 Evidence of qualifications

(a) On engagement, the employer may require that the employee provide documentary evidence of qualifications and teaching experience.

(b) If an employer considers that the employee has not provided satisfactory evidence, and advises the employee in writing to this effect, then the employer may decline to recognise the relevant qualification or experience until evidence is provided. The employer will not unreasonably refuse to recognise the qualifications or teaching experience of an employee.

(c) Where an employee has completed further teaching experience with another employer (for example during unpaid leave) or additional qualifications after commencement of employment, they will be entitled to be classified accordingly and back paid from the date of completion of the experience or qualifications, provided the employee provided satisfactory evidence to the employer within 3 months of completion. In all other cases the employee will be classified and paid from the date satisfactory evidence is provided.

14.4 Progression

(a) An employee who is 3 year trained will commence on Level 1 of the wage scale in clause 17Minimum rates and progress according to normal years of service to Level 12 of the scale.

(b) An employee who is 4 year trained will commence on Level 3 of the wage scale in clause 17Minimum rates and progress according to normal years of service to Level 12.

(c) An employee who is 5 year trained will commence on Level 4 of the wage scale in clause 17Minimum rates and progress according to normal years of service to Level 12 of the scale.

(d) All other teachers and 2 year trained teachers as defined in clause 2Definitions will commence on Level 1 of the wage scale in clause 17Minimum rates and progress according to normal years of service to a maximum of Level 5.

Part 3—Hours of Work

15. Ordinary hours of work

15.1 Clause 15 of the award provides for industry specific detail and supplements the NES that deals with maximum weekly hours.

15.2 Clause 15 does not apply to teachers, including a teacher appointed as a Director, employed in an early childhood service which operates for 48 or more weeks per year who are covered by the provisions of Schedule A—Hours of Work and Related Matters—Teachers employed in early childhood services operating for at least 48 weeks per year.

15.3 Notwithstanding the NES, and due to the operational requirements of employers in the industry, the ordinary hours of an employee under this award may be averaged over a 12 month period.

15.4 The ordinary hours of work for an employee during term weeks are variable. In return, an employee is not generally required to attend for periods of time when the students are not present, subject to the needs of the employer with regard to professional development, student free days and other activities requiring the employee’s attendance.

15.5 The maximum number of days that the employee will be required to attend during term weeks and non-term weeks is 205 in each school year.

15.6 The following circumstances are not included when calculating the 205 employee attendance days:

(a) co-curricular activities that are conducted on a weekend;

(b) school related overseas and interstate trips, conferences and similar activities undertaken by mutual consent during non-term weeks;

(c) when the employee appointed to a leadership position is performing duties in non-term weeks that are directly associated with the leadership position;

(d) when the employee has boarding house responsibilities and the employee is performing those duties during term weeks and non-term weeks; and

(e) exceptional circumstances, such as the requirement to provide pastoral care to students in the event of a tragedy in the school community, in which an employee may be recalled to perform duties relating to their position.

15.7 The provision of clause 15.5 does not apply to employers that adhere to the calendar and school year of a foreign country.

15.8 The employer will provide written notice of the term weeks and days in non-term times on which the employees are required to attend, 6 months in advance of the requirement to attend.

15.9 The annual salary and any applicable allowances payable under this award are paid in full satisfaction of an employee’s entitlements for the school year or a proportion of the school year. The employee’s absence from school during non-term weeks is deemed to include their entitlement to annual leave.

16. Breaks

16.1 Unpaid meal break

(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.

(b) Clause 16.1(a) does not apply to teachers employed in early childhood services operating for at least 48 weeks per year who are covered by the provisions of Schedule A—Hours of Work and Related Matters—Teachers employed in early childhood services operating for at least 48 weeks per year.

16.2 Paid meal break

Part 4—Wages and Allowances

17. Minimum rates

NOTE: A transitional pay equity order taken to have been made pursuant to item 30A of Schedule 3A to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) has effect in accordance with that item. A relevant transitional pay equity order operates in Queensland as provided for in item 30A (6) and (7).

17.1 The minimum wage payable to a full-time employee will be determined in accordance with the provisions of clause 14Classifications, and the following table.

Classification

Minimum annual rate
(full-time employee)

 

$

Level 1

52,420

Level 2

53,500

Level 3

54,956

Level 4

56,938

Level 5

58,922

Level 6

60,769

Level 7

62,615

Level 8

64,597

Level 9

66,582

Level 10

68,565

Level 11

70,550

Level 12

72,531

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 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 15Ordinary hours of work.

17.3 The weekly rate of pay for an employee will be determined by dividing the annual rate by 52.18 and the fortnightly rate by dividing the annual rate by 26.09.

17.4 Part-time employee rates

17.5 Casual employee rates

(a) The minimum rate payable to a casual employee will be:

(b) The minimum rate for a casual employee will be calculated in accordance with the following table:

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%

Quarter day

Weekly rate calculated in accordance with clause 17.3 divided by 20 plus 25%

18. Payment of wages

NOTE: Regulations 3.33(3) and 3.46(1)(g) of Fair Work Regulations 2009 set out the requirements for pay records and the content of payslips including the requirement to separately identify any allowance paid.

18.1 All monies payable will be paid:

(a) once each fortnight with the payment, excepting teachers being employed pursuant to Schedule A—Hours of Work and Related Matters—Teachers employed in early childhood services operating for at least 48 weeks per year being made no later than the last working day of each fortnight;

(b) once every 4 weeks at the end of the first fortnight which includes payment for 2 weeks in arrears and 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.

18.2 An employer may elect to pay wages and allowances by cash, cheque or direct transfer. Where monies are paid by direct transfer, the employee has the right to nominate the financial institution and the account.

18.3 Payment on termination of employment

(a) The employer must pay an employee no later than 7 days after the day on which the employee’s employment terminates:

(b) The requirement to pay wages and other amounts under clause 18.3(a) is subject to further order of the Commission and the employer making deductions authorised by this award or the Act.

19. Allowances

NOTE: Regulations 3.33(3) and 3.46(1)(g) of Fair Work Regulations 2009 set out the requirements for pay records and the content of payslips including the requirement to separately identify any allowance paid.

19.1 Employers must pay to an employee the allowances the employee is entitled to under clause 19.

19.2 Wage-related allowances—director’s allowance

(a) Clause 19.2 applies only to an early childhood/preschool teacher who is appointed as a Director.

(b) A full-time employee who is appointed as a Director will be paid, in addition to the amounts payable under clause 17Minimum rates, the following allowance which is based on a percentage of the standard rate, and calculated on the basis of the number of places in the centre for which they are responsible:

Level

Number of places

$ per annum

1

Up to 39 places

6028.30

2

40–59 places

7469.85

3

60 or more places

9068.66

(c) A part-time employee who is appointed as a Director will be paid, in addition to the amounts payable under clause 17Minimum rates, an allowance in accordance with the table in clause 19.2(b), on a proportionate basis to the hours they work.

(d) An employee required by the employer to act as a Director for at least 10 consecutive working days will be paid at the rate applicable to that position for the time they are in the position.

19.3 Wage-related allowances—leadership allowance

(d) The assignment of a position to a particular level in clause 19.3 will reflect the graduation of responsibilities exercised in each school, whether, administrative, pastoral care or educational leadership, with Level 1 being the most significant level of responsibility.

(e) Positions of leadership will be available in both primary and secondary schools.

(f) A school with less than 100 students will determine positions of responsibility and allowances which are appropriate to its structure.

19.4 Expense-related allowances—vehicle allowance

(a) An employee required by the employer to use the employee’s motor vehicle in the performance of duties must be paid the following allowances:

Vehicle

$ per kilometer (km)

Motor car

0.80 per km with a maximum payment up to 400 km per week

Motorcycle

0.27 per km with a maximum payment up to 400 km per week

(b) The employer must pay all expenses including registration, running and maintenance where an employer provides a motor vehicle which is used by an employee in the performance of the employee’s duties.

20. Superannuation

20.1 Superannuation legislation

(a) Superannuation legislation, including the Superannuation Guarantee (Administration) Act 1992 (Cth), the Superannuation Guarantee Charge Act 1992 (Cth), the Superannuation Industry (Supervision) Act 1993 (Cth) and the Superannuation (Resolution of Complaints) Act 1993 (Cth), deals with the superannuation rights and obligations of employers and employees. Under superannuation legislation individual employees generally have the opportunity to choose their own superannuation fund. If an employee does not choose a superannuation fund, any superannuation fund nominated in the award covering the employee applies.

(b) The rights and obligations in these clauses supplement those in superannuation legislation.

20.2 Employer contributions

20.3 Voluntary employee contributions

(a) Subject to the governing rules of the relevant superannuation fund, an employee may, in writing, authorise their employer to pay on behalf of the employee a specified amount from the post-taxation wages of the employee into the same superannuation fund as the employer makes the superannuation contributions provided for in clause 20.2.

(b) An employee may adjust the amount the employee has authorised their employer to pay from the wages of the employee from the first of the month following the giving of three months’ written notice to their employer.

(c) The employer must pay the amount authorised under clauses 20.3(a) and 20.3(b) no later than 28 days after the end of the month in which the deduction authorised under clauses 20.3(a) or 20.3(b) was made.

20.4 Superannuation fund

(a) NGS Super;

(b) Australian Catholic Superannuation and Retirement Fund (ACSRF);

(c) Catholic Super (CSF);

(d) Combined Fund;

(e) The Victorian Independent Schools Superannuation Fund;

(f) HESTA Super Fund;

(g) CareSuper;

(h) AustralianSuper;

(i) Tasplan;

(j) Sunsuper;

(k) Queensland Independent Education and Care Superannuation Trust;

(l) AMP Superannuation Savings Trust;

(m) Concept One the Industry Superannuation Plan;

(n) Lutheran Super;

(o) Christian Super;

(p) any superannuation fund to which the employer was making superannuation contributions for the benefit of its employees before 12 September 2008, provided the superannuation fund is an eligible choice fund and is a fund that offers a MySuper product or is an exempt public sector superannuation scheme; or

(q) a superannuation fund or scheme of which the employee is a defined benefit member.

Part 5—Leave and Public Holidays

21. Annual leave

21.1 Annual leave is provided for in the NES. Clause 21 of the award provides industry specific details and supplements the NES which deals with annual leave.

21.2 An employee in a school, preschool or kindergarten must take annual leave during non-term weeks. Leave must generally be taken, in the case of an employee whose employment with the employer is continuing into the next school or preschool year, in the 4-week period immediately following the final term week of the current school or preschool year, unless otherwise agreed with the employer.

21.3 An employee may only take annual leave re-credited in accordance with the NES during non-term weeks as directed by the employer.

22. Pro rata payment of salary inclusive of annual leave

22.1 Clause 22 of the award provides industry specific detail and incorporates the NES entitlement with respect to annual leave.

22.2 Clause 22 does not apply to teachers employed in early childhood services operating for at least 48 weeks per year covered by Schedule A—Hours of Work and Related Matters—Teachers employed in early childhood services operating for at least 48 weeks per year.

22.3 For the purpose of clause 22:

(a) school or preschool service date means the date from which employees are paid at the commencement of the school/preschool year in their first year of service with the employer; and

(b) employee means an employee other than a casual employee.

22.4 The provisions of clause 22 will apply:

(a) in the calculation of payment of pro rata salary where an employee’s employment ceases; or

(b) in the calculation of payment of pro rata salary if:

22.5 Calculation of payments

22.6 The formula in clause 22.5 is intended to be used to calculate the pro rata salary inclusive of annual leave owing to an employee in respect of the school/preschool year in which the formula is applied.

22.7 Employees who commence employment after the commencement of the school or preschool year

(a) the school or preschool service date or the resumption of Term 1; or

(b) first semester in the following school/preschool year.

22.8 Employees who take approved leave without pay

(a) if the leave without pay commences and concludes in the same school/preschool year, the payment will be calculated and made at the conclusion of the last school/preschool term or final semester in that year;

(b) if the leave without pay is to conclude in a school/preschool year following the school/preschool year in which the leave commenced:

(c) If the employee returns early from leave any payment under clause 22.8(b)(i) will be taken into account in calculating the amount owed to the employee at the end of the last school/preschool term or final semester in that year.

23. Annual leave loading

23.1 Clause 23 of the award provides for industry specific detail and supplements the NES which deals with annual leave.

23.2 An employee who has served throughout the school year is entitled to a leave loading of 17.5% on 4 weeks’ annual leave. The loading will normally be paid:

(a) at the time that the employee is paid annual leave or pro rata annual leave; or

(b) on the termination of employment by either party.

23.3 Leave loading is to be calculated using the following formula:

[Weekly rate x 4 x 17.5%] x term weeks worked by the employee in that school year

Total term weeks in that school year

23.4 Clause 23.3 does not apply to teachers covered by Schedule A—Hours of Work and Related Matters—Teachers employed in early childhood services operating for at least 48 weeks per year.

23.5 Despite clauses 23.2 and 23.3, an employer may pay annual leave loading to the employee with each wage payment throughout the school year by increasing the annual rate of pay as at the commencement of the school year, or as subsequently varied, by 1.342%.

23.6 An employer that elects to pay leave loading with each wage payment throughout the school year will advise the employee in their letter of appointment.

24. Personal/carer’s leave and compassionate leave

Personal/carer’s leave and compassionate leave are provided for in the NES.

25. Parental leave and related entitlements

Parental leave and related entitlements are provided for in the NES.

26. Community service leave

Community service leave is provided for in the NES.

27. Unpaid family and domestic violence leave

Unpaid family and domestic violence leave is provided for in the NES.

NOTE 1: Information concerning an employee’s experience of family and domestic violence is sensitive and if mishandled can have adverse consequences for the employee. Employers should consult with such employees regarding the handling of this information.

NOTE 2: Depending upon the circumstances, evidence that would satisfy a reasonable person of the employee’s need to take family and domestic violence leave may include a document issued by the police service, a court or family violence support service, or a statutory declaration.

28. Public holidays

28.1 Public holiday entitlements are provided for in the NES.

28.2 Substitution of public holidays

(a) An employer and employee may agree to substitute another day for a day that would otherwise be a public holiday under the NES.

(b) An employer and employee may agree to substitute another part-day for a part-day that would otherwise be a part-day public holiday under the NES.

28.3 Part-day public holidays

For provisions in relation to part-day public holidays see Schedule G—Part-day Public Holidays.

Part 6—Consultation and Dispute Resolution

29. Consultation about major workplace change

29.1 If an employer makes a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must:

(a) give notice of the changes to all employees who may be affected by them and their representatives (if any); and

(b) discuss with affected employees and their representatives (if any):

(c) commence discussions as soon as practicable after a definite decision has been made.

29.2 For the purposes of the discussion under clause 29.1(b), the employer must give in writing to the affected employees and their representatives (if any) all relevant information about the changes including:

(a) their nature; and

(b) their expected effect on employees; and

(c) any other matters likely to affect employees.

29.3 Clause 29.2 does not require an employer to disclose any confidential information if its disclosure would be contrary to the employer’s interests.

29.4 The employer must promptly consider any matters raised by the employees or their representatives about the changes in the course of the discussion under clause 29.1(b).

29.5 In clause 29 significant effects, on employees, includes any of the following:

(a) termination of employment; or

(b) major changes in the composition, operation or size of the employer’s workforce or in the skills required; or

(c) loss of, or reduction in, job or promotion opportunities; or

(d) loss of, or reduction in, job tenure; or

(e) alteration of hours of work; or

(f) the need for employees to be retrained or transferred to other work or locations; or

(g) job restructuring.

29.6 Where this award makes provision for alteration of any of the matters defined at clause 29.5, such alteration is taken not to have significant effect.

30. Consultation about changes to rosters or hours of work

30.1 Clause 30 applies if an employer proposes to change the regular roster or ordinary hours of work of an employee, other than an employee whose working hours are irregular, sporadic or unpredictable.

30.2 The employer must consult with any employees affected by the proposed change and their representatives (if any).

30.3 For the purpose of the consultation, the employer must:

(a) provide to the employees and representatives mentioned in clause 30.2 information about the proposed change (for example, information about the nature of the change and when it is to begin); and

(b) invite the employees to give their views about the impact of the proposed change on them (including any impact on their family or caring responsibilities) and also invite their representative (if any) to give their views about that impact.

30.4 The employer must consider any views given under clause 30.3(b).

30.5 Clause 30 is to be read in conjunction with any other provisions of this award concerning the scheduling of work or the giving of notice.

31. Dispute resolution

31.1 Clause 31 sets out the procedures to be followed if a dispute arises about a matter under this award or in relation to the NES.

31.2 The parties to the dispute must first try to resolve the dispute at the workplace through discussion between the employee or employees concerned and the relevant supervisor.

31.3 If the dispute is not resolved through discussion as mentioned in clause 31.2, the parties to the dispute must then try to resolve it in a timely manner at the workplace through discussion between the employee or employees concerned and more senior levels of management, as appropriate.

31.4 If the dispute is unable to be resolved at the workplace and all appropriate steps have been taken under clauses 31.2 and 31.3, a party to the dispute may refer it to the Fair Work Commission.

31.5 The parties may agree on the process to be followed by the Fair Work Commission in dealing with the dispute, including mediation, conciliation and consent arbitration.

31.6 If the dispute remains unresolved, the Fair Work Commission may use any method of dispute resolution that it is permitted by the Act to use and that it considers appropriate for resolving the dispute.

31.7 A party to the dispute may appoint a person, organisation or association to support and/or represent them in any discussion or process under clause 31.

31.8 While procedures are being followed under clause 31 in relation to a dispute:

(a) work must continue in accordance with this award and the Act; and

(b) an employee must not unreasonably fail to comply with any direction given by the employer about performing work, whether at the same or another workplace, that is safe and appropriate for the employee to perform.

31.9 Clause 31.8 is subject to any applicable work health and safety legislation.

Part 7—Termination of Employment and Redundancy

32. Termination of employment

NOTE: Sections 117 and 123 of the Act set out requirements for notice of termination by an employer under the NES. Clauses 32.1 and 32.2 require an employer to give a greater minimum period of notice than that generally required under the NES.

32.1 Notice of termination by an employer—schools

(a) Clause 32.1 applies to an employee employed in a school.

(b) Subject to clause 33.4, the employment of an employee (other than a casual employee) will not be terminated without at least 7 term weeks’ notice (inclusive of the notice required under the NES), the payment of 7 weeks’ salary instead of notice, or part notice and part payment instead of notice provided that the total weeks’ notice and weeks’ payment instead equal 7.

32.2 Notice of termination by an employer—other than schools

(a) Clause 32.2 applies to an employee who is not employed in a school.

(b) The employment of an employee (other than a casual employee) will not be terminated without at least 4 weeks’ notice (inclusive of the notice required under the NES), or 4 preschool term weeks in the case of a preschool employee, or the payment of 4 weeks’ salary instead of notice. If the employee is over 45 years of age and has completed at least 2 years of service, the NES notice period will apply

32.3 Notice of termination by an employee

(a) The notice of termination required to be given by an employee is the same as that required of the employee’s employer under clause 32.1 or 32.2.

(b) If an employee does not give the period of notice required under clause 32.3(a), then the employer may deduct from wages due to the employee under this award an amount that is no more than 2 weeks’ wages for the employee.

(c) If the employer has agreed to a shorter period of notice than that required under clause 32.3(a), then no deduction can be made under clause 32.3(b).

(d) Any deduction under clause 32.3(b) must not be unreasonable in the circumstances.

32.4 Job search entitlement

(a) Where an employer has given notice of termination to an employee, the employee must be allowed time off without loss of pay of up to one day for the purpose of seeking other employment.

(b) The time off under clause 32.4 is to be taken at times that are convenient to the employee after consultation with the employer.

32.5 Exclusions

32.6 Statement of service

32.7 Termination of casual employment by an employer—early childhood teachers

(a) Clause 32.7 applies to a casual early childhood teacher.

(b) On termination of casual employment, the employer will indicate on the employee’s service card the length of service with the employer. Upon request a casual employee will also be given a statement setting out the number of days of duty worked by the employee during the period of the engagement.

33. Redundancy

NOTE: Redundancy pay is provided for in the NES. See sections 119–123 of the Act. Clause 33 provides industry specific detail and supplements the NES.

33.1 Transfer to lower paid duties on redundancy

(a) Clause 33.1 applies if, because of redundancy, an employee is transferred to new duties to which a lower ordinary rate of pay applies.

(b) The employer may:

(c) If the employer acts as mentioned in clause 33.1(b)(ii), the employee is entitled to a payment of an amount equal to the difference between the ordinary rate of pay of the employee (inclusive of all-purpose allowances, shift rates and penalty rates applicable to ordinary hours) for the hours of work the employee would have worked in the first role, and the ordinary rate of pay (also inclusive of all-purpose allowances, shift rates and penalty rates applicable to ordinary hours) of the employee in the second role for the period for which notice was not given.

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 this award.

(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.

33.3 Job search entitlement

(a) Where an employer has given notice of termination to an employee in circumstances of redundancy, the employee must be allowed time off without loss of pay of up to one day each week of the minimum period of notice prescribed by section 117(3) of the Act for the purpose of seeking other employment.

(b) If an employee is allowed time off without loss of pay of more than one day under clause 33.3(a), the employee must, at the request of the employer, produce proof of attendance at an interview.

(c) A statutory declaration is sufficient for the purpose of clause 33.3(b).

(d) An employee who fails to produce proof when required under clause 33.3(b) clause is not entitled to be paid for the time off.

(e) This entitlement applies instead of clause 32.4.

33.4 Interaction of clause 33 with clause 32Termination of employment

(a) notice of termination under clause 32.1 or 32.2; or

(b) notice of termination and severance payments under the NES.

33.5 Part-time employees

Schedule A—Hours of Work and Related Matters—Teachers employed in early childhood services operating for at least 48 weeks per year
A.1 Ordinary hours of work
A.1.1 A full-time employee’s ordinary hours of work will be 38 per week which may be averaged over a period of 4 weeks.
A.1.2 The ordinary hours of work will be worked between 6.00 am and 6.30 pm, on any 5 days between Monday and Friday, and will not exceed 8 hours on any day.
A.1.3 Subject to the provisions of clause 5Individual flexibility arrangements, by agreement between an employer and an employee, an employee may be rostered to work up to a maximum of 10 hours in any one day.
A.1.4 Breaks between periods of duty

A.2 Rostered days off

The employer and employee may agree that the ordinary hours of work provided by clause A.1Ordinary hours of work will be worked over 19 days in each 4 week period, in which case the following provisions will apply.

A.2.1 The employee will work 152 hours over 19 days in each 4 week period with one rostered day off on full pay in each period.
A.2.2 An employee will accrue 24 minutes for each 8 hour day worked to give the employee an entitlement to take rostered days off.
A.2.3 Each day of paid leave taken by an employee (but not including long service leave, or any period of stand-down, any public holiday or any period of absence for which workers compensation payments apply occurring during any cycle of 4 weeks) will be regarded as a day worked for the purpose of accruing an entitlement under clause A.2.2.
A.2.4 Rostered days off will not be regarded as part of the employee’s annual leave for any purpose.
A.2.5 An employee will not be entitled to personal leave in respect of illness whilst on a rostered day off. In the event of a rostered day off falling on a public holiday, the employer and the employee will agree on a substitute day.
A.2.6 An employee will not be entitled to more than 12 rostered days off in any 12 months of consecutive employment.
A.2.7 An employee who is scheduled to take a rostered day off before having worked a complete 4 week cycle will be paid a pro rata amount for the time that the employee has accrued in accordance with clause A.2.2.
A.2.8 An employee whose employment is terminated in the course of a 4 week cycle will be paid a pro rata amount for the time that the employee has accrued in accordance with clause A.2.2.
A.2.9 Rostered days off will be determined by mutual agreement between the employer and the employee, having regards to the needs of the place of employment.
A.2.10 An employee will be advised by the employer at least 4 weeks in advance of the day on which the employee is to be rostered off duty.
A.2.11 Nothing in clause A.2 will entitle an employee who works less than 38 hours per week to accumulate rostered days off pursuant to clause A.2.
A.2.12 Where a service operates for less than 48 weeks per year and the employee receives more than 4 weeks’ paid leave per year, the employee will accrue rostered days off to a maximum of 7 days in any 12 months of consecutive employment. Any days accrued in excess of 7 will be subsumed into the period of paid leave.
A.3 Breaks
A.3.1 Meal break

A.3.2 Non-contact time

(a) An employee responsible for programming and planning for a group of children will be entitled to at least 2 hours’ non-contact time per week for the purpose of planning, preparing, evaluating and programming activities.

(b) During non-contact time an employee must not be required to supervise children or perform other duties directed by the employer.

A.4 Overtime
A.4.1 Overtime rates

A.4.2 Time off instead of overtime payment

A.4.3 Make-up time

A.5 Shiftwork
A.5.1 For the purposes only of calculating the shift rates provided for clause A.5:

A.5.2 A shift rate is payable to employees required to perform shiftwork in accordance with the following:

Shift

% of minimum hourly rate

Early morning shift (any shift commencing at or after 5.00 am and before 6.00 am)

110

Afternoon shift (any shift finishing after 6.30 pm and at or before midnight)

115

Night shift, rotating with day or afternoon shift

117.5

Night shift, non-rotating (any shift finishing after midnight and at or before 8.00 am or any shift commencing at or after midnight and before 5.00 am which does not rotate or alternate with other shifts so as to give the employee at least one third of their shifts off night shift in each roster cycle)

130

Saturday

125

A.6 Annual leave
A.6.1 Annual leave in advance

A.6.2 Cashing out of annual leave

A.6.3 Excessive leave accruals: general provision

A.6.4 Excessive leave accruals: direction by employer that leave be taken

A.6.5 Excessive leave accruals: request by employee for leave

Schedule B—Summary of Rates of Pay

NOTE: A transitional pay equity order taken to have been made pursuant to item 30A of Schedule 3A to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) has effect in accordance with that item. A relevant transitional pay equity order operates in Queensland as provided for in item 30A (6) and (7).

B.1 Casual employees
B.1.1 Casual employees—full day rates

 

All employees (excluding Schedule A)

Teachers employed in early childhood services operating for at least 48 weeks per year (Schedule A)

 

Full day rate

Full day rate

Early morning shift2

Afternoon shift3

Night shift (rotating)4

Night
(non-rotating)5

Saturday

% of casual full day rate6

 

100%

100%

110%

115%

117.5%

130%

125%

 

$

$

$

$

$

$

$

Level 1

251.15

261.20

287.32

300.38

306.91

339.56

326.50

Level 2

256.33

266.58

293.24

306.57

313.23

346.55

333.23

Level 3

263.30

273.83

301.21

314.90

321.75

355.98

342.29

Level 4

272.80

283.71

312.08

326.27

333.36

368.82

354.64

Level 5

282.30

293.59

322.95

337.63

344.97

381.67

366.99

Level 6

291.15

302.80

333.08

348.22

355.79

393.64

378.50

Level 7

300.00

312.00

343.20

358.80

366.6

405.60

390.00

Level 81

309.49

321.87

354.06

370.15

378.2

418.43

402.34

Level 9

319.00

331.76

364.94

381.52

389.82

431.29

414.70

Level 10

328.50

341.64

375.80

392.89

401.43

444.13

427.05

Level 11

338.01

351.53

386.68

404.26

413.05

456.99

439.41

Level 12

347.51

361.41

397.55

415.62

424.66

469.83

451.76

1 Where 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.

Early morning shift means a shift commencing at or after 5.00 am and before 6.00 am.

Afternoon shift means a shift finishing after 6.30 pm and at or before midnight.

Night shift (rotating) means a shift finishing after midnight and at or before 8.00 am, or a shift commencing at or after midnight and before 5.00 am, which rotates with day or afternoon shifts.

Night shift (non-rotating) means a shift finishing after midnight and at or before 8.00 am, or a shift commencing at or after midnight and before 5.00 am, which does not rotate or alternative with other shifts so as to give the employee at least one third of their shift off night shift in each roster cycle.

The casual full day rate for teachers employed in early childhood services operating for at least 48 weeks per year (Schedule A) incorporates an additional 4% as per clause 17.2.

B.1.2 Casual employees—half day and quarter day rates

 

All employees (excluding Schedule A)

Teachers employed in early childhood services operating for at least 48 weeks per year (Schedule A)

All employees

Half day rate

Quarter day rate1

Half day rate

Quarter day rate1

 

$

$

$

$

Level 1

125.58

62.79

130.60

65.30

Level 2

128.16

64.08

133.29

66.64

Level 3

131.65

65.83

136.92

68.46

Level 4

136.40

68.20

141.85

70.93

Level 5

141.15

70.58

146.80

73.40

Level 6

145.58

72.79

151.40

75.70

Level 7

150.00

75.00

156.00

78.00

Level 82

154.75

77.37

160.94

80.47

Level 9

159.50

79.75

165.88

82.94

Level 10

164.25

82.13

170.82

85.41

Level 11

169.01

84.50

175.77

87.88

Level 12

173.75

86.88

180.70

90.35

1 Only casual employees employed in children’s service or an early childhood education service may be paid at a quarter day rate of pay.

2 Where an employee is engaged for less than 5 consecutive days, the minimum rate payable to a casual employee will be no higher than the rate at Level 8.

   

Schedule C—Summary of Monetary Allowances

See clause 19Allowances for full details of allowances payable under this award.

C.1 Wage-related allowances
C.1.1 The following wage-related allowances are based on the standard rate as defined in clause 2Definitions as the minimum annual rate applicable to Level 1 in clause 17.1= $52,420.

C.1.2 Adjustment of wage-related allowances

C.2 Expense-related allowances
C.2.1 The following expense-related allowances will be payable to employees in accordance with clause 19.4:

C.2.2 Adjustment of expense-related allowances

   

Schedule D—Agreement for Time Off Instead of Payment for Overtime
Link to PDF copy of Agreement for Time Off Instead of Payment for Overtime.

Name of employee: _____________________________________________

Name of employer: _____________________________________________

The employer and employee agree that the employee may take time off instead of being paid for the following amount of overtime that has been worked by the employee:

Date and time overtime started: ___/___/20___ ____ am/pm

Date and time overtime ended: ___/___/20___ ____ am/pm

Amount of overtime worked: _______ hours and ______ minutes

The employer and employee further agree that, if requested by the employee at any time, the employer must pay the employee for overtime covered by this agreement but not taken as time off. Payment must be made at the overtime rate applying to the overtime when worked and must be made in the next pay period following the request.

Signature of employee: ________________________________________

Date signed: ___/___/20___

Name of employer representative: ________________________________________

Signature of employer representative: ________________________________________

Date signed: ___/___/20___

Schedule E—Agreement to Take Annual Leave in Advance
Link to PDF copy of Agreement to Take Annual Leave in Advance.

Name of employee: _____________________________________________

Name of employer: _____________________________________________

The employer and employee agree that the employee will take a period of paid annual leave before the employee has accrued an entitlement to the leave:

The amount of leave to be taken in advance is: ____ hours/days

The leave in advance will commence on: ___/___/20___

Signature of employee: ________________________________________

Date signed: ___/___/20___

Name of employer representative: ________________________________________

Signature of employer representative: ________________________________________

Date signed: ___/___/20___

[If the employee is under 18 years of age - include:]

I agree that:

if, on termination of the employee’s employment, the employee has not accrued an entitlement to all of a period of paid annual leave already taken under this agreement, then the employer may deduct from any money due to the employee on termination an amount equal to the amount that was paid to the employee in respect of any part of the period of annual leave taken in advance to which an entitlement has not been accrued.

Name of parent/guardian: ________________________________________

Signature of parent/guardian: ________________________________________

Date signed: ___/___/20___

   

Schedule F—Agreement to Cash Out Annual Leave
Link to PDF copy of Agreement to Cash Out Annual Leave.

Name of employee: _____________________________________________

Name of employer: _____________________________________________

The employer and employee agree to the employee cashing out a particular amount of the employee’s accrued paid annual leave:

The amount of leave to be cashed out is: ____ hours/days

The payment to be made to the employee for the leave is: $_______ subject to deduction of income tax/after deduction of income tax (strike out where not applicable)

The payment will be made to the employee on: ___/___/20___

Signature of employee: ________________________________________

Date signed: ___/___/20___

Name of employer representative: ________________________________________

Signature of employer representative: ________________________________________

Date signed: ___/___/20___

Include if the employee is under 18 years of age:

Name of parent/guardian: ________________________________________

Signature of parent/guardian: ________________________________________

Date signed: ___/___/20___

   

Schedule G—Part-day Public Holidays
G.1 This schedule operates where this award otherwise contains provisions dealing with public holidays that supplement the NES.
G.2 Where a part-day public holiday is declared or prescribed between 6.00 pm and midnight, or 7.00 pm and midnight on Christmas Eve (24 December in each year) or New Year’s Eve (31 December in each year) the following will apply on Christmas Eve and New Year’s Eve and will override any provision in this award relating to public holidays to the extent of the inconsistency:

G.3 An employer and employee may agree to substitute another part-day for a part-day that would otherwise be a part-day public holiday under the NES.
G.4 This schedule is not intended to detract from or supplement the NES.