|FAIR WORK COMMISSION|
Fair Work Act 2009
s.160—Application to vary a modern award to remove ambiguity or uncertainty or correct error
EDUCATIONAL SERVICES (POST SECONDARY EDUCATION) AWARD 2020
JUSTICE ROSS, PRESIDENT
MELBOURNE, 8 JULY 2022
Section 160 of the Fair Work Act 2009 (Cth) – variation on the Commission’s own motion – residual variations – Educational Services (Post Secondary Education) Award 2020.
A. Further to the decision issued by the Full Bench on 8 July 2022 [ FWCFB 119], the above award is varied as follows:
1. By deleting clause 11.6 and 11.7.
2. By renumbering clause 11.8 as 11.6.
3. By renumbering clauses 12 to 32 as clauses 13 to 33.
4. By inserting a new clause 12 as follows:
12. Sessional employment
12.1 Clause 12 applies only to teaching staff members.
(a) A sessional employee is an employee engaged to work on a full-time or part-time basis for a specified period or periods of not less than 4 weeks or not more than 40 weeks in any calendar year.
(b) A sessional employee receives, on a pro rata basis, pay and conditions equivalent to those of a full-time or part-time teacher with the same qualifications, experience and teaching load.
(c) On termination of a sessional engagement, an employee may elect to be paid out accrued annual leave entitlements or have the employer preserve them for use during a subsequent sessional engagement. Where the accrued leave is not taken within 12 months of it accruing, or the employee is not re-engaged within 8 weeks, the entitlement will be paid out. See also clause 22—Annual leave.
(d) Subject to the employee’s satisfactory conduct and performance, where an equivalent position exists at the expiry of the employee’s period of engagement, the employer will offer a further engagement to the employee.
(e) Where practicable, notice of re-engagement will be given at least 2 weeks prior to the expiry of the current engagement and the employee will give one week’s notice of acceptance to the employer.
12.2 Continuous service
(a) Clause 12.2 applies only to teaching staff members.
(b) For the purposes of the NES:
(i) One or more engagements of a sessional employee with an employer will be deemed to be continuous unless more than 8 weeks have elapsed between those engagements. The period between engagements will not count as a service.
(ii) Where an interruption in service was caused by the employer with the intention of avoiding an obligation under this award, another industrial instrument or relevant legislation, the service will be deemed to be continuous.
5. By updating the table of contents and cross-references accordingly.
B. This determination comes into operation on 11 July 2022. 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 11 July 2022.
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