[2020] FWCFB 5176
The attached document replaces the document previously issued with the above code on 29 September 2020.
The date at paragraph [80] of the decision has been changed from ‘4 October 2020’ to ‘9 October 2020’.
Modern Awards Team on behalf of Associate to Justice Ross, President
Dated 30 September 2020
| [2020] FWCFB 5176 |
| 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 and Educational Services (Teachers) Award 2010–Finalisation of substantive claims
(AM2018/18 and AM2018/20)
JUSTICE ROSS, PRESIDENT |
MELBOURNE, 29 SEPTEMBER 2020 |
4 yearly review of modern awards – Award stage – Group 4 awards – Children’s Services Award 2010 and Educational Services (Teachers) Award 2010 – 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 2010 (Teachers Award)2 as part of the 4 yearly review of modern awards (the Review). Four of the issues dealt with in the June 2020 decision remain outstanding:
• 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).
[2] The following submissions were filed in response to the June 2020 decision:
• Community Connections Solutions Australia (16 June 2020);
• Independent Education Union of Australia (30 June 2020);
• Independent Schools Victoria (29 June 2020)
• Australian Federation of Employers and Industries (30 June 2020);
• United Workers Union (30 June 2020);
• Australian Education Union (30 June 2020);
• Australian Nursing & Midwifery Federation (30 June 2020); and
• Australian Childcare Alliance, Australian Business Industrial and the New South Wales Business Chamber (30 June 2020).
[3] A submission in reply was received from the Independent Education Union of Australia on 7 July 2020.
[4] This decision deals with each of the outstanding issues from the June 2020 decision.
2.1 Part-time employment
[5] 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.’
[6] Clause 10.4(d)(i) requires ad hoc agreed changes in the days to be worked or in starting and/or finishing times to be made in writing. The comparable provision in the current exposure draft is clause 10.4(a).
[7] Similarly, clause 21.7(b) – Rostering, provides that any agreement to waive or shorten the 7 day notice period required to change an employee’s rostered hours ‘must be recorded in writing and form part of the time and wages records’.
[8] In the June 2020 decision we acknowledged that the expressions ‘made in writing’ or ‘recorded in writing’ (in clauses 10.4(d)(i) and 21.7(b) respectively) may give rise to practical problems and may not be reflected in current practice in the Early Childhood Education and Care (ECEC) sector. We also noted that clause 22.6(f) of the Aged Care Award 2010 states:
‘(f) Rostering arrangements and changes to rosters may be communicated by telephone, direct contact, mail, email, facsimile or any electronic means of communication.’
[9] At [538] of the June 2020 decision we expressed the provisional view that the variation of clauses 10.4(a) and 21.7(b) of the Children’s Services Award in similar terms to clause 22.6(f) of the Aged Care Award is necessary to ensure that the award achieves the modern awards objective.
[10] The only party to address this provisional view was the United Workers Union (UWU). In its submission of 30 June 2020 the UWU states:
‘United Workers Union does not object to the variation of the Children’s Services Award to include a provision equivalent to that of clause 22.6(f) of the Aged Care Award 2010 (as varied) to clarify the means by which a roster change may be communicated to employees’. 3
[11] Given the absence of other submissions in respect of this issue we confirm our provisional view.
[12] We also determined that clauses 10.4(d)(iii), 21.7(b)(ii) and 21.7(b)(iii) of the Children’s Award, which deal with the exceptions to the requirement (absent agreement) to provide 7 days’ notice of a changes in hours or roster, should be redrafted in plain language and be consistent, to assist those required to implement the provisions in practice. 4
[13] A plain language re-draft of clauses 10.4 and 21.7, incorporating our confirmation of the provisional view at [9] above, is set out below (changes shown in red):
(a) An employer may employ a part-time employee in any classification in this award.
(b) A part-time employee is an employee who:
(i) works less than full-time hours of 38 per week;
(ii) has reasonably predictable hours of work; and
(iii) receives, on a pro rata basis, equivalent pay and conditions to those of full-time employees who do the same kind of work.
(c) At the time of engagement the employer and the part-time employee will agree in writing on a regular pattern of work, specifying at least the hours worked each day, which days of the week the employee will work and the actual starting and finishing times each day.
(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.
The employer is relieved of the obligation to provide the full seven days’ notice of change of the days an employee is to work where an emergency outside of the employer’s control causes the employer to make the change. In this clause, emergency means any situation or event that poses an imminent or severe risk to the persons at an education and care service premises, or a situation that requires the education and care service premises to be locked-down.
(iv) In the circumstances 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).
(e) An employer is required to roster a part-time employee for a minimum of two consecutive hours on any shift.
(f) 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 the 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 paid for at the rates prescribed in clause 23—Overtime and penalty rates.
(g) A part-time employee employed under the provisions of this clause must be paid for the ordinary hours worked at the rate of 1/38th of the weekly rate prescribed in clause 14—Minimum wages.
…
21.7 Rostering
(a) An employer will post a legible roster at a place readily accessible to employees indicating the rostered hours of work.
(b) (i) 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 writing and form part of the time and wages records.
(ii) The employer is also not required to provide the full seven days’ notice where the employer makes the change as a result of an emergency outside of the employer’s control.
The employer is also relieved of the obligation to provide the full seven days’ notice where an emergency outside of the employer’s control causes the employer to make the change. In this clause, emergency means any situation or event that poses an imminent or severe risk to the persons at an education and care service premises, or a situation that requires the education and care service premises to be locked-down.
(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.
(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).
However, where an employee is required to stay beyond their rostered hours because a parent fails to arrive on time to collect a child, this will not be regarded as an emergency. In this circumstance, the employer must pay the employee at overtime rates for the additional time the employee remains at the workplace.
(c) An employee may be transferred from one location to another within their rostered hours at the direction of the employer. An employee transferring from one location to another during a shift will be paid for the time taken to travel from one location to the other.
(d) Where an employee is required to permanently transfer to another location (other than by mutual agreement) they must be given seven days notice of the change or paid overtime until seven days have transpired from the date notice was given.
[14] Parties are invited to comment on the redrafted clauses 10.4 and 21.7 in accordance with the process set out in Section 3, ‘Next steps’, of this decision. We have also prepared a draft variation determination (at Attachment A to this decision) setting out how the proposed changes to clauses 10.4 and 21.7 would be incorporated into the award. Parties are also invited to comment on the contents of the draft variation determination in accordance with the process set out in Section3, ‘Next steps’.
2.2 Educational Leaders: non-contact time
[15] In the earlier proceedings the UWU sought to increase the ‘non-contact time’ (i.e., time off the floor away from responsibilities with children) in clause 21.5 of the Children’s Award and to provide extra non-contact time for Educational Leaders.
[16] Clause 21.5 of the Children’s Award provides:
‘21.5 Non-contact time
(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 per week, during which the employee is not required to supervise children or perform other duties directed by the employer, for the purpose of planning, preparing, evaluating and programming activities.
(b) Wherever possible non-contact time should be rostered in advance.’
[17] The UWU sought to vary clause 21.5(a), as follows:
21.5 Non-contact time
(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. 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 per week, during which the employee is not required to supervise children or perform other duties directed by the employer, for the purpose of planning, preparing, evaluating and programming activities.
(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 four hours non-contact time per week.
[18] The UWU’s submissions and evidence focussed on the claim to increase non-contact time from two to four hours per week. No submission was advanced in support of the proposed rewording of the balance of clause 21.5. We return to the proposed rewording of clause 21.5, shortly.
[19] The UWU also submitted that an employee who is an Educational Leader required specific non-contact time in which to undertake their duties 5 and that the 2 hours of non-contact time currently provided under the Awards to employees responsible for the preparation, implementation and/or evaluation of a developmental program, was insufficient.
[20] The UWU proposed to insert a new clause 21.5(a)(ii) in the Children’s Services Award, as follows:
(ii) The educational leader will be entitled to additional non-contact time per week, according to the size of the centre, as follows:
Centres with: |
Additional non-contact time: |
No more than 39 places |
2 hours |
40-59 places |
3 hours |
60 and above places |
4 hours |
[21] In the earlier proceedings the ECEC Employers conceded that an Educational Leader may require specific non-contact time to undertake their duties. 6
[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, for the reasons set out in Section 6.3.1. However, we 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. In particular, at [316] – [318] of the June 2020 decision we decided as follows:
‘[316] We are satisfied that employees designated as Educational Leaders require additional non-contact time in order to undertake their role. In our view the provision of an additional 2 hours non-contact time per week is appropriate and we propose to vary the Children’s Services Award to so provide. We acknowledge that the role of an Educational Leader in a large ECEC centre may require more than an additional 2 hours non-contact time. But, at present, we propose to leave the provision of such additional non-contact time to individual negotiation. As this will be a new entitlement we think a cautious approach is appropriate.
[317] In relation to the s.134 considerations, the variation we propose will assist those low paid employees designated as Educational Leaders to better meet their needs, as they will be provided with paid non-contact time in order to undertake their role; rather than undertaking tasks in unpaid time, after work (s.134(1)(a)). We accept that the variation proposed will not encourage collective bargaining (s.134(1)(c)) and will increase employment costs and regulatory burden upon some ECEC businesses (s.134(1)(f)).
[318] The modern awards objective is to ‘ensure that modern awards, together with the NES, provide a fair and relevant minimum safety net of terms and conditions’, taking into account the considerations in s.134(1)(a)-(h). We have taken those considerations into account, insofar as they are relevant, and we are satisfied that it is necessary to vary the Children’s Services Award in the manner proposed in order to achieve the modern awards objective.’ 7
[23] At [543] of the June 2020 decision we directed UWU and the ECEC Employers to confer as to the form of the variation determination to give effect to our decision and to submit a draft variation determination within 7 days. No such draft determination has been filed.
[24] A draft variation determination has been prepared to give effect to the June 2020 decision (see Attachment A). The draft variation determination incorporates 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, but not the UWU’s proposal to generally increase non-contact time from two hours to four hours per week. Parties are invited to comment on the draft determination in accordance with the process set out in Section 3, ‘Next steps’, of this decision.
2.3 Clothing allowance
[25] At [545] of the June 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. Reimbursement will be limited to reasonable costs incurred.’
[26] The UWU and the ECEC Employers were directed to confer on the terms of such a variation and submit a draft variation determination within seven days. No such draft determination has been filed.
[27] We have prepared a draft variation determination to give effect to the June 2020 decision (see Attachment A). Parties are invited to comment on the draft determination in accordance with the process set out in Section 4, ‘Next steps’, of this decision.
2.4 Minimum Engagement
[28] 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.’
[29] In the earlier proceedings the IEU submitted that it was aware of occasions where ECEC operators pay casual employees for only a quarter of a day when they work between a quarter and a half a day. The IEU relied on Ms James’ evidence in this regard; Ms James says:
‘In my role as Organiser, I have come across employers in the early childhood sector that have read Clauses 14.5 of the Educational Services (Teachers) Award 2010 as giving them the right to pay a teacher for quarter day if they work less than half a day.’ 8
[30] The IEU contended that the payment of casual employees for only a quarter of a day when they work between a quarter and a half day was based on an unsustainable interpretation of clause 14.5 for the following reasons:
(i) It is inherently unlikely, in that it countenances employees being required to work for free. 9
(ii) The alternative interpretation ignores the word ‘minimum.’ The clause provides that, regardless of how long they work, an employee must be paid at least for a quarter-day, not that work done between the first and second quarter of a day will be unremunerated.
(iii) The second part of clause 14.5(b)(i) is concerned with actual required attendance time. Given the definitional table already at clause 14.5(a), this only has work to do if it is linking the payment to be made to the attendance required. In other words, a casual employee in a school will be paid a half day in circumstances where they are only required to work half a day. 10
[31] The IEU proposed to vary clause 14.5(b) of the Teachers Award to correct what is said to be an ambiguity, in the following terms:
‘(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 the employee is only required to attend for up to a half day; 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, where a day is the usual required attendance time for an employee at that service and a quarter day is half the usual required attendance time at that service, and the employee is only required to attend for up to a quarter day.
(iii) For the avoidance of doubt, an employee who is required to attend for a period of time between a quarter day and a half day will be paid a half day, and between a half day and a full day a full day.’ 11
[32] The UWU supported the IEU’s claim to vary clause 14.5(b)(ii); the ECEC Employers and the AFEI opposed the claim.
[33] In opposing the claim the ECEC Employers agreed with the IEU’s interpretation of the clause regarding the payment of casual teachers, 12 acknowledging that ‘the IEU’s drafting simply confirms how the clause should be interpreted.’13 However, the ECEC Employers submitted that they are concerned that the issue raised by the IEU is not actually remedied by their proposed drafting.14 The ECEC Employers suggested that ‘the concept of a quarter day and a half day in the Teachers Award may be assisted by inserting hourly figures or better clarifying what a quarter day is’,15 but stressed that this suggestion is not a formal claim.16
[34] At [523] of the June 2020 decision we agreed with the ECEC Employers’ characterisation of the clause, noting that it is complex and, in our view, unnecessarily so. But we were not persuaded that the deficiencies in the clause were satisfactorily addressed in the IEU’s proposed variation. Indeed we observed that the proposed variation adds to the complexity of the current term. For example, at clause 14.5(b)(ii) the IEU proposes the following additional words:
‘ … where a day is the usual required attendance time for an employee at that service and a quarter day is half the usual required attendance time at that service, and the employee is only required to attend for up to a quarter day.’ 17
[35] As we said at [524] of the June 2020 decision, it is far from clear how a ‘quarter day’ can be ‘half the usual required attendance time’ in circumstances where ‘a day is the usual required attendance time.’
[36] We also observed (at [525]) that modern award terms dealing with casual employees commonly provide for the applicable rate of pay and a minimum engagement period. The rate of pay is usually expressed as the appropriate minimum classification rate plus a casual ‘loading’ of 25 per cent and casual employees are paid for all time worked, usually subject to a minimum engagement period.
[37] The rationale for minimum engagement provisions in modern awards was discussed in the 4 yearly review of modern awards – Award stage – Group 4 – Aged Care Award 2010 decision (the Aged Care Decision). 18 In that decision the Full Bench observed that the question of minimum engagement terms did not receive any systematic consideration during the award modernisation process which led to the current modern awards and largely preserved the predominant provisions concerning minimum engagements contained in pre-reform awards.19 As explained by the Full Bench in Re Victorian Employers’ Chamber of Commerce and Industry:20
‘The Award Modernisation Full Bench of the Australian Industrial Relations Commission (AIRC) did not address the question of minimum engagements in any of its decisions and statements made in connection with the award modernisation process. This is because minimum engagements did not emerge as a significant issue during that process. Minimum periods of engagement have been a common feature of State and Federal awards for a very long period. The rationale for minimum periods of engagement is one of protecting employees from unfair prejudice or exploitation. Given the time and monetary cost typically involved in an employee getting to and from work, it has long been recognised that employees, especially casual employees, can be significantly prejudiced if a shift is truncated by the employer on short notice (as would otherwise be lawful in a typical casual engagement) or the employee can be pressured into accepting unviable short shifts in order to retain access to longer shifts. The inclusion of a minimum engagement period in a modern award invariably reflected the fact that such provisions were to be found in a sufficient proportion of the pre-reform awards and NAPSAs that are operated within the coverage of the modern award.’ (emphasis added)
[38] Similar observations were made by the Full Bench in the Metals Casual Decision: 21
‘the minimum income from a casual engagement determines whether or not people who rely on social security or who have children will accept the job. Travel costs, child care expenses erode savagely any earnings. Any reduction in the expected length of a daily engagement has a severe impact on an already disadvantaged employee, and most heavily so for intermittent casual workers. The difficulties in balancing the requirements of the social welfare Newstart program with an offer of casual work are often too great to make the job worth the extra trouble.’
[39] The Full Bench in the Casuals and Part-time Employment Decision, 22 observed that the rationale for minimum engagement periods in modern awards was:
‘to ensure that the employee receives a sufficient amount of work, and income, for each attendance at the workplace to justify the expense and inconvenience associated with that attendance by way of transport time and cost, work clothing expenses, childcare expenses and the like. An employment arrangement may become exploitative if the income provided for the employee’s labour is, because of very short engagement periods, rendered negligible by the time and cost required to attend the employment. Minimum engagement periods are also important in respect of the incentives for persons to enter the labour market to take advantage of casual and part-time employment opportunities (and thus engage the consideration in paragraph (c) of the modern awards objective in s.134.’ 23
[40] The Aged Care Decision noted 24 that the short point to be extracted from the above decisions is that minimum periods of engagement protect employees from exploitation by ensuring that they receive a minimum payment for each attendance at their workplace in order to justify the cost and inconvenience of each such attendance.
[41] On the basis of the above observations 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.
[42] We invited submissions in response to our provisional view. Submissions in respect of this issue were filed by:
• Independent Education Union of Australia (IEU)
• Community Connections Solutions Australia Limited (CCSA)
• Australian Business Industrial (ABI) (on behalf of the ECEC Employers)
• Australian Federation of Employers and Industries (AFEI)
[43] In its submission the IEU notes that the manner in which the Teacher’s Award sets out payment rates for casuals is the subject of concurrent proceedings in matter AM2020/24. We note that a final determination has been issued in those proceedings, 25 which inserts a table setting out the casual rates for teachers (including the alternative rates for teachers employed in childcare services which operate for at least 48 weeks of the year).
[44] The IEU submits that clause 14.5(b) provides minimum engagement periods for casuals; which in effect prescribes a minimum payment which must be made even if the casual does not work for the whole period.
[45] While such minimum payment periods are usually expressed in hours the IEU submits:
‘The same cannot be said for the Teachers Award: see cl.19. The nature of teachers’ work as professionals, and the manner in which schools and preschools operate, mean that work is arranged in days, of flexible length, rather than in fixed shifts. This is why the minimum engagement periods set by cl.14.5 are set in units of a day.
The engagement of casuals in this manner is ubiquitous in the sectors. In almost all cases of casual engagement, a teacher is called in for the day. Very occasionally, a half or quarter (as applicable) engagement is required where another teacher is unexpectantly required to leave the school or centre during the day.
What a ‘day’ means will vary from school to school and centre to centre; hence the reference to the day being ‘the usual required attendance time’. It is not practically possible to standardise this, including by converting it to hours. The IEU does not presently understand that this is what is being contemplated by the Bench. If this is incorrect, the IEU would seek to be heard further.’ 26
[46] The IEU goes on to contend that, as it stands, clause 14.5(b) provides a minimum engagement period of:
• half a day for casual teachers other than those covered by Schedule B,
or otherwise a full day;
• a quarter day for casual teachers covered by schedule B,
or otherwise a half day or a full day.
[47] The IEU concludes by submitting that no amendment is necessary and that it would seek to be heard further on the text of any proposed amendment.
[48] We are not persuaded by the IEU’s submission that no amendment is necessary. The submission put is inconsistent with the position taken by the IEU in the substantive proceedings. It will be recalled that it was the IEU which initiated a claim to vary this provision on the basis that it was ambiguous. The IEU’s present position is also inconsistent with our finding in the June 2020 decision that the existing clause is unnecessarily complex. 27
[49] The IEU submission also expresses agreement with our observation in the June 2020 decision that the ‘wage cap’ imposed on short term casuals by 14.5(a)(i) is an historical oddity and submits that:
‘The Full Bench’s provisional view is best given effect by amending the clause 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% |
Weekly rate calculated in accordance with clause 14.3 divided by 20 plus 25% |
[50] Contrary to the IEU’s submission we expressed no provisional view in respect of the removal of the ‘cap’ on the salary payable to a casual employee engaged for less than five days. We deal with the background to the existing ‘cap’ at [505] – [522], concluding as follows:
‘As we have mentioned in the context of our consideration of the UWU’s higher duties claim in the Children’s Services Award, a necessary element of the statutory requirement for ‘fair minimum wages’ is that the level of wages paid to award-reliant employees bears a proper relationship to the value of the work performed by these employees. In relation to the ‘cap’ in clause 14.5(a)(i) of the Teachers Award it appears that the provision is the outcome of an agreement between the employers and the IEU. The parties had also agreed that the ‘cap’ reflects the fact that the full range of duties are not performed by casual employees who are engaged for less than five consecutive days. In these circumstances, and in the absence of any application to remove the ‘cap’ we do not propose to take this issue any further. We return to this issue shortly.’ 28
[51] We reiterate that we do not propose to alter the existing ‘cap’, absent an application to remove the ‘cap’. There is no such application before us.
[52] The various employer interests supported our provisional view and advocated the adoption of a 2 hour minimum payment.
[53] Community Connections Solutions Australia Limited (CCSA) supported our provisional view in respect of the ECEC sector but did not have a view on whether the provisional view should be applied to the school sector. The CCSA also supported the adoption of a 2 hour minimum engagement period for casual teachers employed in an ECEC service, submitting that:
‘Harmonising payment arrangements of all ECEC casual employees would improve ease of understanding by the small and micro businesses, usually without significant human resources specialists, that are the predominant employers in the ECEC sector. Additionally, a simpler approach of a fixed hours amount for a minimum engagement would be likely to support increased compliance by these employers.
Expressing the minimum engagement in this more precise way reduces the likelihood of disputes over what constitutes the length of a day, especially given the variable engagement patterns that can exist within a single ECEC service such as those that operate both long day care and preschool rooms.’ 29
[54] ABI, on behalf of the ECEC Employers, agreed with the CCSA submission, noting that:
‘Adoption of the Full Bench’s provisional view would harmonise payment arrangements for casual early childhood teachers with the arrangements for other ECEC casual employees engaged under the Children’s Services Award 2010.
The complexities associated with calculating a quarter day in ECEC centres (which do not have the same hours as schools eg; 9-3pm) is very difficult. In the submission of the ECEC Employers that while it is more cost effective for employers to continue to pay in accordance with the quarter day method, employers may find themselves paying in accordance with a 2 hour minimum engagement term in practice (which they are used to using under the Children’s Services Award).’ 30
[55] The ECEC Employers note that providing employees with 2 hours minimum engagement ‘actually improves the position of employees being paid the quarter day method’. 31 The ECEC Employers presented an analysis comparing the existing method (the quarter day rate in accordance with clause 14.5 of the Teachers Award) with what it calls ‘an hourly methodology’, that is:
‘(i) By virtue of clause 10.2 of the Teachers Award, a full-time week is 38.
(ii) Therefore, the weekly rate must be equivalent to 38 hours, with a day meaning 38 divided by 5, which equals 7.6.
(iii) Proportionately, a half day must equal 3.8 hours work, and a quarter day is 1.9 hours.’ 32
[56] The result of the analysis shows that the casual quarter day rate calculated in accordance with clause 14.5 is (in dollar terms) equivalent to 1.9 hours of work as evidenced below:
Level |
Existing Quarter Day |
Existing Hourly
|
Provisional View Hourly
|
Level 1 |
64.18 |
64.18 |
67.56 |
Level 2 |
65.50 |
65.50 |
68.94 |
Level 3 |
67.28 |
67.28 |
70.82 |
Level 4 |
69.71 |
69.71 |
73.38 |
Level 5 |
72.14 |
72.14 |
75.94 |
Level 6 |
74.40 |
74.40 |
78.32 |
Level 7 |
76.66 |
76.66 |
80.70 |
Level 8 |
79.08 |
79.08 |
83.24 |
Level 9 |
81.51 |
81.51 |
85.80 |
Level 10 |
83.94 |
83.94 |
88.36 |
Level 11 |
86.37 |
86.37 |
90.92 |
Level 12 |
88.80 |
88.80 |
93.48 |
Note: these rates include 4% for casual employees working in Long Day Care, which was the subject of proceedings AM2020/24.
[57] The ECEC Employers submitted that in order for a 2 hour minimum engagement to be paid as an hourly amount, wages will need to be displayed in an hourly form, which is not currently the case under the Teachers Award. In terms of how the minimum engagement rates should be represented in the Teachers Award, the ECEC Employers agreed with the drafting proposed by CCSA.
[58] The AFEI did not oppose the provisional view, provided that:
• the new provision would replace the current clause 14.5;
• the hourly ‘minimum rate’ for casual employees would be equivalent to the weekly rate provided in clause 14.3 divided by 38; and
• the application of casual loading and questions related to casual overtime would be addressed in conjunction with any transfer of relevant classifications from the Teachers Award to the Children’s Award.
[59] Further, AFEI did not oppose a 2 hour minimum engagement period for casual employees in the Teachers Award.
[60] In its reply submission the IEU submitted:
‘As the submissions make clear, there is no support by any of the parties for the operation of these provisions outside of the early childhood education and care (ECEC) sector.’ 33
[61] It is our provisional view that there is 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). Parties are invited to comment on this provisional view in accordance with the process set out in Section 3, ‘Next steps’, of this decision.
2.5 Coverage
[62] 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.
[63] During the course of the earlier proceedings a number of witnesses commented on the difficulty associated with referring to two awards, namely the Children’s Award and the Teachers Award. In Ms Paton’s statement she says:
‘Despite a long history in the child care industry, I find the Awards difficult to interpret and apply because they are not straightforward or written in plain English. I also do not think the Awards work together or consider all the other legislation that applies to the ECEC sector.’ 34
[64] Ms Viknarasah said:
‘I often find that the Awards are not simple or easy to understand. I find it confusing and difficult to try to adhere with all the requirements placed on me by the Awards as well as keeping up with the legislation and regulations which I will mention below. I also find it inefficient that every centre has to read and understand two Awards, even though Teachers could easily be covered under the Children’s Services Award.’ 35
[65] At [559] – [560] 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.
[560] We invite submissions in response to our provisional view. Submissions are to be filed by 4pm Tuesday, 16 June 2020. Submissions in reply are to be filed by 4pm Tuesday, 23 June 2020.’
[66] On 11 June 2020, we received correspondence from the IEU as follows:
‘At paragraphs [556]-[560] the Full Bench indicates a ‘provisional view’ that ‘the relevant parts of the Teachers Award be transferred to the Children’s Services Award’, inviting submissions by 16 June 2020.
The IEU does not presently understand what the ‘provisional view’ is and cannot properly respond. It is not apparent to us what the ‘relevant parts’ of the Teachers’ Award are said to be (noting that the conditions that apply to teachers in ECEC settings are not limited to Schedule A of that Award), or if this is a ‘provisional view’ that the coverage of both awards should be altered – which would be a major case.’
[67] The IEU requested that the directions set out at [560] of the June 2020 decision be vacated and that the matter be listed urgently for mention on 12, 15 or 16 of June 2020. In a statement 36 issued on 15 June 2020 we said:
‘We do not propose to list the matter for a mention at this time.
As set out above, the purpose of the provisional view is to try to limit the need for employers in the ECEC sector to apply two different awards. In order to give effect to that provisional view, the Children’s Services Award would be amended to include teachers working in the ECEC sector and consequential amendments would then be made to the Teachers Award. The intention of the provisional view is not to vary the conditions for teachers in the ECEC sector. Any process to give effect to the provisional view will be undertaken in consultation with interested parties.’ 37
[68] We amended the directions set out at [560] of the June 2020 decision to the following:
‘Submissions are to be filed by 4pm Tuesday, 30 June 2020. Submissions in reply are to be filed by 4pm Tuesday, 7 July 2020’. 38
[69] The AEU, ANMF, IEU and UWU opposed the provisional view. The IEU contended that the course proposed by the provisional view:
‘a. is impracticable, and will create more confusion than it resolves;
b. is not soundly based, and in its formation has denied natural justice to affected employees and other interested parties; and
c. presents a very real risk of creating future reductions in the conditions and esteem of professional teachers (who are overwhelmingly female) working in ECEC services, work which is both of critical social importance and historically undervalued on a gender basis.’ 39
[70] We reject the proposition that there has been any denial of procedural fairness; the submission put is devoid of merit. The expression of a provisional view with an invitation for interested parties to make submissions on those views plainly involves no denial of procedural fairness. As the High Court observed in R v Commonwealth Conciliation and Arbitration Commission; Ex part Angliss Group: 40
‘It is plain that when it is necessary to consider a question of fairness in relation to a tribunal the whole of the circumstances in the field of the inquiry are of importance. The nature of the jurisdiction exercised and the statutory provisions governing its exercise are amongst those circumstances. It is therefore important to bear in mind that the Commission does not sit to enforce existing private rights. Amongst other things, it is its function to develop and apply broad lines of action in matters of public concern resulting in the creation of new rights and in the modification of existing rights. It is not necessarily out of place, and indeed it might be expected that a member of the Commission from time to time in the course of discharging his duties should express more or less tentative views as to the desirability of change in some principle of wage fixation. The very nature of the office of a member of the Commission requires that he should apply his mind constantly to general questions of arbitral policy and consider the lines along which the processes of conciliation and arbitration for the prevention and settlement of industrial disputes ought to move.’ 41
[71] These proceedings form part of the 4 yearly review of these awards. Section 156 of the Fair Work Act 2009 deals with the conduct of the Review and s.156(2) provides that the Commission must review all modern awards and may, among other things, make determinations varying modern awards. In this context ‘review’ has its ordinary and natural meaning of ‘survey, inspect, re-examine or look back upon’. 42 The discretion in s.156(2)(b)(i) to make determinations varying modern awards in a Review, is expressed in general, unqualified, terms. Further, as a Full Bench of the Commission observed in the Penalty Rates Case:
‘The Review is to be distinguished from inter partes proceedings. Section 156 imposes an obligation on the Commission to review all modern awards and each modern award must be reviewed in its own right. The Review is conducted on the Commission’s own motion and is not dependent upon an application by an interested party. Nor is the Commission constrained by the terms of a particular application. 43 The Commission is not required to make a decision in the terms applied for (s.599) and, in a Review, may vary a modern award in whatever terms it considers appropriate, subject to its obligation to accord interested parties procedural fairness and the application of relevant statutory provisions, such as ss.134, 138 and 578.’44
[72] In its reply submission the IEU observed, correctly, that the various employer submissions which responded to the provisional view ‘almost all opposed’,:
‘Of the industry participants and stakeholders that have responded to the Full Bench’s ‘provisional view’, almost all have opposed it. This includes the ACA, which is of particular significance given that the two witnesses whose evidence led the Full Bench to form said view are executive members of that organisation; this emphasises that they spoke only for themselves in this respect.
AFEI, whose actual interest in the sector is very unclear, supports the ‘provisional view’. However, it appears that this is on the basis that classifications, pay and conditions for teachers in early childhood settings would be brought into line with educators covered by the Children’s Services Award. This would result in a sharp diminution in the conditions of employment of these teachers. It thus cannot be said to be actual support for the Full Bench’s provisional view, which was formed with the “intention … not to vary the conditions for teachers in the ECEC sector.” 45 The AFEI’s position should be disregarded.’46
[73] We agree with the IEU’s characterisation of the AFEI’s position and note that it has not taken a lead role in these proceedings. We briefly summarise the position of the other employer submissions below.
[74] The Association of Independent Schools submitted the coverage of the Teachers Award should not be changed; it was not opposed to the Commission making any amendments to the Children’s Award provided that the coverage and operation of the Teachers Award is not impacted.
[75] The ECEC Employers stated that discussions with their members did not result in uniform support for the consolidation of the Teachers Award and the Children’s Award in respect of work performed in early childhood education and care centres. The ECEC Employers submitted that although there seemed to be an initial attraction to this course, in light of the complexity of two awards and the many other legislative requirements in the sector, such an amalgamation would require detailed thought, analysis and drafting to accommodate all parties. The ECEC Employers concluded their submission by urging the retention of the status quo, as follows:
‘The industry is currently heavily focused on structural challenges occasioned by the COVID-19 pandemic, including alterations to their businesses, demand/service issues, rostering issues, a new funding model (and return to the pre-covid-19 subsidy scheme) and the loss of Jobkeeper payments in July 2020.
As a result, ACA is of the view the status quo (of two awards) should remain and does not endorse the provisional view.
ABI and NSWBC support this view.’ 47
[76] We acknowledge that the IEU and all but one of the employer organisations participating in this case do not support our provisional view that the relevant part of the Teachers Award be transferred to the Children’s Award to ensure that the operator of an ECEC centre does not have to refer to two awards in order to determine the terms and conditions applicable to the employees at their centre. Given the views expressed by these industrial parties we will not press our provisional view at this time. But that is not the end of the matter.
[77] On 25 September 2020 the Commission published an Information Note – Data on child care services providing data on the number of businesses covered by the Children’s Award and the Teachers Award, by size, service type and the number of education and care services and providers operating under the NQF. The Information Note – Data on child care services suggests that a significant proportion of businesses covered by the Children’s Award are small businesses. In view of the prevalence of small business operators in the ECEC sector we maintain it is particularly important to ensure that award entitlements and obligations are simple and easy to understand.
[78] So, 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. Interested parties are invited to comment on this proposal in accordance with the process set out in Section 3, ‘Next steps’.
[79] Interested parties are to file a written submission addressing the following matters:
1. Part-time employment: the plain language redraft set out at [13] above and the draft variation determination at Attachment A.
2. Educational Leaders, non-contact time: the draft variation determination at Attachment A.
3. Clothing Allowance: the draft variation determination at Attachment A.
4. Minimum engagement: the provisional view at [61] above.
5. Award coverage: the proposal at [78] and Item 11 of the draft variation determination at Attachment A.
[80] The submissions are to be filed by no later than 4 pm Friday, 9 October 2020. All submissions are to be sent to amod@fwc.gov.au in word format.
[81] These matters will be the subject of a hearing on Friday, 16 October 2020 at 10am, by telephone. Parties wishing to appear at the hearing are to provide the name, direct number and organisation by 4 pm on Thursday, 15 October 2020 to chambers.ross.j@fwc.gov.au.
PRESIDENT
Final written submissions:
Community Connections Solutions Australia (16 June 2020)
Australian Federation of Employers and Industries (30 June 2020)
Australian Childcare Alliance, Australian Business Industrial and the New South Wales Business Chamber (30 June 2020)
Independent Education Union of Australia (7 July 2020)
Independent Schools Victoria (29 June 2020)
Australian Federation of Employers and Industries (30 June 2020);
United Workers Union (30 June 2020);
Australian Education Union (30 June 2020);
Australian Nursing & Midwifery Federation (30 June 2020)
Printed by authority of the Commonwealth Government Printer
<PR723112>
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, XX MONTH 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 XX MONTH 2020 [[2020] FWCFB XXXX], the above award is varied 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).
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.
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).
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).
10. By inserting a new Schedule J as follows:
Schedule J—Minimum salary and Related Matters—Teachers employed in early childhood services operating for at least 48 weeks per year
J.1.1 The minimum salary per annum payable to a teacher employed full-time in the children’s services and early childhood education industry will be determined in accordance with the provisions of clause 14–Classifications of the Educational Services (Teachers) Award 2020, and the following table.
Level |
Per year |
$ | |
1 |
52,420 |
2 |
53,500 |
3 |
54,956 |
4 |
56,938 |
5 |
58,922 |
6 |
60,769 |
7 |
62,615 |
8 |
64,597 |
9 |
66,582 |
10 |
68,565 |
11 |
70,550 |
12 |
72,531 |
J.1.2 A full time employee who works in a children’s or early childhood service which usually provides services over a period of at least eight 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 J.1.1 on the basis that the employee is not covered by the provisions of clause 15—Ordinary hours of work of the Educational Services (Teachers) Award 2020. These rates are set out in the following table.
Level |
Per year |
$ | |
1 |
54,516.80 |
2 |
55,640.00 |
3 |
57,154.24 |
4 |
59,215.52 |
5 |
61,278.88 |
6 |
63,199.76 |
7 |
65,119.60 |
8 |
67,180.88 |
9 |
69,245.28 |
10 |
71,307.60 |
11 |
73,372.00 |
12 |
75,432.24 |
J.1.3 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.
A teacher employed part time in the children’s services and early childhood education industry will be paid pro rata, at the same rate as a full-time employee in the same classification, in accordance with the provisions of clause 11 of the Educational Services (Teachers) Award 2020.
(a) The salary payable to a casual employee will be:
(i) no higher than the salary at Level 8 in clause J.1.1 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 14–Classifications of the Educational Services (Teachers) Award 2020, calculated in accordance with the table below:
Full day |
Weekly rate calculated in accordance with clause J.1.3 divided by 5 plus 25% |
Half day |
Weekly rate calculated in accordance with clause J.1.3 divided by 10 plus 25% |
Quarter day |
Weekly rate calculated in accordance with clause J.1.3 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.
NOTE 1: If a provision in this Schedule (or a provision referred to in this Schedule) is inconsistent with another provision in this award, the provision in this Schedule (or the provision referred to in this Schedule) prevails to the extent of the inconsistency.
NOTE 2: The following clauses in the Educational Services (Teachers) Award 2020 apply to teachers employed in the children’s services and early childhood education industry:
• Types of employment – clauses 8 - 13
• Classifications – clause 14
• Allowances – clause 19
• Schedule A—Hours of Work and Related Matters—Teachers employed in early childhood services operating for at least 48 weeks per year. This schedule includes specific provisions relating to:
• Ordinary hours of work – clause A.1
• Rostered days off – clause A.2
• Breaks – clause A.3
• Overtime – clause A.4
• Shiftwork – clause A.5
• Annual leave – clause A.6
11. By updating the table of contents and cross-references accordingly.
B. This determination comes into operation on XX DATE 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 XX DATE 2020.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
2 The 2020 Teachers Award comes into operation on 1 October 2020, see [2020] FWCFB 4875.
3 UWU submission, 30 June 2020 at 5.
4 June 2020 decision [2020] FWCFB 3011 at [539] – [540]
5 The UWU submission - Factual Findings, 29 May 2019 at para 83.
6 ECEC Employers response to Background Paper, 17 July 2019 at para 72.
7 [2020] FWCFB 3011 at [316 – [318]
8 Exhibit 32 – Witness statement of Lisa James, 15 March 2019 at para 32.
9 IEU submission, 15 March 2019 at para 21.
10 IEU submission, 15 March 2019 at para 22.
11 IEU submission, 15 March 2019 at para 23.
12 ECEC Employers submission, 10 July 2019 at para 107.
13 Ibid, at para 108.
14 Ibid, at para 108.
15 Ibid, at para 111.
16 Ibid, at para 111.
17 IEU submission, 15 March 2019 at para 25.
19 See [2017] FWCFB 3541 at [402].
20 [2012] FWAFB 6913 at [12].
21 (2000) 110 IR 247 at para [126].
23 Ibid at [399].
24 [2019] FWCFB 5078 at [186].
25 See [2020] FWCFB 4875.
26 IEU submission, 30 June 2020 at 13 – 15.
27 [2020] FWCFB 3011 at [523].
28 [2020] FWCFB 3011 at [522].
29 CCSA, submission, 16 June 2020.
30 ECEC Employers, submission, 30 June 2020 at [6] – [7].
31 Ibid at [8].
32 Ibid.
33 IEU, submission in reply, 8 July 2020 at 4.
34 Exhibit 21 at para [79].
35 Exhibit 13 at para [38].
37 [2020] FWCFB 3118 at [4] – [5]
38 [2020] FWCFB 3118 at [6]
39 IEU submission, 30 June 2020, page 4.
40 (1969) CLR 556
41 Ibid at 553.
42 Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161 at [38].
43 4 Yearly Review of Modern Awards – Annual Leave [2016] FWCFB 3177 at [135]–[140].
44 [2017] FWCFB 1001 at [110].
45 [2020] FWCFB 3118 at [5].
46 IEU reply submission, 7 July 2020 at 3-4.
47 ECEC Employers submission, 30 June 2020 at 19-21.