STATEMENT

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

4 yearly review of modern awards – Award stage – Children’s Services Award 2010 – Educational Services (Teachers) Award 2020 – Finalisation of substantive claims
(AM2018/18; AM2018/20)

4 yearly review of modern awards – Award stage – Group 4 awards – Children’s Services Award 2010 and Educational services (Teachers) Award 2020 – Finalisation of substantive claims.

1. Background

[1] On 10 June 2020 we issued a decision 1 (the June 2020 decision) dealing with substantive claims to vary the Children’s Services Award 2010 (Children’s Award) and the Educational Services (Teachers) Award 2020 (Teachers Award)2 as part of the 4 yearly review of modern awards (the Review).

[2] On 29 September 2020 we issued a decision 3 (the September 2020 decision) dealing with four outstanding substantive claims to vary the Children’s Award and the Teachers Award. The four outstanding claims are:

•  Part-time employment: means of communicating ad hoc agreed changes

•  Educational Leaders: additional 2 hours non-contact time per week

•  Minimum engagement

•  Coverage

(collectively, the outstanding issues).

[3] In the September 2020 decision we invited interested parties to file a written submission addressing the following matters:

1. Part-time employment: the plain language redraft set out at [13] of the September 2020 decision 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].

5. Award coverage: the proposal at [78] and item 11 of the draft variation determination at Attachment A.

[4] The following submissions were filed in response to the September 2020 decision:

•  United Workers Union (UWU) (9 October 2020);

•  Australian Federation of Employers and Industry (AFEI) (9 October 2020);

•  Independent Education Union of Australia (IEU) (9 October 2020);

•  Community Connections Solutions Australia (CCSA) (9 October 2020); and

•  Australian Childcare Alliance and others (ECEC Employers) (9 October 2020).

[5] We now turn to each of the outstanding issues.

2. The Outstanding Issues

2.1 Part-time employment

[6] 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.’

[7] 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). 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 Award in similar terms to clause 22.6(f) of the Aged Care Award 2010 (Aged Care Award) is necessary to ensure that the award achieves the modern awards objective. In the September 2020 decision we confirmed that provisional view.

[8] In the September 2020 decision we set out a plain language re-draft of clauses 10.4 and 21.7, which incorporated the confirmation of our provisional view.

[9] A draft variation determination (at Attachment A to the September 2020 decision) set out the proposed changes to clauses 10.4 and 21.7, as follows:

‘1. By deleting clause 10.4(d)(i) and inserting:

Changes in the agreed regular pattern of work may only be made by agreement in writing between the employer and employee. Changes in the days to be worked or in starting and/or finishing times (whether on-going or ad hoc) may also be made by agreement in writing. An agreement in writing may be made by any electronic means of communication.

2. By deleting clause 10.4(d)(iii) and inserting the following:

(iii) The employer is not required to provide the full 7 days’ notice of change of the days an employee is to work where the employer makes the change as a result of an emergency outside of the employer’s control.

3. By inserting a new clause 10.4(d)(iv) and (v) as follows:

(iv) In the circumstance in clause 10.4(d)(iii), the employer must pay the employee at overtime rates for the additional time the employee remains at the workplace.

(v) In clause 10.4(d)(iii), emergency means:

•  a situation or event that poses an imminent or severe risk to the persons at an education and care service premises (for example, a fire at the education and care services premises); or

•  a situation that requires the education and care service premises to be locked-down (for example, an emergency government direction).

…

6. By deleting clause 21.7(b)(i) and inserting:

An employer may change an employee’s rostered hours, but only by giving the employee seven days’ notice. In the absence of such notice overtime will be paid until seven days have elapsed from the date the notice was given. However, an employee and employer may agree to waive or shorten this notice period in a particular case. Such agreement may be made by electronic means of communication and must be recorded in the time and wages records.

7. By deleting clause 21.7(b)(ii) and inserting the following:

(ii) The employer is also not required to provide the full 7 days’ notice where the employer makes the change as a result of an emergency outside of the employer’s control.

8. By deleting clause 21.7(b)(iii) and inserting the following:

(iii) It is not an emergency for the purposes of clause 21.7(b) (ii) if an employee

is required to stay beyond their rostered hours because a parent fails to arrive on time to collect a child.

9. By inserting a new clause 21.7(b)(iv) and (v) as follows:

(iv) In the circumstances in clause 21.7(b)(ii), the employer must pay the employee at overtime rates for the additional time the employee remains at the workplace.

(v) In clause 21.7(b)(ii), emergency means:

•  a situation or event that poses an imminent or severe risk to the persons at an education and care service premises (for example, a fire at the education and care services premises); or

•  a situation that requires the education and care service premises to be locked-down (for example, an emergency government direction).’

[10] Parties were invited to comment on the contents of the draft variation determination.

[11] The UWU does not oppose the wording in the draft variation determination.

[12] CCSA supports the plain language redraft set out at [13] of the September 2020 decision and at items 1-3 and 6-9 of the draft variation determination at Attachment A to that decision.

[13] In particular, CCSA supports items 3 and 9 of the draft variation determination which clarifies that the employer must pay the employee at overtime rates for the additional time the employee remains at the workplace in circumstances where the employer makes the change as a result of an emergency outside the employer’s control.

[14] The ECEC Employers also agree with the proposed drafting for clauses 10.4 and 21.7 as set out in the draft variation determination.

[15] AFEI is the only party to oppose this aspect of the draft variation determination. AFEI submits that the proposed variations provide:

(a) Where the exception to provide 7 days’ notice to change an employee’s days of work applies, an employer must pay the employee at overtime rates for the additional time the employee remains at the workplace;

(b) Where the exception to provide 7 days’ notice to change a roster applies, the employer must pay the employee at overtime rates for the additional time the employee remains at the workplace;

(c) an employer would be able to make changes to an employee’s agreed pattern of work/days to be worked/an employee’s starting and finishing times by electronic means of communication in writing; and

(d) an employer would be able to agree with the employee, by electronic means of communication in writing, to waive or shorten the 7 days’ notice period where changes are made to rostered hours.

[16] AFEI opposes the obligation to make overtime payment in the circumstances set out at (a) and (b) above on the ground that the proposed variations:

‘amount to a substantive variation of the award. Current clauses 10.4 and 21.7 do not require the payment of overtime in the circumstances as set out in 4(a) and 4(b) above. The payment of overtime amounts to a new financial obligation on employers that is inconsistent with section 134(f) Fair Work Act 2009 (Cth).’ 4

[17] AFEI submits that current clauses 10.4(f) and 23.1(b) prescribe when overtime rates apply for part-time employees performing additional hours. Clause 10.4(f) provides ‘a part-time employee who agrees to work in excess of their normal hours will be paid at ordinary time for up to eight hours provided that the additional time worked is during ordinary hours of operation of the early childhood service. No part-time employee may work in excess of eight hours in any day without the payment of overtime’ (emphasis added). On this basis AFEI contends that the proposed variation is therefore unnecessary.

[18] AFEI does not oppose the principle of the proposed variations as set out at (c) and (d) above, but notes that the Commission gave consideration to similar provisions in the Aged Care Award, which provide that changes to rosters may be communicated by telephone. 5 AFEI also notes that the Commission highlighted that certain witness evidence in the proceedings suggested that ‘consent’ can occur informally such as by way of a phone call.6 As such, it is submitted that the proposed variations ought to include the option for changes and agreements to be made by telephone, consistent with the realities of the way the childcare industry operates.

[19] It is convenient to deal with the last point first. We do not propose to make the change proposed by AFEI as it would be inconsistent with the terms of clause 10.4(d)(i), which provides that changes in the agreed regular pattern of work ‘may only be made by agreement in writing between the employer and employee’ (emphasis added).

[20] The other parties are invited to comment on AFEI’s submission in respect of the obligation to make an overtime payment in circumstances where a change to an employee’s rostered hours is made as a result of an emergency outside of the employee’s control. Parties are invited to comment in accordance with the ‘Next Steps’ section set out at [66] and [67].

2.2 Educational Leaders: non-contact time

[21] In the June 2020 decision we dismissed the UWU’s claim to increase the prescribed non-contact time in clause 21.5 from two hours to four hours but went on to decide to provide Educational Leaders with an entitlement to an additional 2 hours non-contact time per week, for the reasons set out in Section 6.3.2. In particular, 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

[22] A draft variation determination to give effect to the June 2020 decision was set out at Attachment A of the September 2020 decision. The draft variation determination incorporated the UWU’s proposed rewording of clause 21.5 and the provision of an additional two hours per week non-contact time for Educational Leaders:

‘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).’

[23] Parties were invited to comment on the draft determination.

[24] The UWU does not oppose the wording in the draft variation determination.

[25] AFEI does not oppose the draft variation determination and goes on to submit that:

‘To provide certainty to employers and employees, the definition of ‘Educational Leader’ (currently set out in the draft variation determination) should be included in Clause 2 of the Award, so that it is a term of the Award.’ 8

[26] CCSA submits that while it would be common practice for the Educational Leader of a service to also be responsible for the ‘preparation, implementation and/or evaluation of a developmental program for an individual child or group of children’, there is no absolute requirement that this be the case and that, as currently drafted, item 5 of the draft variation determination assumes that the Educational Leader always has both responsibilities. CCSA submits that it is also possible that the new clause 21.5(a) will be misinterpreted so that the programming and Educational Leader non-contact times, 2 and 4 hours per week respectively, are treated as being cumulative (i.e. 6 hours per week) rather than the 2 hours of programming being included in the Educational Leader’s 4 hours of non-contact time.

[27] To address these concerns CCSA proposes that item 5 of the draft variation determination be varied as follows:

‘5. By deleting clause 21.5(a) and inserting the following:

(a) An employee responsible for the preparation, implementation and/or evaluation of a developmental program for an individual child or group of children will be entitled to a minimum of two hours non-contact time per week. During non-contact time, an employee will not be required to supervise children or perform other duties as directed by the employer.

(b) An employee appointed as the Educational Leader will be entitled to a minimum of two hours non-contact time per week. During non-contact time, an employee will not be required to supervise children or perform other duties as directed by the employer.

NOTE: Educational leader is defined in Regulation 118 of the Education and Care Services National Regulations (2011).

NOTE: The entitlements at sub-clauses (a) and (b) are cumulative. An Educational Leader who also has programming responsibilities for an individual child or group of children will be entitled to a minimum of four hours non-contact time per week.

By renumbering clause 21.5(b) as clause 21.5(c).’

[28] The ECEC Employers submit that the proposed drafting of clause 21.5 may inadvertently give rise to Room Leaders who are not Educational Leaders receiving 4 hours of non-contact time.

[29] The ECEC Employers also submit that there is utility in clarifying that clause 21.5 (two hours non-contact time) as it is currently drafted in the Children’s Services Award only applies to Room Leaders.

[30] To address these concerns the ECEC Employers advance the following proposal:

‘21.5 Non-contact time

(a) A Room Leader who is 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) An employee who is appointed an 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).’

[31] It is our provisional view that the award be varied in the terms proposed by CCSA (at [27] above). In view of this change the ECEC Employers are invited to consider whether they wish to press the inclusion of the reference to ‘A Room Leader’.

2.3 Clothing allowance

[32] 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.’

[33] A draft variation determination to give effect to the June 2020 decision was set out at Attachment A of the September 2020 decision as follows:

‘4. By deleting clause 15.2(c) and inserting the following:

(c) Where an employee is required to wear protective clothing or equipment such as hats and sunscreen lotion, goggles, aprons or gloves, the employer will either supply such clothing or equipment or reimburse the employee for the cost of their purchase.’

[34] Parties were invited to comment on the draft determination.

[35] The UWU does not oppose the wording in the draft variation determination.

[36] The ECEC Employers agree with the proposed drafting for clause 15.2.

[37] AFEI does not oppose the draft variation determination.

[38] CCSA supports the draft variation determination but submits that to fully implement [545] of the June 2020 decision, item 4 of the draft variation determination also include the sentence ‘Reimbursement will be limited to reasonable costs incurred.’.

[39] We agree with CCSA and will add the sentence ‘Reimbursement will be limited to reasonable costs incurred’ at the end of clause 15.2(c).

2.4 Minimum Engagement

[40] 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.’

[41] 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.

[42] We set out the submissions made in response to our provisional view in the September 2020 decision and went on to express 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.

[43] We also expressed the provisional view that there was utility in harmonising the casual minimum payment provisions relating to ECEC employers by providing that casual early childhood teachers working in early childhood services be subject to a two hour minimum engagement period (as specified in clause 10.5(c) of the Children’s Award). Parties were invited to comment on these provisional views.

[44] The UWU submits that:

‘[it] recognises the custom and practice of some early learning services to work flexible days of varying lengths. Any variation of the terms of minimum engagement in the Educational Services (Teachers) Award 2010 must ensure no employee is worse off, given these practices.’ 9

[45] AFEI does not oppose the provisional view that casual early childhood teachers working in early childhood services be subject to a two hour minimum engagement period, subject to the provision replacing the existing clause 17.5(c)(ii), and instead of J.1.5(b)(ii) in the draft variation determination at Attachment A of the September 2020 decision. .

[46] The IEU accepts that our provisional view would, in practical terms, replicate with more clarity the present entitlement for casual teachers engaged for what is presently described as a ‘quarter day’ or less. The IEU goes on to submit:

‘However, it is with respect unclear whether the Full Bench’s proposal is to merely amend the quarter day reference, or to introduce a 2-hour minimum in lieu of all the present conditions provided by cl.17.5 of the Teachers.

This would in practical terms operate to reduce wage outcomes for casual teachers who are engaged for what is presently described as more than a quarter day but less than a half day, or for those engaged more than a half day but less than a full day.

By way of illustration, and assuming a 8-hour day:

It is worth noting that award dependent casuals working short days are, as a matter of common sense, likely to be low-wage earners and vulnerable workers. No party put forward any material indicating that this would be necessary or justified. At its highest, the employer case is that it is difficult to understand what is meant by ‘quarter day’.

The IEU does not understand that the Full Bench’s provisional view is intended to reduce wage outcomes for any worker solely to make the Children’s Services Award tidier. As such, the provisional view is best given effect by amending cl.17.5 of the Teachers Award to read:

17.5 Casual employee

(c) Minimum payments

(ii) A casual employee in a children’s service or early childhood education service will be paid for a minimum of:

(x) where they are required to work for up to 2 hours, 2 hours;

(xx) where they are required to work for up to 4 hours, 4 hours; and

(xxx) where they are required to work for more than 4 hours, 8 hours, based on their appropriate hourly rate.’ 10

[47] CCSA supports the provisional view and submits that it supports attainment of the modern awards objective, in particular s.134(1)(g),:

‘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.’ 11

[48] CCSA submits that the implementation of our provisional view would require amending Table B.1.2 of Schedule B of the Teachers Award. CCSA submits that Table B.1.2 be adjusted to be the minimum pay rates for casual teachers employed in schools, and for casual early childhood teachers employed in early childhood services.  A separate Table B.1.3 could then show the hourly rates payable to casual early childhood teachers employed in early childhood services, as set out below:

B.1.2 Casual employees – minimum rates of pay

B.1.3 Casual employees – hourly rates of pay for early childhood teachers

* Maximum rate for a casual teacher engaged for less than five consecutive days

[49] The ECEC Employers support the provisional view.

[50] The ECEC Employers submit that while no evidence was found during these proceedings that employers are breaching the Teachers Award and paying incorrectly:

‘(a) the clause in its current form is overly complex and it would be easy for small businesses to inadvertently only pay a quarter day rate when the employee had worked an amount of time that actually required (on the existing drafting) the half day rate be paid;

(b) anecdotal evidence from the ECEC Employers members suggests that:

(i) some employers are more likely to pay the employee for the hours worked (rather than perform the complex calculation and determine whether they should be topped up to a half day rate)

(ii) employers rarely engage casuals for less than a full day (therefore they do not have to perform the complex calculations) - this may be why evidence was difficult to obtain and why this issue has not been raised before.

The Awards should be simple and easy to understand and having regard to the modern awards objective, we believe the Full Bench’s provisional view to amend the Teachers Award with a 2 hour minimum engagement manner would be appropriate.’ 12

[51] The ECEC Employers also note that a determination has since been handed down 13 which results in the insertion of tables at B.1 of the Teachers Award. In particular the following table including dollar figures for quarter day and half day now appears in the Award:

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

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.

[52] The ECEC Employers maintain the view that inserting the table shown above has gone some way to assisting businesses to calculate the quarter day and half day rates but submit that it has not fully rectified the issues that the IEU raised in its initial claim and that still exist with the ambiguous drafting of clause 14.5 of the Teachers Award.

[53] In relation to the IEU submission we wish to make it clear that it was not our intention to vary the minimum engagement term in a manner that would reduce the minimum payments payable to casual teachers. Further, we note the following:

➣  the recent insertion of the half day and quarter day rates schedule has made the practical application of the existing minimum engagement term simpler;

➣  there is no direct evidence of employers breaching the current minimum engagement term;

➣  the ECEC Employers initially submitted that a variation to the minimum engagement term was unnecessary and that the evidence filed by the IEU was insufficient to warrant a change on the basis of ambiguity; 14 and

➣  in response to our provisional view in the June 2020 decision the IEU submitted that no change to the minimum engagement term was necessary (despite having initially raised the issue).

[54] In these circumstances we do not propose to vary the current minimum engagement term unless the parties are able to arrive at a consent position regarding the form of such a variation. We initially endeavoured to simplify the current term, without changing its substantive effect. It is apparent that this endeavour has not succeeded and given the present lack of consensus about the form of any variation and the absence of cogent evidence of a problem, we do not propose to take any further action in respect of this issue, absent a consensus between the major parties.

2.5 Coverage

[55] 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.

[56] 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.’

[57] In the September 2020 decision we acknowledged that the IEU and all but one of the employer organisations did not support our provisional view that the relevant part of the Teachers Award be transferred to the Children’s Award. Given the views expressed we decided not to press our provisional view; but went on to say:

‘while the industrial parties participating in this case do not support the transfer of parts of the Teachers Award to the Children’s Award, there may be an alternative means of addressing this issue – namely by replicating the relevant wage rates from the Teachers Award in a schedule to the Children’s Award and by providing a cross reference to the other applicable clauses in the Teachers Award (with a hyperlink to those clauses). Such an approach would obviate the need for an ECEC employer to access two awards while retaining all relevant terms in the Teachers Award. An illustration of such an approach is set out at Item 11 in the draft variation determination set out at Attachment A. Interested parties are invited to comment on this proposal’. 15

[58] No party supported the proposal set out in the September 2020 decision. The UWU submits:

‘UWU does not believe the proposed method of incorporating the teacher wage rates addresses the initial concerns of the Commission, as employers will still need to refer to both instruments. The clauses referenced back to the Educational Services (Teachers) Award 2010 include substantive conditions such as ordinary hours of work, rostering and breaks, which are likely to need to be referred to by employers often, not substantially reducing the complexity of the management of early childhood teachers. As such UWU does not support the provisional view of the Commission.’ 16

[59] AFEI does not propose consolidation of the two Awards at this time and does not support the proposal at [78] of the September 2020 decision on the basis that it would not eliminate the ‘administrative issues for ECEC employers arising from multiple award coverage', 17 it could have the potential to cause further confusion whilst causing the award to become unnecessarily lengthy.

[60] From paragraphs [76]-[78] of the September 2020 decision, the IEU understands that our proposal was to, without altering the coverage of either the Teachers Award or the Children’s Services Award, include for administrative convenience a wages schedule for teachers working in ECEC centres in the Children’s Services Award. The IEU opposes the proposal, submitting:

‘The proposed Draft Determination is expressed as a schedule to the Children’s Services Award; i.e. a substantive and operative clause imposing obligations on employers and providing entitlements to employees.

This appears to create a difficulty. An award can only impose obligations on or provide entitlements to a person when it is expressed to cover that person: ss.46,47,48 of the Fair Work Act 2009 (Cth). The schedule cannot have operative effect in respect of employees outside the scope of the Award – i.e. teachers.

In addition, the IEU is concerned that the proposed schedule will create more confusion than it resolves. It is easy to see how it could lead unsophisticated employers into a conclusion that the Children’s Services Award applied to teachers in ECEC sectors, leading to inadvertent non-compliance to the detriment of employees.’ 18

[61] The IEU went on to advance an alternate proposition:

‘The proposal is better expressed as a note to cl.14, ideally with a hyperlink, indicating that wage rates for teachers are found in the Teachers Award. This would seem to achieve the stated goal of simplicity and ease of use, without sacrificing security of employee entitlements.

Alternatively, a note could be included directing employers to the convenient wage schedules produced by the Fair Work Ombudsman, by which employers – noting that multiple award coverage is far from unusual, and not an anomaly unique to the ECEC sector – can easily check the appropriate wage rates for all of their employees. The convenience and ease of this, as well as the reality of whether the present system causes actual inconvenience for employers, are matters which the IEU would have put into evidence had this issue been live during the hearing of this matter. In the event that this is controversial, the IEU would seek leave to put on such material.’ 19

[62] CCSA does not support the proposal and submits that:

‘small businesses are better served by having the terms and conditions of their employees clearly delineated in specific awards, rather than trying to amalgamate all the various conditions into an omnibus document which tends to cause confusion.

The nature of the ECEC sector means that multiple awards apply in the workplace, beyond the two awards identified. For example, most, if not all, ECEC services will employ administrative staff under the Clerks – Private Sector Award 2020 (United Voice v Cuddlepie Early Childhood Learning Centre [2015] FWC 6661).  Other awards commonly applicable to the ECEC sector include the Social, Community, Home Care and Disability Services Industry Award 2010 [MA000100] and the Health Professionals and Support Services Award 2020 [MA000027]. The approach described at [78] will not obviate the need for ECEC employers to still refer to, and apply, other awards.’ 20

[63] CCSA proposes that the issue instead be addressed by inserting a new clause 4.8 of the Children’s Services Award 2010 to include the following additional awards, including hyperlinks to those awards:

‘4.8 This award does not cover an employee in an early childhood service who is covered by:

(a) the Clerks – Private Sector Award 2020 (for administrative staff)

(b) the Educational Services (Teachers) Award 2020 including Schedule A (for early childhood teachers employed as such in early childhood services operating for at least 48 weeks per year)

(c) the Educational Services (Teachers) Award 2020 not including Schedule A (for early childhood teachers employed as such in preschools / kindergartens)

(d) the Health Professional and Support Services Award 2020 (for health professionals employed as such in early childhood intervention and other early childhood services)

(e) the Social, Community, Home Care and Disability Services Industry Award 2010 (for employees in the family day care and social and community services streams)

[64] The ECEC Employers submit that they have considered our proposal and that:

‘The outcome of consultation with members from each organisation has not demonstrated uniform support for insertion of a schedule. Feedback has suggested that the introduction of these references may serve to add complexity and confusion to the interpretation or the award and may result in increased disputation.

As a result, the ECEC Employers are of the view the status quo (of two awards) should remain.’ 21

[65] Interested parties are invited to comment on the IEU’s alternative proposal (at [61] above) and CCSA’s proposed insertion of a new clause 4.8 (see [63] above).

3. Next Steps

[66] At present this matter is scheduled to be the subject of a hearing at 10am on Friday, 16 October 2020. We propose to now list the matter for hearing at 11:30am, on the same day. We also propose to list this matter for a conference before Commissioner Lee at 10am on Friday, 16 October 2020. Separate listing notices will be issued shortly.

[67] The purpose of the conference before Commissioner Lee is to:

1. Seek the views of the parties in relation to AFEI’s submission regarding the part time employment draft variation determination (see [17] and [20] above).

2. Seek the views of the parties in relation to our provisional view regarding the non-contact time clause (see [26] and [31]) and to seek clarification from the ECEC Employers as to whether they press their proposed inclusion of the reference to ‘A Room Leader’.

3. See if any consensus can be reached in relation to the clarification of the minimum engagement term.

4. Seek the views of the parties about the IEU’s alternate proposal to deal with the coverage issue and CCSA’s proposed insertion of a new clause 4.8 (see [61], [63] and [65] above).

PRESIDENT

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 1   [2020] FWCFB 3011.

 2   The 2020 Teachers Award came into operation on 1 October 2020, see [2020] FWCFB 4875.

 3   [2020] FWCFB 5176.

 4   AFEI submission at para 5.

 5   Aged Care Award 2010, clause 22.6(f).

 6   [2020] FWCFB 3011 at [249].

 7   [2020] FWCFB 3011 at [316] – [318].

 8   AFEI submission at para 8.

 9   UWU submission, at para 7.

 10   IEU submission, at paras 4-8.

 11   CCSA submission, at pages 2-3.

 12   ECEC Employers submission, at paras 14-15.

 13   [2020] FWCFB 4875.

 14   See [2020] FWCFB 3011 at [495] – [500].

 15   [2020] FWCFB 5176 at [78].

 16   UWU submission, at para 10.

 17   [2020] FWCFB 5176 at [62].

 18   IEU submission, at paras 10 – 12.

 19   IEU submission, at paras 13 – 14.

 20   CCSA submission, at pages 4 – 5.

 21   ECEC Employers submission, at paras 17 – 18.