Epiq logo Fair Work Commission logo






Fair Work Act 2009                                       1057802






s.156 - 4 yearly review of modern awards


Four yearly review of modern awards


 Educational Services (Teachers) Award 2010



12.04 PM, TUESDAY, 12 MAY 2020


THE DEPUTY PRESIDENT:  Good afternoon.  It's Deputy President Clancy.  This conference is now in session.  Could I take appearances, please.


MS L SAUNDERS:  Thank you, Deputy President.  Saunders, initial L.  I seek permission to appear for the IEU.  Dr Wright is instructing.


THE DEPUTY PRESIDENT:  Thank you, Ms Saunders.  Yes, who else?


MR M CARTER:  Thank you, Deputy President.  Carter, initial M, for the Association of Independent Schools seeking leave.


THE DEPUTY PRESIDENT:  Thank you, Mr Carter.


MR R KINGSTON:  Deputy President, it's Mr Kingston here, initial R, seeking permission to appear for Australian Business Industrial and New South Wales Business Chamber.


THE DEPUTY PRESIDENT:  All right.  Thank you.  Acting on the assumption that no applications for permission are opposed by any of the parties in respect of other parties, I will grant permission for the parties to be so represented.  Thank you for making yourselves available.  The conference arises out of a recent statement of the Full Bench made on 5 May which indicated that there were some provisional views expressed by the Full Bench in relation to the exposure draft for this award.  In that statement the Full Bench outlined three or four areas which I just want to work through with the parties in conference today.


In particular I will deal with the first few matters which, at paragraph 13 of the statement on 5 May, we expressed the view that the amendments that were proposed by what we described as the joint parties, being the IEU and the Association of Independent Schools - we expressed the view that the draft variation determination be amended in the manner proposed by the joint parties.  ABI, for its part, indicated that it opposed the variations that were proposed to clause 18.1.


Now, we will deal with that matter first, but before doing so I just note that there seemed to be both agreement between the IEU and the Association for changes to clause 16.1(a) with some alternate wording proposed for the exposure draft.  The second was a change to schedule A.3.1(a), again with some alternate words.  Finally, there was a change that doesn't seem to be the subject of objection from ABI, as well, relating to the redundancy notice period in clause 33.2 of the exposure draft.  That, as I understand it, leaves some matters relating to clause 18 of the exposure draft where it deals with the payment of wages and ABI made some submissions in relation to that.


Perhaps, Mr Kingston, I will just start by getting an indication from you that that is still the case and, if so, just get you to reiterate your position in relation to what has been proposed to clause 18.1, which, as I understand it, is limited to an amendment to subparagraph (a) so that it would read:


All moneys payable will be paid once each fortnight with the payment being made no later than the last working day of each fortnight.


Can I confirm, Ms Saunders and Mr Carter, that is an agreed position between yourselves?


MS SAUNDERS:  It is, Deputy President.  That said, a compromise proposal was put forward today, about 11 o'clock, so Mr Kingston may not have had time to get instructions.  It would be to amend the language to read 'with the payment' comma 'excepting teachers employed pursuant to schedule A' comma 'being made no later than the last working day each fortnight' which would effectively exclude early childhood teachers.  We do have concessions (indistinct).


THE DEPUTY PRESIDENT:  All right.  So that wording was 'excepting teachers being employed' - what was the rest of it, please?


MS SAUNDERS:  'Employed pursuant to schedule A' comma, and then the rest of the phrase.


THE DEPUTY PRESIDENT:  That is put forward to ABI as a way of addressing their concern.  Was that the case?


MS SAUNDERS:  That's right.  We understand they only represent educational services in the early childhood sector.


THE DEPUTY PRESIDENT:  All right.  Thank you.  Any comment from you, Mr Carter, before I ask Mr Kingston?


MR CARTER:  Deputy President, we agree with that position, so there is no further comment there.


THE DEPUTY PRESIDENT:  Thank you.  All right.  Mr Kingston, over to you, please.


MR KINGSTON:  Thanks, Deputy President.  Look, we have no objection with the proposed wording.  Our interest predominantly is with early childhood centres and I believe the proposed wording adequately resolves our concerns.  Thank you.


THE DEPUTY PRESIDENT:  All right.  I will make a note of that and report on that to the other members of the Full Bench.


MS SAUNDERS:  Would it assist, Deputy President, if we put that position in writing at the conclusion of this conference?


THE DEPUTY PRESIDENT:  Yes, thank you.  I would appreciate that.  Thank you, Ms Saunders.  Mr Kingston, does that resolve all the issues that you had with clause 18.1?


MR KINGSTON:  I believe so, Deputy President, yes.


THE DEPUTY PRESIDENT:  Thank you.  Then am I right that ABI didn't have any issues with the provisional view expressed by the Full Bench in relation to any of clause 16.1(a), schedule A.3.1(a) and clause 33.2 of the exposure draft?


MR KINGSTON:  That's correct.


THE DEPUTY PRESIDENT:  Thank you.  All right.  Well, if that is the case, if we could move our discussion then to the matters that concern schedule B of the exposure draft.  Turning to that now, this relates to three - well, there are a three matters.  I just want to confirm what the area of dispute is.


The three matters, as I understand it, is that the IEU seeks for there to be two columns to be inserted into the tables in schedule B; one to the table at B.1.1, a column for 'Teachers employed in early childhood services operating for at least 48 weeks per year' who are not shift workers, then in clause B.1.2, a column added in for 'Teachers employed in early childhood services operating for at least 48 weeks per year'.


Am I right in assuming that insofar as those two columns would be concerned, Mr Carter, there is no objection from your organisation to that proposal?


MR CARTER:  Deputy President, really as is set out in our reply submissions we do oppose the amendment - or the proposed amendment to the B.1.1 and B.1.2 schedules.  We clearly have an opposing position to the IEU, especially in terms of the 4 per cent loading for a casual employee in 48 week service.


THE DEPUTY PRESIDENT:  All right.  I understand the opposition you have in the method of calculation, but, as I understand, the proposal of the IEU is to have inserted into those two tables a column that set out the rates.  You might have a difference of opinion with them in terms of how those rates are to be ultimately calculated, but putting in a column with the rates outlined to those two tables, is that a matter that you oppose?


MR CARTER:  Deputy President, no, it's not (indistinct) without the 4 per cent increase - - -


THE DEPUTY PRESIDENT:  Yes, all right.  Mr Kingston, I don't understand you to have taken a position on this.  Can I assume that's right?


MR KINGSTON:  We haven't, Deputy President.  However, having a look at the submission‑in‑reply that the association provided on the 28th, we do adopt the same position.  My understanding is that there is no need to insert further rates into the schedules as they currently are because the rates, excluding the 4 per cent, are the rates that are currently in the exposure draft and published.


My understanding is that the IEU is seeking to insert an additional column which contains the casual rates of pay with the 4 per cent loading.  Our view is - and it has always been - the 4 per cent loading would (indistinct) casual employees and on that basis it doesn't need to be - no additional work needs to be done and the exposure draft is correct as it currently stands.


THE DEPUTY PRESIDENT:  All right.  Maybe I should have started with you, Ms Saunders  Have I characterised the position for these - the two columns; one for table B.1.1 and one for table B.1.2.  The columns with rates for those categories of teachers that you have described, that's one thing.




THE DEPUTY PRESIDENT:  Then there is a second thing that relates to how those rates for that column and indeed the other columns in the table are to be calculated, and that's the question of the 4 per cent loading.  Is that the correct position?


MS SAUNDERS:  That is correct, Deputy President.  It's a two‑stage process.  Firstly, having all the relevant rates set out in schedule B which is convenient and does assist (indistinct) in respect of people attempting to work out what their rate of pay is, particular the complexity of (indistinct) in this industry.  That really shouldn't be controversial.  The bit that there appears to be differences between the parties is what those rates should be for casuals unless the 4 per cent is included as part of the annualised salary or whether it's treated effectively as an allowance and excluded for casual workers.


THE DEPUTY PRESIDENT:  Yes.  Well, Mr Kingston, I'm not following the point you're making that you don't need the additional columns.  I follow the point in that you adopt the submission of the association in relation to whether the 4 per cent loading is to be a part of the calculation of the rate, but you appear to have suggested that the two additional columns - one in each table - suggested by the IEU aren't required.  Is that right?


MR KINGSTON:  Apologies, Deputy President.  Looking at it now again, I do appreciate that's incorrect.  My understanding is the matter in dispute was linked to the 4 per cent and the table may well be correct.  I can see now that isn't the case.  We wouldn't oppose the introduction of additional columns containing rates, but, as I said before, I understand the 4 per cent does not apply for casual employees.


THE DEPUTY PRESIDENT:  All right.  Thank you.  That clarifies it.  So we have narrowed now that as regards to the statement the Commission has made on 5 May, the only issues where there was further discussion to be had related to clause 18.1.  That is now in a the state of an agreed position and Ms Saunders is going to provide the wording that has been agreed between the parties, so we can mark that off as completed.


Now we have one further and final matter to discuss which goes to how the casual rates of pay that are going to be reduced to being outlined in these two tables in schedule B - how those calculations are to be arrived at or undertaken.  I have noted that the two additional columns are not in dispute and they serve as a reference point for people using the award.  It's now a question of how the casual rates of pay in the two tables are to be calculated.


Now, that takes us back to, at least in the exposure draft, clause 17 and in particular clause 17.2 where the 4 per cent appears in relation to full‑time employees.  It then seems to be a common view that that would apply to the calculation of rates of pay applicable to part‑time employees where they are paid pro rata.  The question then is, is the 4 per cent loading referred to in clause 17.2 applied to casual rates of pay?


The position that has been put by you, Mr Carter, is in your reply submissions on 20 April.  Do you want to say anything in supplement to those?


MR CARTER:  Potentially, Deputy President, no.  We would very much like to rely on the reply submissions.  It is obviously the only issue where the parties are not in agreement and we have set out various things in that submission; excerpts of transcripts from the award modernisation hearing and the current proposed clause that the 4 per cent increase, if you will, is very much based on full and part‑time employees not receiving the same school holiday as other teachers do.


We do not see how the 4 per cent should be applied to casuals.  The exposure draft as it is at the moment, we say, is the correct interpretation of the award and the 4 per cent loading should not apply to casual employees.


THE DEPUTY PRESIDENT:  All right.  Mr Kingston, for your part is there anything you wish to add?


MR KINGSTON:  Deputy President, if I might, it's our understanding that the way the award has always operated is that there is annualised salaries prescribed for teachers.  Clause 14.1 as it is in the current award prescribes those.  Clause 14.2 then prescribes a 4 per cent loading to the full‑time employees; that is expressly full‑time employees.  Part‑time employees are then prescribed in clause 14.4 to be paid an amount - the same pro rata amount as that of a full‑time employee.  On that basis there is no argument that the additional 4 per cent amount in 14.2 does apply to part‑time employees.


However, the casual employment clause, currently 14.5, talks about casuals receiving the salary - based on the salary - their rate is based on the salary and not the amount payable for a full‑time employee.  That difference is important and that, along with the history of the allowance which is set out in the association's reply subs, very nicely in our view makes it very clear that the allowance never has and should not apply to casual employees.


THE DEPUTY PRESIDENT:  All right.  Thank you.  Then I will ask, Ms Saunders, how do you put your position in relation to the calculation?


MS SAUNDERS:  I should say at the outset that it's not the case that this award has always been applied across either the early childhood or the teaching industry - the education industry generally - in the way that Mr Kingston said.  It's a matter that some employers do apply it in this way.  The (indistinct) prefers that interpretation at the moment, but it has also (indistinct) applying the other way.  There should be some caution before making broad brush submissions about what has always been done or what the industry practice is because, frankly, we disagree.


In terms of the interpretation, Deputy President, the starting (indistinct) I think is to have 4 per cent (indistinct) it's not simply an allowance payable for (indistinct) for school holidays.  What it does, the reason that (indistinct) to early childhood teachers is (indistinct) particular operation.  It's operated 48 weeks (indistinct) they have a higher annual salary (indistinct) they have shorter non‑term time periods.  They have longer actual days and they have to deal with the fact of rigid rostering.  They are assigned to come to work from 8.00 until 4.00 or whatever the pattern is.  It's very different to their colleagues in primary and secondary schools.


It's not just a straight trade‑off or what the casual (indistinct) additional leave.  It's more complicated.  The evidence set out in the AIS's submissions shows that.  That said, it's an interpretation question.  The starting point is 14 - of the current award, I'm sorry.  We have been using the current award rather than the exposure draft - - -


THE DEPUTY PRESIDENT:  That's all right.  I've got both, so if you just - - -


MS SAUNDERS:  Yes.  I think (indistinct) clause 17 (indistinct) 17.5, it's not the annual salary.  It's looking at A(2) more conveniently.  The appropriate salary for the classification to employ someone working at that level would be paid (indistinct) phrase 'the appropriate salary'.  It's not the salary prescribed in 14.1 which would then reference (indistinct) if the AEI were correct.


The process for calculating the appropriate pay for casuals is the same here as it is anywhere else.  You employ someone - the starting point is what someone doing their job would receive if they were a permanent employee.  If you (indistinct) worker at, say, level 8, they would get whatever the rate is plus 4 per cent.  That 4 per cent isn't an allowance, it's part of their salary.  It has just been expressed as a percentage but the whole of their annual wage (indistinct) calculated.


One then calculates the weekly rate which you get by dividing their actual annual rate.  Again not referable to 14.1, but the actual annual rate of the employee by 52.18 and then adding 25 per cent.  That flows simply from reading the clause as a whole, looking at the actual language rather than assumptions as to how it should be applied, but it's also (indistinct) casual loading is actually worked.


If we return to the next casual (indistinct) although 25 per cent (indistinct) is set and discussed most comprehensively, while some components are for instability of work, in large part it's a financial calculation based on (indistinct) so it's more or less referable to the financial benefit that the casual employee does not receive by virtue of being casual.


What that means is if you have an ATEC worker who is (indistinct) they will earn X amount a day and they will accrue X dollars in leave.  A casual, to be properly compensated, to properly receive the casual loading (indistinct) what it's meant to compensate for, needs to receive X, then a monetary amount that compensates for the (indistinct) if they receive less than X, so if they don't get the 4 per cent, the effect of that would diminish the value of the casual loading; that can't be correct.  There is no reason that a teacher in the early childhood sector would attract a lower casual loading (indistinct) that's what we say.


It is a significant issue obviously.  It goes to some pretty basis entitlements.  It's rates of pay for the workers who (indistinct) casual teachers who are (indistinct) relatively lower paid, who are less vulnerable.  If the matter is not able to be resolved, which I (indistinct) in the last five minutes, we would seek to be heard on it given the nature of the entitlement - heard formally on it.


THE DEPUTY PRESIDENT:  Yes.  Just having a look at the current award, can I assume that the schedules that we're discussing in the exposure draft are a creature of the four year review and that's why there is no reference point to how they might ultimately be calculated at the moment?  Ms Saunders, you put it that some do it some way, some do it another.




THE DEPUTY PRESIDENT:  But I'm just flicking through the back part of the - - -


MS SAUNDERS:  It doesn't have a schedule setting out the actual rates.


THE DEPUTY PRESIDENT:  It doesn't have a schedule.


MS SAUNDERS:  Hence the (indistinct)




MS SAUNDERS:  (Indistinct) whoever is right, to include the table (indistinct).


THE DEPUTY PRESIDENT:  Yes, okay.  So it's not unlike a lot of the schedules that are now starting to find their way into the awards as reviewed, outlining the rates of pay and the debate that is being had in relation to the calculation of casual rates of pay in a number of awards that are part of the - or being reviewed as part of the four yearly review.


MS SAUNDERS:  Yes.  It means it's done (indistinct) by the Commission rather than by - usually the ombudsman (indistinct) you know, we don't always agree with their interpretation (indistinct)


THE DEPUTY PRESIDENT:  All right.  Thank you.  I understand that position.  Mr Carter and Mr Kingston, assuming that you haven't been persuaded by Ms Saunders in the last five minutes and you maintain your view of the calculation of casual rates of pay, can I assume that this matter not being able to be resolved in conference, you would seek to be heard - or at least as a starting point the parties would most likely be given an opportunity to put forward their positions in writing and then the Full Bench will decide on the course of action from there.


Can I assume, Mr Carter and Mr Kingston, you both maintain your view of how the rates of pay for casuals are to be arrived at?


MR KINGSTON:  Yes, Deputy President.


MR CARTER:  Yes, Deputy President.


THE DEPUTY PRESIDENT:  All right.  Thank you.  Of course once that is arrived at - once the calculation method is arrived a - that would then have implications for the final form of any tables to be included there in schedule B.  The additional columns aren't in dispute.  The method of calculation for them is.  It seems to me that we have progressed as far as we can in conference today.  What I'll do now is report back to the Full Bench and the Full Bench will then determine how to bring this final matter to resolution.


I would anticipate one of the things that might be done in terms of calling for any further submissions and material from the parties in relation to this issue would be also for provision of those two tables with the additional column, so that that could be part of the final matters that the Commission can consider for the exposure draft.


If the parties are able to reach an agreement position on what those rates might be, it might be convenient if they were put in notwithstanding - on the basis, Ms Saunders, that you reserve your position, but if they're put in in a similar sort of calculation as they currently are but noting that you say the method of calculation is different, do you think there would be common ground between the parties as to how to arrive at the figures for those two additional columns bar that one calculation issue?


MS SAUNDERS:  I don't know that that is likely.  As I understand it, we provided a draft determination, so we can either re‑circulate (indistinct) format.


THE DEPUTY PRESIDENT:  All right.  Yes, I have just gone to that.  Hang on a second.  Just bear with me.  So I have a draft determination, Ms Saunders, for a table which is numbered B.1.2 which has a half‑day rate, a four‑day rate and then teachers employed in early childhood services operating for at least 48 weeks per year.  I've got that schedule, but the table with respect to - or table B.1.1, it has got the - I see, there is a column for all employees excluding schedule A and then the additional columns are all under the heading 'Teachers employed in earlier childhood services operating for at least 48' - all right.


Look, if you could confer with Mr Carter and Mr Kingston just on the form of those two tables - put aside the calculation issue - and if there is agreement between the parties as to those two tables in a format, that would be useful for the Full Bench to know.


MS SAUNDERS:  Yes, we'll be able to do that.


THE DEPUTY PRESIDENT:  All right.  Thank you.  Are there any other matters that the parties wish to raise in conference today?


MR CARTER:  No, Deputy President.


MR KINGSTON:  No, Deputy President.


THE DEPUTY PRESIDENT:  Thanks.  Ms Saunders, anything further from you?




THE DEPUTY PRESIDENT:  All right.  Well, thank you all for your attendance this morning.  I will report back to the Full Bench on the matters that we have discussed and we will confer then on the process to be adopted for the resolution of these rates of pay for casual employees.  Thank you.  We will bring the conference to a close.

ADJOURNED INDEFINITELY                                                          [12.40 PM]