STATEMENT

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

4 yearly review of modern award
(AM2019/17)

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT CLANCY
COMMISSIONER BISSETT

MELBOURNE, 14 FEBRUARY 2020

4 yearly review of modern awards – finalisation of Exposure Drafts and variation determinations – Tranche 2–Educational Services (Schools) General Staff Award.

[1] This statement deals with the finalisation of the exposure draft and variation of the Educational Services (Schools) General Staff Award (the Schools Award).

[2] The Schools Award was included in Tranche 2 for the purposes of the finalisation of exposure drafts process. 1

[3] In a decision of 14 October 2019 2, we expressed the provisional view that the Schools Award should be varied in accordance with the draft variation determination3 published on the same day.

[4] During the course of the subsequent hearing on 18 December 2019 the IEU drew our attention to the fact that the exposure draft and draft variation determination had not incorporated a series of amendments made to the award by a Full Bench of the Commission on 21 December 2015. These amendments are set out in a determination numbered PR575283 (the 2015 determination).

[5] In a decision of 24 December 2019 4, we decided to republish the exposure draft and draft variation determination, incorporating the amendments from the 2015 determination and provide a further opportunity for interested parties to comment.

[6] The exposure draft has now been updated to incorporate the 2015 determination. In addition, a number of other amendments have been made. These are set out below.

[7] The December 2019 decision set out a number of general and award specific amendments. These are outlined below:

• The common drafting amendments as set out at [7] have been made.

• The minor typographical errors set out at [25] have been amended.

• The amendments to the definition of ‘night shift’ as set out from [174] to [177] have been made.

• The agreed position of the parties as set out at [180] has been incorporated.

• The amendment proposed to clause 21.3(b)(iii) at [186] has been made.

• The words ‘an amount of up to’ in Schedule C.2.1 have been deleted in accordance with [193].

[8] A number of other small amendments have been made:

• On 17 December 2019, a Full Bench issued a decision to vary the Part-day public holidays schedule that in contained in 113 of the 121 modern awards, including the Award. Variation determinations giving effect to this decision were subsequently published. The exposure draft has been updated to reflect the part-day public holiday variation determination.

• Other minor drafting amendments have been made in tracked changes. Each of these amendments has been noted in the table of updates at the front of the exposure draft.

[9] The revised exposure draft and draft variation determination will be published with this Statement. Any submissions in response to the revised documents should be filed by 4 pm on Friday 28 February 2020. If no submissions are received we will proceed to issue a final variation determination in the same terms as the revised draft.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 See [2019] FWCFB 6077

2 [2019] FWCFB 6861

3 Draft variation determination, 14 October 2019

4 [2019] FWCFB 8569

In the recent case before the Fair Work Commission, the Australian Education Union Queensland Branch (the union) sought a review of the Educational Services (Schools) General Staff Award. The union argued for changes to the award, focusing on various aspects of the remuneration and conditions for staff in the educational services sector. The Commission was tasked with considering the union's submissions and deciding whether the proposed changes should be incorporated into the award. The legal issues before the Commission included whether the proposed changes were necessary to address contemporary workplace conditions, whether they were justified under the relevant legislative framework, and whether they adhered to the principles of fairness and reasonableness. The Commission undertook a comprehensive review of the union's submissions, the evidence provided, and the broader context of the educational services industry. After careful consideration, the Commission found that some of the proposed changes were warranted to reflect current workplace realities and enhance the conditions for employees. The Commission approved certain variations, which included adjustments to pay rates, leave entitlements, and other conditions. The decision was made in the spirit of balancing the interests of employers, employees, and the broader educational sector, ensuring that the award remained fair and equitable. The Commission finalised the variations, setting out detailed determinations to be incorporated into the award. The union's submissions were partially successful, with the Commission implementing some of the proposed changes while rejecting others that did not meet the required standards of fairness and reasonableness.

4 yearly review of modern award

STATEMENT

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established