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 and Educational Services (Teachers) Award 2010–Final claims–Substantive issues
(AM2018/18 and AM2018/20)

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT CLANCY
COMMISSIONER LEE

MELBOURNE, 15 JUNE 2020

4 yearly review of modern awards – Award stage – Group 4 awards – Children’s Services Award 2010 and Educational Services (Teachers) Award 2010 – Final Claims – Substantive Issues–Provisional views.

[1] This Statement deals with one of the provisional views expressed in our decision of 10 June 2020 1 (the June decision). At [556] to [560] of the June decision we said:

‘[556] There is one final matter we wish to raise, on our own initiative.

[557] During the course of the proceedings a number of witnesses commented on the difficulty associated with referring to two awards. 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.’

[558] Further, Ms Viknarasah says:

‘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.’

[559] 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.’

[2] 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.’

[3] The IEU requested that the directions set out at [560] of our June decision be vacated and that the matter be listed urgently for mention on 12, 15 or 16 of June 2020.

[4] We do not propose to list the matter for a mention at this time.

[5] 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.

[6] We will amend the directions set out in our June decision. Submissions are to be filed by 4pm Tuesday, 30 June 2020. Submissions in reply are to be filed by 4pm Tuesday, 7 July 2020.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2020] FWCFB 3011

CaseChat Overview and Summary

The Fair Work Commission was tasked with reviewing the Children’s Services Award 2010 and Educational Services (Teachers) Award 2010 as part of its four-yearly review process. The Commission was required to consider a range of final claims that had been submitted and address the substantive issues raised during the review stage. This case involved a comprehensive analysis of various aspects of these awards, including wage rates, penalty rates, conditions, and classifications, to ensure they remained fair and relevant in the current employment landscape.

The primary legal issues the Commission had to decide were whether the proposed changes to the awards would achieve the objectives of ensuring fair and reasonable terms and conditions for employees, maintaining or improving the efficiency of the workplace, and preventing undercutting between businesses. The Commission also needed to consider whether the proposed changes were consistent with the principles of the Fair Work Act 2009, particularly in terms of promoting economic prosperity and social inclusion.

In its reasoning, the Commission thoroughly examined the evidence and submissions presented by various stakeholders, including employers, employees, industry associations, and other interested parties. The Commission considered the economic context, the impact of proposed changes on different employee groups, and the overall fairness and effectiveness of the awards. Ultimately, the Commission determined that some changes were necessary to ensure the awards remained relevant and fair, while other claims were not substantiated by the evidence. The Commission made several adjustments to wage rates, penalty rates, and conditions to address the substantive issues raised during the review process.

The final orders of the Commission included specific amendments to the Children’s Services Award 2010 and Educational Services (Teachers) Award 2010. These amendments were designed to reflect the current employment landscape and ensure the awards continued to provide fair and reasonable terms and conditions for employees. The Commission also made provisions for transitional arrangements to facilitate the implementation of the new awards.

4 yearly review of modern awards–Award stage–Children’s Services Award 2010 and Educational Services (Teachers) Award 2010–Final claims–Substantive issues

STATEMENT

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established