| [2020] FWCFB 4270 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.156—4 yearly review of modern awards
4 yearly review of modern awards—Educational Services (Teachers) Award 2010
(AM2020/24)
VICE PRESIDENT HATCHER |
SYDNEY, 13 AUGUST 2020 |
4 yearly review of modern awards – finalisation of Exposure Drafts and variation determinations – Tranche 3 awards – Educational Services (Teachers) Award 2010.
[1] In a Decision issued on 19 May 2020 1 (the 19 May 2020 Decision), the Full Bench provided an update on the finalisation of the exposure draft for the Educational Services (Teachers) Award 2010.
[2] The 19 May 2020 Decision had followed the Statement of the Full Bench dated 5 May 2020, 2 which noted the agreement of the Independent Education Union of Australia (IEU) and Association of Independent Schools (AIS) to changes to clause 16.1(a), clause 33.2(a) and Schedule A.3.1(a) of the Exposure Draft and the provisional view of the Full Bench that the Exposure Draft and draft variation determination be so amended. The Full Bench also advised that a conference would be convened to discuss outstanding issues in dispute relating to clause 18.1 and Schedule B of the Exposure Draft.
[3] A conference was therefore held on 12 May 2020 in an effort to resolve the outstanding issues in dispute. The outcome of that conference is set out in a Report by Deputy President Clancy published on 19 May 2020. The parties agreed to an amendment to clause 18.1 and, in the 19 May 2020 Decision, the Full Bench stated that it agreed to that proposed change and would amend the Exposure Draft and variation determination accordingly.
[4] The only issue that remained in dispute for the Award was related to two tables outlining rates of pay for certain categories of casual employees in Schedule B (B.1.1 Casual employees – full day rates and B.1.2 Casual employees – half day and quarter day rates). The President therefore constituted this Full Bench to hear and determine this issue.
[5] A directions hearing listed for 28 May 2020 was adjourned because the parties advised they had entered into negotiations. The matter was relisted for hearing on 15 June 2020.
[6] On 11 June 2020, the IEU advised that a consent position had been reached between itself, the AIS and ABI/NSWBC (ABI) and submitted a draft determination that addressed the following in the Exposure Draft:
• Clause 16.1(a);
• Clause 18.1(a);
• Clause 33.2(a);
• Schedule A.3.1(a); and
• the rates tables for certain casual employees in Schedules B.1.1 and B.1.2.
[7] Subsequently, Community Connections Solutions Australia Limited (CCSA) advised that it also supported the consent position.
[8] The IEU, ABI and CCSA made submissions in relation to the consent position at the hearing before us on 15 June 2020.
[9] Since January 2014, the Fair Work Commission has been conducting the 4 yearly review of modern awards in accordance with s 156 of the Fair Work Act 2009 (the Act). A review of the Educational Services (Teachers) Award 2010 has been undertaken as part of this process.
[10] On 11 December 2018, s 156 of the Act was repealed by the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018 (the Amending Act) with effect from 1 January 2018. Under the application and transitional provisions of the Amending Act, a review of an award that commenced but was not completed before 1 January 2018 can continue under the terms of the repealed provisions.
[11] One of the approaches the Commission has adopted throughout the Review has been to expressly outline specific casual rates of pay applicable under a modern award. The rates have been outlined in tabular form within designated Schedules so that they are readily identifiable for users of the particular modern award.
[12] The parties in this matter have submitted a draft determination that sets out specific casual rates of pay for teachers employed in early childhood services operating for at least 48 weeks per year. Rates have been calculated for casual teachers who work for a full day and on various shifts. The draft determination also provides for a half day rate and a quarter day rate.
[13] On balance, we have determined the variation proposed by the parties as to the form of Schedules B.1.1 and B.1.2 in the draft determination should be made on the basis that the casual rates expressed are likely to reflect the current position.
[14] There are no other outstanding technical and draft matters to be determined in relation to the Educational Services (Teachers) Award 2010. Accordingly, the exposure draft for this award will be varied to incorporate the amendments to the clauses and Schedules listed at [6] above. Interested parties will have 7 days to comment on the amendments to the exposure draft once the updated exposure draft is published.
VICE PRESIDENT
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