STATEMENT

Fair Work Act 2009
s.158—Application to vary or revoke a modern award

Allison & Phil Family Trust T/A my OSHC
(AM2020/97)

Application to vary the Children's Services Award 2010 – junior rates of pay – clause 14.3 – provisional view.

Introduction and background

[1] On 30 October 2020, the Commission received an application from an individual to vary the Children’s Services Award 2010 (the Children’s Award). The application concerns an apparent anomaly at clause 14.3 of the Children’s Award which results in higher rates of pay for junior Children’s Services Employees (CSEs) Level 1.1 at 19 years of age as compared to adult CSEs Level 1.1 at 20 years of age.

[2] Clause 14.3 provides rates for junior employees as follows (emphasis added):

14.3 Junior employees

(a) Junior employees employed as Children’s Services Employees Level 3, 4 and 5 must be paid at the appropriate adult rate.

(b) Junior employees employed as Children’s Services Employee Level 1 or Children’s Services Employee Level 2 will be paid no less than the following percentages of the corresponding Children’s Services Employee Level 2 rate:

Age	% of adult rate
Under 17 years	70
Under 18 years	80
Under 19 years	90
Under 20 years	100

[3] Clause 14.1 sets out the adult rates for CSEs Levels 1 and 2 (in part) as follows:

14.1 The total minimum weekly rate of wages payable to persons employed pursuant to this award will be as set out in the following table.

Classification		Minimum weekly rate	Minimum hourly rate
		$	$
Children’s Services Employee
Level 1.1	On commencement	771.00	20.29
Level 2.1	On commencement	800.40	21.06

[4] As the award currently stands, a CSE Level 1.1 aged 20 years and above receives $20.29 per hour. This is lower than the corresponding rate of $21.06 for a 19-year-old CSE, who may not earn less than the rate of an adult due to the operation of clause 14.3(b).

Award modernisation

[5] Clause 14 was inserted into the Children’s Award in the Award modernisation process. The 25 September 2009 exposure draft of the Children’s Award provided junior rates with separate tables for Level 1 employees and Level 2 employees as set out below:

14.4 Junior employees

(a) Junior employees employed as Children’s Services Employees Level 3, 4 and 5 must be paid at the appropriate adult rate.

(b) Junior employees employed as Children’s Services Employee Level 1 or Support Worker Level 1 will be paid no less than the following:

Age	% of adult rate
Under 17 years	50
Under 18 years	60
Under 19 years	70
Under 20 years	80
Under 21 years	90

(c) Junior employees employed as Children’s Services Employees Level 2 or Support Worker Level 2 will be paid no less than the following:

Age	% of adult rate
Under 17 years	55
Under 18 years	65
Under 19 years	75
Under 20 years	85
Under 21 years	95

[6] This was later amended to reflect a draft clause agreed between the Liquor, Hospitality and Miscellaneous Union and employer groups which amalgamated the tables to provide rates as percentages of the Level 2 rate only. This agreed clause is identical to the current clause 14.3.

Provisional view and next steps

[7] On 14 December 2020, a conference of the interested parties was held before Commissioner Lee. A transcript of the conference can be viewed here. In attendance was Mr Arndt for Australian Business Industrial and NSW Business Chamber (ABI) and Mr Gunn for Community Connection Solutions Australia (CCSA).

[8] Both parties agreed that the anomaly in the Children’s Award is a longstanding one and appears to reflect an agreed position of the parties in 2009 that the award be amended to allow for one single scale for junior rates as a percentage of the Level 2 rates.

[9] The parties at the conference reached a consensus position that the issue could best be resolved by striking out the row containing the under 20 years of age rate from clause 14.3(b):

Age	% of adult rate
Under 17 years	70
Under 18 years	80
Under 19 years	90
Under 20 years	100

[10] The resulting amendment means a junior CSE employee Level 1.1 under the age of 19 years receives $18.95 per hour and a CSE employee Level 1.1 over the age of 19 receives $20.29 per hour.

[11] It is our provisional view that clause 14.3(b) should be amended as proposed by the parties and that the proposed amendment is necessary to achieve the modern awards objective taking into account the considerations in s.134(1)(a) to (h), insofar as they are relevant.

[12] Interested parties are invited to comment on our provisional view by no later than 4 pm on Friday, 15 January 2021. Submissions are to be filed in Word format and sent to [email protected].

[13] Any submissions in reply should be filed by no later than 4 pm on Friday, 22 January 2021.

[14] This matter will be determined on the papers unless any party requests an oral hearing by 4pm on Friday 15 January 2020.

PRESIDENT

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