DECISION

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

4 yearly review of modern awards—Children’s Services Award 2010 and Educational Services (Teachers) Award 2020
(AM2018/18, AM2018/20)

4 yearly review of modern awards – Children’s Services Award 2010 – outstanding substantive issues – Educational Leader’s allowance.

[1] In our previous statement 1 in relation to these matters, we expressed the provisional view in relation to matter 2018/8 that the Educational Leader allowance added as clause 19.4 to the Educational Services (Teachers) Award 20202 (Teachers Award) by the Full Bench in matter AM2018/9 should be inserted into the Children’s sServices Award 20103 (Children’s Services Award), so that persons undertaking the statutory role of Educational Leader under each award have an equivalent entitlement.4 We also noted that the issue of the translation of the quantum of the entitlement was a matter which would need to be determined. We directed interested parties to file submissions in relation to our provisional view by 15 July 2022.5 Some parties sought and were granted an extension of this deadline.

[2] In the same statement, we noted that the United Workers’ Union (UWU) had previously advanced a claim for a Responsible Person allowance to be added to both the Teachers Award and the Children’s Services Award, and we listed that claim for mention on 15 July 2022. At that mention, the UWU’s claim was listed for hearing and directions were made for the filing of evidence and submissions. However, by correspondence to the Commission dated 18 July 2022, the UWU advised that it had decided to withdraw its claim. As a consequence, the listing for hearing and the directions have been vacated, and matter AM2018/20 may now be regarded as terminated.

[3] In relation to the proposed Educational Leader’s allowance, the Commission received submissions from the following parties:

•  Australian Childcare Alliance and Australian Business Industrial (ACA and ABI)

•  Community Connections Services Australia (CCSA)

•  Independent Education Union of Australia (IEU)

•  United Workers Union (UWU)

[4] All the parties who filed submissions supported our provisional view. They also agreed that, to achieve our stated aim of ensuring that Educational Leaders under both the Teachers Award and Children’s Services Award had an equivalent entitlement, the latter award should be varied to ensure that the dollar value of the allowance was the same in both, as opposed to providing for an equivalent percentage of the standard rate.

[5] CCSA submitted that “[t]his can most easily be achieved by cross-referencing to clause 19.4 of the Teachers Award”. ACA and ABI went into further detail and submitted that the Children’s Services Award should be varied to include the following as a new clause:

“Educational Leader Allowance

(a) The Wage-related allowances - Educational Leader set out in clause 19.4 of the Educational Services (Teachers) Award 2020 will apply to an employee who is required to discharge the responsibilities of the educational leader under Regulation 118 of the National Regulations.

(b) The monetary amount of the allowance is currently $4022.05 per annum.

(c) Where an employee is required to act as educational leader for less than 5 days per week, the annual allowance prescribed by this clause will be payable on a pro rata basis calculated by reference to the number of days per week the employee is required to act in the role of educational leader.”

[6] The IEU and UWU agreed with ACA and ABI’s proposed approach.

[7] Having considered the submissions we have received, we confirm our provisional view that an Educational Leader’s allowance should be added to the Children’s Services Award. We accept the consensus position of the parties that, in order to achieve an equivalent entitlement for employees fulfilling the statutory role of Educational Leader, the allowance should be the same dollar amount in the Children’s Services Award as in the Teachers Award – currently $4,022.05 per annum. We consider that the variation of the Children’s Services Award to provide for this allowance is necessary to achieve the modern awards objective in s 134(1) of the Fair Work Act 2009 by ensuring that the additional responsibilities associated with the Educational Leader role are the subject of fair, reasonable and consistent additional remuneration. In reaching this conclusion, we have taken into account the matters specified in s 134 in the following way (using the paragraph designations in the subsection):

(a) Although some classification levels in the Children’s Services Award may be regarded as “low paid” 6, it is not probable that a person designated as Educational Leader would be classified at those levels. We therefore do not consider this consideration to be relevant.

(b) The variation would not “encourage” collective bargaining, so this weighs against the variation to a minor degree.

(c) It is possible that, to a small extent, the Educational Leader allowance might encourage participation in employment in the childcare sector for some employees, and this weighs in favour of the variation to a minor degree.

(d) It is possible that the proposed allowance might attract better qualified/more suitable persons to accept the role of Educational Leader, and this might conceivably aid the efficient and productive performance of work. Apart from this, this is not a relevant consideration.

(da) This is not a relevant consideration.

(e) This is not a relevant consideration.

(f) The variation will increase to a small degree the employment costs for those employers who pay no more than the award minima and, to this extent, this consideration weighs slightly against the variation.

(g) To the extent that the variation achieves consistent remuneration for equivalent responsibilities under the Children’s Services Award and the Teachers Award, this will slightly favour the achievement of a simple, stable and sustainable modern award system, but this consideration is not otherwise relevant.

(h) The variation will not have any discernible impact on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.

[8] As to the terms of the variation to be made to the Children’s Services Award, our provisional view is that current clause 15.8 – Adjustment of expense related allowances should be renumbered as clause 15.9, and the following should be inserted as new clause 15.8:

15.8 Educational leader allowance

(a)  An educational leader’s allowance of $4022.05 per annum will be paid to an employee who is required to discharge the responsibilities of the educational leader under Regulation 118 of the Education and Care Services National Regulations 2011.

(b)  Where an employee is required to act as educational leader for less than 5 days per week, the annual allowance prescribed by clause 15.8(a) will be payable on a pro rata basis calculated by reference to the number of days per week the employee is required to act as educational leader.

NOTE: The allowance prescribed in clause 15.8(a) is the same amount as the educational leader allowance prescribed by clause 19.4 of the Educational Services (Teachers) Award 2020 and will be adjusted each year to reflect the amount set in the Educational Services (Teachers) Award 2020.

[9] Interested parties are directed to file any submissions in relation to our provisional view as to the drafting of the variation by 4:00 pm AEST on 9 August 2022. If no submissions are received in this regard, we will issue a determination varying the Children’s Services Award in accordance with our provisional view shortly thereafter.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   [2022] FWCFB 105

 2   MA000077

 3   MA000120

 4   [2022] FWCFB 105 at [18]

 5   Ibid at [19]

 6   By reference to the definitional approach used in Annual Wage Review decisions: see [2022] FWCFB 3500 at [106]-[107].