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
[2020] FWCFB 3011
•10 JUNE 2020
| [2020] FWCFB 3011 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
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
(AM2018/18 and AM2018/20)
JUSTICE ROSS, PRESIDENT | MELBOURNE, 10 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.
Chapters | Paragraph | |
1 | Background | [1] |
2 | The Review | [20] |
3 | The National Quality Framework | [39] |
4 | Children’s Services Award 2010 | [68] |
5 | Educational Services (Teachers) Award 2010 | [84] |
6 | Common Claims | |
6.1 Ordinary Hours Claim | [95] | |
6.2 Rostering Claim | [192] | |
6.3 Non-contact time Claim | [258] | |
7 | Claims in relation to the Children’s Services Award 2010 | |
7.1 Training Allowance | [319] | |
7.2 Laundry Allowance | [374] | |
7.3 Clothing Allowance | [396] | |
7.4 Higher Duties | [420] | |
7.5 Annual Leave | [446] | |
8 | Claim in relation to the Educational Services (Teachers) Award 2010 | |
8.1 Coverage | [460] | |
8.2 Minimum Engagement | [489] | |
9 | Conclusion: Next Steps | [533] |
Attachments | ||
1 | List of all submissions | |
2 | Witnesses 6 – 9 May 2019 | |
3 | Exhibits tendered 6 – 9 May 2019 | |
Abbreviations
|
1. Background
[1] A number of substantive claims have been made to vary the Children’s Services Award 2010 (the Children’s Services Award) and the Educational Services (Teachers) Award 2010 (the Teachers Award) as part of the 4 yearly review of modern awards (the Review).
[2] A Mention was held on 22 October 2018 to deal with the programming of a number of substantive claims to vary the Children’s Services Award. A Report was issued following that Mention and a further programming Mention took place on 9 November 2018. 1 At the 9 November Mention, the parties confirmed that there was an overlap between a number of the claims in the Children’s Services Award and the substantive claims in the Teachers Award. A Statement2 issued on 13 November 2018 invited parties to file short written submissions dealing with the issues and how the overlapping claims should be dealt with. Programming mentions were held on 28 November 2018 and 5 December 2018. Transcripts of these Mentions are available on the Fair Work Commission’s (the Commission) website.
[3] At the 28 November 2018 Mention, it was again agreed that there was an overlap between the substantive claims in the Children’s Services Award and the Teachers Award and a further Mention was held on 5 December 2018 to deal with that issue. Prior to the 5 December 2018 Mention, interested parties filed a joint report setting out their position that all the substantive claims in the Children’s Services Award and in the Teachers Award (apart from the Independent Education Union of Australia’s (IEU) claims) be heard together. The IEU’s claims were omitted from the joint report as the IEU had filed a separate submission indicating they did not agree to the proposal that the claims be heard together. After the 5 December 2018 Mention, the IEU filed a further submission agreeing to have two of their claims, one relating to the definition of teachers and one relating to ‘quarter days’ heard in conjunction with the claims relating to the Children’s Services Award.
[4] As agreed by the interested parties, the substantive claims relating to the Children’s Services Award (AM2018/18) and the Teachers Award (AM2018/20) were heard together by the same Full Bench, with the exception of the IEU’s claim regarding teachers in distance education. That claim was to be heard and determined by a separate Full Bench. The IEU subsequently wrote to Vice President Hatcher (the presiding Member of that Full Bench) withdrawing its claim relating to distance education. 3 We also note that Business SA had initially made a claim relating to casual employees in the Children’s Services Award but this claim was also withdrawn.4
[5] The claims advanced by the United Workers’ Union (UWU; formerly United Voice) 5 in both the Children’s Services Award and the Teachers Award are as follows:
(i) a claim to introduce a new allowance for employees assigned to be the Educational Leader at a service (Educational Leader Allowance);
(ii) a claim to introduce a new allowance for employees assigned to be the Responsible Person at a service (Responsible Person Allowance); and
(iii) a claim to increase the time off the floor away from children (non-contact time) for Room Leaders and Educational Leaders (Non-contact Time Claim).
[6] The claims advanced by I. and E. Arrabalde (the Individuals) are in similar terms to those advanced by the UWU for a Responsible Person Allowance and an Educational Leader Allowance.
[7] The other claims advanced by the UWU in relation to the Children’s Services Award are:
(i) a claim seeking the payment of training courses and time worked at those courses (Training Allowance);
(ii) a claim seeking the laundry allowance be paid in circumstances where employees wash their clothes using the on-site facilities at the workplace (Laundry Allowance);
(iii) a claim to include ‘hats and sun protection (including sunscreen)’ in the definition of protective clothing and to require the employer to either provide these items or reimburse the employee (Clothing Allowance);
(iv) a claim to vary the exemption in the higher duties clause so that an employee who is required to perform higher duties (to replace a colleague who is attending paid training) is paid higher duties (Higher Duties Claim); and
(v) a claim requiring employers who direct their employees to take leave without pay (annual leave) over Christmas to pay ordinary time to those employees in circumstances where they have no accrued leave (Annual Leave Claim).
[8] Australian Business Industrial, the Australian Childcare Alliance Inc, the National Outside School Hours Care Association (NOSHCA), Junior Adventures Group and the New South Wales Business Chamber Ltd (the ECEC Employers) advanced two claims in respect of both Awards:
(i) A variation such that ordinary hours may be worked between 6:00 am and 7:30 pm (as opposed to the current spread of hours of 6:00 am to 6:30 pm) (Ordinary Hours Claim); and
(ii) A variation to the rostering arrangements in the Children’s Services Award and the Teachers Award (the Awards) so that an employer is exempt from having to provide employees with seven days’ notice of a roster change in circumstances where:
(a) another employee has provided less than seven days’ notice of their inability to perform a rostered shift; and
(b) in order to comply with its statutory obligations in respect of maintaining staff to child ratios, the employer is required to change an employee’s rostered hours so as to replace the absent employee (Rostering Claim).
[9] The Claims advanced by the IEU in relation to the Teachers Award are:
(i) a claim to amend award coverage for Directors of childcare centres with teaching degrees, to be covered by the Teachers Award (and not the Children’s Services Award) (Coverage Claim); and
(ii) a claim to confirm the minimum payments of a ‘quarter day’ and ‘half day’ to casual teachers (Minimum Engagement Claim).
[10] The following submissions were filed in response to a Statement and Directions published on 11 December 2018: 6
• Australian Children’s Education and Care Quality Authority (ACECQA); 7
• I and E Arrabalde; 8
• IEU; 9
• The ECEC Employers; 10 and
• UWU. 11
[11] Submissions in reply were filed by the following parties:
• Australian Federation of Employers and Industries (AFEI); 12
• I and E Arrabalde; 13
• IEU; 14
• The ECEC Employers; 15 and
• UWU. 16
[12] Witness evidence was heard on 6, 7 and 8 May 2019 after which the parties were directed to file written submissions setting out the findings they sought based on the evidence. The following parties filed submissions in response to those Directions:
• AFEI; 17
• I and E Arrabalde; 18
• IEU; 19
• The ECEC Employers; 20 and
• UWU. 21
[13] To facilitate the hearing of the respective claims, the Commission published two Background Documents (Background Paper 1 dated 13 June 2019, and Background Paper 2 dated 5 July 2019) containing a number of questions directed at particular parties. 22 Parties were asked to respond to these questions and the following submissions were filed in response to Background Paper 1:
• AFEI; 23
• I & E Arrabalde; 24
• IEU; 25
• The ECEC Employers; 26 and
• UWU. 27
[14] The following submissions were filed in response to Background Paper 2:
• AFEI; 28
• I & E Arrabalde; 29
• IEU; 30 and
• The ECEC Employers; 31 and
• UWU. 32
[15] A final hearing was conducted on 9 August 2019 and the following material was filed after the 9 August 2019 hearing:
• I & E Arrabalde; 33
• IEU; 34 and
• The ECEC Employers. 35
[16] A list of the submissions filed is set out at Attachment 1,a list of the witness evidence is set out at Attachment 2 and a list of Exhibits is set out at Attachment 3.
[17] During the course of the proceedings we invited the parties to comment on whether the Educational Leader Allowance claim overlapped with the proceedings in C2013/6333 and AM2018/9. Those proceedings are before a differently constituted Full Bench. We note that the parties have expressed a preference that we determine those matters before the other Full Bench. We note that the other Full Bench has reserved its decision.
[18] We do not propose to determine two of the claims before us, at this time. These claims are the claims in respect of an Educational Leader Allowance and a Responsible Person Allowance. These claims will be listed for Mention after the Full Bench in C2013/6333 and AM2018/9 has handed down its decision.
[19] This decision deals with the remaining claims as advanced by the parties in the proceedings. Before turning to the various claims, it is necessary to say something about the Commission’s task in the Review. It is also appropriate to put those claims in context by addressing the relevant framework regulating the early childhood education and care (ECEC) sector, and to describe the various sectors covered by the Children’s Services Award and the Teachers Award.
2. The Review
[20] Section 156 of the Fair Work Act 2009 (Cth) (the FW Act) deals with the conduct of the Review and s.156(2) provides that the Commission must review all modern awards and may, among other things, make determinations varying modern awards. In this context ‘review’ has its ordinary and natural meaning of ‘survey, inspect, re-examine or look back upon’. 36 The discretion in s.156(2)(b)(i) to make determinations varying modern awards in a Review, is expressed in general, unqualified, terms.
[21] If a power to decide is conferred by a statute and the context (including the subject matter to be decided) provides no positive indication of the considerations by reference to which a decision is to be made, a general discretion confined only by the subject matter, scope and purposes of the legislation will ordinarily be implied. 37 However, a number of provisions of the FW Act which are relevant to the Review operate to constrain the breadth of the discretion in s.156(2)(b)(i). In particular, the Review function in Part 2-3 of the FW Act involves the performance or exercise of the Commission’s ‘modern award powers’ (see s.134(2)(a)). It follows that the ‘modern awards objective’ in s.134 applies to the Review.
[22] Section 138 (achieving the modern awards objective) and a range of other provisions of the FW Act are also relevant to the Review: s.3 (object of the Act); s.55 (interaction with the National Employment Standards (NES)); Part 2-2 (the NES); s.135 (special provisions relating to modern award minimum wages); Division 3 (terms of modern awards) and Division 6 (general provisions relating to modern award powers) of Part 2-3; s.284 (the minimum wages objective); s.577 (performance of functions etc by the Commission); s.578 (matters the Commission must take into account in performing functions etc); and Division 3 of Part 5-1 (conduct of matters before the Commission).
[23] The modern awards objective is in s.134 of the FW Act:
‘134 The modern awards objective
What is the modern awards objective?
(1) The FWC must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account:
(a) relative living standards and the needs of the low paid; and
(b) the need to encourage collective bargaining; and
(c) the need to promote social inclusion through increased workforce participation; and
(d) the need to promote flexible modern work practices and the efficient and productive performance of work; and
(da) the need to provide additional remuneration for:
(i) employees working overtime; or
(ii) employees working unsocial, irregular or unpredictable hours; or
(iii) employees working on weekends or public holidays; or
(iv) employees working shifts; and
(e) the principle of equal remuneration for work of equal or comparable value; and
(f) the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and
(g) the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards; and
(h) the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.
This is the modern awards objective.
When does the modern awards objective apply?
(2) The modern awards objective applies to the performance or exercise of the FWC’s modern award powers, which are:
(a) the FWC’s functions or powers under this Part; and
(b) the FWC’s functions or powers under Part 2-6, so far as they relate to modern award minimum wages.
Note: The FWC must also take into account the objects of this Act and any other applicable provisions. For example, if the FWC is setting, varying or revoking modern award minimum wages, the minimum wages objective also applies (see section 284).’
[24] The modern awards objective is to ‘ensure that modern awards, together with the NES, provide a fair and relevant minimum safety net of terms and conditions’, taking into account the particular considerations identified in ss.134(1)(a)–(h) of the FW Act (the s.134 considerations).
[25] The modern awards objective is very broadly expressed. 38 It is a composite expression which requires that modern awards, together with the NES, provide ‘a fair and relevant minimum safety net of terms and conditions’, taking into account s.134 considerations.39 ‘Fairness’ in this context is to be assessed from the perspective of the employees and employers covered by the modern award in question.40
[26] The obligation to take into account the s.134 considerations means that each of these matters, insofar as they are relevant, must be treated as a matter of significance in the decision-making process. 41 No particular primacy is attached to any of the s.134 considerations42 and not all of the matters identified will necessarily be relevant in the context of a particular proposal to vary a modern award.
[27] It is not necessary to make a finding that the modern award fails to satisfy one or more of the s.134 considerations as a prerequisite to the variation of a modern award. 43 Generally speaking, the s.134 considerations do not set a particular standard against which a modern award can be evaluated; many of them may be characterised as broad social objectives.44 In giving effect to the modern awards objective the Commission is performing an evaluative function taking into account the matters in ss.134(1)(a)–(h) of the FW Act and assessing the qualities of the safety net by reference to the statutory criteria of fairness and relevance.
[28] Further, the matters which may be taken into account are not confined to the s.134 considerations. As the Full Court observed in Shop, Distributive and Allied Employees Association v The Australian Industry Group 45 (the Penalty Rates Review):
‘What must be recognised, however, is that the duty of ensuring that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions itself involves an evaluative exercise. While the considerations in s 134(a)-(h) inform the evaluation of what might constitute a “fair and relevant minimum safety net of terms and conditions”, they do not necessarily exhaust the matters which the FWC might properly consider to be relevant to that standard, of a fair and relevant minimum safety net of terms and conditions, in the particular circumstances of a review. The range of such matters “must be determined by implication from the subject matter, scope and purpose of the” Fair Work Act (Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39-40).’ 46
[29] Section 138 of the FW Act emphasises the importance of the modern awards objective:
‘138 Achieving the modern awards objective
A modern award may include terms that it is permitted to include, and must include terms that it is required to include, only to the extent necessary to achieve the modern awards objective and (to the extent applicable) the minimum wages objective.’
[30] What is ‘necessary’ to achieve the modern awards objective in a particular case is a value judgment, taking into account the s.134 considerations to the extent that they are relevant having regard to the context, including the circumstances pertaining to the particular modern award, the terms of any proposed variation and the submissions and evidence. 47
[31] In Shop, Distributive and Allied Employees Association v National Retail Association (No.2) 48 Tracey J considered what it meant for the Commission to be satisfied that making a determination varying a modern award (outside a 4 yearly review) was ‘necessary to achieve the modern awards objective’ for the purposes of s.157(1). His Honour held:
‘The statutory foundation for the exercise of FWA’s power to vary modern awards is to be found in s 157(1) of the Act. The power is discretionary in nature. Its exercise is conditioned upon FWA being satisfied that the variation is “necessary” in order “to achieve the modern awards objective”. That objective is very broadly expressed: FWA must “provide a fair and relevant minimum safety net of terms and conditions” which govern employment in various industries. In determining appropriate terms and conditions regard must be had to matters such as the promotion of social inclusion through increased workforce participation and the need to promote flexible working practices.
…
The question under this ground then becomes whether there was material before the Vice President upon which he could reasonably be satisfied that a variation to the Award was necessary, at the time at which it was made, in order to achieve the statutory objective.
…
In reaching my conclusion on this ground I have not overlooked the SDA’s subsidiary contention that a distinction must be drawn between that which is necessary and that which is desirable. That which is necessary must be done. That which is desirable does not carry the same imperative for action. Whilst this distinction may be accepted it must also be acknowledged that reasonable minds may differ as to whether particular action is necessary or merely desirable. It was open to the Vice President to form the opinion that a variation was necessary.’ 49
[32] The above observation – in particular the distinction between that which is ‘necessary’ and that which is merely ‘desirable’ – is apposite to s.138, including the observation that reasonable minds may differ as to whether a particular award term or proposed variation is necessary, as opposed to merely desirable. What is ‘necessary’ to achieve the modern awards objective in a particular case is a value judgment, taking into account the s.134 considerations to the extent that they are relevant having regard to the context, including the circumstances pertaining to the particular modern award, the terms of any proposed variation and the submissions and evidence. 50
[33] In the 4 Yearly Review of Modern Awards - Penalty Rates (Hospitality and Retail Sectors) Decision (the Penalty Rates Case) 51 the Full Bench summarised the general propositions applying to the Commission’s task in the Review, as follows:
‘1. The Commission’s task in the Review is to determine whether a particular modern award achieves the modern awards objective. If a modern award is not achieving the modern awards objective then it is to be varied such that it only includes terms that are ‘necessary to achieve the modern awards objective’ (s.138). In such circumstances regard may be had to the terms of any proposed variation, but the focal point of the Commission’s consideration is upon the terms of the modern award, as varied.
2. Variations to modern awards must be justified on their merits. The extent of the merit argument required will depend on the circumstances. Some proposed changes are obvious as a matter of industrial merit and in such circumstances it is unnecessary to advance probative evidence in support of the proposed variation.Significant changes where merit is reasonably contestable should be supported by an analysis of the relevant legislative provisions and, where feasible, probative evidence.
3. In conducting the Review it is appropriate that the Commission take into account previous decisions relevant to any contested issue. For example, the Commission will proceed on the basis that prima facie the modern award being reviewed achieved the modern awards objective at the time it was made. The particular context in which those decisions were made will also need to be considered.
4. The particular context may be a cogent reason for not following a previous Full Bench decision, for example:
• the legislative context which pertained at that time may be materially different from the Fair Work Act 2009 (Cth);
• the extent to which the relevant issue was contested and, in particular, the extent of the evidence and submissions put in the previous proceeding will bear on the weight to be accorded to the previous decision; or
• the extent of the previous Full Bench’s consideration of the contested issue. The absence of detailed reasons in a previous decision may be a factor in considering the weight to be accorded to the decision.’ 52
[34] Where an interested party applies for a variation to a modern award as part of the Review, the proper approach to the assessment of that application was described by a Full Court of the Federal Court in CFMEU v Anglo American Metallurgical Coal Pty Ltd (Anglo American): as follows: 53
‘[28] The terms of s 156(2)(a) require the Commission to review all modern awards every four years. That is the task upon which the Commission was engaged. The statutory task is, in this context, not limited to focusing upon any posited variation as necessary to achieve the modern awards objective, as it is under s 157(1)(a). Rather, it is a review of the modern award as a whole. The review is at large, to ensure that the modern awards objective is being met: that the award, together with the National Employment Standards, provides a fair and relevant minimum safety net of terms and conditions. This is to be achieved by s 138 – terms may and must be included only to the extent necessary to achieve such an objective.
[29] Viewing the statutory task in this way reveals that it is not necessary for the Commission to conclude that the award, or a term of it as it currently stands, does not meet the modern award objective. Rather, it is necessary for the Commission to review the award and, by reference to the matters in s 134(1) and any other consideration consistent with the purpose of the objective, come to an evaluative judgment about the objective and what terms should be included only to the extent necessary to achieve the objective of a fair and relevant minimum safety net.’
[35] In the same decision the Full Court also said: ‘...the task was not to address a jurisdictional fact about the need for change, but to review the award and evaluate whether the posited terms with a variation met the objective.’ 54
[36] We will apply the above principles in this decision.
[37] The Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018 (the 2018 Amendment Act) was assented to on 11 December 2018. The 2018 Amendment Act repealed the parts of the FW Act providing for the conduct of 4 yearly reviews of modern awards. However, Schedule 4, Application and transitional provisions, of the 2018 Amendment Act preserved the operation of the relevant provisions in the FW Act in respect of reviews of modern awards conducted as part of 4 yearly reviews of modern awards, if such review was commenced, but not completed, prior to 1 January 2018.
[38] The review of the Children’s Services Award and the Teachers Award commenced prior to 1 January 2018. Accordingly, these reviews may continue pursuant to the provisions of the FW Act despite their repeal.
3 The National Quality Framework
[39] The ACECQA is the independent national authority established under the Education and Care Services National Law (the National Law) to guide the implementation and administration of the National Quality Framework (the NQF). The submission filed by the ACECQA does not respond to the specific claims in the proceedings but does provide some background information to the NQF.
[40] The NQF provides for a comprehensive legislative and policy framework which recognises the importance of ECEC and the professional nature of the work performed by employees in the sector.
[41] There are several different types of services within the ECEC sector including long day care, kindergartens, pre-schools, out-of-school hours’ care and vacation care. The National Law and the Education and Care Services National Regulations (National Regulations) apply to most long day care, family day care, kindergarten, pre-school and outside school hours services in Australia. Some parts of the National Law and Regulations are specific to particular services.
[42] The NQF was introduced in 2012, with the aim of improving education and care across the sector, in long day care, family day care, preschool/kindergarten and outside of school hours care services. 55 The introduction of the NQF has created broad and significant changes in the sector. The NQF has imposed mandatory prescriptive national regulation on the sectors covered by the Awards.
[43] There are several elements to the NQF including:
• the National Law and National Regulations;
• the National Quality Standard;
• an assessment and quality rating process;
• national approved learning frameworks;
• a regulatory authority in each state and territory responsible for the approval, monitoring; and quality assessment of services in their state or territory; and
• a national body – (the ACECQA) which guides the implementation of the NQF and works with regulatory authorities.56
[44] The legislative framework for the NQF is the National Law and Regulations, which apply to most long day care, family day care, kindergarten/preschool and outside school hours care services in Australia. 57
[45] Victoria was the first state to pass the Education and Care Service National Law Act 2010. 58 The Education and Care Services National Regulations were made in Victoria on 9 December 2011 and came into effect on 1 January 2012.
[46] The National Law was then adopted by other states and territories, either through the passage of an application act or by the passage of corresponding legislation. 59 The National Law broadly harmonises the regulation of ECEC across Australia, though there are some variations across states. These variations are not significant for the purpose of the claims before us.
[47] In all states and territories, aside from Western Australia, the National Law and Regulations broadly came into effect on 1 January 2012. In Western Australia, the National Law came into effect on 20 June 2012 and the National Regulations on 25 July 2012 (regulations 1 and 3) and 1 August 2012 (the remaining regulations).
[48] Breaches of the National Law and Regulations attract civil penalties. Depending on the type of breach, the approved provider, the nominated supervisor and/or the educator are liable.
[49] The National Law introduced the National Quality Standard (the NQS), which is found in Schedule 1 of the National Regulations. The NQS is used to assess ECEC services to determine rating levels.
[50] There are seven quality areas within the NQS:
(1) Educational program and practice;
(2) Children’s health and safety;
(3) Physical environment;
(4) Staffing arrangements;
(5) Relationships with children;
(6) Collaborative partnerships with families and communities; and
(7) Governance and leadership.
[51] Services are rated against each area of the NQS and given a rating (from highest to lowest) of ‘Excellent’, ‘Exceeding National Quality Standard’, ‘Meeting National Quality Standard’, ‘Working towards National Quality Standard’ or ‘Significant Improvement required’.
[52] The quality rating is significant. Services that are rated as ‘Significant Improvement required’ may have immediate action taken against them by the regulatory authority. This action could include suspension of the service approval and withdrawal of access to the Child Care Subsidy.
[53] Further, the quality rating is public. Each service is required to display the rating at all times and the quality ratings are published on national registers, and the ‘Starting Blocks’ and ‘MyChild’ websites. Quality ratings are likely to have a significant impact on occupancy rates and the economic viability of a service.
[54] Relevantly for present purposes, an ‘Educational Leader’ is a defined role under the NQF. Regulation 118 of the National Regulations requires the approved provider to designate an ‘Educational Leader’:
‘118 Educational leader
The approved provider of an education and care service must designate, in writing, a suitably qualified and experienced educator, co-ordinator or other individual as educational leader at the service to lead the development and implementation of educational programs in the service.
Note: A compliance direction may be issued for failure to comply with this regulation.’ 60
[55] The ACECQA Information sheet on ‘the role of the Educational Leader’ notes that the role of the Educational Leader is primarily to: 61
• collaborate with educators and provide curriculum direction and guidance;
• support educators to effectively implement the cycle of planning to enhance programs and practices;
• lead the development and implementation of an effective educational program in the service; and
• ensure that children’s learning and development are guided by the learning outcomes of the approved learning frameworks.
[56] The ACECQA Information sheet also states that the Educational Leader has a significant role in: 62
• guiding and developing educators and families’ understanding about play and leisure-based learning, and the significance of the early years in the education continuum for children;
• building the knowledge, skills and professionalism of educators; and
• building a culture of professional inquiry with educators, coordinators and staff members to develop professional knowledge, reflect on practice and generate new ideas.
[57] The ACECQA Information sheet also states that: 63
‘The educational leader has an influential role in promoting positive outcomes for children and families. Effective educational leadership builds the capacity of educators by inspiring, motivating, affirming, challenging and extending their practice and pedagogy. This joint endeavour involves inquiry and reflection and supports ongoing learning and professional development.’
[58] Further, under the National Law, each centre is required to have a Responsible Person present at all times that the service is educating and caring for children. In each service, the approved provider is required to nominate an individual as the Nominated Supervisor. It is an offence to operate a service without a Nominated Supervisor. 64 Section 162(1) of the National Law states:
‘162 Offence to operate education and care service unless responsible person is present
(1) The approved provider of an education and care service must ensure that one of the following persons is present at all times that the service is educating and caring for children—
(a) the approved provider, if the approved provider is an individual or, in any other case, a person with management or control of an education and care service operated by the approved provider;
(b) a nominated supervisor of the service;
(c) a person in day-to-day charge of the service.
Penalty: $5000, in the case of an individual. $25 000, in any other case.’ 65
[59] At centre-based services, the staff record must include the name of the Responsible Person at the service for each time that children are being educated and cared for by the service. 66 In addition, the centre must display the name and position of the Responsible Person in charge of the education and care service at any time.67
[60] There are minimum requirements that a Nominated Supervisor must meet, which are stated in Regulation 117C(1):
‘(1) For the purposes of section 161A of the Law, the prescribed minimum requirements for nomination of a person as a nominated supervisor of an education and care service are that the person must—
(a) have attained the age of 18 years; and
(b) have adequate knowledge and understanding of the provision of education and care to children; and
(c) have the ability to effectively supervise and manage an education and care service.’ 68
[61] There are also minimum requirements that a person in day-to-day charge of a service must meet which are set out in Regulation 117B(1):
‘(1) An approved provider or a nominated supervisor of an education and care service must not place a person in day-to-day charge unless—
(a) the person has attained the age of 18 years; and
(b) the approved provider or nominated supervisor (as the case requires)—
(i) has had regard to the matters set out in subregulation (2); and
(ii) has taken reasonable steps to ensure that the person has adequate knowledge and understanding of the provision of education and care to children and an ability to effectively supervise and manage an education and care service.’ 69
[62] In each case, consideration is also given to the person’s history of compliance and any previous decisions under the law. 70
[63] A Nominated Supervisor and each person in day-to-day charge of the service must also have successfully completed any child protection training required by state or territory law. 71
[64] The Responsible Person is responsible for ensuring that the centre is operating, at all opening hours, in accordance with the National Law and Regulations. This means that the Responsible Person must ensure the health and safety of the children on site; that staff to children ratios are being met; that the physical environment is set out appropriately; and that programming and planning is carried out in accordance with the NQF. The Responsible Person must also maintain relationships with parents and families.
[65] As the Director (who is generally the Nominated Supervisor) cannot be on site at all opening hours, another employee will be designated the Responsible Person for those hours that the Nominated Supervisor is not on site.
[66] An employee who is designated as a Responsible Person could be an Assistant Director, an Early Childhood Teacher, a diploma qualified educator or a certificate III qualified educator.
[67] This employee will be the ‘person in day to day charge’ for the purposes of s.162(1)(c) of the National Law.
4. The Children’s Services Award 2010
Employee characteristics
[68] Using a framework developed by Commission staff 72 the Children’s Services Awardis ‘mapped’ to the following industry classes:
• 8010 Preschool education; and
• 8710 Child Care Services.
[69] The following information presents an employee profile of the Children’s services industry from the Census of Population and Housing (Census). The most recent Census data is from August 2016. The Census is the only data source with information on employment for this industry. The August 2016 Census data show that there were around 139,000 employees in the Children’s services industry. Table 1 compares characteristics of employees in this industry with employees in ‘all industries’. 73
Table 1: Employee characteristics of Children’s services industry, 2016
Children’s services industry | All industries | |||
(No.) | (%) | (No.) | (%) | |
Gender | ||||
Male | 7027 | 5.0 | 4 438 604 | 50.0 |
Female | 132 306 | 95.0 | 4 443 125 | 50.0 |
Total | 139 333 | 100.0 | 8 881 729 | 100.0 |
Full-time/part-time status | ||||
Full-time | 63 861 | 48.2 | 5 543 862 | 65.8 |
Part-time | 68 661 | 51.8 | 2 875 457 | 34.2 |
Total | 132 522 | 100.0 | 8 419 319 | 100.0 |
Highest year of school completed | ||||
Year 12 or equivalent | 100 750 | 73.0 | 5 985 652 | 68.1 |
Year 11 or equivalent | 12 626 | 9.1 | 856 042 | 9.7 |
Year 10 or equivalent | 20 315 | 14.7 | 1 533 302 | 17.4 |
Year 9 or equivalent | 2751 | 2.0 | 273 180 | 3.1 |
Year 8 or below | 1131 | 0.8 | 112 429 | 1.3 |
Did not go to school | 473 | 0.3 | 26 356 | 0.3 |
Total | 138 046 | 100.0 | 8 786 961 | 100.0 |
Student status | ||||
Full-time student | 11 929 | 8.6 | 715 436 | 8.1 |
Part-time student | 19 044 | 13.8 | 491 098 | 5.6 |
Not attending | 107 326 | 77.6 | 7 618 177 | 86.3 |
Total | 138 299 | 100.0 | 8 824 711 | 100.0 |
Age (5 year groups) | ||||
15–19 years | 7685 | 5.5 | 518 263 | 5.8 |
20–24 years | 23 661 | 17.0 | 952 161 | 10.7 |
25–29 years | 20 706 | 14.9 | 1 096 276 | 12.3 |
30–34 years | 18 143 | 13.0 | 1 096 878 | 12.3 |
35–39 years | 15 290 | 11.0 | 972 092 | 10.9 |
40–44 years | 15 170 | 10.9 | 968 068 | 10.9 |
45–49 years | 13 104 | 9.4 | 947 187 | 10.7 |
50–54 years | 10 682 | 7.7 | 872 485 | 9.8 |
55–59 years | 8355 | 6.0 | 740 822 | 8.3 |
60–64 years | 4627 | 3.3 | 469 867 | 5.3 |
65 years and over | 1912 | 1.4 | 247 628 | 2.8 |
Total | 139 335 | 100.0 | 8 881 727 | 100.0 |
Average age | 36.3 | 39.3 | ||
Hours worked | ||||
1–15 hours | 19 204 | 14.5 | 977 997 | 11.6 |
16–24 hours | 22 977 | 17.3 | 911 318 | 10.8 |
25–34 hours | 26 480 | 20.0 | 986 138 | 11.7 |
35–39 hours | 39 713 | 30.0 | 1 881 259 | 22.3 |
40 hours | 15 474 | 11.7 | 1 683 903 | 20.0 |
41–48 hours | 42 49 | 3.2 | 858 120 | 10.2 |
49 hours and over | 44 25 | 3.3 | 1 120 577 | 13.3 |
Total | 132 522 | 100.0 | 8 419 312 | 100.0 |
Note: Part-time work is defined as employed persons who worked less than 35 hours in all jobs during the week prior to Census night. Totals may not sum to the same amount due to non-response. For full-time/part-time status and hours worked, data on employees that were currently away from work (that reported working zero hours), were not presented.
[70] Table 1 shows that the profile of Children’s services industry employees differs from the profile of employees in ‘All industries’ in five aspects:
• Children’s services industry employees are predominately female (95.0 per cent, compared with 50.0 per cent of all employees);
• slightly more than half (51.8 per cent) of Children’s services industry employees are employed on a part-time basis (i.e. less than 35 hours per week), compared with around one in three (34.2 per cent) of all employees;
• three in 10 (30.0 per cent) of Children’s services industry employees work 35–39 hours per week, compared with 22.3 per cent of all employees;
• around half (50.4 per cent) of Children’s services industry employees are aged under 34 years, compared with 41.1 per cent of all employees; and
• over one in five (22.4 per cent) Children’s services industry employees are students, compared with 13.7 per cent of all employees.
•
Forms and conditions of employment
[71] Data from the Australian Bureau of Statistics (ABS) provides information on employee characteristics, forms and conditions of employment and a comparison of classifications with low-paid employment.
[72] There are four levels within the Australian and New Zealand Standard Industrial Classification (ANZSIC) structure: division, subdivision, group and class. The relevant divisions of ANZSIC for the Children’s Services Award are Division P: Education and training 74 and Division Q: Health care and social assistance.75 The following presents all of the subdivisions, groups and classes within each industry:
Education and Training:
• Subdivision 80 Preschool and School Education
• Group 801 Preschool education
• Class 8010 Preschool Education
• Group 802 School Education
• Class 8021 Primary Education
• Class 8022 Secondary Education
• Class 8023 Combined Primary and Secondary Education
• Class 8024 Special School Education
• Subdivision 81 Tertiary Education
• Group 810 Tertiary Education
• Class 8101 Technical and Vocational Education and Training
• Class 8102 Higher Education
• Subdivision 82 Adult, Community and Other Education
• Group 821 Adult, Community and Other Education
• Class 8211 Sports and Physical Recreation Instruction
• Class 8212 Arts Education
• Class 8219 Adult, Community and Other Education n.e.c.
• Group 822 Educational Support Services
• Class 8220 Educational Support Services
Health care and social assistance:
• Subdivision 84 Hospitals
• Group 840 Hospitals
• Class 8401 Hospitals (except psychiatric hospitals)
• Class 8402 Psychiatric hospitals
• Subdivision 85 Medical and other health care services
• Group 851 Medical services
• Class 8511 General practice medical services
• Class 8512 Specialist medical services
• Group 852 Pathology and diagnostic imaging services
• Class 8520 Pathology and diagnostic imaging services
• Group 853 Allied Health Services
• Class 8531 Dental services
• Class 8532 Optometry and optical dispensing
• Class 8533 Physiotherapy services
• Class 8534 Chiropractic and osteopathic services
• Class 8539 Other allied health services
• Group 859 Other Health Care Services
• Class 8591 Ambulance services
• Class 8599 Other health care services n.e.c.
• Subdivision 86 Residential care services
• Group 860 Residential care services
• Class 8601 Aged care residential services
• Class 8609 Other residential care services
• Subdivision 87 Social assistance services
• Group 871 Child care services
• Class 8710 Child care services
• Group 879 Other social assistance services
• Class 8790 Other social assistance services
[73] Data on forms and conditions of employment are not available for the Children’s services industry. The most readily available data are at the division level (or 1-digit level) and hence, data on the forms of employment are presented by the relevant ANZSIC divisions—Division P: Education and training and Division Q: Health care and social assistance.
[74] The ABS defines casual employees as employees without paid leave entitlements. 76 Around three-quarters of workers in Health care and social assistance and Education and training were employees with paid leave entitlements in November 2019, compared with 63.0 per cent in all industries (Table 2).77
Table 2: Employed persons by status of employment in main job, November 2019
Education and training | Health care and social assistance | All industries | |||
No. (’000s) | Percentage of employment | No. (’000s) | Percentage of employment | Percentage of employment | |
Employee | 1021.1 | 93.8 | 1613.8 | 90.8 | 83.2 |
With paid leave entitlements | 842.9 | 77.4 | 1284.5 | 72.3 | 63.0 |
Without paid leave entitlements | 178.2 | 16.4 | 329.2 | 18.5 | 20.3 |
Owner manager of enterprise with employees | 15.4 | 1.4 | 56.5 | 3.2 | 5.9 |
Owner manager of enterprise without employees | 52.4 | 4.8 | 105.8 | 6.0 | 10.6 |
Contributing family worker | 0.0 | 0.0 | 0.4 | 0.0 | 0.2 |
Total | 1088.9 | 100.0 | 1776.5 | 100.0 | 100.0 |
Note: All data are expressed in original terms.
[75] Around 20 per cent of employees in Health care and social assistance and around 17 per cent of employees in Education and training were casual employees, lower than the all industries average (24.3 per cent). Both full-time and part-time employees in Health care and social assistance and Education and training were more likely to be employed with paid leave entitlements. In contrast, part-time employees across all industries were more likely to be casual employees (Table 3). 78
Table 3: Employees with and without paid leave, November 2019
Full-time | Part-time | All employees | ||||
With paid leave | Without | With paid leave | Without paid leave | With paid leave | Without paid leave | |
(%) | (%) | (%) | (%) | (%) | (%) | |
Education and training | 94.4 | 5.6 | 62.7 | 37.3 | 82.6 | 17.4 |
Health care and social assistance | 91.3 | 8.7 | 65.8 | 34.2 | 79.6 | 20.4 |
All industries | 88.4 | 11.6 | 47.8 | 52.2 | 75.7 | 24.3 |
Low-paid employees in the Children’s Services Award
[76] A threshold of two-thirds of median full-time wages provides ‘a suitable and operational benchmark for identifying who is low paid’, 79 within the meaning of s.134(1)(a) of the FW Act.
[77] The most recent data for median earnings is for August 2019 from the ABS Characteristics of Employment (CoE) survey. Data on median earnings are also available from the Survey of Employee Earnings and Hours (EEH) for May 2018. These are compared to the minimum weekly wages in the Children’s Services Awardas determined in the Annual Wage Review 2018–19, effective 1 July 2019 (Chart 1).
Chart 1: Comparison of minimum full-time weekly wages in the Children’s Services Award 2010 and two-thirds of median full-time earnings [updated]
Note: Weekly earnings from the Characteristics of Employment Survey are earnings in the main job for full-time employees. Weekly earnings from the Survey of Employee Earnings and Hours are weekly total cash earnings for full-time non-managerial employees paid at the adult rate. Only the classifications on commencement are shown.
* Former Western Australian ‘E’ worker classification
[78] Chart 1 shows that the full-time weekly wage for Level 4A.1 in the Children’s Services Awardwas around the CoE measure of two-thirds of median full-time earnings, with all classifications below this rate below two-thirds of median full-time earnings. In addition, all classifications below Level 4.1 were below the EEH measure of two-thirds of median full-time earnings. 80
[79] Background Paper 1, published on 13 June 2019, posed the following question in relation to the above data: 81
‘Q.2 Is it generally agreed that most award reliant employees covered by the Children’s Services Award are ‘low paid’ within the meaning of s.134(1)(a)?’
[80] The UWU agreed with the proposition put, submitting that:
‘Most employees in the sector would be classified lower than Level 4. Only the Director, Assistant Director (if a service had such a role, some smaller services do not have an Assistant Director) and Room Leaders would be classified at Level 4.1 and above. In addition, the Director position, as the most senior position, is most likely to be paid above award wages.
The characterisation of award reliant employees covered by the Children’s Services Award as ‘low paid’ within the meaning of paragraph 134(1)(a) is appropriate.’ 82
[81] In response to the question posed, the ECEC Employers did not concede that ‘most award reliant employees covered by the Children’s Services Award are low paid’, submitting that:
‘The data available does not clearly identify the numbers of employees in each relevant classification and so notwithstanding that an assessment can be made as to which classifications are ‘low paid’ (applying the metrics identified in the Discussion Paper), a determination as to the proportion of employees who are ‘low paid’ is not possible.’ 83
[82] The AFEI submitted that it was not in a position to accept the proposition that most award-reliant employees covered by the Children’s Services Award are low paid because:
‘none of the data represented in Chart 1 84 is directed at the incidence (i.e. frequency) of employment at any of the classification levels in the award and therefore the Chart does not show (or even purport to show) the classification level(s) at which ‘most’ employees are employed.
To the extent that the Chart represents award derived data, that data is confined to the minimum weekly wages in the award effective 1 July 2018 – it does not represent actual amounts that are paid. As one example, it does not include pay point progression within classification levels based on service within the industry, 85 noting that a Level 3 employee will progress after two years, to Level 3.3, the same wage rate as applicable to Level 4A.1.
Consequently, even if it were the case that full time weekly wages for classifications below Level 4A.1, and Level 3.3 were below the CoE and the EEH measures, 86 that comparison is incapable of providing any reasonable platform to support the proposition that ‘most’ award reliant employees are ‘low paid’. 87
[83] We accept that the proposition put in Q2 above is too broadly stated as the data does not identify the numbers of employees at each classification. However, we are satisfied that award-reliant employees classified at levels below 4A.1 are low paid within the meaning of s.134(1)(a).
5. Educational Services (Teachers) Award 2010
Employee characteristics
[84] Using a framework developed by Commission staff 88 the Teachers Awardis ‘mapped’ to the following industry classes:
• 8010 Preschool education;
• 8021 Primary education;
• 8022 Secondary education; and
• 8023 Combined primary and secondary education.
[85] The following information presents an employee profile of the Educational services (Teachers) industry from the Census. The most recent Census data is from August 2016. The Census is the only data source with information on employment for this industry. The August 2016 Census data show that there were around 560 000 employees in the Educational services (Teachers) industry. Table 4 compares characteristics of employees in this industry with employees in ‘all industries’. 89
Table 4: Employee characteristics of Educational services (Teachers) industry, 2016
Educational services (Teachers) industry | All industries | |||
(No.) | (%) | (No.) | (%) | |
Gender | ||||
Male | 126 824 | 22.5 | 4 438 604 | 50.0 |
Female | 435 627 | 77.5 | 4 443 125 | 50.0 |
Total | 562 451 | 100.0 | 8 881 729 | 100.0 |
Full-time/part-time status | ||||
Full-time | 312 077 | 58.2 | 5 543 862 | 65.8 |
Part-time | 224 317 | 41.8 | 2 875 457 | 34.2 |
Total | 536 394 | 100.0 | 8 419 319 | 100.0 |
Highest year of school completed | ||||
Year 12 or equivalent | 464 070 | 83.1 | 5 985 652 | 68.1 |
Year 11 or equivalent | 29 911 | 5.4 | 856 042 | 9.7 |
Year 10 or equivalent | 55 520 | 9.9 | 1 533 302 | 17.4 |
Year 9 or equivalent | 6072 | 1.1 | 273 180 | 3.1 |
Year 8 or below | 2322 | 0.4 | 112 429 | 1.3 |
Did not go to school | 349 | 0.1 | 26 356 | 0.3 |
Total | 558 244 | 100.0 | 8 786 961 | 100.0 |
Student status | ||||
Full-time student | 17 853 | 3.2 | 715 436 | 8.1 |
Part-time student | 32 556 | 5.8 | 491 098 | 5.6 |
Not attending | 508 910 | 91.0 | 7 618 177 | 86.3 |
Total | 559 319 | 100.0 | 8 824 711 | 100.0 |
Age (5 year groups) | ||||
15–19 years | 7 704 | 1.4 | 518 263 | 5.8 |
20–24 years | 31 325 | 5.6 | 952 161 | 10.7 |
25–29 years | 55 940 | 9.9 | 1 096 276 | 12.3 |
30–34 years | 57 960 | 10.3 | 1 096 878 | 12.3 |
35–39 years | 60 862 | 10.8 | 972 092 | 10.9 |
40–44 years | 70 707 | 12.6 | 968 068 | 10.9 |
45–49 years | 75 343 | 13.4 | 947 187 | 10.7 |
50–54 years | 69 911 | 12.4 | 872 485 | 9.8 |
55–59 years | 67 882 | 12.1 | 740 822 | 8.3 |
60–64 years | 44 126 | 7.8 | 469 867 | 5.3 |
65 years and over | 20 677 | 3.7 | 247 628 | 2.8 |
Total | 562 437 | 100.0 | 8 881 727 | 100.0 |
Average age | 43.8 | 39.3 | ||
Hours worked | ||||
1–15 hours | 60 932 | 11.4 | 977 997 | 11.6 |
16–24 hours | 73 425 | 13.7 | 911 318 | 10.8 |
25–34 hours | 89 959 | 16.8 | 986 138 | 11.7 |
35–39 hours | 87 324 | 16.3 | 1 881 259 | 22.3 |
40 hours | 81 792 | 15.2 | 1 683 903 | 20.0 |
41–48 hours | 54 189 | 10.1 | 858 120 | 10.2 |
49 hours and over | 88 775 | 16.6 | 1 120 577 | 13.3 |
Total | 536 396 | 100.0 | 8 419 312 | 100.0 |
Note: Part-time work is defined as employed persons who worked less than 35 hours in all jobs during the week prior to Census night. Totals may not sum to the same amount due to non-response. For full-time/part-time status and hours worked, data on employees that were currently away from work (that reported working zero hours), were not presented.
[86] Table 4 shows that the profile of Educational services (Teachers) industry employees differs from the profile of employees in ‘All industries’ in five aspects:
• Educational services (Teachers) industry employees are predominately female (77.5 per cent, compared with 50.0 per cent of all employees);
• around four in 10 (41.8 per cent) Educational services (Teachers) industry employees are employed on a part-time basis (i.e. less than 35 hours per week), compared with around one in three (34.2 per cent) of all employees;
• around three in 10 (30.5 per cent) Educational services (Teachers) industry employees work 16–34 hours per week, compared with only 22.5 per cent of all employees;
• over six in 10 (62.0 per cent) Educational services (Teachers) industry employees are aged 40 years and over, compared with less than half (47.8 per cent) of all employees; and
• over eight in 10 (83.1 per cent) Educational services (Teachers) industry employees completed Year 12 or equivalent, compared with 68.1 per cent of all employees.
Forms and conditions of employment
[87] Data from the ABS provide information on employee characteristics, forms and conditions of employment and a comparison of classifications with low-paid employment.
[88] There are four levels within the ANZSIC structure: division, subdivision, group and class. The relevant division of ANZSIC for the Teachers Awardis Division P: Education and training. The following presents all of the subdivisions, groups and classes within the Education and training industry:
• Subdivision 80 Preschool and School Education
• Group 801 Preschool education
• Class 8010 Preschool Education
• Group 802 School Education
• Class 8021 Primary Education
• Class 8022 Secondary Education
• Class 8023 Combined Primary and Secondary Education
• Class 8024 Special School Education
• Subdivision 81 Tertiary Education
• Group 810 Tertiary Education
• Class 8101 Technical and Vocational Education and Training
• Class 8102 Higher Education
• Subdivision 82 Adult, Community and Other Education
• Group 821 Adult, Community and Other Education
• Class 8211 Sports and Physical Recreation Instruction
• Class 8212 Arts Education
• Class 8219 Adult, Community and Other Education n.e.c.
• Group 822 Educational Support Services
• 8220 Class Educational Support Services
[89] Data on forms and conditions of employment are not available for the Educational services (Teachers) industry. The most readily available data are at the division level (or 1-digit level) and hence, data on the forms of employment are presented for the Education and training division.
[90] The ABS defines casual employees as employees without paid leave entitlements. 90 Just over three-quarters of workers in Education and training were employees with paid leave entitlements in November 2019, compared with 63.0 per cent in all industries (Table 5).91
Table 5: Employed persons by status of employment in main job, November 2019
Education and training | All industries | ||
No. (’000s) | Percentage of employment | Percentage of | |
Employee | 1021.1 | 93.8 | 83.2 |
With paid leave entitlements | 842.9 | 77.4 | 63.0 |
Without paid leave entitlements | 178.2 | 16.4 | 20.3 |
Owner manager of enterprise with employees | 15.4 | 1.4 | 5.9 |
Owner manager of enterprise without employees | 52.4 | 4.8 | 10.6 |
Contributing family worker | 0.0 | 0.0 | 0.2 |
Total | 1088.9 | 100.0 | 100.0 |
Note: All data are expressed in original terms.
[91] Around 17 per cent of employees in Education and training were casual employees, lower than the all industries average (24.3 per cent). Both full-time and part-time employees in Education and training were more likely to be employed with paid leave entitlements. In contrast, part-time employees across all industries were more likely to be casual employees (Table 6). 92
Table 6: Employees with and without paid leave, November 2019
Full-time | Part-time | All employees | ||||
With paid leave | Without | With paid leave | Without paid leave | With paid leave | Without paid leave | |
(%) | (%) | (%) | (%) | (%) | (%) | |
Education and training | 94.4 | 5.6 | 62.7 | 37.3 | 82.6 | 17.4 |
All industries | 88.4 | 11.6 | 47.8 | 52.2 | 75.7 | 24.3 |
Low-paid employees in the Teachers Award
[92] As mentioned earlier, a threshold of two-thirds of median full-time wages provides ‘a suitable and operational benchmark for identifying who is low paid’, 93 within the meaning of s.134(1)(a).
[93] The most recent data for median earnings is for August 2019 from the CoE survey. Data on median earnings are also available from the Survey of EEH for May 2018. These are compared to the minimum weekly wages in the Teachers Awardas determined in the Annual Wage Review 2018–19, effective 1 July 2019 (Chart 2). 94
Chart 2: Comparison of minimum full-time weekly wages in the Educational Services (Teachers) Award 2010 and two-thirds of median full-time earnings
Note: Weekly earnings from the Characteristics of Employment Survey are earnings in the main job for full-time employees. Weekly earnings from the Survey of Employee Earnings and Hours are weekly total cash earnings for full-time non-managerial employees paid at the adult rate. Weekly rate of pay for employees in the Educational Services (Teachers) Award is calculated by dividing the annual rate by 52.18.
[94] The data show that all classifications were above both the CoE and EEH measures of two-thirds of median full-time earnings.
6. Common Claims
6.1 Ordinary Hours Claim
[95] The ECEC Employers (in this section, the Applicants) seek to vary the spread of ordinary hours clause under the Children’s Services Award and the Teachers Award from between 6.00 am and 6.30 pm, to 6.00 am and 7.30 pm.
[96] The Applicants contend that the extension of the span of hours represents an appropriate and contemporary standard having regard to the conditions of the ECEC sector and the modern awards objective, and that this pattern does not represent ‘unsocial’ hours or hours which are out of step with contemporary standards or the purposes of the ECEC sector. It is contended that an additional payment for work performed between 6.30pm and 7.30pm does not achieve the modern awards objective because it overcompensates employees for work performed between those times.
[97] In summary, the Applicants submit that the claim should be granted on the basis of:
• the role and characteristics of the ECEC sector;
• the experience of parents within the ECEC sector;
• the effect of current ordinary hours award conditions; and
• the likely effect of granting the claim.
[98] As to the role and characteristics of the ECEC sector the Applicants submit that:
(a) The primary purpose of childcare is to provide a place for young children to be when their parents are unable to care for them in the home because they are at work.
(b) The ECEC sector supports all Australian families and has the power to facilitate workforce participation leading to better outcomes for the economy and employment growth.
(c) Current government programs, (including the current subsidy arrangements) encourage both parents (and particularly mothers) to work because it is good for the economy.
(d) Childcare is an extremely competitive industry in which affordability, opening hours and compliance with an increasingly complex regulatory regime determine the viability of a business.
[99] The above propositions are expanded upon in Sections 12 and 13 of the Applicants’ submission dated 15 March 2019.
[100] It is convenient to observe here that these submissions amount to little more than assertions that lack any probative evidentiary foundation. Further, the contention that the ‘primary purpose of childcare is to provide a place for young children to be’ while their parents are working, is strongly contested and, in our view, inaccurate. The focus of the ECEC sector and the regulatory framework is on the provision of quality education and care for children. As the IEU submits:
‘This is why services are required to engage qualified teachers and educators: to dismiss the work as merely looking after children dramatically downplays the importance of the work and fundamentally misunderstands the nature and purpose of the sector.’ 95
[101] It is convenient to observe here that these submissions amount to little more than generalised assertions that lack any probative evidentiary foundation. Further, the contention that the ‘primary purpose of childcare is to provide a place for young children to be’ while their parents are working, is strongly contested and, in our view, inaccurate. The focus of the ECEC sector and the regulatory framework is on the provision of quality education and care for children. As the IEU submits:
‘This is why services are required to engage qualified teachers and educators: to dismiss the work as merely looking after children dramatically downplays the importance of the work and fundamentally misunderstands the nature and purpose of the sector.’ 96
[102] Further, the evidence supports a finding that quality ECEC makes a difference. Sylva et al 97 found a significant relationship between high quality pre-schooling and better intellectual and social/behavioural development for children. Similarly, Taggart et al98 found that quality pre-schooling continued to positively influence outcomes throughout primary school.
[103] We accept that the predominant reason why parents have their children attend ECEC is to enable parents to engage in paid employment, followed by providing developmental or social opportunities for children. We note here that the reasons given by parents as to why their children attend ECEC is to be distinguished from the broader public policy purpose of ECEC (as discussed at [100] – [101] above). Of children aged under 6 years in some formal ECEC other than preschool:
(a) 66% attend because of parents’ employment;
(b) 11% attend due to other parent-related/other reasons (the most common being “give parents a break”); and
(c) 23% attend for child-related reasons. 99
[104] As to the experience of parents within the ECEC sector the Applicants submit that:
(a) Affordability and accessibility of childcare for Australian families are current issues facing the ECEC sector generally.
(b) Childcare needs to accommodate parent (customer) demand at an affordable price or parents will go elsewhere.
(c) Accessibility and affordability of childcare are extremely important factors that, if not provided, can discourage parents, particularly women, from working.
(d) Limited childcare operating hours restrict the working hours of working parents, particularly those with greater caring responsibilities (i.e. women).
(e) Some parents and carers experience lower labour force participation, linked to a lack of access to flexible working arrangements and to quality affordable childcare.
(f) Greater access to flexible working arrangements is likely to increase workforce participation, particularly among women. There are broad economic and social benefits associated with increased female workforce participation.
(g) The nature of childcare is that working parents must drop off their children before commencing work and pick-up their children following the completion of their work. This pattern suggests that the ordinary hours of the childcare industry should commence earlier and conclude later than other industries.
(h) Parents who utilise childcare services work in all industries.
(i) Parents routinely choose childcare providers close to their homes so that they can drop off children before travelling to work, and pick-up children on the way home from work. This means that parents must finish work with enough time to travel to the childcare centre to pick-up their child ‘on time’.
(j) Many parents face increasingly long commuting times due to the distance of their home from work, reliability of public transport and an increase in traffic around major cities.
[105] The above propositions are expanded upon in Section 14 of the ECEC Employers’ submission dated 15 March 2019.
[106] The IEU and UWU contest many of the propositions advanced by the Applicants and the IEU submits:
• none of the statements are supported by expert or useful lay evidence – at its highest the Applicants rely on broad assertion by its unqualified witnesses, none of whom have performed any market testing or provided any financial information; and
• the propositions reiterate the foundational error of describing ECEC services as being merely ‘childcare’, which appears to be an attempt to downplay its important economic and social role in favour of a focus on user convenience.
[107] While it was not contested that some parents have long commuting times; the unions observe that there was no evidence about this and whether it impacts on the utilisation of ECEC services in any way. We deal later with the lack of an evidentiary foundation in respect of the propositions advanced.
[108] As to the effect of the current span of hours in the Awards the Applicants submit that:
(a) The span of ordinary hours in the Children’s Services Award and Teachers Award currently finish at 6:30pm.
(b) The cessation of ordinary hours at 6:30 in the childcare industry is identical to or earlier than 46% of modern awards. This means that, at least in respect of modern awards, ‘overtime has begun’ in the childcare industry at a point where many working parents are still completing ‘ordinary hours’ in other industries (or travelling to pick-up their children).
(c) There is a demand from parents for childcare centres to stay open past 6:30pm due to their own work commitments.
(d) In order to avoid the payment of overtime, some childcare providers require parents to pick-up their children at 6:30 pm (i.e. the end of ordinary hours).
(e) Unlike employers in other industries, childcare employers do not have unilateral control on when centres can close. If parents do not attend ‘on time’ to collect children, childcare centres are required to stay open, incurring unplanned overtime liability.
(f) It is a common experience of childcare centres that, notwithstanding a clearly defined closure time of 6:30pm, parents are often late necessitating the payment of overtime.
(g) Commuting to and from work and work commitments are the main reasons parents cite to centre operators for why they cannot pick-up their children by 6:30pm.
(h) Some centres charge late fees as a deterrent to late parents, further exacerbating unaffordability issues within the industry.
(i) Some centres do not charge late fees, which means, given parents commonly pay a ‘day rate’, those centres are incurring overtime liability without the generation of any additional income to offset this.
(j) Unplanned overtime caused by parents collecting their children after 6:30pm causes some disability for childcare employees who are unable to identify, with certainty, their finishing time.
[109] The above propositions are expanded upon in Section 16 of the ECEC Employers’ submission dated 15 March 2019.
[110] The propositions above at [106] (b), (c), (d), (f), (g), (h), (i), and (j) are contested.
[111] We deal later with the proposition that there is a demand from parents for ECEC centres to stay open after 6:30pm. We note here that there was evidence that some centres charge late fees as a deterrent to late pick-ups by parents. 100
[112] The proposition that ‘parents are often late necessitating the payment of overtime’ was advanced in support of extending the span of ordinary hours to 7.30pm. 101 The evidence indicated that late pick up of children is infrequent. UWU witness Ms Hennessy provided uncontested evidence that: ‘in my experience, most children have been picked up by their parents before 6.15pm. We occasionally have parents who run late when there is an emergency or some other unusual circumstance, though this doesn’t happen often’.102
[113] Similarly, Ms Wade, the manager of Aussie Kindies in Torquay which operates between 6.30am and 6.30pm, said ‘We haven’t had a late family in about a year and a half’. 103 Ms McPhail, the director of a company that operates two ECEC services which operate from 6.30am to 6.30pm, also gave similar evidence. During the course of cross-examination, it was put to Ms McPhail that at her centres sometimes parents are late picking up their children; she responded ‘very rarely’.104
[114] We accept that some witnesses described a greater incidence of late pick up, but, viewed as a whole, the evidence supports a finding that parents are occasionally late in picking up children. Further, and contrary to proposition (g), there was little evidence as to why some parents were late. Ms Tullberg provided an example of a parent who was late because of work finishing times 105 but the evidence did not suggest this was a widespread phenomena.
[115] We also note that the Applicants accept that regardless of the span of hours under the Awards, unexpected occurrences and emergencies will mean that is impossible to eliminate the possibility of late pick-ups. In their reply submission the Applicants state that the claim is not made on the basis that it will eliminate late pickups, but rather that ‘it will calibrate the ordinary hours span under the Awards to a period which better accommodates working parents who, given the work finish time and the time taken to travel to a centre, are more likely to ‘miss’ a 6:30pm pick-up’. 106 Further, contrary to the submission of the UWU, the Applicants submit that the evidence in these proceedings supports the proposition that ‘late pick-up’ policies would change if the span of ordinary hours was extended.
[116] As to the likely effect of granting the claim the Applicants submit that:
(a) Extending ordinary hours until 7:30pm will increase the hours of operation of centres and make childcare more accessible for Australian families.
(b) Extending ordinary hours until 7:30pm will make childcare more sustainable for ECEC operators who are currently deterred from staying open past 6:30pm due to the significant costs associated with 2 employees being paid at overtime rates, despite demand from parents.
(aa) Extending the ordinary hours until 7:30pm will increase workforce participation to benefit Australian families and the Australian economy in that it will allow parents to work longer hours.
(bb) Extending ordinary hours until 7:30pm will make childcare more affordable for parents by pushing back or removing the “late fees” charged to parents when they arrive after 6:30pm.
(cc) Extending the ordinary hours until 7:30pm would serve to remove the ‘unpredictability’ of overtime which will benefit childcare workers who are rostered on the ‘closing shift’ in that those employees could simply be rostered to work the additional time.
[117] The above propositions are expanded upon in Section 17 of the ECEC Employers’ submission dated 15 March 2019.
[118] All of these propositions are contested. In short, the IEU submits:
• no witness has given evidence that they would in fact extend their opening hours if the span of hours has changed, and none are in fact using the full span at present;
• there is no evidence that the claim will make childcare ‘more sustainable’, noting the failure of any ACA witness to bring actual financial information in respect of current business costs and the obvious marginality of current overtime costs;
• there is no evidence to support the proposition that the claim will increase workforce participation; as a matter of common sense this would not seem to flow from permitting childcare centres to remain open longer at slightly less expense; and
• extending the opening hours does not mean parents will never be late; given that no witness has said they would roster staff past closing time to cover for unexpected late pickups; both the ‘unpredictability’ for staff and the late fee cost for parents would remain. 107
[119] There is considerable force in the arguments advanced by the IEU and we return to the lack of probative evidence shortly.
[120] We note here that it is unclear to us whether any of the employer witnesses would change operating hours even if there was a change to the span of opening hours, as most had not done any costing on the financial viability of a change and there was little probative evidence that there was significant parental demand for such a change. 108
[121] As to proposition (b), employer witnesses Mr Mahony and Ms Hands conceded that they had not done the calculations on the cost of opening until 7.30pm. 109 Ms Chemello gave evidence that her centre’s late fees were to offset the time in lieu costs (not direct overtime costs, as she offered time in lieu rather than overtime).110
[122] We would also note that there is no probative evidence to support the broad assertion advanced in proposition (aa). As to (bb), we note that the evidence does not support a finding that expanding the span of ordinary hours will necessarily result in businesses reducing or eliminating late fees and, a difficulty with proposition (cc) is that a number of the Applicants’ witnesses acknowledged that they would not roster employees on after closing time just in case of a late pick-up. 111
[123] The Applicants address the modern awards objective and the various s.134 considerations in Part F of the ECEC Employers’ submission of 15 March 2019. The Applicants contend that the Awards will provide a fair and relevant minimum safety net once varied in accordance with their claims. It is convenient to deal with the Applicants’ submissions about the s.134 considerations now, before turning to the UWU and IEU submissions in reply.
[124] As to ‘relative living standards and the needs of the low paid’ (s.134(1)(a)), the Applicants acknowledge that it is ‘an obvious consequence’ of their claim that the penalties paid to particular employees after 6.30pm may decrease on those days but submit that a decrease in the wages payable after 6.30pm does not mean that low paid employees will be worse off on an overall basis. In particular, the Applicants submit that the proposed changes will:
(a) allow employees working on the closing shift to have set, pre-determined hours (and no longer be inconveniently asked to work overtime for an undetermined period of time when parents are running late);
(b) create structured employment between 6.30pm and 7.30pm where none presently exists; and
(c) enable employees to (still) be paid overtime after working 8 hours in a day or after 7.30pm.
[125] The Applicants also submit 112 that it is important to look at the relative living standards and the needs of all low paid Australians, and that extending the ordinary hours until 7.30pm will:
• increase the access and availability of childcare services to Australian families;
• increase workforce participation of both parents; and
• decrease the cost of childcare for low paid parents who struggle to arrive by 6.30pm due to long commutes and transport issues getting to and from work.’
[126] In their reply submission the Applicants clarify that they do not submit that the claim ‘will increase the living standards and the needs of all low paid Australians’ 113 but do submit that in assessing s.134(1)(a) (or alternatively ss.134(1)(f) and (g)), the effect of any proposed variation needs to be assessed not only against the needs and desires of a particular workforce covered by a reviewed award/s, but also more broadly.
[127] There is little, if any, probative evidence in support of the proposition that the variation sought will have the effect posited by the Applicants. A point to which we shall return shortly.
[128] The question of whether s.134(1)(a) only applies to low paid employees covered by the award sought to be varied, or to low paid workers generally, does not arise due to the paucity of evidence in support of the contention that there is an unmet demand for childcare services after 6:30pm. Further, it is clear that the variation will not assist the low paid employees covered by the Children’s Services Award to meet their needs.
[129] The UWU submits that the Applicants have ignored the fact that many early childhood educators are also working parents and, in particular, working mothers:
‘Many educators have caring responsibilities themselves and extending the ordinary span of hours will create difficulties for these educators to pick up their own children and provide appropriate care to them…
It is apparent from the evidence of our members that educators would experience difficulties managing caring responsibilities if ordinary hours of work within the Awards were extended. Hours after 6.30pm within the context of ECEC are ‘unsocial’ hours, which are currently paid at the overtime rate in recognition of the disutility associated with work in the evening.’ 114
[130] The evidence before us shows that there are some employees covered by the Awards who themselves have caring responsibilities and extending the spread of ordinary hours would make it difficult for them to meet those responsibilities. In other words, it would make it difficult for low paid employees covered by the Children’s Services Award to meet their needs. Ms Bea gave evidence regarding the difficulties she faces in balancing her work and family responsibilities:
‘In my own family, if I am working until 6.30pm I am reliant on my partner being able to pick my children up from school, getting their dinner ready and taking them to any extracurricular activities they have. My partner has a disability and so sometimes struggles managing these afternoons when he needs to pick up the kids…… If I were to finish at 7.30pm, by the time I got home my children would be in the process of getting ready for bed. This time of the evening for children is already high stress, so if I am arriving home at that time tired from my day at work I would not feel like I was able to spend quality time with them. On the afternoons I am able to arrive home not long after my children have finished school, we are able to do activities together such as hand sewing. If I were to work until 7.30pm then I would miss out on these meaningful interactions.’ 115
[131] Ms Wade, the manager of Aussie Kindies in Torquay, gave evidence of the difficulties of obtaining staff to work after 6:30pm,:
‘If the opening hours of our centre were to extend until 7.30pm, then this means the educators would have less time with their families. I already have difficulties trying to find educators who are able to work the shift that ends at 6:30pm. A number of the educators at my centre are single mothers who do not have strong support networks. They have their own children in after school hours care which closes at 6:00pm and we stay open until 6:30pm. A number of the educators at my centre are mums who take children to sporting activities in the afternoon. Extending the opening hours of the centre would impact their caring duties in this respect. I live with my mother and my father, who are able to care for my daughter when she finishes school if I am still at work. However, if I was required to work until 7.30pm I would miss out on spending valuable time with her. She normally sleeps at around 7:00pm so the time from when I get home from work and she goes to bed is crucial in maintaining our relationship.’ 116
62 ‘National Quality Standard Information sheet: The Role of the Educational Leader’, ACECQA, last updated April 2018, p. 2.
63 ‘National Quality Standard Information sheet: The Role of the Educational Leader’, ACECQA, last updated April 2018, p. 1.
64 Education and Care Services National Law (2010) at s. 161.
65 Education and Care Services National Regulations (2011), at reg. 162(1).
66 Education and Care Services National Regulations (2011), at reg. 150.
67 Education and Care Services National Regulations (2011), at reg. 173(2)(c).
68 Education and Care Services National Regulations (2011), at reg. 117C(1).
69 Education and Care Services National Regulations (2011), at regs. 117B(1).
70 Education and Care Services National Regulations (2011), at regs. 117B(2), 117B(3), 117C(2) and 117C(3).
71 Education and Care Services National Law Act (2010) at s.162A.
72 Preston M, Pung A, Leung E, Casey C, Dunn A and Richter O (2012) ‘Analysing modern award coverage using the Australian and New Zealand Industrial Classification 2006: Phase 1 report’, Research Report 2/2012, Fair Work Australia.
73 ABS, Census of Population and Housing, 2016.
74 ‘Division P: Education and Training’, Australian Bureau of Statistics 2013, Australian and New Zealand Standard Industrial Classification 2006 (Revision 2.0), Cat. no. 1292.0, last released 26 June 2013.
75 ‘Division Q: Health Care and Social Assistance’, Australian Bureau of Statistics 2013, Australian and New Zealand Standard Industrial Classification 2006 (Revision 2.0), Cat. no. 1292.0, last release 26 June 2013.
76 ABS, Characteristics of Employment, Aug 2019, Catalogue No. 6333.0, Explanatory notes.
77 ABS, Labour Force, Australia, Detailed, Quarterly, Nov 2019, Cat. No. 6291.0.55.003.
78 ABS, Labour Force, Australia, Detailed, Quarterly, Nov 2019, Catalogue No. 6291.0.55.003.
79 [2017] FWCFB 1001 at [166].
80 ABS, Characteristics of Employment, Australia, August 2019, Catalogue No. 6333.0; ABS, Employee Earnings and Hours, Australia, May 2018, Cat. No. 6306.0.
81 Background Paper 1, 13 June 2019 at page 12.
82 UWU submission, 9 July 2019 at paras 13-14.
83 ECEC Employers submission, 10 July 2019 at para 5.
84 See Background Paper 1, 13 June 2019 at page 12, Chart 1: Comparison of minimum full-time weekly wages in the Children’s Services Award 2010 and two-thirds of median full–time earnings.
85 Clause 14.1.
86 See Background Paper 1, 13 June 2019 at para 26.
87 AFEI submission, 10 July 2019 at paras 7–9.
88 Preston M, Pung A, Leung E, Casey C, Dunn A and Richter O (2012) ‘Analysing modern award coverage using the Australian and New Zealand Industrial Classification 2006: Phase 1 report’, Research Report 2/2012, Fair Work Australia.
89 ABS, Census of Population and Housing, 2016.
90 ABS, Characteristics of Employment, Aug 2019, Catalogue No. 6333.0, Explanatory notes.
91 ABS, Labour Force, Australia, Detailed, Quarterly, Nov 2019, Catalogue No. 6291.0.55.003
92 ABS, Labour Force, Australia, Detailed, Quarterly, Nov 2019, Catalogue No. 6291.0.55.003.
93 [2017] FWCFB 1001 at [166].
94 MA000077; ABS, Characteristics of Employment, Australia, August 2019, Catalogue No. 6333.0; ABS, Employee Earnings and Hours, Australia, May 2018, Catalogue No. 6306.0.
95 IEU submission, 10 July 2019, at para 10.
96 IEU submission, 10 July 2019, at para 10.
97 Sylva, K., Melhuish, E., Sammons, P., Siraj-Blatchford, I., & Taggart, B. (2004). The Effective Provision of Pre-School Education (EPPE) Project: Findings from Pre-school to end of Key Stage. Cited at Annexure C to Exhibit 10 – Witness Statement of Dr Marianne Fenech, 14 March 2019 at para 6.4.
98 Taggart, B., Sylva, K., Melhuish, E., Sammons, P., & Siraj, I. (2015). Effective preschool, primary and secondary education project (EPPSE 3-16+): How preschool influences children and young people’s attainment and developmental outcomes over time. Research Brief (June 2015). UK: Department for Education. Cited at Annexure C to Exhibit 10 – Witness Statement of Dr Marianne Fenech, 14 March 2019 at para 6.4.
99 Baxter, Jennifer, Child care and early childhood education in Australia, Australian Government Australian
Institute of Family Studies accessed on 26 April 2019 at at p 3.
100 See oral evidence of Jae Fraser – Transcript, 7 May 2019 at PN1717-PN1719; katy Paton – Transcript, 7 May 2019 at PN2189-PN2196; Ann Marie Chemello – Transcript, 7 May 2019 at PN2689-PN2690; Nicole Llewellyn – Transcript, 9 May 2019 at PN4210-PN4213.
101 ECEC Employers submission, 15 March 2019 at page 19.
102 Exhibit 7, Supplementary statement of Bronwen Hennessy dated 10 April 2019 at para 5.
103 Transcript, 6 May 2019 at PN875.
104 Transcript, 7 May 2019 at PN2919 – PN2920.
105 Transcript, 8 May 2019 at PN3601.
106 ECEC Employers submission 29 April 2019 at para 2.42
107 IEU submission, 10 July 2019 at para [13].
108 See oral evidence of Karthika Viknarasah – Transcript, 6 May 2019 at PN1088-PN1089; Jae Fraser – Transcript, 7 May 2019 at PN1699; Katy Paton - Transcript, 7 May 2019 at PN2237-PN2238; Pamela Maclean - Transcript, 7 May 2019 at PN2489, Ann Marie Chemello - Transcript, 7 May 2019 at PN2696-PN2698; Kerry Mahony - Transcript, 8 May 2019 PN3943 and PN3954.
109 Kerry Mahony – Transcript, 8 May 2019 at PN3947-3948; Alexandra Hands – Transcript, 9 May 2019 at PN4635.
110 Transcript, 7 May 2019 at PN2690.
111 See oral evidence of Tullberg – Transcript, 8 May 2019 at PN3595; Mahony – Transcript, 8 May 2019 at PN3961; Paton – Transcript, 7 May 2019 at PN2185.
112 ECEC Employers submission, 15 March 2019.
113 ECEC Employers submission in reply, 29 April 2019 at para 2.62.
114 Ibid, at paras [38]-[41].
115 Exhibit 9 - Supplementary statement of Pixie Bea, 10 April 2019 at paras 5 and 7.
116 Exhibit 12 - Supplementary statement of Alicia Wade, 12 April 2019 at paras 6 and 7.
117 ECEC Employers submission, 15 March 2019 at para 27.1.
118 ECEC Employers submission, 15 March 2019 at para 28.1.
119 Baxter, Jennifer, Child care and early childhood education in Australia, Australian Government Australian
Institute of Family Studies accessed on 26 April 2019 at at p 3.
120 ECEC Employers submission, 15 March 2019 at paras 29.1 – 29.5.
121 Ibid, at para 30.1.
122 Ibid, at paras 30.2 – 30.3.
123 Ibid, at paras 33.1 – 33.3.
124 Ibid, at para 34.1.
125 Ibid, at paras 34.2 – 34.5.
126 UWU submission in Reply, 12 April 2019 at 26.
127 Ibid, at para 49.
128 Ibid, at paras 54 – 55.
129 IEU Submission in Reply, 15 April 2019.
130 Ibid, at para 11.
131 Transcript, 7 May 2019 at PN2910.
132 Transcript, 8 May 2019 at PN3589.
133 See Knox Childcare and Kindergarten Survey; 2016 Annual Parent Satisfaction Survey; Exhibit 36.
134 UWU submission in reply, 12 April 2019 at para 27.
135 The CSV dataset for approved services in the region ‘Australia’ was accessed on 2 April 2019 from The closing time in the table is based on closing time of a service on Mondays. The vast majority of services have the same closing time across the week, but there may be some that vary. There were a total of 15,901 services listed in the datasheet. Certain services were excluded. All services that did not have a closing time listed were excluded, and this comprised a significant number of services. 31 services were excluded for having an unclear finish time such as ‘0.00’. 89 services were excluded for having a close time of ‘23:59’, as spot checks of these services indicated this appeared to be a data error. Most services used 24 hour time however a portion of services used 12 hour time. The services using 12 hour time were manually sorted into an appropriate category. Percentages are rounded to 1 decimal point. Data sets on the ACECQA national registers are updated daily; this table reflects the information as of 2 April 2019.
136 ABI submission, 29 April 2019 at para 2.16
137 ABI Response to FWC Background Document 1, 10 July 2019 at para 102.
138 Exhibit 33.
139 Exhibit 33, Annexure LJ-4.
140 Exhibit 33, Annexure LJ-4 at page 58.
141 Exhibit 28 – Witness Statement of Kristen McPhail, 12 April 2019 at para 41.
142 Exhibit 35 – Witness Statement of Sarah Tullberg, 9 April 2019 at paras 36 – 37.
143 Exhibit 27 – Witness Statement of Ann Marie Chemello, 1 March 2019 at paras 45 – 46.
144 Transcript, 7 May 2019 at PN2695 – PN2699.
145 See oral evidence of Karthika Viknarasah PN1088-1089, Jae Fraser PN1699, Katy Paton PN2237-PN2238, Pamela Maclean PN2489, Ann Marie Chemello PN2696-2698, Kerry Mahony PN3943 and PN3954.
146 Transcript, 6 May 2019 at PN1088-PN1089.
147 ECEC Employers Submission dated 15 March 2019 at para 3.1; ECEC Employers Submission dated 29 April 2019 at para 1.5(b).
148 ECEC Employers Submission dated 15 March 2019 at paras 20.2(h) - 20.2(k).
149 Ibid, at para at 22.1.
150 Ibid, at para 20.2(b).
151 Ibid, at paras 20.2(c) - 20.2(d).
152 Ibid, at para 18.12.
153 Ibid, at para 19.1.
154 Ibid, at paras 19.2 - 19.5.
155 Ibid, at para 19.1.
156 Ibid, at paras 19.2 - 19.5.
157 See oral evidence of Kylie Brannelly – Transcript, 8 May 2019 at PN3423-PN3424; Kerry Mahony – Transcript, 8 May 2019 at PN3991-PN3993; Nicole Llewellyn – Transcript, 9 May 2019 at PN4250-PN4253; and Alexandra Hands – Transcript, 9 May 2019 at PN4758-PN4767.
158 IEU Submission in Reply, 15 April 2019 at paras 26-27.
159 See oral evidence of Nicole Llewellyn – Transcript, 9 May 2019 at PN4221-PN4229; and Alexandra Hands – Transcript, 9 May 2019 at PN4703.
160 Exhibit 28 – Witness Statement of Kristen McPhail, 12 April 2019 at para 74.
161 Exhibit 18 – Witness Statement of Jae Fraser, 15 April 2019 at para 93.
162 See oral evidence of Alexandra Hands – Transcript, 9 May 2019 at PN4681-PN4684; Kerry Mahony – Transcript, 8 May 2019 at PN3965-PN3966; Jae Fraser – Transcript, 7 May 2019 at PN1677-PN1680; and Katy Paton – Transcript, 7 May 2019 at PN2269-PN2279.
163 See Exhibit 27 - Witness Statement of Ann Marie Chemello, 1 March 2019 at para 23; Exhibit 43 - Witness Statement of Hands, 12 March 2019 at para 19; Exhibit 21 - Witness Statement of Katy Paton, 14 March 2019 at para 20; Exhibit 13 - Witness Statement of Karthika Viknarasah, 11 April 2019 at para 31; Exhibit 35 - Witness Statement of Tullberg, 9 April 2019 at para 19; Exhibit 28 - Witness Statement of Kristen McPhail, 12 April 2019 at para 21; Exhibit 18 - Witness Statement of Jae Fraser, 15 April 2019 at paras 24-25; Exhibit 25 - Witness statement of Pamela Maclean, 15 April 2019 at para 30; Exhibit 38 - Witness Statement of Kerry Mahony, 11 April 2019 at para 21.
164 ECEC Employers submission, 15 March 2019 at para 20.2(k).
165 UWU submission in Reply, 12 April 2019 at para 78.
166 Exhibit 9 - Supplementary statement of Pixie Bea, 10 April 2019 at para 11.
167 Ibid, at paras 12-13.
168 Exhibit 7 - Supplementary statement of Bronwen Hennessy, 10 April 2019 at paras 11-12.
169 ECEC Employers submission, 15 March 2019 at para 29.
170 Ibid, at para 32.3.
171 Ibid, at paras 33.2 – 33.3.
172 Ibid, at para 105.
173 IEU submission in Reply, 15 April 2019.
174 Ibid, at para 30.
175 Ibid, at paras 33-34.
176 Ibid, at para 36.
177 IEU submissions in reply, 26 May 2019 at paras 27-34.
178 Transcript, 7 May 2019 at PN2880-PN2882.
179 ECEC Employers submission in reply, 29 April 2019 at para 2.57.
180 Transcript, 6 May 2019 at PNP1113 - PN1115, P1172 – P1176 (Karthika Viknarasah); Transcript, 7 May 2019 at PN2482 - PN2486 (Pamela Avril Maclean); Transcript, 7 May 2019 at PN2708 - PN2709 (Ann Marie Chemello), Transcript, 7 May 2019 at PN2980 - PN2986 (Kristen Carol McPhail); Transcript, 8 May 2019 at PN3557 - PN3558, PN3568 - PN3569 (Sarah Tullberg); Transcript, 8 May 2019 at PN3973 - PN3974 (Kerry Mahony); Transcript, 9 May 2019 at PN4217 - PN4219, P4228 - P4229 (Nicole Llewellyn).
181 Transcript, 7 May 2019 at PN2727.
182 Transcript, 8 May 2019 at PN3564.
183 Transcript, 7 May 2019 at PN2305.
184 Transcript, 8 May 2019 at PN3973.
185 ECEC Employers submission – background document 2, 19 July 2019 at para 33.
186 ECEC Employers Submission, 15 March 2019 at para 21.3.
187 Exhibit 43 – Statement of Alexandra Hands, 12 March 2019 at paras 62 - 67.
188 Exhibit 39 – Amended Statement of Nicole Louise Llewellyn, 39 April 2019 at para 78.
189 Exhibit 28 – Amended Statement of Kristen Carol McPhail, 12 April 2019.
190 ECEC Employers submission, 15 March 2019 at para 23.4.
191 Ibid, at para 23.3.
192 [2017] FWCFB 3541 at [645].
193 ECEC Employers Submission – Background document, 10 July 2019 at para 103.
194 The UWU submission - Factual Findings, 29 May 2019 at para 83.
195 Exhibit 8 - Witness Statement of Pixie Bea, 4 March 2019; Exhbiit 9 - Supplementary Statement of Pixie Bea, 10 April 2019.
196 Exhibit 10 - Witness Statement of Dr Marianne Fenech, 14 March 2019.
197 Exhibit 6 - Witness Statement of Bronwen Hennessy, 11 March, Exhibit 7 - Supplementary Statement of Bronwen Hennessy, 10 April 2019.
198 Exhibit 11 - Witness Statement of Alicia Wade, 8 March 2019; Exhibit 12 - Supplementary Statement of Alicia Wade, 12 April 2019.
199 Exhibit 17 - Witness Statement of Preston Warner, 8 March 2019.
200 Exhibit 34 - Witness Statement of Kylie Brannelly, 15 April 2019.
201 Exhibit 18 - Witness Statement of Jae Fraser, 15 April 2019.
202 Exhibit 39 - Witness Statement of Nicole Llewellyn, 9 April 2019.
203 Exhibit 38 - Witness Statement of Kerry Mahony, 11 April 2019.
204 Exhibit 28 - Witness Statement of Kristen McPhail, 12 April 2019.
205 Exhibit 11 - Witness Statement of Alicia Wade, 8 March 2019 at para 55.
206 Ibid.
207 Ibid, at paras 132 – 150.
208 Ibid, at para 151.
209 Ibid, at para 152.
210 Exhibit 10 - Statement of Dr.Marianne Fenech, 14 March 2019 (Annexure C) at paras 5.1-5.5.
211 The UWU submission, 15 March 2019, page 29 at para 149, citing Dr Fenech report, para 5.4.
212 Exhibit 10 – Witness Statement of Dr Marianne Fenech, 14 March 2019 (Annexure C) at para 6.1.
213 Transcript, 6 May 2019 at PN481.
214 Exhibit 8 - Witness Statement of Pixie Bea, 4 March 2019 at paras 46 – 49.
215 Transcript, 6 May 2019 at PN848.
216 Transcript, 6 May 2019 at PN866-PN868.
217 Transcript, 6 May 2019 at PN868.
218 Transcript, 6 May 2019 at PN861, PN863 and PN865.
219 Transcript, 6 May 2019 at PN855
220 Transcript, 6 May 2019 at PN848
221 Transcript, 6 May 2019 at PN851.
222 ECEC Employers submission, 29 May 2019 at para 8.1.
223 Exhibit 17 - Witness Statement of Preston Warner, 8 March 2019 at para 50.
224 Transcript, 9 May 2019 at PN4342-PN4350.
225 Transcript, 9 May 2019 at PN4249.
226 Exhibit 39 - Witness Statement of Nicole Llewellyn, 9 April 2019 at para 103.
227 ECEC Employers submission, 16 April 2019 at para 6.11.
228 Ibid, at para 6.9.
229 Exhibit 13 – Witness Statement of Karthika Viknarasah, 11 April 2019 at paras 133-134.
230 Ibid, at para 134.
231 Exhibit 38 – Witness Statement of Kerry Mahony, 11 April 2019 at para 110.
232 Exhibit 18 – Witness Statement of Jae Fraser, 15 April 2019 at para 131.
233 Exhibit 28 – Statement of Kristen McPhail, 12 April 2019 at para 113.
234 The UWU submission - Factual Findings, 29 May 2019 at para 83.
235 The UWU submission, 15 March 2019, p. 32 at para 162; The UWU submission Factual Findings, 29 May 2019 at para 83.
236 Exhibit 10 – Witness Statement of Dr Marianne Fenech, 14 March 2019 at paras 2.5 – 2.6.
237 See Exhibit 5 – ACECQA Educational Leader Resource.
238 Transcript, 7 May 2019 at PN506 - PN516.
239 Exhibit 6 - Witness Statement of Bronwen Hennessy, 11 March 2019.
240 ECEC Employers response to Background Paper, 17 July 2019 at para 72.
241 Transcript, 9 May 2019 at PN4300-PN4304 (Llewellyn).
242 Transcript, 9 May 2019 at PN4343.
243 Transcript, 9 May 2019 at PN4301 – PN4302.
244 Transcript, 7 May 2019 at PN1943.
245 Transcript, 8 May 2019 at PN4019.
246 Exhibit 34 – Witness Statement of Kylie Brannelly, 15 April 2019 at para 55.
247 Ibid, at para 1.
248 Ibid, at paras 56 and 62.
249 UWU submission, 15 March 2019, p. 37, at para. 199.
250 UWU submission, 9 July 2019 at paras 60–62.
251 Children’s Services Award 2010 at cl B.1.6.
252 See schedule B of Children’s Services Award 2010.
253 UWU submission, 15 March 2019 at para 9.
254 Ibid, at para 191.
255 Ibid, at para 195.
256 Ibid.
257 Ibid, at para 193; Education and Care Services National Regulations (2011), at reg. 136(1).
258 ‘Guide to National Quality Framework’, ACECQA, first published February 2018, last updated October 2018, page 8.
259 UWU Submission, 9 July 2019 at para 54.
260 Ibid, at para. 196.
261 Exhibit 8 – Witness statement of Pixie Bea dated 4 March 2019 at para 36; Transcript, 6 May 2019 at PN365-PN495.
262 Exhibit 11 – Witness statement of Alicia Ann Wade dated 8 March 2019 at paras 39, 43-47, 48; Transcript, 6 May 2019 at PN705-PN961.
263 Exhibit 17 – Witness statement of Preston Tori Warner dated 8 March 2019 at paras 57-58, 59; Transcript, 7 May 2019 at PN1455-PN1542.
264 UWU submission, 29 May 2019 at para 94.
265 Ibid, at para 101(a).
266 Ibid, at para 101(b).
267 Ibid, at para 101(c).
268 UWU submission, 15 March 2019 at para 207.
269 Fair Work Act 2009 2009 (Cth), s.134(1)(a).
270 UWU submission, 15 March 2019 at para 206.
271 Ibid, at para 200.
272 Exhibit 34 – Witness statement of Kylie Ann Brannelly, 15 April 2019; Transcript, 8 May 2019 at PN3401-PN3522 (in particular, PN3500; PN3503).
273 Exhibit 27 – Witness statement of Ann Marie Chemello, 1 March 2019; Transcript, 7 May 2019 at PN2641-PN2849 (in particular, PN2822).
274 Exhibit 18 – Witness statement of Jae Dean Fraser, 15 April 2019; Transcript, 7 May 2019 at PN1553-PN2028 (in particular, PN1959-PN1961).
275 Exhibit 38 – Witness statement of Kerry Joseph Mahony, 11 April 2019 at paras 101, 102; Transcript, 8 May 2019 at PN3893-PN4042.
276 Exhibit 28 – Witness statement of Kristen Carol McPhail, 12 April 2019 at paras 101-103; Transcript, 7 May 2019 at PN2863-PN3135.
277 Exhibit 3 – Witness statement of Sarah Elizabeth Tullberg, 9 April 2019 at paras 106, 108; Transcript, 8 May 2019 at PN3527-PN3750 (in particular, PN3735-PN3736; PN3737).
278 Exhibit 13 – Witness statement of Karthika Viknarasah, 11 April 2019; Transcript, 6 May 2019 at PN971-PN1381 (in particular, PN1351).
279 ECEC Employers submission, 16 April 2019 at paras 7.4-7.8.
280 Exhibit 38 – Amended witness statement of Kerry Mahony, 11 April 2019 at para 101; Exhibit 35 – Witness statement of Ms Sarah Tullberg, 9 April 2019 at para 107; Exhibit 28 – Witness statement of Kristen Carol McPhail, 12 April 2019 at paras 101-102.
281 ECEC Employers submission, 16 April 2019 at para 7.4.
282 ECEC Employers submission, 29 May 2019 at para 9.4; AFEI submission, 2 June 2019 at para 19; AFEI submission, 16 April 2019 at para 58; AFEI submission, 17 July 2019, at para 16.
283 ECEC Employers submission – findings sought, 29 May 2019 at para 9.2 referring to Exhibit 38 – Witness statement of Kerry Joseph Mahony, 11 April 2019 at para 101; Exhibit 28 – Witness statement of Kristen Carol McPhail, 12 April 2019 at paras 101-103.
284 ECEC Employers submission – findings sought, 29 May 2019 at para 9.3 referring to Exhibit 38 – Witness statement of Kerry Joseph Mahony, 11 April 2019 at para 102; Exhibit 35 – Witness statement of Sarah Tullberg, 9 April 2019 at para 108; Exhibit 28 – Witness statement of Kristen Carol McPhail, 12 April 2019 at 103.
285 ECEC Employers submission – findings sought, 29 May 2019 at para 9.3 referring to Exhibit 12 – Supplementary Witness statement of Alicia Ann Wade at para 48.
286 AFEI submission, 16 April 2019 at para 56.
287 Ibid, at para 57.
288 AFEI response to background paper 2, 17 July 2019 at para [16].
289 Transcript, 6 May 2019 at PN1351.
290 Transcript, 7 May 2019 at PN1959; Transcript, 8 May 2019 at PN3500.
291 Transcript, 7 May 2019 at PN2822; Transcript, 8 May 2019 at PN3735-PN3736.
292 Transcript, 8 May 2019 at PN3503.
293 Transcript, 8 May 2019 at PN3737.
294 Transcript, 7 May 2019 at PN1959-PN1961.
295 UWU submission, 9 July 2019 at para 57.
296 Transcript, 6 May 2019 at PN333-PN337.
297 Exhibit 17 – Witness statement of Preston Tori Warner, 8 March 2019 at para 57.
298 Exhibit 8 – Witness statement of Pixie Bea, 4 March 2019 at para 36.
299 Exhibit 11 – Witness statement of Alicia Ann Wade dated 8 March 2019 at paras 45 – 46.
300 Ibid, at paras 39 – 46.
301 Exhibit 8 – Witness statement of Pixie Bea, 4 March 2019 at para 38; Transcript, 6 May 2019 at PN462–PN463.
302 Exhibit 8 – Witness statement of Pixie Bea, 4 March 2019 at para 36.
303 Exhibit 17 – Witness statement of Preston Tori Warner, 8 March 2019 at para 58.
304 Ibid, at para 59.
305 Exhibit 6 – Witness statement of Bronwen Hennessy, 11 March 2019 at para 32.
306 Exhibit 28 – Amended witness statement of Kristen McPhail, 12 April 2019 at para 103.
307 Exhibit 35 – Witness statement of Sarah Tullberg, 9 April 2019 at para 108.
308 Exhibit 38 – Amended witness statement of Kerry Mahony, 11 April 2019 at para 102.
309 UWU submission, 19 July 2019 at para 54.
310 Exhibit 8 – Witness statement of Ms Pixie Bea, 4 March 2019 at para 42.
311 Transcript, 6 May 2019 at PN453.
312 Children’s Services Award 2010 [MA000120], cls. 15.2(a) and (b).
313 UWU submission, 15 March 2019 at para. 175.
314 UWU submission, 15 March 2019at paras. 169-170.
315 UWU submission, 15 March 2019 at para. 171.
316 UWU submission, 19 July 2019 at para. 56.
317 UWU submission, 19 July 2019 at para. 56.
318 UWU submission, 15 March 2019 at para. 172.
319 UWU submission, 15 March 2019 at para. 189.
320 UWU submission, 15 March 2019 at para. 189.
321 ABI submission, 29 May 2019 at paras. 10.1 to 10.2; ABI submission, 19 July 2019 at para. 78.
322 AFEI submission,31 May 2019 at para. 20.
323 Transcript, 6 May 2019 at PN426-PN446.
324 Transcript, 6 May 2019 at PN440-PN441.
325 Transcript, 6 May 2019 at PN431-PN433.
326 Transcript, 7 May 2019 at PN1962-PN1970.
327 Transcript, 7 May 2019 at PN2829.
328 Transcript, 9 May 2019 at PN4320.
329 Transcript, 9 May 2019 at PN4325.
330 Alexandra Hands gave evidence that her centre washes all the work-supplied uniforms for staff, but that she would pay a laundry allowance if employees chose to take their uniform home to wash themselves: Transcript of 9 May 2019 at PN4799 to PN4808; Exhibit 43 – Witness statement of Alexandra Hands dated 12 March 2019.
331 Pamela Avril Maclean gave evidence that her centre pays the laundry allowance even though employees can use its facilities to wash their clothes if they wanted to: Transcript, 7 May 2019 at PN2602 to PN2605. Also see Exhibit 25 – Amended witness statement of Pamela Avril Maclean dated 15 April 2019 and Transcript, 7 May 2019 at PN2826; Witness Statement of Chemello at paras. 27 – 28 and Transcript at PN2829.
332 UWU submission, 15 March 2019 at para. 187.
333 UWU submission, 15 March 2019 at para. 185; UWU Submission dated 19 July 2019 at para. 58.
334 UWU submission, 15 March 2019 at para. 185.
335 UWU submission, 15 March 2019 at para. 186.
336 UWU submission, 15 March 2019 at para. 184.
337 UWU submission, 15 March 2019 at para. 183.
338 UWU submission, 15 March 2019 at para. 189.
339 UWU submission, 15 March 2019 at para. 189.
340 UWU submission, 15 March 2019 at para. 189.
341 ECEC Employers submission, 19 July 2019 at para. 80.
342 ECEC Employers submission, 16 April 2019 at paras. 9.3-9.4.
343 Exhibit 39 – Statement of Nicole Llewellyn dated 9 April 2019 at para. 101; Transcript, 9 May 2019 at PN4027, PN4333 to PN4334; Exhibit 38 – Witness statement of Kerry Joseph Mahony dated 11 April 2019 at paras. 106-107; Exhibit 25 – Witness statement of Pamela Avril Maclean dated 15 April 2019 at paras. 129-130; Exhibit 28 – Witness statement of Kristen Carol Mcphail dated 12 April 2019 at para. 107.
344 ECEC Employers submission, 16 April 2019 at para. 9.4; Exhibit 25 – Witness statement of Pamela Avril Maclean dated 15 April 2019 at [130].
345 ECEC Employers submission, 16 April 2019 at para. 9.5.
346 UWU submission, 9 July 2019 at paras. 63-64.
347 AFEI submission, 10 July 2019 at para. 50; Background Paper 1, 13 June 2019 at para. 141.
348 AFEI submission, 10 July 2019 at para. 50; Background Paper 1, 13 June 2019 at para. 141.
349 ECEC Employers submission, 2 June 2019 at para 21.
350 ‘Guide to National Quality Framework’, ACECQA, first published February 2018, last updated October 2018, p. 390, downloaded from: Ibid, at page 392. Noting that the Guide to National Quality Framework also states at (p 390) that ‘an area of unencumbered indoor space may be included in calculating the outdoor space of a service that provides education and care to children over preschool age if the regulatory authority has given written approval and this space has not already been included in calculating the indoor space – that is, it cannot be counted twice’: see AFEI Submission 10 July 2019 at [48].
352 Ibid, at page 392.
353 Ibid, at page 393.
354 See R v Commonwealth Conciliation and Arbitration Commission; Ex parte Melbourne and Metropolitan Tramways Board (1965) 113 CLR 228 at 243 per Barwick CJ.
355 ECEC Employers submission, 16 April 2019 at para. 9.5(b),
356 ECEC Employers submission, 16 April 2019 at para. 9.4.
357 Witness Statement of Pamela Avril Maclean at para. 130.
358 UWU submission, 9 July 2019 at para. 64.
359 UWU submission, 9 July 2019 at para. 64.
360 In oral evidence, Ms Llewellyn acknowledged that if the current award was amended to clarify that providing sunscreen and hats to staff was a requirement it would not affect her business operations (Transcript, 9 May 2019 at PN4333-PN4334). In oral evidence, Mr Mahony also acknowledged that a clarification of a requirement to provide hats and sunscreen would make no difference to his centres as most centres already do so (Transcript, 9 May 2019 at PN4028; Witness Statement of Mahony at paras 106-107). Ms Pamela Maclean also provides and pays for hats and unlimited sunscreen for staff at her centres and submitted that most centres she knows provide these items (Exhibit 28 - Witness Statement of Kristen McPhail at paras 129 – 130)
361 UWU submission dated 15 March 2019 at para 209.
362 Children’s Services Award 2010 [MA000120], cl 18.1(e).
363 UWU submission, 15 March 2019 at paras 209-212.
364 Ibid, at para 210.
365 Ibid, at para 210.
366 Ibid, at para 212.
367 ECEC Employers submission, 16 April 2019 at para 10.2.
368 Ibid, at para 10.3.
369 ECEC Employers submission, 10 July 2019 at para 80.
370 Ibid.
371 ECEC Employers submission, 10 July 2019 at para 79.
372 ECEC Employers submission, 10 July 2019 at para 83.
373 AFEI submission, 16 April 2019 at paras 60-62.
374 Australian Tramway Employers Association v Melbourne and Metropolitan Tramways Board(1923) 17 CAR 681 at 694 – 695.
375 [2015] FWCFB 7236 at [170].
376 [2015] FWCFB 8200 at [272].
377 [2018] FWCFB 3500 at [99].
378 For example the Business Equipment Award 2010 – higher duties allowance will not apply where the employee being relieved is on annual leave or personal/carer’s leave, until the absence exceeds 1 week (at which point the relieving employee must be paid for that week and any additional days); Broadcasting, Recorded Entertainment and Cinemas Award 2010 – higher duties allowance does not apply to journalists; Hospitality Industry (General) Award 2010 – higher duties allowance does not apply to food and beverage attendants grade 2 and 3.
379 UWU submission, 15 March 2019 at para 214.
380 UWU submission, 2 May 2019 at page 1.
381 Ibid, at para 222.
382 Ibid, at para 216.
383 Ibid, at para 216.
384 See [2017] FWC 5861 and [2019] FWC 2869.
385 UWU submission, 9 July 2019 at para 65.
386 IEU submission, 29 May 2019 at para 16.
387 IEU submission, 15 March 2019 at para 16.
388 IEU submission, 15 March 2019 at para 17.
389 IEU submission, 15 March 2019 at para 12.
390 Child Care Industry (Teachers) (Australian Capital Territory) Award 1999.
391 IEU submission, 15 March 2019 at para 13.
392 IEU submission, 15 March 2019 at para 7.
393 Transcript, 9 August 2019 at PN32.
394 IEU submission, 15 March 2019 at paras 15 and 16.
395 IEU submission, 29 April 2019 at para 4.
396 IEU submission, 15 March 2019 at para 16.
397 UWU submission, at para 114.
398 ECEC Employers submission, 16 April 2019 at para 12.4
399 ECEC Employers submission, 16 April 2019 at para 12.3
400 ECEC Employers submission, 29 May 2019 at para 14.4; Exhibit 18 - Witness Statement of Jae Fraser, 15 April 2019 at para 147; Exhibit 13 - Witness Statement of Karthika Viknarasah, 11 April 2019 at para 156.
401 Transcript, 9 May 2019 at PN3317.
402 AFEI submission, 16 April 2019 at paras 73-76.
403 IEU submission, 26 April 2019 at para 2.
404 Transcript, 9 August 2019 at PN40.
405 Exhibit 41 – Witness statement of Ana Mravunac, 15 March 2019 at para 5.
406 Transcript, 29 August 2019 at PN34.
407 Exhibit 32 – Witness statement of Lisa James, 15 March 2019 at paras 28 – 31.
408 Exhibit 32 – Witness statement of Lisa James, 15 March 2019 at para 32.
409 IEU submission, 15 March 2019 at para 21.
410 IEU submission, 15 March 2019 at para 22.
411 IEU submission, 15 March 2019 at para 23.
412 Ibid, at para 25.
413 Ibid, at para 25.
414 ECEC Employers submission, 16 April 2019 at paras 13.1 and 13.4.
415 ECEC Employers submission, 16 April 2019 at para 13.2.
416 Exhibit 13 - Witness Statement of Ms Karthika Viknarasah, 11 April 2019 at paras 161-163.
417 Exhibit 35 – Witness Statement of Ms Sarah Tullberg, 9 April 2019 at para 114.
418 ECEC Employers submission, 16 April 2019 at para 13.3.
419 Exhibit 13 –Witness statement of Ms Karthika Viknarasah, 11 April 2019 at para 161; Exhibit 28 – Witness statement of Ms Kristen Carol McPhail, 12 April 2019 at para 118; Exhibit 39 – Statement of Ms Nicole Llewellyn, 9 April 2019 at para 107; Exhibit 35 – Witness statement of Ms Sarah Tullberg, 9 April 2019 at para 113; Exhibit 38 – Statement of Mr Kerry Joseph Mahony, 11 April 2019 at para 121.
420 Exhibit 13 –Witness statement of Ms Karthika Viknarasah, 11 April 2019 at para 162; Exhibit 35 – Witness statement of Ms Sarah Tullberg, 9 April 2019 at para 114.
421 ECEC Employers submission, 10 July 2019 at para 107.
422 Ibid, at para 108.
423 Ibid, at para 108.
424 Ibid, at para 111.
425 Ibid, at para 111.
426 AFEI submission, 16 April 2019 at para. 80.
427 Ibid, at para 79.
428 AFEI submission, 10 July 2019 at para. 58.
429 Ibid, at para. 59.
430 Transcript, 9 August 2019 at PN31.
431 Ibid.
432 AFEI submission 10 July 2019 at para 60.
433 Ibid at para 61.
434 UWU submission 9 July 2019 at paras 136–137.
435 IEU submission 10 July 2019 at para 26.l
436
437 AIS submission, 6 March 2009 at para 84.
438 AN120543.
439 AP799560CRA.
440 AN170051.
441 AIS submission, 6 March 2009 at para 85.
442 Parties’ Draft Award - Associations of Independent Schools Independent Schools Teachers Award 2010, attached to AIS submission, 6 March 2009. This clause was also reiterated in their draft award dated 27 April 2009.
443 Transcript, 26 June 2009 at PN2471 (Mr Odgers, appearing for Independent Education Union of Australia).
444 AIS submission, 6 May 2009 at para 10.
445 AIS submission, 12 June 2009 at paras 43-44.
446 IEU submission, 15 March 2019 at para 25.
447 [2019] FWCFB 5078.
448 See [2017] FWCFB 3541 at [402].
449 [2012] FWAFB 6913 at [12].
450 (2000) 110 IR 247 at para [126].
451 [2017] FWCFB 3541.
452 Ibid at [399].
453 [2019] FWCFB 5078 at [186].
454 Exhibit 21 at para [79].
455 Exhibit 13 at para [38].
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