Federation of Parents and Citizens’ Associations of New South Wales
[2023] FWCFB 48
•3 MARCH 2023
| [2023] FWCFB 48 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.158—Application to vary or revoke a modern award
Federation of Parents and Citizens’ Associations of New South Wales
(AM2020/6)
| Educational services | |
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 3 MARCH 2023 |
Educational Services (Schools) General Staff Award 2010
Introduction
This decision deals with what commenced procedurally as a submission made by the Federation of Parents and Citizens’ Associations of New South Wales (Federation) in response to the process for finalising the Tranche 2 Exposure Drafts produced in the 4 yearly review of modern awards. The Full Bench with oversight of that process determined that the Federation was seeking a significant variation of what was then the Educational Services (Schools) General Staff Award 2010[1] and determined to refer the proposal of the Federation to another Full Bench. Pursuant to ss.618 and 582 of the Fair Work Act 2009 (the Act), Justice Ross constituted a Full Bench to hear and determine the substantive claims made by the Federation as an application under s.158 of the Act to vary the coverage clause of what has since become the Educational Services (Schools) General Staff Award 2020 (General Staff Award). The Full Bench was subsequently reconstituted on 15 October 2021. An outline of the procedural history lying behind this application (hereinafter described as “the Application”) and its referral to this Full Bench was detailed in the Statement we issued dated 22 October 2021 (the Statement).
The Federation is a not-for-profit incorporated industry association. It represents the interests of students and parents of students at government schools and is charged with the duty to empower Parents and Citizens Associations throughout New South Wales. The foundation of the Application is the challenge for Parents and Citizens Associations to navigate, apply and comply with the terms of multiple Modern Awards, namely:
· the General Retail Industry Award 2020 (Retail Award) for employees engaged in roles within uniform and book shops;
· the Fast Food Industry Award 2010 (Fast Food Award) for employees engaged in roles within canteens;
· the Children’s Services Award 2010 (Children’s Award) for employees engaged in roles within Out of School Hours (OOSH) care.
The Federation’s proposal to vary the coverage clause of the General Staff Award, so that it is capable of covering a Parents and Citizens Association (P&C Association), has been modified during the course of this proceeding. The Federation seeks to vary the General Staff Award by:
· Inserting a new clause 4.5A that states: “This award covers Parents and Citizens Associations who are employers in the school education industry.”
· Inserting the following definition into clause 2:
Parents and Citizens Association means an incorporated or unincorporated, not-for-profit association consisting of parents of children attending any government school and together with teachers of the school and other persons for the purposes of supporting a school for the benefit of the school’s students.
· Amending the introductory words of the definition of “general employee” in clause 2, by inserting the words “or Parents and Citizens Association” after the word “school”.[2]
During the conduct of this proceeding, the Commission has taken steps to notify various organisations that it has considered may have an interest in the Application. Ahead of the Conference before Deputy President Clancy on 12 March 2020, the following organisations were notified:
· The Australian Education Union (AEU) – Federal Office;
· The NSW Teachers’ Federation;
· The Independent Education Union (IEU);
· The Association of Independent Schools;
· Australian Business Industrial, NSW Business Chamber Ltd (ABI/NSWBC); and
· The Australian Federation of Employers and Industries (AFEI).
Only the Federation and the IEU attended the 12 March 2020 Conference and despite having earlier submitted that the Federation’s application ought be referred to a Full Bench for directions and a hearing, the IEU advised they did not object to the Application. The essence of the position the IEU outlined was that the argument of the Federation that P&C Associations should not have to deal with a range of Modern Awards when they are only working in one industry seemed well-founded.
Both the IEU and the Federation expressed the view that Parents and Citizens’ Associations, or their equivalents, operating in other States and the Territories may have an interest in the Application and as such, should be notified. We agreed and also took the view that the question of coverage may be a matter of interest for other registered organisations, such as the United Workers’ Union (UWU) and the Shop, Distributive and Allied Employees’ Association (SDA). Accordingly, steps were taken to notify these various organisations.
In the Statement we outlined directions for the filing of material in response to the Application ahead of a hearing.
The directions also afforded the Federation the opportunity to file submissions and material in reply and we also outlined in the Statement the following two questions for interested parties to address:
1. Whether they accept the proposition that P&C Associations are engaged in the “school education industry” as defined in the Educational Services (Schools) General Staff Award 2020, and if not, why not?
2. If the answer to Question 1 is “yes”, do they consider that all categories of employees engaged by P&C Associations are capable of falling within the classifications contained in Schedule A of the Educational Services (Schools) General Staff Award 2020, and if not, why not?
The only submissions received in response to the directions were from the ACT Council of Parents & Citizens Associations (ACT Council) and the SDA. Their written submissions were the subject of reply material filed by the Federation. This in turn gave rise to a submissions in reply from the SDA. At the hearing on 14 February 2022, the Federation made oral submissions and called witness evidence from their Senior Advisor - Policy and Research, Mr Tim Spencer. The SDA made oral submissions only.
Question 1: Are P&C Associations engaged in the “school education industry” as defined in the Educational Services (Schools) General Staff Award 2020?
The Federation asserts, having regard to the objects of P&C Associations outlined in s.116 of the Education Act and other corresponding State based legislation, that P&C Associations are employers in the school education industry.
This was also the Federation’s position when it addressed the exposure draft to the predecessor Modern Award to the General Staff Award, the Educational Services (Schools) General Staff Award 2010, following the Commission’s publication of the second tranche of exposure drafts in 2019. At that time the Federation submitted that P&C Associations are employers in the school education industry[3] but the Exposure draft was ambiguous in its coverage and required clarity.[4]
The ACT Council outlined that it is the peak body for ACT public school P&C Associations across 89 schools and that approximately 40 ACT P&C Associations employ staff in a range of services from canteens, uniform shops, tutoring programs, executive officers/business managers and OOSH care services.
The ACT Council rejected the proposition that ACT P&C Associations employing staff meet the definition of “school education industry” in clause 4.2 of the General Staff Award. The ACT Council submitted the current definition of “school education industry” appears limited to services operated, directed, or controlled by a school or by a central or regional administration system. It says all ACT public school P&C Associations are independent associations under the Associations Incorporation Act 1991 (ACT) and although P&C services operate alongside and collaboratively with schools, they are not subject to the direction or control of a school or system administration of schools.
The ACT Council also advised that ACT P&C Associations are established under the Associations Incorporation Act 1991 (ACT) such that they are unlikely to be captured by the Federation’s proposed definition of “Parents and Citizens Association”.
The SDA’s position in response to the Application was to submit the continuing correct coverage of workers employed by P&C Associations is under the Retail Award and the Fast Food Award.
The SDA broadly endorsed the position adopted by the ACT Council, and asserted that P&C Associations cannot be considered to be engaged in the “school education industry” any more than an external retailer of secondary school books or equipment or a supplier of school uniforms could be said to be engaged in the “school education industry”. The SDA maintains that employees of such a commercial operation are properly covered by the Retail Award.
The SDA submitted that the Commission and before it, the Australian Industrial Relations Commission (AIRC) established that the Retail Award and the Fast Food Award were the appropriate Modern Awards for employees of P&C Associations working in retail and take away food. The SDA proffered that “appropriate consideration was given to relevant State Awards” when the Retail Award was formulated.
The SDA asserted the Federation had produced no probative case or cogent evidence to interfere with the original conclusion that the Retail and Fast Food Awards were the most appropriate Modern Awards to cover these particular workers. The SDA submitted that the fact the workers were employees of a P&C Association “was not a probatively relevant consideration that should interfere with the existing coverage” and asserted their coverage by the Retail and Fast Food Awards should not be lightly interfered with.
The SDA argued that the Award Modernisation process “took pains” in ensuring that the correct coverage was applied to each industry and that this included ensuring the existing coverage of similar Awards carried over to the Modern Awards.
The SDA also contended that there had been consideration of what the appropriate coverage for employees of P&C Associations in a Statement issued by the Full Bench of the AIRC on 22 May 2009 as part of the Award Modernisation process[5] and that this process ensured that existing coverage of similar Awards carried over to the new Modern Awards.
The Federation disputed there was any specific consideration of P&C Associations as part of the award modernisation process beyond the identification, and no more, of the Parents and Citizens and Other Associations Retail Award – State 2004 from Queensland.
Both the SDA and the Federation made reference to applications made by the ACT Council[6] and the ACT School Canteen Association Incorporated[7] in 2012 to vary the Educational Services (Schools) General Staff Award 2010 so as to have P&C Associations and school canteens in the ACT brought within its coverage. While the SDA relied on the applications having been dismissed, the Federation submitted that the applications were dismissed without the Commission having considered the merits of the applications.
Dealing firstly with the submissions regarding the Award Modernisation process, we do not consider the broad submission made by the SDA that the AIRC has previously established that the Retail Award and the Fast Food Award were the appropriate Modern Awards for employees of P&C Associations working in retail and take away food is compelling. The SDA’s contention that school canteens and uniform shops were part of the retail industry and/or the fast food industry was based upon:
a) the inclusion of ‘take away food shops’ within the definition of ‘Special Shops’ in the NSW Shop Employees (State) Award;[8] and
b) the NSW Shop Employees (State) Award then having been included amongst the list of wholesale and retail trade awards to be rationalised during the Award Modernisation process; and
c) The Queensland Parents and Citizens and Other Associations Retail Award – State 2004 also being included amongst the list of awards to be rationalised.
However, the SDA was not able to point to any specific substantive reference to the appropriate coverage for P&C Associations when that process of rationalisation took place.
Further, we have noted that the 22 May 2009 Statement dealt with a range of exposure drafts covering specified industries and occupations but having considered the totality of the consideration of the Full Bench in the section dealing with Educational Services (other than Higher education),[9] we are not persuaded there was specific consideration of, or a decision either way in relation to employers in that industry who were not schools. While the Full Bench commented that coverage of non-teaching staff in schools has been sporadic and no existing award covered all of the types of employment which may exist in a school,[10] P&C Associations were not specifically considered.
As to the applications made in 2012 by the ACT Council and the ACT School Canteen Association Incorporated to vary the Educational Services (Schools) General Staff Award 2010, we observe that having noted that neither submissions nor evidence had been filed in accordance with her directions, the conclusion of Commissioner Deegan was:
“Given the form of the applications filed and the failure to provide any further submissions or evidence in support of the application, I have determined that I do not have before me the necessary information upon which I could be satisfied that a variation to the Award is necessary to meet the modern awards objective. Further, it is not clear from the scant information provided that the Award in its current form is not meeting the modern awards objective.”[11]
In fairness, the Commissioner’s determination to leave the Educational Services (Schools) General Staff Award 2010 unchanged was for no other reason than there having been a complete absence of material either way on the merits of the variation sought. We reject the SDA submission that the Commissioner’s decision weighs against the Federation’s current application. We consider it a neutral consideration.
Therefore, we consider the question of whether P&C Associations are engaged in the “school education industry” as defined in the General Staff Award is ultimately an interpretative task. As was outlined by French J (as he then was) in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union:
“The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to ‘... the entire document of which it is a part or to other documents with which there is an association’. It may also include ‘... ideas that gave rise to an expression in a document from which it has been taken’ – Short v FW Hercus Pty Ltd [1993] FCA 51; (1993) 40 FCR 511 at 518 (Burchett J); Australian Municipal, Clerical and Services Union v Treasurer of the Commonwealth of Australia (1998) 80 IR 345 (Marshall J).”[12]
Further, the observations of Madgwick J in Kucks v CSR Ltd[13] remain apposite:
“It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.
But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.”[14]
In undertaking the interpretative task required in answering Question 1, we consider the starting point is clause 4.1 of the General Staff Award, which states that it “… covers employers in the school education industry throughout Australia and their employees employed in the classifications contained in Schedule A - Classifications to the exclusion of any other modern award.”
Clause 4.2 of the General Staff Award proceeds to define “school education industry” as follows:
“School education industry means the provision of education including preschool or early childhood education in a school, registered and/or accredited under the relevant authority in each state or territory or in an early childhood service operated by a school, including all operations of the school. Where the provision of school education is directed, managed and/or controlled by a central or regional administration of a system of schools it may also include persons involved in providing such services to schools.”
A conclusion that a P&C Association falls within the current definition of “school education industry” in clause 4.2 of the General Staff Award would require acceptance of the proposition that a P&C Association falls within “all operations of the school” to which it is connected.
P&C Associations in New South Wales are constituted under the Education Act 1990 (NSW) (NSWEducation Act) and defined as consisting of parents of children attending any government school together with other residents of the district served by the school in question who are interested in the welfare of that school.[15]
Section 115 of the NSW Education Act deals with the constitution of P&C Associations and outlines the following:
“(1) A parents and citizens association or a kindred association may be constituted in connection with any government school in accordance with the regulations.
(1A) Any such parents and citizens association may be incorporated under the Parents and Citizens Associations Incorporation Act 1976 or under the Associations Incorporation Act 2009.
(2) The Minister may establish a district council for a specified area by order published in the Gazette.
(3) Any such district council is to be constituted in accordance with the regulations.”
The objects of P&C Associations are outlined in s.116(1) of the NSW Education Act as:
“(a) to promote the interests of the school by bringing parents, citizens, students and teaching staff into close co-operation;
(b) to assist in providing facilities and equipment for the school and in promoting the recreation and welfare of the students at the school; and
(c) to encourage parent and community participation in curriculum and other education issues in schools where there is no school council.”
P&C Associations in New South Wales operate as entirely separate entities to the schools. They are generally incorporated associations pursuant to the Parents and Citizens Associations Incorporation Act 1976 (NSW) or under the Associations Incorporation Act 2009 (NSW).
Finally, the functions of P&C Associations are outlined in s.116(2) of the NSW Education Act as follows:
“(a) to report, when requested by the Minister, on the material requirements of the school and advise on the subject of maintenance of the school, alterations and additions to school facilities, and the selection of new sites;
(b) to assist and co-operate with teaching staff in public functions associated with the school;
(c) to be responsible for the election of parent representatives to any school council…;
(d) to assist in any other matters which the Minister may seek the co-operation of the association and to exercise such functions as prescribed by the [Education] regulations.”
We are satisfied the legislative provisions from the NSW Education Act establish that a P&C Association is connected to a government school for the purpose of promoting the interests of the school and the recreation and welfare of the students at the school, and to assist in providing facilities and equipment for the school. Further, a P&C Association has various functions associated with the school. There is an argument to say the operations of a particular school include the functioning of its P&C Association and therefore makes the P&C Association an employer engaged in the “school education industry”.
However, this does not mean that a P&C Association is covered by the General Staff Award. Clauses 4.1 and 4.2 of the General Staff Award need to be read with the definitions outlined in clause 2. These include the definition of “employee” as a national system employee within the meaning of the Act and also takes in the definition of “general employee”, which is defined as “an employee of a school” providing various defined services. This suggests the General Staff Award only covers employees who are employed by a school and cannot cover employees employed by a P&C Association.
Therefore, while we consider it is arguable that P&C Associations are engaged in the “school education industry” as defined in the General Staff Award, we do not consider this means they are currently covered by the General Staff Award.
Question 2: If the answer to Question 1 is “yes”, are all categories of employees engaged by P&C Associations capable of falling within the classifications contained in Schedule A of the Educational Services (Schools) General Staff Award 2020, and if not, why not?
The SDA’s broad response to Question 2 was that its position in relation to Question 1 does not require engagement with Question 2. The SDA nonetheless submitted that any employees of P&C Associations who provide retail (i.e. bookstore or uniform shop) or fast food (canteen) services are currently covered by the Retail Award and Fast Food Award respectively, are thus not deprived of any award coverage and this was “most appropriate” within the meaning of clause 4.7 of the General Staff Award.
The ACT Council submitted the General Staff Award does not cater for junior staff (16 years plus) employed in OOSH services but given the General Staff Award provides for Junior employee rates at clause 17.3 we do not see how this submission is sustainable.
The ACT Council also submitted that the capabilities, competencies and qualifications listed in Schedule A of the General Staff Award appear more complex when compared with the Children’s Award currently used by ACT P&C Associations. This was a broad, undeveloped submission. Our assessment is that the level of prescription in the Children’s Award appears greater than that outlined in the General Staff Award and its progression requirements are more involved. Further we note there are at least 36 pay points in the Children’s Award compared with the 9 pay points for preschool/childcare services employees in the General Staff Award. We have however noted that the two awards deal with the capabilities, competencies and qualifications in a comparable manner. Analysis of Level 1 in the Classifications schedule of the two awards is illustrative.
The Children’s Award describes a Level 1 employee as follows:
a)an employee who has no formal qualifications but is able to perform work within the scope of this level;
b)an employee who is to work under direct supervision in a team environment and receive guidance and direction at all times;
c)an employee who will receive structured and regular on-the-job training to perform the duties expected at this level; and
d)an employee who will not be left alone with a group of children.
The General Staff Award description of a Level 1 employee is:
a)an employee who will learn and gain competency in the basic skills required by the employer;
b)an employee who works under close supervision or, in the case of more experienced employees working alone, routine supervision; and
c)an employee who will be provided with on-the-job training which will provide information about, and/or an introduction to, the conditions of employment, the school, the school’s policies and procedures in relation to the work environment and the employees with whom the employee will be working.
The two Modern Awards also set out the very similar duties for Level 1 employees:
| Childrens’ Award | General Staff Award |
| B.1.1 (a) Indicative Duties Learning and implementing the policies, procedures and routines of the service. Learning how to establish relationships and interact with children. Learning the basic skills required to work in this environment with children. Giving each child individual attention and comfort as required. Basic duties including food preparation, cleaning and gardening. | A.2.1(e)(ii) Preschool/childcare services grade 1 Learning and implementing the policies, procedures and routines and the requisite basic skills. Learning how to establish relationships and interacting with children. Attending to the physical, social and emotional needs of children on an individual or group basis Assisting in the development of good relations with families attending the facility Performing basic duties, including food preparation, cleaning or gardening Occupational equivalent: childcare assistant, outside school hours assistant, preschool assistant, kindergarten assistant |
In terms of progression, the Children’s Award provides that a Level 1 employee will progress to the next level after a period of one year or earlier if the employer considers the employee capable of performing the work at the next level or if the employee actually performs work at the next level. Thereafter, progression requires demonstrated competency, 12 months experience (or 24 Months if working for 19 hours or less per week) and the demonstrated ability to acquire the skills necessary for advancement to the next pay point. Where the General Staff Award applies, clauses 17.2(a) and (b) of the General Staff Award provide that where there is more than one minimum pay point for a classification level an employee will be eligible for movement to the next highest pay point within the classification level after each 12-month period following a performance review, unless performance against the relevant classification descriptors has not been satisfactory. As to the ‘indicative duties’ outlined in the other classification levels within the Children’s Award, we consider they closely resemble the ‘typical activities’ for each comparable level in the General Staff Award.
In answering the second question, the Federation proffered that the various workers engaged by P&C Associations could be covered under current classifications in the General Staff Award as follows:
· Assistants engaged in book shops, canteens and uniform shops
Such workers could be engaged under the Level 1, School operational services grade 1 classification at clause A.2.1(e)(iv): “Assisting in a school retail facility, such as a canteen, uniform shop or book shop.”
· Managers engaged in book shops, canteens and uniform shops
Such workers could be engaged under the Level 3, School operational services grade 3 classification at clause A.2.3(e)(vi): “Responsibility for operating the school canteen, uniform shop or book shop, including supervision of employees and volunteers.”
· Assistant sporting coaches
Such workers could be engaged under the Level 3, Instructional services grade 2 classification at clause A.2.3(e)(vii): “Providing assistance to individuals and/or sporting teams/squads under the supervision of a teacher or an instructional services employee’.”
· Sporting coaches
Such workers could be engaged under either:
· The Level 4, Instructional services grade 3 classification at clause A.2.4(e)(vii): “Coaching, including developing sports training sessions and programs, for individuals and/or teams/squads in various sporting disciplines.”; or
· The Level 5, Instructional services grade 4 classification at clause A.2.5(e)(vi): “Coaching individuals and/or sporting teams/squads, including developing and implementing individual and/or team specific training sessions and programs.”
· Music Tutors
Such workers could be engaged under either:
· The Level 4, Instructional services grade 3 classification at A.2.4(e)(vii): “Instructing individual students as part of an extracurricular instrumental music program” with its accompanying note stating that an instrumental music tutor will not be employed at a Level lower than Level 4; or
· The Level 5, Instructional services grade 4 classification at clause A.2.5(e)(vi): “Preparing instrumental music students for external examination in their discipline as part of an extra-curricular program.”
Although we have concluded that P&C Associations are not covered by the General Staff Award, we agree that the various workers engaged by P&C Associations in book shops, canteens and uniform shops and in the roles of sporting coaches and music tutors could be covered under current classifications in the General Staff Award if that position changed. Additionally, and further to that which we have outlined above regarding similarities between the Children’s Award and the General Staff Award, we observe that the General Staff Award:
a) defines a preschool/childcare services employee as “an employee whose principal duties are to work with children in a preschool, early learning centre or kindergarten operated by a school for pre-primary aged children, a childcare centre or an outside school hours care program (other than a qualified preschool/early childhood teacher)”;
b) provides for a specific minimum engagement period in respect of their work;[16] and
c) as illustrated above, describes preschool/childcare services classifications within the Classification Schedule and references their commencement level pay points.
As such, we also consider that workers engaged by P&C Associations to work in a OOSH service could be covered under current classifications in the General Staff Award if P&C Associations were to come within its coverage.
Variation Necessary to achieve the Modern Awards Objective?
Section 157 of the Act provides that the Commission may make a determination varying a modern award if it is satisfied that making the determination is necessary to achieve the modern awards objective.
Section 134 of the Act outlines the modern awards objective:
“134 The modern awards objective
What is the modern awards objective?
134(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
(aa) the need to improve access to secure work across the economy; and
(ab) the need to achieve gender equality in the workplace by ensuring equal remuneration for work of equal or comparable value, eliminating gender-based undervaluation of work and providing workplace conditions that facilitate women’s full economic participation; and
(b) the need to encourage collective bargaining; and
(c) the need to promote social inclusion through increased workforce participation; and
(c) 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
(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.”
As the modern awards objective was recently amended with the inclusion of s.134(aa) and s.134(ab),[17] we provided the Federation, SDA and ACT Council an opportunity to make submissions in relation to these new provisions.
The principles to be applied when considering whether or not a modern award should be varied were outlined by the Full Bench in Variation of awards on the initiative of the Commission,[18] as follows:
“[112] The Commission may make a determination varying a modern award if the Commission is satisfied the determination is necessary to achieve the modern awards objective. The modern awards objective is to ‘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 the particular considerations identified in ss.134(1)(a)–(h) (the s.134 considerations).
[113] The modern awards objective is very broadly expressed.[19] It is a composite expression which requires that modern awards, together with the National Employment Standards (NES), provide ‘a fair and relevant minimum safety net of terms and conditions’, taking into account the matters in ss.134(1)(a)–(h).[20] Fairness in this context is to be assessed from the perspective of the employees and employers covered by the modern award in question.[21]
[114] 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.[22] No particular primacy is attached to any of the s.134 considerations[23] and not all of the matters identified will necessarily be relevant in the context of a particular proposal to vary a modern award.
[115] It is not necessary to make a finding that the award fails to satisfy one or more of the s.134 considerations as a prerequisite to the variation of a modern award.[24] 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.[25] In giving effect to the modern awards objective the Commission is performing an evaluative function taking into account the matters in s.134(1)(a)–(h) and assessing the qualities of the safety net by reference to the statutory criteria of fairness and relevance.
[116] Section 138 of the Act emphasises the importance of the modern awards objective:
‘Section 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.’
[117] 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.”[26]
We endorse and adopt those principles.
The only witness evidence before us was from Mr Spencer for the Federation. Mr Spencer has had over 10 years’ experience with P&C Associations at school level and representative roles for the Federation. In September 2021, following service as President of the Federation, Mr Spencer was appointed Senior Adviser-Policy and Research for the Federation. He was not subjected to cross-examination.
Mr Spencer said that as at June 2021, there were 1,827 active P&C Associations in New South Wales[27] and that they raise funds in support of their objective to provide facilities and equipment and promote recreation and welfare of students. Mr Spencer said that 75% of the funds raised by P&C Associations are derived from operating businesses that provide goods and services to the schools. The businesses are primarily canteens, uniform shops, OOSH care and band programs.
Committee members of the P&C Associations are drawn from the community and are required to be parents of children at the particular school. Elections for committee members are conducted annually and Mr Spencer’s evidence for the Federation was that even when some develop familiarity around the various applicable Modern Awards, there is invariably turnover each year. The proposition advanced by the Federation was that most committee members have limited knowledge when it comes to the obligations of managing and running a business. Mr Spencer’s evidence was that the expertise of committee members in running businesses varies widely, with only some having even limited experience in operating a business. He opined that most lack experience in running a business, their experience limited to being a business employee. The Federation submitted committee members have limited experience with and awareness of applicable employment legislation and awards and that amongst the reasons why it is challenging for P&C Associations to fill committee positions is the difficulty volunteers have in understanding the ambiguity and complexity of various legal requirements and frameworks applicable to the operations of P&C Associations.
The Federation argues the combination of compliance burdens and the liability for unpaid or underpaid wages is impacting on the preparedness of people to volunteer to become committee members of P&C Associations. It also asserts that if P&C Associations do not operate canteens, uniform shops and/or OOSH service, their role as a financer of facilities, equipment and band programs will be curtailed and the capacity for parents to positively influence the offerings at their local public schools will be diminished.
In its written submissions in reply dated 30 November 2021, the Federation submitted:
“The essential features of a P&C association are that it exists solely as an auxiliary organisation to [sic] for the purposes of providing funding and other assistance to the school and as a medium of interaction between parents and the school. That is, the P&C association does not really have any independent scope of operation or interest outside the school with which it connected.
Further, the P&C association will be directly involved in the provision of education through:
a. The funding of education programmes;
b. Coaching and tutoring of music; and
c. the purchase of equipment for schools;”[28]
The oral submissions of the Federation at the hearing included:
“A P&C association has no function or reason to exist outside the support role it provides to its particular school. They are not out there selling books to all and sundry; they are not out there selling uniforms to all and sundry; they are not a uniform provider; they are not an academic book provider and selling to whoever comes along; they are not a fast food outlet in the main street selling hot dogs and chips and coffee to whoever happens to walk past and drop in, and they are not a general child care centre that anyone can pop in a kid for the day. They exist solely to assist the school, the pupils and the parents of those. That’s all they do…pretty much everything they do happens on the school grounds and it happens in conjunction with the school.
These are not employers, these are not organisations that have any existence separate to the schools which they support. That is a fundamental, qualitative difference to external bodies who might provide services to a range of people, or even if they focus on the school industry and provide services to a range of schools…”[29]
The Federation also argues that as clause 4.5 the General Staff Award already extends coverage to labour hire companies supplying labour in the school education industry in classifications covered by the General Staff Award, an “extension” of coverage of the General Staff Award to P&C Association employers is not substantive in either nature or operation.
Further, the Federation relies on clause 4.7 of the General Staff Award, which states:
“Where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.”
We have considered these matters and have had regard to the treatment of university unions and student unions by the AIRC. As was observed by the Federation, the Full Bench of the AIRC addressed the higher education industry when dealing with the exposure drafts for Stage 3 of the award modernisation process in the 22 May 2009 Statement. In the context of the higher education industry, the Full Bench determined it was appropriate to deal with the coverage of university unions and student unions by amendment to the Higher Education Industry - General Staff - Award 2010 rather than by the creation of an award specific to those organisations.[30] We consider that the approach of the Full Bench of the AIRC in relation to university unions and student unions provides relevant guidance. This approach accommodated similarly unique circumstances and we observe that the coverage of the Higher Education Industry - General Staff - Award 2020 includes catering, retail staff and children’s services staff with pay rates that differ from those contained within the Retail Award, the Fast Food Award and the Children’s Award. The Federation now, in the context of educational services, seeks the same outcome for P&C Associations.
The SDA challenged the notion of P&C Associations being analogous with university unions and student unions, submitting it was “somewhat faulty because student unions are a unique organisation in that they perform a role that is unique to universities, whereas we [the SDA] would say that canteen workers and uniform shop workers perform exactly the same duties that other fast food and retail employees perform, and they should be paid as such.”[31]
We do not agree the analogy is “somewhat faulty”. Firstly, as was put by the Federation, P&C Associations are similarly unique. Just as university unions and student unions are unique to, and do not extend beyond, the university sector and a particular university within that sector, so too are P&C Associations in the context of school education. More particularly, a single P&C Association is unique to a particular school. Secondly, there is considerable force to the proposition that just as student unions exist solely to service a university, a P&C Associations exists solely in and for a school. A P&C Association operates business and provides services solely for the school and it derives its income solely from the school community. Thirdly, as we concluded earlier, the legislative provisions from the NSW Education Act establish that a P&C Association is connected to a government school for the purpose of promoting the interests of that school and the recreation and welfare of the students at the school, and to assist in providing facilities and equipment for the school. The NSW Education Act provisions also disclose that a P&C Association has various functions associated with that school. We consider it arguable that the operations of a particular school include the functioning of its P&C Association.
As to the SDA proposition “that canteen workers and uniform shop workers perform exactly the same duties that other fast food and retail employees perform, and they should be paid as such”, we would observe that canteen workers and uniform shop workers engaged to work in P&C Association-operated canteens and uniform shops “perform exactly the same duties” as canteen workers and uniform shop workers engaged directly by schools covered by the General Staff Award. However, as things currently stand, different rates of pay will apply to employees of schools who are covered by the General Staff Award compared with employees of P&C Associations. There are also characteristics relating to the Fast Food industry that are not features associated with school canteens. Whereas the Fast Food industry covers sales to members of the general public of food and/or beverages in food courts and/or in shopping centres and/or in retail complexes,[32] school canteens are located wholly within schools and exist to sell to school communities, as opposed to members of the general public.
The Federation conceded there is no certainty that P&C Associations currently fall under the General Staff Award and because the rates of pay differ between the General Staff Award and other industry awards, argued that volunteer P&C Association committees face risks if they proceed on the basis that they are covered. It therefore argued that the General Staff Award should be varied so it is clear it covers the P&C Associations.
Annual data collected from P&C Association members in 2019/2020 was said to indicate that:
(i)18% operated canteens only;
(ii)18% operated uniform shops only;
(iii)1% provided band program coaching or tutelage to students only;
(iv)28% operated both canteen and uniform shops;
(v)7% operated both canteen and uniform shops and provided band program
coaching or tutelage to students;
(vi)2% operated both canteen and uniform shops, and provide an OOSH service; and
(vii)1% operated a canteen, uniform shop, band program and OOSH service.[33]
This data suggests that 38% of P&C Associations have operations that require them to have reference to two or more Modern Awards and 25% of P&C Associations had no active operations in any of these areas.
If these percentages were applied to the 1,827 P&C Associations said to be active in New South Wales in June 2021 and converted into raw numbers, the resulting approximate numbers would be as follows:
(i)329 operate canteens only;
(ii)329 operate uniform shops only;
(iii)18 provide band program coaching or tutelage to students only;
(iv)511 operate both canteen and uniform shops;
(v)128 operate both canteen and uniform shops and provided band program
coaching or tutelage to students;
(vi)36 operate both canteen and uniform shops, and provide an OOSH service; and
(vii)18 operate a canteen, uniform shop, band program and OOSH service
The resulting numbers would suggest that 693 out of 1827 P&C Associations in New South Wales have operations that require them to have reference to two or more Modern Awards.
The ACT Council suggested that the Federation could respond to the administrative burden flowing from the requirement to apply multiple modern awards by providing its membership with targeted resources.
The Federation asserts that if the definition of the General Staff Award was amended, it would provide the P&C Associations and their employees:
a)clarity in knowing which award applies, and to whom;
b)guidance and detail regarding classifications, appropriate grading and payment of prescribed minimum rates of pay;
c)an opportunity for employees to be paid an adjusted annual salary, allowing them to be paid an average salary across all weeks in the year and reflecting how P&C Association undertakings operate;
d)minimum prescribed rates for employees providing coaching or tutelage to students but who are not currently covered by a modern award; and
e)an opportunity to reduce the need for the adoption of separate enterprise agreements.
We now turn to s.134 considerations.
s.134(1)(a) - relative living standards and the needs of the low paid
As to s.134(1)(a) requiring us to consider ‘relative living standards and the needs of the low paid’, we accept a threshold of two-thirds of median full-time wages provides a suitable benchmark for identifying who is ‘low paid’ within the meaning of s.134(1)(a) and that therefore a proportion of employees covered by each of the Retail Award, Fast Food Award, Children’s Award and the Fitness Industry Award 2020 may be regarded as ‘low paid’.
Survey material from November 2021 produced by the Federation suggests P&C Associations in New South Wales tend to apply the modern award rates of pay (i.e. do not pay above award rates). Over 600 of the 1,827 P&C Associations were surveyed, there were approximately 100 responses. Given the low response rate, the results must be treated with caution. However, approximately 80% of the respondents indicated that they pay minimum rates of pay “with no margin for change.”[34] This brings the relative living standards and needs of the low paid into focus (s.134(1)(a)).
The ACT Council outlined that ACT P&C Associations employ staff in canteens under the Fast Food Award, staff in unform shops under the Retail Award and OOSH staff under the Children’s Award. The ACT Council submitted that varying the General Staff Award to include P&C Association employers is likely to create significant changes to employment conditions and impact viability for some services. The ACT Council also argued there were:
· Lower pay rates under the General Staff Award for staff classified at higher levels compared with the Fast Food Award; and
· Higher pay rates under the Fast Food Award for staff classified at lower levels compared with the General Staff Award.
The ACT Council submitted that varying the General Staff Award may create an unnecessary distinction between workers in particular industries based on their employer and that this may prejudice ACT P&C Association employers through reducing staff movement within industries and adversely impacting the recruitment and retention of staff. It was said that ACT P&C Associations already report difficulty in recruiting and retaining staff, especially for OOSH care. We observe that the ACT Council did not address the distinction that would already exist between workers already covered by the General Staff Award who work in canteens, book shops, uniform shops and OOSH services and those performing similar duties for employers in other industries.
The SDA submitted there would be a significant financial detriment to employees at Levels 1, 2 and 3 of the Retail Award and Level 1 of the Fast Food Award if they were to become covered by the General Staff Award, based on rates of pay as at 1 November 2021, as follows:
· Canteen, uniform and book shop assistants engaged by P&C Associations at level 1.1 would be $1.41 per hour worse off if employed under the General Staff Award when compared to the Retail Award and Fast Food Award;
· Canteen, uniform and book shop assistants engaged by P&C Associations at level 1.2 would be $0.61 per hour worse off if employed under the General Staff Award when compared to the Retail Award and Fast Food Award;
· Canteen, uniform and book shop assistants engaged by P&C Associations at level 2.1 would be $0.17 or $0.53 per hour worse off if employed under the General Staff Award when compared to the Retail Award;
· Canteen, uniform and book shop managers engaged by P&C Associations at levels 3.1 and 3.2 employees would be $1.31 or $0.89 per hour worse off respectively if employed under the General Staff Award when compared to the Retail Award.[35]
The SDA drew attention to what these differences would equate to in annual terms for full time employees by citing the examples of Level 1 employees. The SDA submitted an employee at Level 1.1 working a full time, 38-hour week would be $2,786.16 worse off per annum and a Level 1.2 employee would be $1,205.36 worse off per annum if the General Staff Award was to apply.[36] As to these calculations, it must be noted that P&C Associations do not operate their enterprises during school holidays, which reduces the operating periods of P&C enterprises by 10 weeks per annum and results in P&C Association employees being engaged on either a casual basis or a discrete term by term basis.[37] As such, the differences asserted by the SDA, which additionally assume a 38 hour week is worked in all instances, would likely overstate the impact.
The Federation provided a spreadsheet setting out a comparison between various Modern Award rates of pay it says might apply to employees typically employed by P&C Associations and the corresponding rates in the General Staff Award. It acknowledged that in some instances, the rates in the General Staff Award are lower than the rates for the equivalent classifications in the Retail Award and Fast Food Award. The Federation also advised that approximately 50 members of the Federation[38] operate OOSH care and submitted that rates under the General Staff Award compare favourably at the lower levels which cover the overwhelming majority of employees employed in OOSH care. The Federation further submitted that the Application will not disadvantage the overall majority of workers, and in fact, being covered by the General Staff Award will be slightly advantageous. The Federation proffered (correctly) that any OOSH directors who are qualified teachers or early childhood teachers are covered by the Educational Services (Teacher) Award 2020 and would remain so.[39]
Dealing firstly with P&C Association employees working in uniform shops or book shops, we accept that a Level 1 school operational services employee covered General Staff Award would, in their first twelve months of employment, be paid at a minimum hourly rate that is $1.41 lower than a Retail Employee Level 1 covered by the Retail Award and $0.61 per hour lower in their second year of employment. By Year 3, however, a Level 1 school operational services employee would be paid at a minimum hourly rate that is $0.19 per hour higher than a Retail Employee Level 1. When it comes to a Level 1 school operational services employee in a canteen covered by the General Staff Award, the various differences at the Level 1 rate of pay in the Fast Food Award are the same as the differences between the General Staff Award and the Retail Award at that level.
We would also observe that level 1 rates in the Higher Education Industry - General Staff - Award 2020 are also lower than the level 1 rates in both the Retail Award and Fast Food Award in the first 2 years of service but higher once the worker reaches their third year.
It would also appear that a Level 2 school operational services employee covered by the General Staff Award would, in their first twelve months at Level 2, be paid at a minimum hourly rate that is $0.18 lower than a Retail Employee Level 2 covered by the Retail Award, although after 12 months, the Level 2 school operational services employee rate under the General Staff Award would be $0.55 per hour higher.
As for Level 3 employees, a Level 3 school operational services employee covered by the General Staff Award with responsibility for operating a uniform shop or book shop would, in their first twelve months at Level 3, be paid at a minimum hourly rate that is $1.37 less than a Retail Employee Level 6 shop manager covered by the Retail Award and $0.93 per hour lower thereafter.
In relation to the higher classification for canteen workers, we do not consider there is an issue at Level 2 because the equivalent in the General Staff Award classification for Fast Food level 2 employees covered by the Fast Food Award appears to the Level 3 classification (and its higher minimum hourly rate). Differences exist when comparing rates for a Level 3 school operational services employee covered by the General Staff Award with responsibility for operating a canteen with the Fast Food level 3 rates.
The following tables account for the differences in minimum hourly rates as far as canteen, uniform and book shop assistants and managers.
| Classification | General Staff Award Minimum hourly rate | Retail Award Minimum hourly rate | Difference (per hour) |
| Level 1 1.1 | $21.97 | $23.38 | ($1.41) |
| 1.2 | $22.77 | $23.38 | ($0.61) |
| 1.3 | $23.57 | $23.38 | $0.19 |
| Level 2 2.1 | $23.74 | $23.92 | ($0.18) |
| 2.2 | $24.47 | $23.92 | $0.55 |
| Level 3 3.1 | $24.78 | $26.15 (Retail employee L6) | ($1.37) |
| 3.2 | $25.22 | $26.15 | ($0.93) |
| Classification | General Staff Award Minimum hourly rate | Fast Food Award Minimum hourly rate | Difference (per hour) |
| Level 1 1.1 | $21.97 | $23.38 | ($1.41) |
| 1.2 | $22.77 | $23.38 | ($0.61) |
| 1.3 | $23.57 | $23.38 | $0.19 |
| Level 3 3.1 | $24.78 | $24.76 (Fast Food employee L2) | $0.02 |
| 3.2 | $25.22 | $24.76 | $0.46 |
| Level 3 3.1 | $24.78 | $25.14 or $25.45 (Fast Food employee L3- In charge of 1 or 2 or more) | ($0.36) or ($0.67) |
| 3.2 | $25.22 | $25.14 or $25.45 (Fast Food employee L3- In charge of 1 or 2 or more) | $0.08 or ($0.23) |
We earlier concluded that Assistant sporting coaches could be engaged at the Level 3 Instructional services grade 2 classification in the General Staff Award. We are satisfied the applicable hourly rates payable at this level in the General Staff Award exceed the hourly rates of pay applicable to workers covered by the Fitness Industry Award 2020 performing assistant coaching duties. Having also concluded that Sporting Coaches could be engaged under the General Staff Award at either the Level 4 Instructional services grade 3 classification or the Level 5 Instructional services grade 4 classification, we are satisfied the applicable hourly rates payable at these levels outlined in the General Staff Award exceed the hourly rates of pay applicable to workers covered by the Fitness Industry Award 2020 performing coaching duties.
As to music tutors, our conclusion was that they could be engaged under the General Staff Award at either the Level 4 Instructional services grade 3 classification or the Level 5 Instructional services grade 4 classification and are satisfied that the applicable hourly rates payable at these levels outlined in the General Staff Award exceed the hourly rates of pay applicable to workers covered by the Miscellaneous Award 2020.
In relation to workers engaged by P&C Associations to work in a OOSH service, we have earlier concluded that they could be covered under current classifications in the General Staff Award if P&C Associations were to come within its coverage. We have also determined that the ‘indicative duties’ outlined in the various classification levels within the Children’s Award closely resemble the ‘typical activities’ for each comparable level in the General Staff Award. As to minimum hourly rates of pay, we are satisfied that the rates for Levels 1, 2 and 5 in the General Staff Award exceed the rates for the Level 1, 2 and 5 classifications in the Children’s Award.
We also note that the $24.78 per hour commencement level rate of pay for Level 3 employees in the General Staff Award is $0.02 per hour higher than the Level 3 Children’s Service Employee commencement rate.
The Director level rates are not as favourable for facilities/programs where 1-59 children are in care, but the quantum of the differences depends on the pay point within the respective Director classifications. Similarly, employees covered by the Children’s Award who hold diploma qualifications will have superior rates of pay that vary according to pay points.
The Federation submitted results of a survey of 24 P&C Associations inquiring as to “employee longevity.”[40] The Federation outlined the following survey results:
· 97% of employees were employed for more than a year;
· 91% of employees had been employed for 3 years or more;
· 79% of employees had been employed for 5 years or more; and
· 35% of employees had been employed for 10 years or more.
The Federation submitted these results suggest that only 9% of P&C employees would be affected by the Level 1 shortfalls that would arise if the rates in the General Staff Award applied but this assumes that only Level 1 employees, and not newly hired, more senior level employees, form part of that 9% cohort.
We have concerns about a variation to the General Staff Award that would reduce the minimum hourly rates applicable to canteen, uniform and book shop assistants and managers and various classification levels applicable to workers in OOSH services because most P&C employers appear to pay no higher than the applicable minimum rates of pay. The difficulty we have is that it is not possible to accurately gauge how many employees might have a lower minimum hourly rate applicable to them if the General Staff Award was varied and applied to them and nor can we properly assess the likelihood of their P&C Association employer actually reducing their rate of pay as a result or what that reduction would equate to.
The Federation submitted a savings provision could be adopted. This course was opposed by the SDA. Considerations that weigh against a savings provision were articulated by the Full Bench in 4 yearly review of modern awards – penalty rates – hospitality and retail sectors – transitional arrangements.[41] Having regard to these, we consider the following implications could potentially flow if a savings provision was adopted for employees of P&C Associations moving to the General Staff Award:
a)potential disharmony and conflict between employees performing the same work at the same time but receiving different rates of pay (contrary to s.577(d) of the Act);
b)any transition to new applicable minimum rates of pay would be more complex and add to the regulatory burden on business and make the General Staff Award and the related other modern awards less simple and easy to understand; and
c)there is a risk that the employees who are the subject of a savings provision may suffer disadvantage in comparison with new employees in terms of rostering because they would be ‘more expensive’ and safeguarding such employees may be difficult.
Although the impact of the variations being made is not possible to accurately to assess based on the material before us, any reduction to rates of pay that might be implemented in response to a variation of the General Staff Award would have an adverse effect on the relative living standards and needs of the low paid. These considerations, together with the potential implications of savings provisions (if implemented) weigh strongly against the making of the variations sought.
s.134(1)(aa)-the need to improve access to secure work across the economy
As outlined above, P&C Associations do not operate their canteens, uniform shops, and other school-based activities during school holidays, which reduces the operating periods of P&C enterprises by 10 weeks per annum. The Federation says that none of the Retail Award, Fast Food Award, Children’s Award or the Miscellaneous Award 2020 allow for ‘permanent’ employment on a term-only basis with the result that P&C Associations are required to engage employees on a casual basis or discrete term by term basis. It submits that the incidence of casual employment in P&C Associations is “likely to be significant.” The Federation highlighted the provision in clause 12 of the General Staff Award for the engagement of employees on the basis that they may be required to take leave without pay during non-term weeks and for the averaging or amortisation of pay over the full year. The Federation proffers that access to clause 12 “would likely result in more employees being offered employment on that basis rather than on a casual basis” and submits, the variation it seeks would improve access to secure work.
s.134(1)(ab)- the need to achieve gender equality in the workplace by ensuring equal remuneration for work of equal or comparable value, eliminating gender-based undervaluation of work and providing workplace conditions that facilitate women’s full economic participation.
The SDA submitted it was very likely that a higher proportion of women would be impacted by the variation, and any financial detriment would impact women in a disproportionate manner.
The Federation submitted it is likely to be uncontroversial that employees in P&C operations are overwhelmingly female. It submitted that by facilitating a move from casual employment to more ongoing or permanent employment, the variation sought would facilitate the full economic participation of woman and allow the predominantly female workforce to enjoy the same opportunity for permanency as male counterparts in other comparable industries. Further, the Federation asserts the variation would allow the female workforce to enjoy the same opportunity for permanent work that employees providing school operational services have.
We are not convinced that a variation of the coverage clause of the General Staff Award would have any material impact on the elimination of gender-based undervaluation of work. As far as the facilitation of women’s full economic participation is concerned, we consider that while a variation would deliver access to adjusted annual salary arrangements where employees would have leave without pay during non-term weeks, making such a change would involve the loss of casual loading. For these reasons, we consider this a neutral consideration.
s.134(1)(b)- the need to encourage collective bargaining
The Federation initially made the submission that the variation would facilitate an opportunity to reduce the need for the adoption of separate enterprise agreements. The SDA argued this was contrary to the modern awards objective.
At the hearing, the Federation submitted the inference to be drawn from the SDA position is that “cleaning up award coverage” should not be done because it might mean there is less incentive for people to enter into enterprise agreements. The Federation re-cast its submission in relation to s.134(1)(b) and proffered that if a P&C Association employer and its employees wanted to engage in collective bargaining, it would be easier and simpler if they were comparing a proposed enterprise agreement against one underlying modern award, as opposed to three or four. In essence, the submission of the Federation was that varying the Award would make collective bargaining for an enterprise agreement a simpler and therefore more attractive proposition.
We consider that whilst simplifying the position vis a vis the underlying modern award could make enterprise bargaining a more attractive proposition such benefit is balanced out by there being reduced incentive to engage in collective bargaining as it would no longer present the only pathway to having a single industrial instrument apply. On balance, we consider this a neutral consideration.
s.134(1)(c) - the need to promote social inclusion through increased workforce participation; and
s.134(1)(d) - the need to promote flexible modern work practices and the efficient and productive performance of work.
In a similar vein to what was outlined above in relation to s.134(1)(ab), we consider that access to adjusted annual salary arrangements, where employees have leave without pay during non-term weeks, represents a flexible modern work practice with an efficiency and productivity dividend and that could positively bear on the increased workforce participation of working parents who have or share caring responsibilities for school-age children during non-term weeks.
s.134(1)(da) the need to provide additional remuneration for employees working overtime or unsocial, irregular or unpredictable hours or on weekends or public holidays or shifts.
As the General Staff Award provides additional remuneration for employees working overtime and on weekends, public holidays or shifts, we do not consider this consideration is relevant to the Application.
s.134(1)(f) - the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and
s.134(1)(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.
The Federation submitted that varying the General Staff Award would be consistent with s.134(1)(f) and s.134(1)(g), while the SDA submitted those provisions are not definitive and should be taken on balance with the other considerations in s.134(1). We have noted the evidence regarding the familiarity and levels of confidence amongst P&C Associations when it comes to navigating and applying multiple awards and the apprehension expressed. We have also had regard to the submission of the Federation that the current regulatory arrangements are inconsistent with s.134(1)(f) and s.134(1)(g) of the Act.
We accept that varying the General Staff Award would, on the data that is before us, reduce the regulatory burden for 693 of the 1827 P&C Associations in New South Wales because there would no longer be the requirement for those P&C Associations to have recourse to two or more industrial instruments (s.134(1)(f)). We also consider variation of the General Staff Award would address the need to ensure the modern award system is easy to understand, particularly because it would avoid unnecessary overlapping of multiple modern awards (s.134(1)(g)). That said, the data before us is restricted to New South Wales and suggests that only 10% of P&C Associations in that State are required to have recourse to three or more Modern Awards.
As such, while we consider the considerations relating to s.134(1)(f) and s.134(1)(g) of the Act weigh in favour of variation, the weight we attribute to them is tempered by the data before us.
s.134(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
We do not consider this consideration is relevant to the Application.
Conclusion
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 Act.
Further, as was outlined above, the Full Bench in Variation of awards on the initiative of the Commission[42] made the following statement of principle:
“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.”[43]
We have taken into account these considerations insofar as they are presently relevant.
The Federation’s motives in pursuing the Application are not without merit. We acknowledge the desirability of a variation that would deliver simplicity, an easing of the regulatory burden and avoidance of unnecessary overlap. However, we also observe that the requirement for P&C Associations to have reference to two or more Modern Awards is far from universal. The available data suggests this is a requirement for 693 out of 1827 P&C Associations in New South Wales and further, that only 10% (or 182) of the P&C Associations are required to have reference to three or more Modern Awards.
We accept that access to adjusted annual salary arrangements where employees have leave without pay during non-term weeks could have a positive impact.
We also observe, however, that the data before us suggests that P&C Associations have a high tendency to pay their employees at Award minimum rates of pay “with no margin for change”. The granting of the Application would result in the transition of employees to new classifications and we are concerned about the possible impact on the living standards and needs of those employees who move to a new classification with a lower minimum hourly rate of pay than they are currently entitled to.
We have also noted that the Preliminary Jurisdictional Issues Full Bench observed that the need to balance the competing considerations in s.134(1), and the diversity in the characteristics of the employers and employees covered by different modern awards, means that the application of the modern awards objective may result in different outcomes between different modern awards and that different combinations or permutations of provisions may meet the modern awards objective.[44] Having regard to these considerations, we note that there are already rates of pay for the performance of retail and canteen work that differ depending on whether an employee is employed by an employer covered by the General Staff Award or the Higher Education Industry - General Staff - Award 2020 on the one hand, or the Retail Award and the Fast Food Award on the other. This is also the case in relation to the provision of OOSH care services, for which different rates of pay will apply depending on whether a worker’s employer is currently covered by the General Staff Award or the Higher Education Industry - General Staff - Award 2020, as opposed to the Children’s Award. We have also concluded that although P&C Associations are not currently covered by the General Staff Award, the various workers engaged by P&C Associations in book shops, canteens, uniform shops and OOSH services, together with those engaged as sporting coaches and music tutors, could be covered under current classifications in the General Staff Award if that position was to change.
However, we consider the context within which the Application has been made acts as a constraint on the exercise of our discretion. The operations of the P&C Associations represented by the Federation are limited to the State of New South Wales and we are constrained from varying the General Staff Award for only the Federation’s particular purposes because s.154 of the Act imposes a prohibition on modern awards including terms and conditions of employment that contain State-based differences. We have been able to discern during the conduct of this proceeding that the Application is opposed by P&C Associations operating in the ACT but we have no material at all from the remaining States or the Northern Territory, noting that:
a) In Queensland, the Education (General Provisions) ACT 2006 provides for P&C Associations;
b) In Western Australia, the School Education Act 1999 provides for P&C Associations;
c) In Victoria, the Education & Training Reform Act 2006 provides for School Councils;
d) In South Australia, the Education and Children’s Services Act 2019 provides for Governing Councils;
e) In Tasmania, the Education Act 2016 provides for School Associations; and
f) In the Northern Territory, the Education Act 2015 provides for School Representative bodies.
The absence of material in relation to these States and the Northern Territory is a factor that weighs heavily against granting the Application.
As recounted above, in giving effect to the modern awards objective the Commission is performing an evaluative function taking into account the matters in s.134(1)(a)–(h) and assessing the qualities of the safety net by reference to the statutory criteria of fairness and relevance. For the reasons given, and after weighing the s.134 considerations, we have not been persuaded that the variations contemplated in the Application are ‘necessary’ to achieve the modern awards objective in this case. Accordingly, the Application is not granted.
DEPUTY PRESIDENT
Appearances
G Fredericks of counsel for the Federation of Parents and Citizens’ Associations of New South Wales.
A Pardo for the Shop, Distributive and Allied Employees’ Association.
Hearing details:
2022.
Melbourne (via Microsoft Teams):
February 14.
[1] [2019] FWCFB 8569, [194]-[200].
[2] Schedule A to the Submission in Reply dated 30 November 2021 of the Federation.
[3] Submissions of the Federation dated 7 November 2019 at 3.2(g)(i) – Court Book (CB) at page 6.
[4] Ibid at 3.2(a) – CB at page 4.
[5] [2009] AIRCFB 450 (22 May 2009).
[6] Supplementary Submissions in Reply of the Federation, Attachment 1 dated 2 February 2012 - CB at page 48.
[7] Supplementary Submissions in Reply of the Federation, Attachment 2 dated 23 January 2012 - CB at page 52.
[8] AN120499.
[9] [2009] AIRCFB 450 (22 May 2009) at [54] – [65].
[10] Ibid at [61].
[11] [2013] FWC 4388 at [13].
[12] (2006) 153 IR 426 at [53].
[13] (1996) 66 IR 182.
[14] Ibid at 184.
[15] Section.114 of the Education Act 1990 (NSW)
[16] Educational Services (Schools) General Staff Award 2020 - Clause 11.4(b).
[17] Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 at s.347.
[18] [2020] FWCFB 1837.
[19] Shop, Distributive and Allied Employees Association v National Retail Association (No 2) (2012) 205 FCR 227 at [35].
[20] (2017) 265 IR 1 at [128]; Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161 at [41]–[44].
[21] [2018] FWCFB 3500 at [21]-[24].
[22] Edwards v Giudice (1999) 94 FCR 561 at [5]; Australian Competition and Consumer Commission v Leelee Pty Ltd [1999] FCA 1121 at [81]-[84]; National Retail Association v Fair Work Commission (2014) 225 FCR 154 at [56].
[23] Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161 at [33].
[24] National Retail Association v Fair Work Commission (2014) 225 FCR 154 at [105]-[106].
[25] See National Retail Association v Fair Work Commission (2014) 225 FCR 154 at [109]-[110]; albeit the Court was considering a different statutory context.
[26] See generally: Shop, Distributive and Allied Employees Association v National Retail Association (No.2) (2012) 205 FCR 227.
[27] Exhibit A1 at [16], CB at page 34.
[28] Submissions in Reply of the Federation dated 30 November 2022 - CB at page 21.
[29] Transcript 14 February 2022 at PN 106 – 107.
[30] [2009] AIRCFB 450 (22 May 2009) at [63] – [64].
[31] Transcript 14 February 2022 at PN 166.
[32] Fast Food Industry Award 2020 at clause 4.2.
[33] Exhibit A1 at [24], CB at page 35.
[34] Exhibit A1 at paragraphs [25]-[27], CB at pages 36-37.
[35] SDA Submission dated 7 December 2021 - Appendix 1, CB at page 80.
[36] SDA Submissions in Reply dated 3 February 2022 at [21], CB at page 88.
[37] Federation of Parents and Citizens’ Associations of New South Wales further submissions dated 1 March 2023 at paragraphs (6) and (8).
[38] As at 30 April 2020, CB at page 12.
[39] In the Children’s Services Award 2010, employee is defined at clause 3.1 as “a national system employee within the meaning of the Act but does not include an employee covered by the Educational Services (Teacher) Award 2021 .”
[40] Attachment 4 to the supplementary submissions of the Federation of Parents and Citizens’ Associations of New South Wales dated 7 January 2022, CB at page 74.
[41] [2017] FWCFB 3001 at [110] – [126]
[42] [2020] FWCFB 1837.
[43] Ibid at [117].
[44] [2014] FWCFB 1788 at [33] and [34].
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