The Allison and Phil Family Trust t/a my OSHC
[2024] FWCFB 144
•14 MARCH 2024
| [2024] FWCFB 144 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.158—Application to vary a modern award
The Allison and Phil Family Trust t/a my OSHC
(AM2023/18)
CHILDREN’S SERVICES AWARD 2010
[MA000120]
| Children’s services | |
| JUSTICE HATCHER, PRESIDENT | MELBOURNE, 14 MARCH 2024 |
Application to vary clause 15.8 of the Children’s Services Award 2010 – educational leader allowance.
Introduction and background
On 27 July 2023, The Allison and Phil Family Trust t/a my OSHC (applicant) filed an application under s 158 of the Fair Work Act 2009 (Cth) (FW Act) to vary clause 15.8 of the Children’s Services Award 2010 (CS Award).[1] That clause currently provides for an educational leader allowance as follows:
15.8Educational leader allowance
(a)An educational leader’s allowance of $4253.32 per annum will be paid to an employee who is required to discharge the responsibilities of the educational leader under Regulation 118 of the Education and Care Services National Regulations 2011.
(b) Where an employee is required to act as educational leader for less than 5 days per week, the annual allowance prescribed by clause 15.8(a) will be payable on a pro rata basis calculated by reference to the number of days per week the employee is required to act as educational leader.
NOTE: The allowance prescribed in clause 15.8(a) is the same amount as the educational leader allowance prescribed by clause 19.4 of the Educational Services (Teachers) Award 2020 and will be adjusted each year to reflect the amount set in the Educational Services (Teachers) Award 2020.
Clause 15.8 was inserted by decision of a differently-constituted Full Bench of the Commission on 31 August 2022[2] and commenced operation on 1 November 2022.[3] The decision was made in respect of a claim made by the UWU for, among other things, an educational leader’s allowance to be added to the CS Award. The decision followed extensive proceedings in relation to the Educational Services (Teachers) Award 2020[4] (Teachers Award) in which it was determined that an educational leader’s allowance should be added to that award for teachers employed in early childhood education and care (ECEC) who undertook the role of educational leader.
In its initial statement[5] concerning whether the CS Award should provide for an educational leader’s allowance in equivalent terms to that in the Teachers Award, the Full Bench referred to the decision of the differently-constituted Full Bench which established the allowance for the Teachers Award[6] and said:
[5] The Full Bench further accepted that there should be a pro-rata adjustment of the allowance for employees acting as Educational Leader who perform the role on less than 5 days per week (whether because they are a part-time employee, or share the role with another employee, or work in a centre that is not open 5 days per week). The Full Bench decided that the pro-rata adjustment should be on a daily basis, since the evidence in the main part of the proceedings did not indicate that teachers are required to act as Educational Leaders on a part-day or hourly basis.
(underlining added)
The Full Bench then stated the following provisional view:
[17] As earlier explained, the Full Bench in matters C2013/6333 and AM2018/9 has now handed down its decision, making provision for additional remuneration for any early childhood teacher appointed to the statutory role of Educational Leader in the Teachers Award.
[18] In the November 2021 decision, the Full Bench stated that it was ‘prepared to accept that the role of an Educational Leader is the same under both Awards’. It is our provisional view that the allowance inserted into the Teachers Award by the Full Bench in AM2018/9 should be inserted into the Children’s Services Award so that persons undertaking the role of Educational Leader under each award have an equivalent entitlement.
(citations omitted)
The Full Bench invited industry responses to the above provisional view. In response, the Australian Childcare Alliance, Australian Business Industrial, Community Connections Solutions Australia, the Independent Education Union of Australia (IEU) and the United Workers’ Union (UWU) all supported the provisional view. No party opposed it. The Full Bench proceeded to determine that the allowance should be added to the CS Award in the same terms as in the Teachers Award on the basis of this consensus:
[7] Having considered the submissions we have received, we confirm our provisional view that an Educational Leader’s allowance should be added to the Children’s Services Award. We accept the consensus position of the parties that, in order to achieve an equivalent entitlement for employees fulfilling the statutory role of Educational Leader, the allowance should be the same dollar amount in the Children’s Services Award as in the Teachers Award – currently $4,022.05 per annum. We consider that the variation of the Children’s Services Award to provide for this allowance is necessary to achieve the modern awards objective in s 134(1) of the Fair Work Act 2009 by ensuring that the additional responsibilities associated with the Educational Leader role are the subject of fair, reasonable and consistent additional remuneration.[7]
In the present matter, the applicant contends that the allowance should be modified so that it may be paid on a pro-rata hourly basis. It accordingly seeks that the CS Award be varied to add a new clause 15.8(c) in the following terms:
(c) Where an employee is required to act as educational leader for less than a prescribed working day, the annual allowance prescribed by clause 15.8(b) will be payable on a pro rata basis calculated by reference to the number of hours per day the employee is required to act as educational leader.
The presiding member held an initial directions hearing in respect of this application on 9 August 2023. At that directions hearing, the UWU, the IEU and the Australian Education Union (AEU) all foreshadowed that they would oppose the application. Accordingly, directions were issued for the applicant, parties supporting the application and parties opposing the application to file evidence and submissions regarding their respective positions. The applicant, UWU, IEU and AEU filed submissions pursuant to the directions.
On 14 November 2023, the presiding member held another directions hearing and issued a further direction for the applicant to file reply submissions. The parties present agreed that the application could be determined ‘on the papers’ without a hearing.
Submissions
Applicant
The applicant filed a short submission in support of its application on 10 August 2023. The submission in its entirety stated (omitting formal parts):
We are seeking a change to 15.8 Education Leader Allowance of the Children Services Award, to include that the allowance, is payable pro rata calculated by reference to the number of hours per day.
The current position is that the employee deemed to be the Educational Leader Allowance as
described under regulation 118 of the Education and Care Services National Regulations 2021 is eligible for an allowance of $4253.32 per annum however if an employee acts less than 5 days a week, the annual allowance prescribed by clause 15.8(a) will be payable on a pro rata basis calculated by reference to the number of days per week.
This is not fit for purpose in the Outside School Hour Care Setting as not all employees who are deemed the Educational Leader work a full day, they may work as little as 2 hours a day. This would not be fair and equitable for smaller sites as the additional cost will impact on the viability of these sites which will reduce the number of services for parents and employees.
The applicant did not file any evidence in support of its application with its initial submission.
UWU, AEU and IEU
The UWU, AEU and IEU filed a joint submission on 2 November 2023 opposing the application. They submitted that:
·The applicant has not established or even attempted to argue that the variation it seeks is necessary to achieve the modern awards objective.
·The applicant bears the onus of bringing sufficient probative evidence before the Commission to ‘present a compelling case’ for the variation it seeks.
·The material the applicant has filed comprises ‘a handful of speculative, contentious sentences unsupported by evidence or by reasoning’. In particular, the applicant has failed to file any evidence:
othat payment of the allowance as it currently stands has reduced the viability of smaller out-of-school hours care providers covered by the Award and/or made fewer such providers available to parents and employees;
oabout the hours typically worked by current employees fulfilling the Educational Leader role;
osetting out the likely impact of its proposed variation on employees and employers to whom the Award applies; or
oaddressing how its proposed variation to the clause would allow the Award to continue to meet the modern awards objective notwithstanding that it would result in Educational Leaders being paid less.
·It is notable that no other employers or employer organisations have sought to file submissions in support of the applicant’s position.
·The educational leader allowance has recently been considered in detail by Full Benches of the Commission and so the clause should not lightly be disturbed.
Applicant in reply
The applicant filed a reply submission on 28 November 2023. This referred to various findings and recommendations from the Final Report of the South Australian Royal Commission into Early Childhood Education and Care[8] and concluded:
The evidence would suggest that any additional costs to a small service will impact on its viability and would be counterproductive toward the goals and objectives of increasing women’s participation in the workforce.
The applicant also observed in reply that the UWU, AEU and IEU’s submission ‘neglected to mention the Outside School Hours Care sector… indicating a distinct lack of tacit knowledge of the dynamics of this sector.’ The reply submission was not accompanied by any evidence.
Relevant legislative provisions
Section 138 of the FW Act provides:
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.
Section 134 of the FW Act sets out the modern awards objective and when it applies. It relevantly provides:
134The 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
(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
(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
(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 [Part 2-3 of the FW Act, which includes s 158, the section under which the present application is brought]…
Consideration
It is well established that the applicant for a variation to a modern award bears the onus of proving that the variation sought is necessary (not just desirable)[9] to achieve the modern awards objective, including by filing evidence where feasible.[10] The Commission, in considering the application, will proceed on the basis that, prima facie, the modern award being reviewed achieved the modern awards objective at the time it was made.[11] The burden on an applicant for an award variation will be greater where the modern award provision the subject of the application was made as a result of a recent and comprehensive decision-making process and was based upon an industry consensus.[12]
In this case, as we have earlier outlined, clause 15.8 of the CS Award, which contains the entitlement to the educational leader’s allowance, was added to the award only in 2022 and has been in operation for less than 18 months. The variation adding clause 15.8 was made on the basis of a consensus of industry employer and employee organisations and was intended to mirror the educational leader’s allowance entitlement in the Teachers Award, which was itself made after extensive proceedings conducted by a different Full Bench. These circumstances cast a heavy burden on the applicant to demonstrate why a provision which, in its current form, was so recently found to be necessary to achieve the modern awards objective must now be modified.
The case advanced by the applicant goes nowhere near meeting this burden. It essentially rests on the following bare propositions:
·not all employees in outside school hours (OSH) care who are deemed the Educational Leader work a full day;
·some may work as little as two hours a day;
·this is not fair or equitable for ‘smaller sites’ as the additional cost will impact on the viability of these sites which will reduce the number of services for parents and employees.
These propositions are advanced in a factual vacuum. The applicant provided no evidence, or even information, about its business, its hours of operation, its employees (including their working hours), its experience to date paying the educational leader’s allowance including the cost impact, its profitability or its capacity to provide places for children. Accordingly, we are not in a position to assess the merits of the above propositions even in the context of the applicant’s own business and its employees.
Moreover, what is sought is a variation to the CS Award, which applies to the entire ECEC sector. A consideration of the merits of an application of this nature requires consideration of the interests of the ECEC sector as a whole. It is plainly deficient for an applicant to seek an industry-wide variation to an industry award by reference only to their own circumstances and interests.[13] The applicant has made no attempt to relate its application to the broader interests of employers and employees across the entirety of the ECEC sector. It involves no consideration, for example, of how the application if granted might affect the interests of employers and employees in the ECEC sector who are not engaged in businesses which provide OSH care. Even in the case of businesses which do provide OSH care, we are aware that they often (perhaps usually) do so in conjunction with the provision of other types of ECEC, but nothing has been said by the applicant about how its application might affect such businesses and their employees. No employer organisation or employer covered by the CS Award expressed any support for the application. The relevant unions opposed it. There is therefore no reason to conclude that the application would (apart from the applicant) meet the interests of any employer or employee in the ECEC sector.
We are therefore not satisfied that the variation sought is necessary for the CS Award to achieve the modern awards objective. Nothing has been put forward to suggest that any of the considerations specified in s 134(1) of the FW Act weigh in favour of making the variation sought, and the need to ensure stability in the award system (paragraph 134(1)(g)) would weigh against varying an award provision which was established so recently on the basis of an industry consensus.
Conclusion
The application is dismissed.
PRESIDENT
Appearances:
P Paterson for The Allison and Phil Family Trust t/a my OSHC.
L Harrison and A van Gent for the United Workers’ Union.
J Kenchington-Evans for the Australian Education Union.
I Bailey for the Independent Education Union of Australia.
N Ward and J Lombardelli for Australian Business Industrial.
Hearing details:
2023.
Melbourne with video link using Microsoft Teams (directions):
9 August.
Sydney with video link using Microsoft Teams (directions):
14 November.
Written submissions:
Applicant: 10 August 2023, 28 November 2023.
United Workers’ Union, Australian Education Union and Independent Education Union of Australia (joint submission): 2 November 2023.
[1] MA000120.
[2] [2022] FWCFB 164.
[3] Ibid at [8]; PR745330.
[4] MA000077.
[5] [2022] FWCFB 105.
[6] [2021] FWCFB 6021.
[7] [2022] FWCFB 141 at [7].
[8] Royal Commission into Early Childhood Education and Care (Final Report, August 2023).
[9] Re Horticulture Award 2020[2021] FWCFB 5554, 311 IR 1 at [17]-[18].
[10] 4 yearly review of modern awards – Penalty Rates [2017] FWCFB 1001, 265 IR 1 at [269]; Application by Indigenous Education and Boarding Australia [2023] FWCFB 138 at [40].
[11] Ibid.
[12] Application by Treves [2023] FWCFB 98 at [69].
[13] Application by Woolworths Group Limited [2023] FWCFB 139 at [39]; see also Application by Treves [2023] FWCFB 98 at [70] and [72]-[74].
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