United Voice and others

[2012] FWA 9296

[2012] FWA 9296

FAIR WORK AUSTRALIA

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 5, Item 6 - Review of all modern awards (other than modern enterprise and State PS awards) after first 2 years

United Voice and others
(AM2012/31 and others)

Children’s services
DEPUTY PRESIDENT HAMILTON	MELBOURNE, 2 NOVEMBER 2012

Modern Awards Review 2012—application to vary the Children Services Award 2010.

Introduction

[1] This decision concerns separate applications by United Voice (UV), Falcan Pty Ltd - T/A- Rainbow Early Learning Centre (Falcan), Australian Business Industrial (ABI), the Independent Education Union (IEU), the Australian Childcare Centres Association (ACCA), the Australian Community Services Employers Association (ACSEA) and the ACT and Region Chamber of Commerce and Industry (ACT Chamber) to vary the Children’s Services Award 2010 (Award). 1The applications are made under Schedule 5, Item 6 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) as part of the review of all modern awards which Fair Work Australia is required to conduct after the first two years of all modern awards coming into effect (2012 Review).

[2] The parties worked hard to resolve issues between them. The result was that a considerable degree of agreement was reached. ABI provided a useful service by recording the areas of agreement and disagreement in a table of the ten applications. This table was then modified by the parties during a conciliation exercise before the matter was finally heard. I have relied in part on the table as modified to record the different positions of the parties. 2

The Legislation

[3] Schedule 5, Item 6 of the Transitional Act provides:

“(1) As soon as practicable after the second anniversary of the FW (safety net provisions) commencement day, FWA must conduct a review of all modern awards, other than modern enterprise awards and State reference public sector modern awards.

(2) In the review, FWA must consider whether the modern awards:

(a) achieve the modern awards objective; and

(b) are operating effectively, without anomalies or technical problems arising from the Part 10A award modernisation process.

(2A) The review must be such that each modern award is reviewed in its own right. However, this does not prevent FWA from reviewing 2 or more modern awards at the same time.

(3) FWA may make a determination varying any of the modern awards in any way that FWA considers appropriate to remedy any issues identified in the review.

(4) The modern awards objective applies to FWA making a variation under this item, and the minimum wages objective also applies if the variation relates to modern award minimum wages.

(5) FWA may advise persons or bodies about the review in any way FWA considers appropriate.

(6) Section 625 of the FW Act (which deals with delegation by the President of functions and powers of FWA) has effect as if subsection (2) of that section included a reference to FWA’s powers under subitem (5).”

[4] Provisions of the Fair Work Act 2009 (the Act) are also applicable and relevant to the 2012 Review. Sections 134 and 138 provide as follows:

“134 The modern awards objective

What is the modern awards objective?

(1) FWA must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account:

(a) relative living standards and the needs of the low paid; and

(b) the need to encourage collective bargaining; and

(c) the need to promote social inclusion through increased workforce participation; and

(d) the need to promote flexible modern work practices and the efficient and productive performance of work; and

(e) the principle of equal remuneration for work of equal or comparable value; and

(f) the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and

(g) the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards; and

(h) the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.

This is the modern awards objective.

. . .

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.”

Authorities

[5] In June 2012, the 2012 Review Full Bench handed down a decision in relation to the 2012 Review. 3 At paragraph 63 the Full Bench said:

“[63] Under sub item 6(3) of Schedule 5, the Tribunal has a broad discretion to vary any of the modern awards in any way that it considers necessary to remedy any issues identified in the Review. However, sub item 6(4) provides that in making such a variation the Tribunal must take into account the modern award objective in s.134 of the FW Act, and, if varying modern award and minimum wages, the minimum wages objective in s.284.”

[6] The Full Bench also said:

“[85] Two points about the historical context are particularly relevant. The first is that awards made as a result of the award modernisation process are now deemed to be modern awards for the purposes of the FW Act (see Item 4 of Schedule 5 of the Transitional Provisions Act). Implicit in this is a legislative acceptance that the terms of the existing modern awards are consistent with the modern awards objective. The second point to observe is that the considerations specified in the legislative test applied by the Tribunal in the Part 10A process is, in a number of important respects, identical or similar to the modern awards objective which now appears in s.136.

. . .

[86] Although the Tribunal is not, as a non-judicial body, bound by principles of stare decisis, as a matter of policy and sound administration it has generally followed previous Full Bench decisions relating to the issue to be determined, in the absence of cogent reasons for not doing so. In another context three members of the High Court observed in Nguyen v Nguyen:

‘When a court of appeal holds itself free to depart from an earlier decision it should do so cautiously and only when compelled to the conclusion that the earlier decision is wrong. The occasion upon which the departure from previous authority is warranted are infrequent and exceptional and pose no real threat to the doctrine of precedent and the predictability of the law: see Queensland v The Commonwealth (1977) 139 CLR 585 per Aickin J at 620 et seq.’

[87] While the Tribunal is not a court, the public interest considerations underlying these observations have been applied with similar, if not equal, force to appeal proceedings in the Tribunal. In Re Dalrymple Bay Coat Terminal Pty Ltd a Full Bench summarised the position in relation to single members sitting at first instance as follows:

‘There is not a developed system of stare decisis in this jurisdiction. However it is clearly desirable for members of the Commission sitting alone to adhere to Full Bench decisions which are relevant to the matter being determined. Such a policy aids consistent decision making which in turn provides the parties to Commission proceedings with greater certainty.’

[88] These policy considerations tell strongly against the proposition that the Review constitutes a “fresh assessment” unencumbered by previous Tribunal authority.

[89] In circumstances where a party seeks a variation to a modern award in the Review and the substance of the variation sought has already been dealt with by the Tribunal in the Part 10A process, the applicant will have to show that there are cogent reasons for departing from the previous Full Bench decision, such as a significant change in circumstances, which warrant a different outcome.”

[References omitted]

[7] In relation to the application of s.138 of the Act to the 2012 Review, the Full Bench said:

“[33] We are satisfied that s.138 is relevant to the Review. The section deals with the content of modern awards and for the reasons given at paragraph [25] of our decision it is a factor to be considered in any variation to a modern award arising from the Review. We also accept that the observations of Tracey J in SDAEA v NRA (No.2), as to the distinction between that which is “necessary” and that which is merely desirable, albeit in a different context, are apposite to any consideration of s.138.

[34] While s.138 is relevant to the Review there is still the question of the extent of its impact and the circumstances in which it will have on an application to a variation determination. The supplementary submissions revealed a diversity of views about these issues. We are not persuaded that these issues have been the subject of sufficient debate at this stage. The precise impact of s.138 is a question best considered in the context of a particular application. We agree with the RCAV’s supplementary submission that “the nature of the evidence and the facts as found arising from that evidence will condition the exercise of power and the ultimate outcome required to be determined by the review.”

[8] In a further statement the President indicated that: 4

“[8] Parties interested in a modern award are encouraged to discuss the applications relating to that award with a view to arriving at a consent position, or at least narrowing the issues in dispute”...

History of the Award

[9] It is necessary to detail the history of the making of this award. The award was made by the Award Modernisation Full Bench during the 4th stage of the award modernisation process. The Award Modernisation Full Bench said in September 2009: 5

“[93] We publish a draft Children’s Services Award 2010. The classification structures for childcare employees have, in recent times, been the subject of work value assessments by the Commission and this is reflected in the exposure draft. The structure includes family day care co-ordinators. We recognise that these classifications may also be included in the exposure draft for the Social, Community, Home Care and Disability Services Industry Award 2010. Award coverage will depend on the industry of the employer.

[94] We have not included family day care workers in the draft award. The only award currently covering these workers is confined in its operation to the Australian Capital Territory.”

[10] The Award Modernisation Full Bench said in December 2009: 6

“[69] Following submissions and consultations on the exposure draft changes have been made to this award to reflect the consensus of the major parties on span of hours, minimum shift lengths, overtime for part-time employees and junior rates. We have also rectified an error in the classification structure concerning the level for employees classified as ‘E’ workers under the Western Australian transitional award-based instrument and limited the application of non-contact time to employees with programming responsibilities. There are also some minor changes to allowances.

[70] We have taken into account the views of the parties with respect to the transitional provisions. This has resulted in some modification of the model clause. We have also taken into account the position of non-teaching staff in pre-schools who currently work according to the same provisions, with respect to school vacations, as teachers. The exposure draft has been altered in some other respects to make the conditions of teachers and children’s services employees in the same workplace more consistent.”

1. Application by UV (AM2012/31)

[11] UV seeks to vary clauses in the award relating to ‘types of employment’, ‘ordinary hours of work and rostering’, ‘minimum wages’ and ‘annual leave’. ‘Types of employment’ and ‘ordinary hours of work and rostering’ are presently dealt with in clauses 10 and 21 of the Award respectively. UV proposes more specifically to delete sub-clauses 10.4(d) and 21.7(b) and replace them with the following:

“Replace Clause 10.4(d) with the following:

(d)(i) Changes in the agreed regular pattern of work may only be made by agreement in writing between the employer and employee. Changes in the days to be worked or in starting and/or finishing times (whether on-going or ad hoc) may also be made by agreement in writing.

(d)(ii) Where agreement cannot be reached, the employer may change the days the employee is to work by giving seven days’ notice in advance of the change in accordance with clause 21—Ordinary hours of work and rostering.

(d)(iii) The employer is relieved of the obligation to provide the full seven days’ notice of change of the days an employee is to work where an emergency outside of the employer’s control causes the employer to make the change. In this clause, emergency means any situation or event that poses an imminent or severe risk to the persons at an education and care service premises, or a situation that requires the education and care service premises to be locked-down.”

“Replace Clause 21.7(b) with the following:

(b)(i) An employer may change an employee’s rostered hours, but only by giving the employee sevendays’ notice. In the absence of such notice overtime will be paid until seven days have elapsed from the date the notice was given. However, an employee and employer may agree to waive or shorten this notice period in a particular case. Such agreement must be recorded in writing and form part of the time and wages records.

(b)(ii) The employer is also relieved of the obligation to provide the full seven days’ notice where an emergency outside of the employer’s control causes the employer to make the change. In this clause, emergency means any situation or event that poses an imminent or severe risk to the persons at an education and care service premises, or a situation that requires the education and care service premises to be locked-down.

(b)(iii) However, where an employee is required to stay beyond their rostered hours because a parent fails to arrive on time to collect a child, this will not be regarded as an emergency. In this circumstance, the employer must pay the employee at overtime rates for the additional time the employee remains at the workplace.”

“Replace Clause 24.5 with the following

24.5 Paid leave in advance of accrued entitlement

(a) An employer may allow an employee to take annual leave either wholly or partly in advance before the leave has accrued. Where such leave is paid in advance and the employee leaves the employment before completing the service necessary to accrue the leave provided, the employer may deduct the amount of leave paid in advance from any money due to the employee on termination.

(b) The employer is not obliged to pay the annual leave loading prescribed in clause 24.3 in respect of periods of annual leave taken in advance. However, if the employee’s employment continues until the day when the employee would have accrued a period of leave under clause 24.1 equivalent to that taken in advance, the annual leave loading prescribed in clause 24.3 then becomes payable in respect of the period of such leave.

(c) If the employee leaves the employment before accruing an amount equivalent to the annual leave taken in advance, the employee will be paid the relevant proportionate amount of leave loading.”

[12] This is a revised proposal 7 which is supported by UV, IEU, AEU, ACCA, ABI, and Community Connections Solutions Australia.8 AFEI had not received a copy of the agreed document and reserved its position. It considered the document and then put a submission in opposition to the proposed clause 24.5 of the award.9

[13] In relation to clause 24.5 of the award, the matter is currently before a Full Bench 10. When the Full Bench decision is handed down this part of the application will be determined.

[14] I am satisfied that the award should be varied to delete sub-clauses 10.4(d) and 21.7(b) and replace them with substitute agreed clauses. These variations are consistent with the legislative requirements regarding this review, in particular with Schedule 5, Item 6(2)(b) and Schedule 5, Item 6(3). I will make a determination to that effect.

[15] UV also proposed to delete the footnotes contained in clause 14.1 and replace them with the following footnotes:

“*Reference to a year or years of service is to service in the industry

**Former Western Australian ‘E’ worker classification

***An Assistant Director who holds an Advanced Diploma (AQF 6/3 year qualified) must be paid no less than Level 5.4

**** Where the relevant regulations or statutory requirements require the appointment of a supervising officer (howsoever described), an employee appointed or required to act as such will be paid no less than Level 6 for the period.” [emphasis added]

[16] UV submits:

“6. The National Quality Framework (NQF), comprised of the Education and Care Services National Law and the Education and Care Services National Regulations will apply to most long day care, family day care, outside schoolhours care and preschools/kindergartens in Australia from 1 January 2012.

7. Sections 5, 44, 56 and 161 of the National Law and regulations 35 and 146 of the National Regulations provides that approved children’s services providers must not operate a service unless there is a nominated supervisor for the approved service.

8. When the nominated supervisor is absent from the service, a person with a supervisor certificate can be placed in charge on an acting basis. This means that there is always someone in charge on the premises who has been assessed as fit and proper by the regulatory authority. The variation proposes that an employee appointed to or acting in this role should be paid no less than Level 6.

9. The relevant regulations applying in Western Australia pending the establishment of the National Law have a similar requirement for an employee to be appointed to act as a supervising officer for the purposes of the regulations at all times.

10. This proposed variation is consistent with the pre-reform award applying in Western Australia immediately prior to 1 January 2010. Schedule A clause 6.1.3 of AP846963 Child Care (Long Day Care) WA Award 2005 provided for employees appointed to act as the Supervising Officer pursuant to the Community Services (Child Care) Regulations 1988 as amended.”

[17] UV further submitted that there was an inconsistency between clauses 18.1(d) and 14.1 of the award in that the award is silent on the level that an employee acting in this position should be paid, and the variation proposes that the level be no less than level 6. 11

[18] This clause was opposed by AFEI which submitted that there is no error or ambiguity and Schedule B provides a detailed classification structure within which employees must be classified according to the work they perform and other matters, while clause 18.1 provides a clear and exhaustive entitlement to receive additional pay for that period at the appropriate level in the classification structure. 12 Falcon Pty Ltd submitted that the UV interpretation of the national law and regulations was not entirely correct.13 ABI submitted that the proposed variation is not necessary because there is no inconsistency between clause 14.1 and clause 18.1(d) as claimed. Schedule B does the work that UV claims is needed to be done by the proposed new footnote. It provides that an employee appointed to act as a Director of a Centre or a Supervising Officer will be paid for at the rate applicable for a Director or Supervising Officer.14

[19] In my view the application made by UV with respect to clause 14.1 is not made out. There is no conflict between clauses 14.1 and 18.1(d). I accept that clause 14.1, 18.1(d) and Schedule B provide an appropriate safety net with respect to persons appointed to act as a Director of a Centre or a Supervising Officer. There are no issues within Schedule 5, Item 6 which I consider appropriate to remedy. I dismiss the application.

2. Application by Falcan (AM2012/139)

[20] The application by Falcan proposes a variation to ‘hours of work and related matters’, ‘transitional provisions’ and ‘allowances’ in the Award. The variation sought by Falcon to vary Part 5 - Hours of Work and Related Matters of the award was withdrawn. Falcan sought to vary sub-items A.3.7 and A.3.8(c)(i) and (ii) ‘Transitional provisions’. It sought an adjournment of this aspect of its application.

[21] ‘Allowances’ are presently dealt with in clause 15 of the Award. Falcan specifically proposes to delete sub-clause 15.2(b) in its entirety. This sub-clause provides:

“15.2 Clothing and equipment allowance

(b) Where an employee is required to launder any clothing referred to in clause 15.2(a) the employee will be paid an allowance of $9.49 per week or $1.90 per day, or where the uniform does not require ironing, $5.98 per week or $1.20 per day.”

[22] The application was opposed by UV, ACC, ACSEA, CAHRI and IEU.

[23] Falcan submits that there is no logic in a provision that penalises an employer who provides clothing by then also requiring the employer to pay for the garment to be laundered, and put other submissions. 15

[24] Clauses 15.2(a) and (b) provide obligations on employers that require employees to wear special clothing, and in particular require that they pay for the clothing and its laundering. The alternative to such provisions is that the employee be required to pay for both, which is a cost to the employee and will come from the wages and other entitlements paid to the employee under the award, which is a burden to the employee. It is open to the employer not to require special clothing, and in so doing avoid the costs in clause 15. No material has been provided to me which demonstrates that the obligations in the clause result in an anomaly or technical issue, or other difficulties which must be remedied. The existing provisions balance the interests of employers and employees. In my view I have not been provided with cogent reasons for departing from the decision made by the Full Bench during the award modernisation process.

[25] There are no issues within Schedule 5, Item 6 which I consider appropriate to remedy. I dismiss this aspect of the application.

3. Application by ABI (AM2012/170)

[26] The application by ABI proposes a variation to ‘types of employment’, ‘payment of wages’, ‘breaks’ and ‘annual leave’ in the Award. ‘Types of employment’ are presently dealt with in clause 10 of the Award. ABI seeks more specifically proposes to vary sub-clause 10.5(b). This sub-clause currently provides:

“10.5 Casual employment

(b) A casual employee is one engaged for temporary and relief purposes.”

[27] ABI proposes that this sub-clause be deleted and replaced with the following:

“10.5 Casual employment

(b) A casual employee is an employee engaged as such on an hourly basisother than a part-time or full-time employee.”

[28] UV, IEU and AEU oppose this proposed change, while it was supported by ACCA, ACSEA, CAHRI, and Falcan. 16ACSEA made an application in identical terms (AM2012/241). For the purposes of convenience I will deal with both the ABI and ACSEA applications on this point together.

[29] ABI submitted that most modern awards define a casual employee in the terms sought by ABI, and that the variation would assist in dealing with the skill shortage in child care. It submitted that the award should not be a barrier to flexible hours on a casual, as needs basis. 17 ACSEA submitted that the industry needed the flexibility to change on a regular basis to suit operational needs, and that the change would create further employment within the sector. It noted that other modern awards contained similar provisions.18 ACCA submitted that with the introduction of the national quality framework in January 2012 there will be progressively an increased need for more staff to be flexible, which will indicate either part-time or casual employees. It said that the current provisions do not seem to work, indicated by the witness statement of Ms. Bindi Miles.19

[30] UV submitted that ABI had not demonstrated that there were changes in circumstances such as to warrant the variation of clause 10.5, and further submitted that the proposed variation would exacerbate the existing skills shortage in the industry. It submitted that varying clause 10.5 would not be in the best interests of children in the care of early childhood educators and would be contrary to government policy in this area. It referred to the Award Modernisation Full Bench decision regarding Stage 4 Modern Awards in 2009, and submitted that clause 10.5(b) was originally included in the Award by consent of major parties.

[31] UV also provided several witness statements supporting its submission. Ms. Dominique Rowe 20 is employed as Industry Coordinator Funded Services at UV, and said that in her opinion this proposal would not assist in the maintenance of a stable and skilled workforce in the children’s services sector, but would increase casualization, lead to a less stable workforce, and would impact detrimentally on the children whose needs should be paramount. She said that the main reason that employers cannot find staff is not the absence of the availability of casual employment but the ‘poor wages and conditions in the industry’. This is supported, she said, by a recent DEEWR Skills Shortage report which noted employer comments that employees leave child care sector occupations for better pay and working conditions in other occupations. She said that the award is already very flexible.

[32] Ms. Emily Donnan 21 gave evidence that she was the Director of Master Kid Child Care Centre in Matraville, Sydney, and that she strongly preferred to employ permanent full-time staff in the centres in which she worked. She said that this was the best way to develop consistency of care, to meet workplace health and safety requirements, and to build relationships with the children and their families. She said that high staff turnover, often associated with high levels of casual staff, interferes with the achievement of all of these processes, and much training and re-training of staff is required, and consistency of approach is lost. Another problem with casual staff was that they were liable to easy dismissal and had no job security. The use of casual staff should be minimised wherever possible.

[33] Ms. Emma Rosanella 22 gave evidence that she was a full-time childhood education worker in a child care centre. She said that she had become disillusioned with work as a casual, as she had worked as such for years she had no employment benefits, no superannuation, no maternity leave prospects and no accumulated sick or annual leave. She accepted that she was recompensed for the absence of some of these things, but it was still not the same as a full-time job. Being casual made it difficult to get a housing loan, and was not conducive to a stable income on which to base a family. The centre she worked in employed all full-time or part-time staff with a regular employee who floated between the two centres to provide coverage for absent staff. Having a regular person caring for children was important for the development of each child.

[34] Ms. Bindi Miles 23 gave evidence that she was employed as an organiser with UV. She said that most child care centres were staffed with 1% full-time, 89% part-time, and 10% casual if any. Casuals were used not just for temporary or relief coverage but in many cases to provide regular shift coverage on an on-going basis. She said that centres preferred regular part-time staff rather than casuals, in part because part-time staff can be used very flexibly. Casuals suffered the following adverse employment conditions:

• unpredictable hours of work;



• little protection of employment;



• few or no employment benefits (training, sick leave, etc);



• little stability in a workplace;



• lack of a consistent income; and



• poor social acceptance (in the workplace and outside, eg. financial institutions make it difficult to get loans).

[35] The AEU and IEU supported UV’s position. 24

[36] I am not satisfied that cogent reasons for departing from the Award Modernisation Full Bench decision have been demonstrated. There is no anomaly or technical issue, or other issue within Schedule 5, Item 6 which I consider appropriate to remedy. I dismiss the application.

[37] ‘Payment of wages’ is presently dealt with in clause 19 of the Award. This clause currently provides:

“19. Payment of wages

19.1 Except on termination of employment all wages including overtime will be paid on any day of the week other than Saturday or Sunday.

19.2 Wages may be paid weekly, fortnightly or monthly by agreement between the employer and employee, by one of the following means:

(a) cash;

(b) cheque; or

(c) payment into employee’s bank or nominated financial institution account by electronic funds transfer, without cost to the employee.

19.3 Where an employee lawfully leaves their employment they will be paid all moneys due at the time of leaving by cash, cheque or electronic funds transfer.”

[38] ABI and UV and the other parties reached an agreed position under which payment could be made within a day of the termination of the employment. It was proposed that words to the following effect be added to clause 19.3:  25

“Alternatively, the employee may be paid on the next working day where this is reasonable.”

[39] This supersedes the application made by ABI that clause 19 be deleted and replaced with a different clause.

[40] In my view the parties have made out the case for variation of the award to include the additional words proposed to be added to clause 19.3, consistent with the requirements of Schedule 5, Item 6(2)(b) and Item 5, Schedule 5, Item 6(3). I will make a determination to the effect sought.

[41] ‘Breaks’ are presently dealt with in clause 22 of the Award. The application more specifically proposes to vary sub-clause 22.1(c). This sub-clause currently reads:

“22.1 Meal breaks

(c) Notwithstanding clause 22.1(a), where an employee is required to remain on the employer’s premises, the employee will be entitled to a paid meal break of not less than 20 minutes or more than 30 minutes. By agreement with the employer an employee may leave the premises during the meal break, however, such time away from the premises will not be counted as time worked and nor will any payment be made for such time.”

[42] ABI proposes that this sub-clause be deleted and replaced with the following:

“22.1 Meal breaks

(c) Notwithstanding clause 22.1(a), where an employee is required to remain on the employer’s premises, the employee will be entitled to a paid meal break of not less than 20 minutes or more than 30 minutes. This paid meal break is to be counted as time worked. By agreement with the employer an employee may leave the premises during the meal break, however, such time away from the premises will not be counted as time worked and nor will any payment be made for such time.” [emphasis added]

[43] This was agreed as a measure to ensure meal breaks that are paid are counted as time worked. It was supported by UV, IEU, AEU, ACCA, ACSEA, CAHRI, and Falcan. 26

[44] In my view the parties have made out their case that the award be varied as they sought. I am satisfied that the variation should be made consistent with Schedule 5, Item 6(2)(b) and Schedule 5, Item 6(3). I will make a determination to that effect.

[45] ABI sought a variation to clause 24.2, which deals with annual leave entitlements of shiftworkers. Clause 24.2 currently provides:

“24.2 For the purposes of the additional week of leave provided by the NES, a shiftworker is an employee on shiftwork who is required to work in accordance with a roster on Sundays and public holidays.”

[46] ABI proposed in their application that clause 24.2 be replaced with the following:

“24.2 For the purposes of the additional week of leave provided by the NES, a shiftworker is an employee on shiftwork who is required to regularly work in accordance with a roster on Sundays and public holidays.” [emphasis added]

[47] In ABI’s submission, it has been accepted that since the entitlement to an extra week of annual leave for shiftworkers came about that it would apply only to shiftworkers regularly rostered to work on Sundays and public holidays. They state that the proposed variation would allow for the effective operation of the Award without anomalies or technicalities. ACCA, ACSEA, CAHRI, IEU, and Falcan supported the proposed variation.

[48] UV opposed the variation on the basis that the original clause 24.2 was inserted into the Award by the Full Bench with the consent of major parties, and that ABI had not provided an analysis of the consequences of such a variation. AEU supported UV’s submissions in opposition to the proposed variation.

[49] This part of the application is currently before a Full Bench 27. When the Full Bench decision is handed down this aspect of the application will be determined. I note that the proposed variation is consistent with the annual leave clauses in other awards, for example clause 41.3 of the Manufacturing and Associated Industries and Occupations Award 2010.

4. Application by IEU (AM2012/197)

[50] The application by the IEU proposes a variation to the ‘classification structure’ in the Award. ‘Classification structure’ is presently dealt with in Schedule B to the Award. The application more specifically proposes to vary sub-item B.1.10. This sub-item currently reads:

“B.1.10 Level 6—Director

A Director is an employee who holds a relevant Degree or a 3 or 4 year Early Childhood Education qualification, or an AQF Advanced Diploma, or a Diploma in Children’s Services, or a Diploma in Out-of-Hours Care; or is otherwise a person possessing such experience, or holding such qualifications deemed by the employer or the relevant legislation to be appropriate or required for the position, and who is appointed as the director of a service.”

[51] It is proposed by the IEU that this sub-item be altered as follows:

B.1.10 Level 6—Director

A Director is an employee who holds a relevant Degree or a 3 or 4 year Early Childhood Education qualification, or an AQF Advanced Diploma, or a Diploma in Children’s Services, or a Diploma in Out-of-Hours Care; or is otherwise a person possessing such experience, or holding such qualifications deemed by the employer or the relevant legislation to be appropriate or required for the position, and who is appointed as the director of a service.

(Note that a teacher appointed as Director is covered by the Educational Services (Teachers) Award 2010-see the definition of employee in clause 3.1of this award.)

[52] The Award Modernisation Full Bench said in May 2009 that: 28

“[55] The Commission received a number of submissions concerning the appropriate award coverage for preschool teachers. Some of these submissions argued that preschool and early childhood teachers should be covered by a children’s services industry award and that consideration of this should be deferred to Stage 4 when consultation concerning the childcare industry will occur. On the other hand, a number of submissions argued that preschool teachers should be covered by an education industry award.

[56] Currently classifications for preschool teachers can be found in teachers’ awards, preschool teachers’ awards and in awards covering other children’s services. A person with a degree in early childhood education can teach in either a dedicated preschool, a childcare centre, or in a school, including in the lower primary grades.

[57] We have decided, at this stage, to include preschool teachers working in services operated by a school in the draft Educational Services (Teachers) Award 2010. We will defer for further consideration, in Stage 4, the question of award coverage for preschool teachers working in preschools, kindergartens and childcare centres. Our decision to do so should not be taken as indicating that we have formed a final view in relation to award coverage for those teachers.”

[53] The Award Modernisation Full Bench said in September 2009: 29

“[58] The issue of appropriate award coverage for preschool teachers was raised when the Full Bench was considering educational services – other than universities, in Stage 3. The decision was made at that time to defer consideration of this issue until children’s services were being considered in Stage 4. This would enable all interested parties who might have a view to provide input to our deliberations.

[59] Currently the nature of award coverage for preschool teachers is variable. For the most part they have been covered by specific early education teachers’ awards and, to a limited extent, by awards covering other teachers. In other cases they are covered by awards which also cover other employees in the child care industry or other employees in preschools or kindergartens.

[60] There was strong support for the inclusion of preschool teachers in awards covering the “children’s services and early childhood education industry”. Equally there were strong arguments put that preschool teachers should be covered by an occupational award.

[61] After considering the submissions and the proposals advanced by the interested parties we have decided at this stage that it is more appropriate to include preschool teachers in an occupational award covering both primary and secondary school teachers. We have taken into consideration in reaching this view, the qualifications required by early childhood education teachers, their capacity to work in schools and preschools as well as childcare centres, the lack of any relationship between teaching and children’s services employees in terms of classification structures and the differences in conditions of employment.

[62] We understand that government policies will lead to an increase in the number of preschool teachers employed in childcare centres. It is, however, also likely that those policies will mean that access to early childhood education for children who are not in long day care will continue to be provided through preschools, kindergartens and preschool facilities attached to schools. The focus on the provision of early childhood education by university qualified teachers is appropriately reflected by their inclusion in an occupational award, the Educational Services (Teachers) Award 2010. 28

[63] We have drafted amendments to the Educational Services (Teachers) Award 2010 to reflect the inclusion of preschool teachers and we now release that exposure draft for comment.”

[54] The application was supported by the AEU and Community Connections Solutions Australia, and opposed by UV, ACCA, ACSEA, Falcan, and NCCA. Those supporting the application submitted that there was an overlap between two awards and award rates in the Educational Services (Teachers) Award 2010 30 were not being paid the required award rate. Those opposing saw that the issue had been settled in dispute before the tribunal on the basis that an employee who is employed in a long daycare centre who has the relevant qualification and does not teach is covered by the Childrens Services Award. If the director is engaged and required to teach, then the Teachers award applies.31

[55] UV further opposed the variation on the basis that the issue was dealt with during the award modernisation process, and as such the Tribunal must have regard to the decision of the Full Bench at the commencement of the modern award review process. 32 UV relied on the finding of the Full Bench that the purpose of the review was not to revisit issues already dealt with during the award modernisation process unless there were cogent reasons for doing so. ACSEA opposed the variation as they submitted it would lead to fewer people with teaching qualifications being employed as a Director in a child care environment. I am not satisfied that the applicant and those supporting it have made out their case for the variation to be made. The application is refused.

[56] I am not satisfied that any of the grounds in the transitional provisions have been made out. There is no anomaly or technical problem or other ground made out within Schedule 5, Item 6. Cogent reasons for departing from the Award Modernisation Full Bench decision have not been made out. I dismiss the application.

5. Application by ACCA (AM2012/242)

[57] The application by the ACCA proposes a variation to ‘types of employment’, ‘ordinary hours of work and rostering’ and ‘allowances’ in the Award. ‘Types of employment’ and ‘ordinary hours of work and rostering’ are presently dealt with in clauses 10 and 21 of the Award respectively. The application more specifically proposes to vary sub-clauses 10.4(f) and 21.2. These sub-clauses currently provide:

“10.4 Part-time employment

(f) A part-time employee who agrees to work in excess of their normal hours will be paid at ordinary time for up to eight hours provided that the additional time worked is during the ordinary hours of operation of the early childhood service. No part-time employee may work in excess of eight hours in any day without the payment of overtime paid for at the rates prescribed in clause 23—Overtime and penalty rates.”

21.2 Ordinary hours will be worked in periods not exceeding eight hours, in unbroken periods save for meal breaks, between Monday and Friday. Subject to the provisions of clause 7—Award flexibility, by agreement between an employer and an employee, an employee may be rostered to work up to a maximum of 10 hours in any one day.”

[58] ACCA proposes that these sub-clauses be deleted and replaced with the following:

“10.4 Part-time Employment

. . .

(f) A part-time employee who agrees to work in excess of their normal hours will be paid at ordinary time for up to eight hours provided that the additional time worked is during the ordinary hours of operation of the early childhood service. Subject to the provisions of clause 7 – Award flexibility, by agreement between an employer and an employee, a part-time employee may work up to 10 ordinary hours in one day. No part-time employee may work in excess of 10 hours in any day without the payment of overtime paid for at the rates prescribed in clause 23—Overtime and penalty rates.

21. Ordinary Hours of Work

21.2 Ordinary hours will be worked in periods not exceeding eight hours, in unbroken periods save for meal breaks, between Monday and Friday. Subject to the provisions of clause 7—Award flexibility and clause 10.4 – Part-time Employment, by agreement between an employer and an employee, an employee may be rostered to work up to a maximum of 10 hours in any one day.”

[59] ACCA also seeks to vary sub-clause 21.3 in relation ‘ordinary hours of work and rostering’. This sub-clause currently provides:

“21.3 Ordinary hours may be worked between 6.00 am and 6.30 pm. Where broken shifts are worked the spread of hours can be no greater than 12 hours per day.”

[60] ACCA proposes that this sub-clause be deleted and replaced with the following:

“21.3 Ordinary hours may be worked between 6.00 am and 7.00 pm. Where broken shifts are worked the spread of hours can be no greater than 12 hours per day.”

[61] ACCA submits that a change to the maximum ordinary hours of work for part-time employees before overtime is payable is necessary to properly reflect the composition of the workforce in this award, with a higher level of employees with young families who seek flexible part-time arrangements. The award prevents arrangements such as a part-time employee working 30 hours across three days rather than spreading those hours across four or five days, because it submits that the payment of overtime after 8 hours is a ‘strong disincentive’ for employers in an industry with low-profit margins. Overtime should be paid after 10 hours, by agreement with the employer. Some other awards provide for this.

[62] In relation to the proposed increase to the spread of hours in clause 21.3, ACCA submits that this reflects industry practice, and awards and agreements in the past have allowed for a spread of hours which extends past 6.30 pm. This would encourage more flexible work practices and would benefit both employers and employees. 33

[63] The ACCA application was supported by ABI, Falcon, ACSEA, CCNA.

[64] UV submitted that cogent reasons for departing from the Award Modernisation Full Bench decision had not been demonstrated, such as a significant change in circumstances which warrants a different outcome. The application was just a ‘rehash of a generalised complaint about whether a particular provision works the way that the particular employer would prefer’. If we are to deal with it at all it should be revisited in the 4 yearly review, not on this occasion. 34

[65] It submitted that the consequence of the employer application would be a reduction in the overtime payments payable to employees, and that flexibilities available to employers in the use of part-time employees are already very significant to the point where they can be abused by employers. No case had been advanced for the application. There was no evidence supporting the claim. In addition the employer application would mean that part-time employees would be treated less favourably than full time employees, who are entitled under clause 21.2 to overtime after 8 hours. This would be a potential breach of ILO Convention 175, ratified by the Australian Government on 10 August 2011.

[66] UV submitted that this part of the award was a matter of substantial agreement by ACCA and other major parties, an agreement that was substantially adopted by the Full Bench. The agreement was multi-faceted, reflecting give and take, and it is not appropriate that one party seek now to target certain elements of the agreed package to their own advantage without acknowledging the context in which the challenged provisions were adopted. 35 IEU also opposed the application.

[67] I am not satisfied that any of the grounds for a determination in the transitional provisions have been made out. There is no anomaly or technical problem. I am not satisfied that cogent reasons have been demonstrated by ACCA to justify a change of this nature to what appears to have been largely a matter of consent between the major parties. I am also concerned about the potential differentiation between part-time and full-time employees, and the way in which a package which contains give and take to both sides will be upset in its balance. I refuse the application to vary clauses 21.3, 10.4, and 21.2.

[68] ‘Allowances’ are presently dealt with in clause 15 of the Award. ACCA seeks to vary sub-clauses 15.2(b) and (c). These sub-clauses currently read:

“15.2 Clothing and equipment allowance

(b) Where an employee is required to launder any clothing referred to in clause 15.2(a) the employee will be paid an allowance of $9.49 per week or $1.90 per day, or where the uniform does not require ironing, $5.98 per week or $1.20 per day.

(c) Where an employee is required to wear protective clothing or equipment such as goggles, aprons or gloves, the employer will either supply such clothing or equipment or reimburse the employee for the cost of their purchase.”

[69] ACCA seeks the deletion of these sub-clauses and their replacement with the following:

“15.2

. . .

(b) Subject to sub-clause (c) Where an employee is required to launder any clothing referred to in clause 15.2(a) the employee will be paid an allowance of $9.49 per week or $1.90 per day, or where the uniform does not require ironing, $5.98 per week or $1.20 per day.

(c) Notwithstanding clause 15.2(b), where the employer provides washing facilities to launder any clothing referred to in clause 15.2(a) no allowance will be payable.”

[70] ACCA submits that it should be sufficient if an employer provides washing facilities, and notes that there are other awards that make similar provision to what it now seeks (e.g. hospitality, and a former NSW state award). It submits that an employee who elects not to use those washing facilities has made a free choice to accept an expense which their employment did not necessitate. 36 ACCA was supported by ABI, Falcon, ACSEA, CCNA.

[71] UV opposes the application and submits that ACCA has not established ‘an anomaly or technical problem’. It submits that the evidence of Ms. Emily Donnan 37 supports its opposition. Ms. Donnan38 states that all centres in her experience had facilities to wash clothes, but that the existence of the ACCA approach would mean that the allowance would never be paid whether or not it was convenient or desirable to wash staff uniforms at work. IEU agreed with UV.

[72] I am not satisfied that there is an anomaly or technical problem, or cogent reasons to depart from the Award Modernisation Full Bench decision. I dismiss the application.

6. Application by ACSEA (AM2012/241)

[73] ACSEA proposes a variation to ‘types of employment’, ‘ordinary hours of work and rostering’ and ‘overtime and penalty rates’ in the Award. ‘Types of employment’ are presently dealt with in clause 10 of the Award. ACSEA seeks more specifically to vary sub-clause 10.5(b). This sub-clause currently reads:

“10.5 Casual employment

(b) A casual employee is one engaged for temporary and relief purposes.”

[74] ACSEA seeks the deletion of this sub-clause and its replacement with the following:

“10.5 Casual employment

(b) A casual employee is an employee engaged and paid as such.”

[75] ACSEA is supported by ABI and ACCA. This part of ACSEA’s application is dealt with earlier.

[76] ACSEA sought to include an additional sub-clause to clause 21 and an additional clause 23.5,  39 but withdrew these parts of its application during the proceedings.40

7. Application by ACT Chamber (AM2012/249)

[77] ACT Chamber sought to vary the award in order to provide for family day care workers. It sought to have its application adjourned to enable discussions with the parties.

8. Technical and Drafting Issues Identified by Fair Work Australia

[78] I raised with those appearing a number of technical and drafting issues with the award. No opposition to the proposed changes was received by me, and they were supported by some (eg. ABI 41). The determination I issue will include those changes pursuant to Schedule 5, Item 6(2)(b) and (3).

[79] ABI also proposed a definition of the word ‘scheme’ as follows:

“scheme refers to the Family Day Care scheme which is the central coordination unit that supports, resources and monitors the network of approved family day carers.”

[80] That issue can be considered in conjunction with the Family Day Care proposals under discussion by the parties.

9. Adjournments

[81] A number of applications for adjournments were made. I draw the attention of the parties to the Modern Awards Review 2012 - Timetable statement that at the conclusion of stage 4 on 31 May 2013 the Full Bench will formally close the Review of all modern awards. 42 I will call the matter on for mention on Monday 26 November 2012 at 10.15am, at which time I expect the parties to advise whether they withdraw their application, or wish to pursue it within the timetable set. If they wish to pursue it dates will be set for further written submissions and a hearing.

DEPUTY PRESIDENT

Appearances:

Mr J. Nolan of counsel for United Voice (applicant) (UV)

Mr D. Morphett, Workplace Relations Specialist, for Falcan Pty Ltd - T/A- Rainbow Early Learning Centre (applicant) (Falcan)

Ms S. Haynes, Solicitor, for Australian Business Industrial (applicant) (ABI)

Mr A. Odgers for the Independent Education Union (applicant) (IEU)

Mr. L Moloney, Industrial Relations and Human Resource Director, for the Australian Childcare Centres Association (applicant) (ACCA)

Ms S. Cislowski for the Australian Community Services Employers Association (applicant) (ACSEA)

Mr G. Schmidt for ACT and Region Chamber of Commerce and Industry (applicant) (CAHRI)

Mr D. Bunn for the Australian Education Union (AEU)

Mr S. Forster for the Australian Federation of Employers and Industries (AFEI)

Mr C. Buck for the Child Care National Association (CCNA)

Mr J. Gunn for Community Connections Solutions Australia (CCSA)

Hearing details:

Melbourne, Canberra, Sydney, Brisbane.

13 September:

2012.

 1   MA000120.

 2   Table forwarded on 8 August 2012 by ABI to the tribunal and parties appearing.

 3   [2012] FWAFB 5600.

 4   [2012] FWA 5721, Justice Ross, Modern Awards Review 2012 - Timetable, 5 July 2012, paragraph 8.

 5   [2009] AIRCFB 865, 25 September 2009.

 6   [2009] AIRCFB 945, 4 December 2009.

 7   Joint Exhibit 1.

 8   PN179; PN98-109.

 9   PN107-109; PN323-361.

 10   [2012] FWA 5721 at paragraph 12

 11   Exhibit UV6, paragraphs 1-8.

 12   Exhibit AFEI 1, paragraphs 15-18.

 13   Exhibit F1, paragraphs 9-10.

 14   Exhibit ABI2, paragraphs 2.14-2.18.

 15   Exhibit F1, paragraphs 5-6; PN288-301.

 16   PN90-91.

 17   Exhibit ABI1, paragraph 5, pp.7-8.

 18   ACSEA grounds for application; Exhibit ACSEA 1 and 2.

 19   PN248.

 20   Exhibit UV4, paragraphs 5-23.

 21   Exhibit UV2, paragraphs 12-20.

 22   Exhibit UV5, paragraphs 4-14.

 23   Exhibit UV3, paragraphs 6-15.

 24   PN179-PN180.

 25   PN93-96.

 26   Email from Ms.Haynes, ABI, to parties: ABI summary of position of parties, ABI application, clause 22.1(c).

 27   [2012] FWA 5721 at paragraph 12

 28   [2009] AIRCFB 450.

 29   [2009] AIRCFB 865.

 30   MA000077.

 31   PN467.

 32   [2012] FWAFB 5600.

 33   ACCA grounds of application; PN214-220; Exhibit ACCA, paragraphs 2.21-2.28.

 34   PN268.

 35   Exhibit UV1, Section 5(a), pp.5-6.

 36   Grounds for application; Exhibit ACCA 1, paragraphs 2.3-2.11, p.3-4.

 37   Exhibit UV2.

 38   Paragraphs 26-28.

 39   Amended in Exhibit ACSEA 2, p.2.

 40   PN261; ABI summary document.

 41   Exhibit ABI2, paragraph 4, p.5.

 42   [2012] FWA 5721 at paragraph 15.

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