1
Fair Work Act
2009
s.158—Application to vary or revoke a modern award
Independent Education Union of Australia
(AM2018/9)
Educational services
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT DEAN
DEPUTY PRESIDENT SAUNDERS SYDNEY, 11 OCTOBER 2021
Application to vary Education Services (Teachers) Award 2020 on work value grounds.
A. Introduction
[1] On 19 April 2021 we issued a decision1 (April decision) in which, first, we dismissed
an application made by the Independent Education Union of Australia (IEU) pursuant to s 302
of the Fair Work Act 2009 (FW Act) for an equal remuneration order with respect to early
childhood teachers and, second, in respect of an application by the IEU pursuant to s 157 of the
FW Act to increase the minimum pay rates for teachers covered by the Educational Services
(Teachers) Award 2020 (EST Award), we found that an adjustment to those rates was justified
by work value reasons. In relation to the latter finding, we identified two variations to the
remuneration structure in the EST Award which we considered to be justified by work value
reasons, would properly reflect the work value of teachers covered by the EST Award and
would constitute properly-fixed minimum rates of pay. The first was a new classification
structure with pay rates that reflected our work value findings, as follows:
Classification Criteria Weekly
salary -
preschools
and schools
$
Annual
salary -
preschools
and schools
$
Weekly
salary -
long day
care centres
$
Annual
salary -
long day
care
centres
$
Level 1 Graduate teacher
with provisional or
conditional
accreditation where
applicable
1,141.20 59,545 1,186.80 61,927
Level 2 Teacher with
proficient
1,247.30 65,085 1,297.20 67,688
1 [2021] FWCFB 2051
[2021] FWCFB 6021
DECISION
AUSTRALIA FairWork Commission
[2021] FWCFB 6021
2
accreditation or
equivalent
Level 3 Teacher with
proficient
accreditation after
three years’
satisfactory service at
Level 2
1,357.90 70,854 1,412.20 73,688
Level 4 Teacher with
proficient
accreditation after
three years’
satisfactory service at
Level 3
1,468.40 76,623 1,527.20 79,688
Level 5 Teacher with Highly
Accomplished/Lead
Teacher accreditation
1,579.00 82,392 1,642.20 85,688
[2] The second was a new allowance for early childhood teachers appointed to the statutory
role of Educational Leader.
[3] We gave consideration in the April decision as to whether the identified variations
would meet the modern awards objective in s 134(1) and the minimum wages objective in s
284(1) of the FW Act and, in respect of the matters specified in s 134(1) which are required to
be taken into account in that respect, we made findings as to paragraphs (a)-(e) and (g) of s
134(1) and paragraphs (b)-(e) of s 284(1). However, in relation to paragraphs (f) and (h) of s
134(1) and paragraph (a) of s 284(1), we did not consider that we were in a position to make
findings, primarily because the evidence concerning the effect of wage increases on the
viability, profitability and prices had been directed at the IEU’s initial wage claim and the
parties had not been heard in relation to the variations we proposed to make. Accordingly we
concluded as follows:
“[665] We consider that the appropriate course is to afford interested parties the
opportunity to adduce further evidence and make further submissions which respond to
the modifications to the remuneration structure in the EST Award which we consider to
be justified by work value reasons, and which address s 134(1)(f) and (h) and s
284(1)(a), before we make findings concerning whether the variation of the EST Award
to give effect to those modifications is necessary to achieve the modern awards
objective and would be consistent with the minimum wages objective. Such further
evidence and submissions might, among other things, usefully deal with the following
matters:
what the operative date of the variation should be if it is made;
whether any phasing-in arrangements should apply; and
the capacity of the Commonwealth Government and State and Territory
Governments to assist in funding the wages of early childhood teachers.”
[4] Following a directions hearing, the parties requested by consent that the Commission
assist the parties in narrowing the issues between them. On 24 May 2021, a conference was
[2021] FWCFB 6021
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held before Deputy President Dean to allow interested parties to discuss the outstanding matters
set out in paragraph [665] of the April decision above. The parties then reported their progress
to the Full Bench on 4 June 2021 and were directed to file evidence and submissions.
[5] Subsequently, a consent position was reached between the IEU and the Australian
Childcare Alliance and Australian Business Industrial (ACA/ABI) as to the variations to the
EST Award which should be made to give effect to the April decision (consent position). The
proposed consent variation is set out in Attachment A to this decision.
[6] The matter was the subject of a final hearing on 23 August 2021.
B. Issues in dispute
[7] The issues in dispute between the parties arise from matters raised in the submissions of
the following parties in response to the consent position:
Australian Education Union (AEU);
Australian Federation of Employees and Industries (AFEI);
Catholic Employment Relations (CER);
Community Connections Solutions Australia (CCSA); and
Isabelle Arrabalde and Elizabeth Arrabalde, who are individual early childhood
teachers (Arrabaldes).
[8] The issues in dispute may be categorised as follows:
1. The operative date of the variations to the EST Award and whether phasing in
arrangements should apply.
2. Classification structure issues:
2.1 Whether the requirement for “satisfactory service” for progression from
Levels 2 to 3 and 3 to 4 should be retained and, if so, whether and how it
should be defined.
2.2 Transitional arrangements from the old classification structure to the new
structure.
2.3 The application of the new classification structure in jurisdictions which
do not currently have compulsory accreditation/registration for early
childhood teachers and/or do not have Highly Accomplished/Lead
Teacher accreditation.
2.4 The application of the new classification structure for teachers who have
a career break.
2.5 The availability of support to teachers seeking to obtain proficient status.
[2021] FWCFB 6021
4
3. Quantification and pro-rata payment of the Educational Leader allowance.
4. Whether the coverage of the EST Award should be expanded to include
employees with conditional teacher accreditation working in an early childhood
education service.
[9] We will deal with the above issues seriatim.
[10] Significantly, no party submitted that variation of the EST Award to implement the new
classification structure and the Educational Leader allowance would not result in the
achievement of the modern awards objective in s 134(1) and the minimum wages objective in
s 284(1).
1. Operative date and phasing in
[11] Under the consent position advanced by the IEU and the ACA/ABI, the operative date
for the variation of the EST Award to give effect to the April decision should be 1 January
2022. In support of the consent position, the IEU submitted that an operative date of 1 January
2022 provides affected employers with sufficient time to take steps to implement the changes.
It noted that the employers most likely to be affected by the new pay rates operate in the early
childhood sector and submitted that it is appropriate that these rates coincide with the start of a
new year, so that employers can have regard to the new rates of pay for teachers when
considering the rates they charge parents. Further, it submitted that preschools and
kindergartens determine their fees for the year in the last quarter of the preceding year to
commence from the start of the preschool year and that long day care centres generally adjust
their fees twice a year on 1 January and 1 July.
[12] The ACA/ABI submitted that a date beyond 1 January 2022 would have been preferable;
however, on balance and in the interest of resolving the implementation issues in an orderly
basis, this date is tolerable. It stated that the benefit of a prospective operative date is that it
provides employers with an opportunity to prepare for transition in an orderly way and it
provides some economic amelioration of the impact of the increase by adjusting their cost
structure or preparing parents with reasonable advance notice of any fee increases.
[13] The AEU did not object to the consent position.
[14] CCSA supported a proposed operative date of 1 January 2022. In this respect, it
submitted that 1 January 2022 was appropriate because the NSW Government had included
additional funding in its latest Budget by creating the Start Strong Free Preschool program,
which will provide approximately $4,000 per enrolment per year in additional funding to each
community preschool that opts-in to the program from 1 January 2022. CCSA said that this
compares with a likely increase in cost per enrolment of less than $520 per year resulting from
the increase to early childhood teachers’ wages, leaving not-for-profit community preschools
in a sound financial position to meet the additional wages cost without needing to pass the
increased fees to families, as preschool in NSW will be free for services participating in the
new program. In respect of Commonwealth Government support, CCSA submitted that changes
to the operation of the Child Care Subsidy (CCS) arrangements scheduled to come into effect
in July 2022 whereby the Government will provide greater funding support to families with
second and subsequent children in childcare directly supports increased wages of early
[2021] FWCFB 6021
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childhood teachers through the higher, ongoing contribution to total CCS-approved centres’
costs.
[15] CER submitted that 1 July 2022 should be the operative date of the variation pursuant
to s 166(1) of the FW Act, which provides that any determination setting or varying modern
award minimum wages should generally come into operation on 1 July in the next financial
year after it is made. Further, it submitted that it is more appropriate to provide employers with
ten months, rather than four months (if the operative date were 1 January 2022 as proposed by
the consent position) to prepare for and implement the variations to the EST Award. It submitted
that in the alternative, the operative date should not be earlier than 1 January 2022.
[16] CER also submitted that a number of operators of Catholic early learning centres view
phasing-in of increases to minimum rates as preferable in order to spread the cost of wage
increases over a period of between two and five years, to mitigate the costs of an increase to
wage rates paid to early learning teachers. It submitted that we have the power to specify that a
determination that changes minimum wages under a modern award take effect in stages
pursuant to s 166(4) of the FW Act.
[17] The AFEI also submitted that the operative date should be 1 July 2022, as it is highly
likely that many employers in this sector would not have budgeted for the proposed wage rates.
It contended that the proposed structure is a significant departure from the status quo and an
appropriate timeframe is required for transition, the capacity to pay increases to wages will be
challenging as the sector is heavily reliant on government funding or subsidies and the
Commonwealth Government have not provided any direct funding to pay for the new
classification structure and minimum rates, which means employers will have to either absorb
the cost or pass this additional cost on to parents. In the alternative, it submitted that if the
Commission determines 1 January 2022 to be the operative date, phasing in of the new rates
should occur in two equal instalments, being 1 January 2022 and 1 January 2023.
[18] The Arrabaldes submitted in respect of the Educational Leader allowance that no
phasing-in arrangement should apply and that the allowance should be introduced without
delay. They submitted that an immediate introduction of the allowance was appropriate given
the significant challenges Educational Leaders have faced in leading the educational program
for centres during the COVID-19 pandemic, being required to devise and deliver concurrent
educational programs to children attending a centre and also online for those learning from
home. They pointed to the Early Childhood Relief Package introduced by the Federal
Government during the pandemic and submitted that the immediate introduction of the
allowance would not place excessive burden on early childhood education and care providers.
They also noted the finite impact of the proposed allowance on employment costs as the
position of Educational Leader does not necessarily require a teaching qualification, may only
be held by one person per service and that person may be Educational Leader to various services
so not every provider will bear the cost of the allowance. The Arrabaldes did not comment as
to whether any other phasing-in arrangement should apply.
Consideration
[19] We consider that the variation to the EST Award to give effect to the April decision
should have an operative date of 1 January 2022, and that there should be no phasing-in of the
increases. In reaching this conclusion, we have taken into account the following matters:
[2021] FWCFB 6021
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(1) Employers covered by the EST Award, including the early childhood sector
employers who will principally be affected, have been on notice since the date
of the April decision (19 April 2021) as to the wage increases which will be
made to the minimum wage rates in the EST Award. This will mean that, by 1
January 2022, they will have had over 8 months to make the necessary
adjustments to accommodate the impact (if any) of the increases.
(2) The increases to minimum rates which will be made are, while not insignificant,
not of such a quantum or scope as to require a phasing-in period. For employers
currently paying only minimum award rates, the increases involved range from
approximately 3.3% to 13.6%, depending on the level at which the employee is
currently graded. Further, in respect of the early childhood sector, the EST
Award will likely only be applicable to a small minority of the employer’s
workforce.
(3) The funding changes identified in CCSA’s submissions, and its analysis of the
impact on the charged cost of early childhood education and care, support the
conclusion that an operative date of 1 January 2022 without phasing-in is
appropriate.
(4) Considerable weight must be placed on the adherence of the ACA/ABI to the
consent position, albeit that those organisations would undoubtedly have
preferred a later operative date. The ACA was the principal employer participant
in the main proceedings, and adduced extensive evidence from a wide range of
businesses in the for-profit early childhood sector in response to the original
claims advanced by the IEU, including detailed evidence concerning the
affordability (or otherwise) of those claims. In that context, we have confidence
that the ACA/ABI is representative of a wide range of employers in that sector
and that its assessment that an operative date of 1 January 2022 is viable may be
relied upon.
(5) By contrast, the AFEI called no evidence from any employer in the sector in the
main proceedings, nor has it adduced any evidence from any employer in the
post-April decision phase of the proceedings in support of its position
concerning operative date and phasing-in. In that context, its submissions
concerning affordability cannot be weighed as rising above the level of mere
assertion. The same may be said in relation to the position of the CER, which
did not participate in any meaningful way in the main proceedings.
(6) 1 January 2022 appears to us to be the most convenient operative date since it
will allow employers to set their charges for the 2022 calendar year on the basis
that the wage increases have become payable.
[20] Section 166(1) of the FW Act establishes a default position that, relevantly,
determinations that set or vary modern award minimum wages outside of the annual wage
review are to come into operation on 1 July in the next financial year after the determination is
made. However, s 166(2) empowers the Commission to specify another day in the
determination as the operative date “…if it is satisfied that it is appropriate to do so”. In this
case, we consider that it is appropriate to set 1 January 2022 as the operative date having regard
to the six matters stated above.
[2021] FWCFB 6021
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[21] We see no reason to give an earlier operative date in respect of the Educational Leader’s
allowance, as submitted by the Arrabaldes.
2. Operation of the proposed classification structure
2.1 Definition of “satisfactory service” for the purpose of the new classification
structure
[22] The consent position is that “satisfactory service” within the new classification structure
should be governed by a new clause 14.3 in the EST Award, which would provide:
14.3 Satisfactory Service
(a) All service will be deemed satisfactory for the purposes of subclause 14.2
unless the employer disputes for a given year that it is satisfactory by
notifying the Fair Work Commission of the dispute pursuant to Clause
31—Dispute Resolution following a formal review and the provision of
specific reasons.
(b) Service is satisfactory if the teacher has complied with the requirements
of the Australian Professional Standards for Teachers (APST).
[23] The IEU submitted, in support of the consent position, that the proposed classification
and pay structure is drawn from the Crown Employees (Teachers in Schools and Related
Employees) Salaries and Conditions Award 2020 (NSW Teachers Award), which contains the
concept of years of “satisfactory service”. Pursuant to that award, the NSW Government has a
detailed policy that requires teachers to be assessed on an annual basis by reference to the
criteria in accordance with a detailed procedure and allows a teacher to appeal a decision that
their performance is not satisfactory. The IEU submitted that employers covered by the EST
Award include small businesses who may not necessarily adopt a formal annual performance
procedure to determine whether service of each teacher is satisfactory and, due to the nature of
the sector, employers may use different criteria leading to variance in performance assessments.
The IEU submitted that if service cannot be determined to be satisfactory through the proposed
dispute resolution process because, for example, agreement cannot be reached and a party does
not agree to refer the dispute to arbitration, then the issue is determined by reference to the
objective Australian Professional Standards for Teachers (APST) as set out in proposed clause
14.3(b). Clause 14.3(b), it submitted, can also be applied in any arbitration of a dispute. Further,
it submitted that the proposed consent variation does not intend that a single act contrary to the
APST would result in service not being satisfactory. The ACA/ABI also submitted, in support
of the consent position, that given the April decision placed emphasis on the role of the APST,
it is reasonable to align what would be satisfactory service to them. It also noted that the APST
set out a very broad array of requirements that an employer can consider in whether to challenge
satisfactory service in a particular case.
[24] The AEU did not object to the consent position and the CCSA supported it.
[25] CER agreed that there should be an objective method of determining whether service
was satisfactory, but opposed the proposed consent variation deeming “satisfactory service” on
the basis that it places the onus on the employer to dispute whether a teacher has not displayed
[2021] FWCFB 6021
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satisfactory performance rather than the employee. Instead, it proposed an alternative approach
by which the employer and employee are involved in an annual performance review process to
allow both parties to address satisfactory service issues without the intervention of the
Commission. It submitted that the matter should only be referred to the Commission where
necessary and agreed to by the employer and employee.
[26] The AFEI opposed the consent position on the basis that it is inconsistent with the
Commission’s consideration in the April decision and there is no similar requirement for
“deemed satisfactory service” in the NSW Teachers Award to warrant the Commission
adopting this approach. Instead, it submitted, satisfactory service should mean that the
proficient teacher maintains their accreditation, or in jurisdictions where formal accreditation
does not exist, maintains their professional development requirements. In addition, it submitted
that satisfactory service should mean that where an employer has adopted a staff development
and performance appraisal scheme, the employer determines that the employee has
demonstrated satisfactory performance, and in circumstances where there is no appraisal
scheme, the employer otherwise determines that the employee’s service has been satisfactory.
[27] In opposition to the AFEI’s position, the IEU relied upon a witness statement made by
Carol Matthews, the Deputy Secretary of the IEU’s NSW/ACT Branch and dated 16 August
2021.2 In her witness statement, Ms Matthews analysed the classification progression
requirement for “satisfactory performance of duties” in the NSW Teachers Award, an award of
the Industrial Relations Commission of NSW which covers public school teachers in New
South Wales. She identified that “satisfactory performance of duties” under the NSW Teachers
Award is assessed by reference to the detailed Guidelines for the Management of Conduct and
Performance published by the NSW Department of Education, which form part of the
Department’s Performance and Development Framework for Principals, Executives and
Teachers in NSW Public Schools which was agreed with the NSW Teachers Federation in 2013.
Ms Matthews described how the Guidelines document provides for a staged process to deal
with unsatisfactory performance, which initially involves individualised and targeted support
and may then move to a structured Teacher Improvement Program. Teachers who are assessed
as not reaching the required level of performance after the completion of such a program may
then be subject to remedial or disciplinary action. Disputes about such programs are subject to
the disputes procedure in the NSW Teachers Award. Ms Matthews referred to a NSW Auditor-
General’s Report to the NSW Parliament which identified that, in 2018, only 53 of 49,000
permanent and 39,000 casual and temporary teachers were involved in a Teacher Improvement
Program.
[28] The Arrabaldes opposed the inclusion of “satisfactory service” in the new classification
structure and submitted that it is problematic in the context of early childhood education and
care services because the APST and NSW Teachers Award were not designed with early
childhood teachers in mind. They submitted that unlike schools, early childhood education and
care providers have contextually specific policies and procedures and every employer may have
a different process for performance evaluation, which could result in teachers and employers
having different expectations as to what constitutes “satisfactory service” and undermine s
134(1)(e) of the FW Act. They proposed that the word “satisfactory” be deleted, which they
submitted would maintain employee performance as an internal workplace issue, provide
2 Statement of Carol Matthews dated 16 August 2021 (Exhibit 136)
[2021] FWCFB 6021
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certainty for progression through the classification structure and fairly remunerate early
childhood teachers for their service.
Consideration
[29] It may be acknowledged that there is some difficulty in translating the concept of
“satisfactory service”, which in the April decision we imported from the NSW Teachers Award
as part of the concept of a standards-based classification structure, from the context of a large,
centrally regulated public school system to the diverse range of employers covered by the EST
Award. This is particularly the case with the many small businesses operating in the early
childhood sector. However, we do not consider that this difficulty is sufficient to scrap the
requirement for “satisfactory service” altogether, as the Arrabaldes submitted. Although we
envisage that the circumstances where an employee will be unable to progress through
classifications because of unsatisfactory performance are likely to be rare, there will clearly be
some circumstances where non-progression will be appropriate – for example, where an
employee has undergone a performance improvement plan as a consequence of a failure to meet
the basic professional standards of a teacher and has continued to fail to meet those professional
standards.
[30] There appears to be a consensus that the APST should be used as an objective yardstick
for the assessment of satisfactory service. We accept this position. We do not, however, accept
the position of the AFEI that employers without any formal staff development and performance
appraisal scheme should, additionally, be effectively conferred with a broad discretion to
determine what constitutes satisfactory service for the purpose of progression through Levels
2-4 of the new classification structure. This moves the concept of satisfactory service away
from any objective basis and would likely lead to inconsistency in outcomes across employers.
[31] We broadly accept the thrust of the consent position in respect of the concept of
“satisfactory service”, but modifications are required to the draft variation in the following
respects:
(1) The EST Award classifications are currently based on years of “teaching
service”, as defined (somewhat clumsily) in clause 14.2. The concept of
“satisfactory service” was intended to incorporate this concept, and the label
used shall accordingly be amended to: “satisfactory teaching service”. Further,
the existing definition of “teaching experience” in the EST Award, which is
incorporated into the draft variation, shall be modified to make it consistent with
the concept of “teaching service”.
(2) Some allowance needs to be made for an employer to assess an employee as not
meeting the APST in a fair and transparent way without having to automatically
bring a dispute to the Commission, particularly as an employee may not dispute
the assessment.
(3) Where the dispute resolution procedure is required to be utilised, all the steps in
the procedure should be followed rather than, as is apparently the case in the
consent position, accessing the Commission as a first resort.
[32] Accordingly, our view is that the new clause should provide as follows:
[2021] FWCFB 6021
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14.3 Satisfactory teaching service
(a) For the purpose of progression to Levels 3 and 4, satisfactory teaching
service shall mean:
(i) maintenance of Proficient accreditation/registration as a teacher,
where applicable; and
(ii) compliance with the requirements of the APST.
(b) An employee will be deemed to have complied with the APST unless the
employer has, in the 12-month period immediately preceding the date
upon which the employee is due for progression to Level 3 or Level 4:
(i) identified, in writing, that the employee has not complied with the
requirements of the APST in specified respects on an ongoing
basis; and
(ii) afforded the employee a reasonable period of time, with the
provision of support, training and feedback, to bring the
employee’s performance into compliance with the APST; and
(iii) assessed the employee, in a formal and documented review of
performance, as still not complying with the requirements of the
APST on an ongoing basis.
(c) If the employee disputes an assessment that the employee has not
complied with the requirements of the APST such as not to qualify for
progression, the employer shall seek to resolve the dispute with the
employee in accordance with the dispute resolution procedure in
accordance with clause 31 of this award. This shall include, if necessary,
reference of the dispute to the Fair Work Commission by the employer
pursuant to clause 31.4.
2.2 Transitional arrangements from the existing classification structure to the new
structure and progression for transitioning employees
[33] The consent position proposes that the EST Award be varied to add a new clause 14.4
to provide for transitional arrangements from the old to the new classification structure. It
proposes the following translation table as follows in clause 14.4(b):
Classification
prior to the
classification
structure
transition date
Classification
after the
classification
structure
transition date
Level 1 Level 1
Level 2 Level 1
Level 3 Level 1
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Level 4 Level 1
Level 5 Level 2
Level 6 Level 2
Level 7 Level 2
Level 8 Level 3
Level 9 Level 3
Level 10 Level 3
Level 11 Level 4
Level 12 Level 4
No transition Level 5
[34] The above table operates subject to proposed clause 14.4(c), which provides that if an
existing employee is better off being classified pursuant to the new classification structure, then
the new structure shall apply at the point of transition. The transitional arrangements proposed
in the consent position also include the following requirements:
employees employed in the first year after the new classification structure takes effect
who, prior to the operative date, qualified as a teacher or held teaching
accreditation/registration status, will be classified according to the translation table
and the provisions of the old classification structure (to be preserved in a schedule to
the award) or the new structure, whichever is the more beneficial (proposed clause
14.4(d));
for all employees transitioning pursuant to proposed clauses 14.4(b) or (d), all service
in excess of two years will count as service at a proficient level where the service has
followed the attainment of a recognised teaching qualification, provided that where a
teacher has gained proficiency within two years, all service will be at a proficient
level from the date that the teacher gained proficiency (proposed clause 14.4(e));
no employee shall suffer a reduction in their annual rate of pay as a consequence of
the transition (proposed clause 14.4(h)(i)); and
an employer is not required to increase monetary obligations above the minimum
annual rate and any increase may be absorbed into existing over award payments
(proposed clause 14.4(h)(ii)).
[35] In support of the transitional arrangements in the consent position, the ACA/ABI
submitted they are relatively simple and allow an employer to undertake the transition with a
modest administrative burden, limit the time operation of the transition provisions to a period
of 12 months, and provide a clear mechanism for deeming service that might have been acquired
other than in the context of accreditation/registration as a proficient teacher but where the
teacher has been qualified as such for more than two years.
[36] The consent position also involved a new clause (proposed clause 14.7) concerning
progression between classifications which would provide that:
a teacher on Level 1 will progress to Level 2 from the first full pay period after the
teacher has been accredited as proficient;
[2021] FWCFB 6021
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a teacher on Level 2 will progress to Level 3 from the first full pay period after the
teacher has completed three years satisfactory service at a proficient level;
a teacher on Level 3 will progress to Level 4 from the first full pay period after the
teacher has completed six years satisfactory service at a proficient level; and
the total number of years of service at a Proficient level will be deemed to be not
less than the total service of the teacher minus two years in the case of teachers
covered by the transitional provisions in the proposed clause 14.4.
[37] The IEU submitted that the proposed new clause 14.7 addresses the pay period upon
which a new classification takes effect, that progression is subject to other proposed clauses
addressing jurisdictions that do not have an accreditation/registration scheme or Highly
Accomplished/ Lead Teacher accreditation and returning to teaching following a career break,
and how to assess years of total service in respect of teachers who have transitioned pursuant
to the transitional provisions in proposed clause 14.4. It submitted that the latter is necessary to
determine years of service for teachers who transition to the new classification structure who
have taught for many years but have only been designated proficient for the most recent of those
years since the introduction of an accreditation/ registration scheme.
[38] The AEU did not object to the consent position and CCSA supported it.
[39] CER did not oppose transitional provisions being included in the EST Award, but did
not agree with the consent position in this respect. Instead, it submitted that a graduate teacher
who achieves proficient teacher status should be classified as proficient if they achieve this
within a year or a year and a half. For transitioning existing staff, it submitted that teachers
starting at Level 3 of the current structure should transition to Level 1 of the new structure and
should spend two years at that level before reaching proficient status. Only an existing Level 5
teacher, it submitted, should transition to Level 2 of the new structure as they have two years
of service at the graduate level.
[40] CER submitted that the progression to Levels 3 and 4 should be confined to teachers
who have three years’ satisfactory service at those levels. It noted that in jurisdictions that
require registration, except South Australia, Victoria and the ACT, the maintenance period is
five years and as such, the classification and pay structure proposed by the consent position
which relies on “service” rather than “satisfactory service” may see teachers progress from
Level 2 to 3 or Level 3 to 4 in circumstances where their service has not been satisfactory and
where they would not maintain their proficiency if they were at the end of their maintenance
period.
[41] The AFEI did not oppose transitional provisions being included in the award, however
it proposed its own variation in this respect. Its variation stipulated that employees who
transition to the new classification structure must meet the requirements established by the
APST or, where the standards are not required in a jurisdiction, employees must meet the
standards as if they applied in order to progress to the next classification level. The AFEI
otherwise opposed the consent position in relation to progression within classifications on the
basis that it submits that it is inconsistent with the proposed structure set out in the April
decision because it allows for progression between Levels 2-4 on the basis of “three years
satisfactory service at a proficient level” rather than “three years satisfactory service” at each
[2021] FWCFB 6021
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Level. It also opposed the provision concerning progression from Level 4 to Level 5 because it
states “Highly Accomplished or Lead Teacher accreditation/ registration or equivalent” rather
than “Teacher with Highly Accomplished/ Lead Teacher accreditation”. Finally, the AFEI
submitted that employees should only be able to advance from Level 2 to Level 3 and Level 3
to Level 4 when the employee obtains the classification criterion relevant to progression, that
being the professional career standards established by the APST at each level.
[42] The Arrabaldes opposed the proposed basis for progression within the new classification
structure and the consent position on the basis that progression should not be tied to a teacher’s
performance. Rather, they submitted, progression through the classifications solely in terms of
years of service is entirely appropriate given the importance of continuity in staffing for
children’s learning and development and ongoing staff retention issues in the sector. They
submitted that early childhood teachers are already accountable to their employers, colleagues
and to the children and families they work with and underperformance can be managed through
best practice guidelines and prompt management by employers.
Consideration
[43] We broadly accept the proposition embodied in the consent position that special
transitional arrangements concerning the initial classification and subsequent progression of
teachers should apply in respect of two categories of employees. The first consists of currently-
employed teachers (wholly or primarily early childhood teachers) who have a number of years
of teaching service but have not obtained proficient accreditation/registration because it is not
required in respect of their workplace. The second consists of currently-employed teachers who
have relatively long periods of teaching service but have only recently obtained proficient
accreditation/registration because of the date of introduction of a requirement for such
accreditation/registration in the State or Territory in which they are employed. For example, in
New South Wales, compulsory accreditation of early childhood teachers commenced on 18 July
2016, so if a teacher then took two years to obtain registration, they would have less than 3½
years’ service at the proficient level even if they had many years of teaching service prior to the
introduction of the requirement. We also accept, in respect of these two categories of teachers,
that special arrangements are required for their subsequent progression through the new
classification system.
[44] We will adopt the main principles of the consent position, but with the following
modifications:
(1) The transitional arrangements will be contained in a schedule to the award rather
than in clause 14 in order to facilitate their removal once they have served their
function.
(2) The transitional table proposed in the consent position will be applicable to
teachers in the two categories identified above.
(3) The transitional table will apply to those currently classified at Level 5 or above;
those currently classified lower than Level 5 will be classified in accordance with
the new classification structure.
(4) We will not include the proposed clause 14.4(e), which concerns teachers who
have been employed as a teacher before 1 January 2022 but are not employed as
[2021] FWCFB 6021
14
at that date. Their position can be accommodated in the “career break” provision
proposed as part of the consent position, which we discuss below.
(5) In respect of the proposed clause 14.4(g), the FW Act itself deals with when a
modern award “applies” and “covers” an employee (see ss 47 and 48), and we
do not consider it appropriate for an award provision to deal with this question.
(6) We do not consider that it is necessary or appropriate for the EST Award to
contain a provision dealing with the absorption of overaward payments. Clearly,
nothing in the EST Award, either currently or pursuant to the variations we
intend to make, requires any employer to make or to continue to make any
overaward payment. Nor is it the function of modern awards to engage in the
regulation of overaward payments, as was stated in the Full Bench decision in
the 4 yearly review of modern awards which dealt with the then standard
absorption clause in modern awards:3
“[74] Modern awards are part of the minimum safety net of terms and
conditions established by the Act. It is not the function of such a
minimum safety net to regulate the interaction between minimum
award entitlements and overaward payments. Such matters are
adequately dealt with by the common law principles of set off to which
we have referred and should be left to individual employers and
employees to determine. It is not necessary to include an absorption
clause in modern awards in order to provide a fair and relevant
minimum safety net. As the absorption clause is not a term which is
necessary to achieve the modern awards objective it cannot be included
in a modern award.”
(7) We likewise do not consider it necessary to include a provision to the effect that
no employee “shall suffer a reduction in their annual rate of pay as a
consequence of the transition”. Insofar as minimum award rates of pay are
concerned, the transitional arrangements will ensure that this does not occur and
that anyone on minimum award rates will receive an increase in pay. To the
extent that a provision of this nature attempts to regulate overaward payments,
it is not appropriate for the reasons already stated.
(8) The proposed progression provisions in clause 14.7(a)-(b) are, we consider,
unnecessary since the new classification structure speaks for itself in terms of
progression. Proposed clause 14.7(c) effectively doubles up with proposed
clause 14.4(e), and they may be incorporated into a single transitional provision.
[45] The new schedule to the EST Award will provide:
Schedule H – Transitional Arrangements
H.1 This Schedule applies to employees who are employed in a position covered by
this award immediately prior to 1 January 2022 and who:
3 [2015] FWCFB 6656, 253 IR 1
[2021] FWCFB 6021
15
(a) do not as at 1 January 2022 hold proficient teacher accreditation/registration
and are not as at 1 January 2022 subject a requirement to hold Proficient teacher
accreditation/registration; or
(b) hold proficient teacher accreditation/registration.
H.2 Employees to whom this clause applies shall be classified on and from 1 January
2022 in accordance with the following table, despite clause 14.1,4 except where
classification pursuant to clause 14.1 would result in the employee being
classified at a higher level:
Classification prior to
1 January 2022
Classification on and
from 1 January 2022
Level 5 Level 2
Level 6 Level 2
Level 7 Level 2
Level 8 Level 3
Level 9 Level 3
Level 10 Level 3
Level 11 Level 4
Level 12 Level 4
H.3 For the purpose of progression under the new classification structure:
(a) an employee classified at Level 2 pursuant to the table in clause H.2 shall be
deemed to have reached 3 years’ teaching service at Level 2 when the employee
has 5 years of teaching service in total; and
(b) an employee classified at Level 3 pursuant to the table in clause H.2 shall be
deemed to have reached 3 years’ teaching service at Level 3 if the employee has
8 years of teaching service in total.
This Schedule remains subject to the requirements in clause 14.3 concerning
satisfactory teaching service.
2.3 Application of the new classification structure in jurisdictions currently without
compulsory accreditation/registration for early childhood teachers and/or Highly
Accomplished/Lead Teacher accreditation
[46] The consent position addresses the issue of how the new classification structure should
apply in jurisdictions which do not require accreditation/registration of early childhood teachers
in the proposed new clause 14.8. In summary, the consent position proposes that a teacher in
such a jurisdiction will automatically be deemed to have proficient status for the purposes of
4 The new classification structure will be placed in clause 14.1
[2021] FWCFB 6021
16
the EST Award after two years’ service or upon obtaining such accreditation/registration,
whichever happens sooner, unless their employer has notified the Commission of a dispute as
to whether the teacher has met the requirements of the APST for a proficient teacher in the first
18 months of service. The proposed clause 14.8 also permits a teacher who considers that they
have equivalency to a proficient teacher prior to the completion of two years’ service to utilise
the provisions of the dispute resolution procedure. The proposed clause would also provide that
teachers in a jurisdiction which introduces accreditation/ registration where it has not previously
existed retain the classification they had before that accreditation/ registration system was
introduced.
[47] In respect of progression to Level 5 of the new classification structure in jurisdictions
without the Highly Accomplished/Lead Teacher (HALT) accreditation, the consent position
proposes a new clause 14.9 which would provide that such progression shall occur if a teacher
meets the APST for a HALT. Additionally, it would provide that a teacher may seek recognition
that they meet the APST for a HALT by utilising the award dispute resolution procedure.
[48] In its submissions in support of the consent position, the IEU noted that while all states
and territories require the accreditation or registration for primary and secondary teachers, there
is no universal compulsory accreditation or registration schemes for early childhood teachers
in Queensland, the Australia Capital Territory, Tasmania and the Northern Territory and
therefore these teachers do not ordinarily obtain proficient or HALT accreditation. It further
noted that it is not possible for teachers in Victoria to be recognised as a HALT. It submitted
that the proposed consent variation addresses s 154 of the FW Act, which requires that the EST
Award have provisions that enable teachers in those states and territories to be able to be
classified in a manner that does not create a State-based difference. It submitted that the
proposed clauses 14.8 and 14.9 set objective standards for progression to Level 2 (proficient
teacher) and Level 5 (HALT).
[49] The ACA/ABI submitted that the consent position seeks to overcome the challenges for
employers in jurisdictions that do not have accreditation or registration by providing a set of
provisions to allow them to apply the new classification structure without having to carry the
burden of becoming an expert in accreditation. It was also submitted that the consent position
adopts a reasonable default standard for proficiency in such jurisdictions at two years following
being fully qualified as a teacher but despite this, allows an employer an opportunity to
challenge whether an employee is proficient and an employee to challenge whether they are
proficient earlier than the two year hurdle.
[50] CCSA supported the consent variation. The AEU did not oppose the consent position in
respect of the application of the new classification structure in jurisdictions which do not
currently have compulsory accreditation/ registration for early childhood teachers. However, it
opposed the consent position in respect of teachers seeking to progress to Level 5 of the new
classification structure. It proposed an alternative variation in which a teacher in a jurisdiction
that does not have HALT accreditation is able to be classified at Level 5 if they meet the
requisite HALT standards, as assessed by expert teachers or specialist educators (rather than
the Commission, as provided for in the consent position). The AEU proposed that the employer
and employee would appoint external assessors to act in the place of a HALT certifying
authority on the basis that teacher assessment recognises teachers’ specialist expertise as to the
standards of their own profession and ensures the process more closely reflects the process in
HALT jurisdictions. Further, in response to a submission by CER, the AEU proposed that Level
5 employees in jurisdictions that do not have HALT accreditation should also be subject to a
[2021] FWCFB 6021
17
renewal process every five years, as is the case for employees in jurisdictions that have such
accreditation.
[51] CER likewise did not oppose the consent position in respect of the application of the
new classification structure in jurisdictions which do not currently have compulsory
accreditation/registration for early childhood teachers. In respect of teachers seeking to progress
to Level 5 in the new classification structure, CER supported the ability of teachers to progress
to this level in jurisdictions where HALT accreditation does not exist, but noted that the consent
position does not provide for a renewal process every five years, as required in jurisdictions
where HALT accreditation/registration is available. In this respect, it supported the AEU’s
proposed variation.
[52] The AFEI supported the APST being the objective standard, however it opposed the
consent position on the basis of “deemed proficiency” after a certain period of service, which it
submitted was directly inconsistent with the April decision’s finding that there was no evidence
before it to suggest that the work value of teachers increases year by year. It proposed that the
employer first be responsible for assessing whether an employee has met the APST
requirements for accreditation/registration as a proficient teacher or as a HALT and that only
following that could an employee notify the Commission of a dispute pursuant to the award’s
dispute resolution procedure.
Consideration
[53] The April decision clearly contemplated as necessary the establishment of an
equivalency to Proficient and HALT accreditation/registration in jurisdictions where no regime
of such accreditation or registration currently exists. There is a consensus amongst the parties
that the APST constitutes the objective standard by which equivalency should be assessed, but
there is disagreement as to the mechanism for assessment.
[54] We do not agree with the consent position insofar as it simply deems teachers to have
reached the equivalent of Proficient status after two years unless the employer notifies the
Commission of a dispute pursuant to the dispute resolution procedure in clause 31 of the EST
Award. There is no basis for a presumption that a teacher had met the APST for Proficient status
at the two year mark, and the proposed variation would put the matter before the Commission
in the first instance without there having first been any assessment by anyone as to whether the
employee has met the APST. Nor, in respect of progression to Level 5, do we accept that
equivalency to HALT accreditation should be established by resort to the Commission in the
first instance. In both respects, it is necessary to observe that the Commission does not have the
power to arbitrate disputes brought to it pursuant to clause 31 unless the parties agree to
arbitration (see s 595(3) and s 739(4)). We consider that a better course is to establish the APST
as the objective criterion for equivalency, and to provide for an assessment mechanism as a way
to demonstrate that the criterion has been met. This is not intended to be the exclusive
mechanism, and an employee will have the option of seeking court enforcement of an
entitlement to progress from Level 1 to Level 2 and beyond.
[55] The proposal advanced by the AEU that an external assessor can be utilised to determine
equivalency to HALT accreditation has some merit, but this can only occur by agreement
between the employer and the employee. We also accept that, as with HALT accreditation,
there should be some capacity to be re-assessed for equivalency every five years, but this need
only occur if the employer considers that the employee is not meeting the relevant APST. We
[2021] FWCFB 6021
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consider that the issue of HALT equivalency should otherwise be dealt with in the same way
as for Proficient teacher equivalency.
[56] Accordingly, the following new provisions will deal with the equivalency issue:
14.5 Equivalency to proficient accreditation
(a) For the purpose of Levels 2, 3 and 4 of the classification structure in clause
14.1, an employee will have the equivalent to proficient accreditation if:
(i) the employee works in a State or Territory where there is no
requirement applicable to the employee to be accredited or registered as a
Proficient teacher and there is capacity for the employee to voluntarily
obtain such accreditation or registration; and
(ii) the employee meets the APST applicable to a Proficient teacher.
(b) For the purpose of clause 14.5(a)(ii), an employee will meet the APST
applicable to a Proficient teacher if the employer is assessed by the employer as
doing so.
(c) The following provisions apply to the assessment of an employee under
clause 14.5(b):
(i) An assessment must be conducted by the employer if the employee
requests such an assessment at any time after the completion of the first
year of teaching service, provided that no more than one such request may
be made in any calendar year.
(ii) An assessment must be conducted by the employer when the employee
has completed two years’ teaching service, even if the employee has not
requested such an assessment.
(iii) If the employer fails to conduct an assessment in accordance with
clause 14.5(c)(ii), the employee will be deemed for the purpose of Levels
2, 3 and 4 of the classification structure in clause 14.1 to have the
equivalent to proficient accreditation.
(iv) The assessment must be conducted in consultation with the employee.
(v) The employer and employee may agree to an identified expert assessor
to conduct the assessment.
(vi) If an employee is assessed as not meeting the APST applicable to a
Proficient teacher and this is disputed by the employee, the employer shall
seek to resolve the dispute with the employee in accordance with the
dispute resolution procedure in accordance with clause 31 of this award.
This shall include, if necessary, reference of the dispute to the Fair Work
Commission by the employer pursuant to clause 31.4.
[2021] FWCFB 6021
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14.6 Equivalency to Highly Accomplished/Lead Teacher accreditation
(a) For the purpose of Level 5 of the classification structure in clause 14.1, an
employee will have the equivalent to Highly Accomplished/Lead Teacher
accreditation if:
(i) the employee works in a State or Territory where there is no capacity
for the employee to obtain such accreditation; and
(ii) the employee meets the APST applicable to a Highly
Accomplished/Lead Teacher.
(b) For the purpose of clause 14.6(a)(ii), an employee will meet the APST
applicable to a Highly Accomplished/Lead Teacher if the employer is assessed
by the employer as doing so.
(c) The following provisions apply to the assessment of an employee under
clause 14.6(b):
(i) An assessment must be conducted by the employer if the employee
requests such an assessment at any time after the completion of the first
year of teaching service at Level 4, provided that no more than one such
request may be made in any calendar year.
(ii) An assessment must be conducted by the employer when the employee
has completed three years’ satisfactory teaching service at Level 4, even if
the employee has not requested such an assessment.
(iii) If the employer fails to conduct an assessment in accordance with
clause 14.6(c)(ii), the employee will deemed for the purpose of Level 5 of
the classification structure in clause 4.1 to have the equivalent to Highly
Accomplished/Lead Teacher accreditation.
(iv) The assessment must be conducted in consultation with the employee.
(v) The employer and employee may agree to an identified expert assessor
to conduct the assessment.
(vi) If an employee is assessed as not meeting the APST applicable to a
Highly Accomplished/Lead Teacher and this is disputed by the employee,
the employer shall seek to resolve the dispute with the employee in
accordance with the dispute resolution procedure in accordance with
clause 31 of this award. This shall include, if necessary, reference of the
dispute to the Fair Work Commission by the employer pursuant to clause
31.4.
(d) If the employer considers that a Level 5 employee to whom clause 14.6(a)(i)
applies is no longer meeting the APST, the employer may conduct a re-
assessment of the employee in accordance with the requirement in clause
14.6(b)(iv) to (vi) once upon every five-year anniversary of the employee’s
[2021] FWCFB 6021
20
progression to Level 5. If the employer does not conduct such a re-assessment,
the employee will be deemed for the purpose of clause 14.1 to have equivalency
to Highly Accomplished/Lead Teacher accreditation for the following five years.
2.4 Application of the new classification structure for teachers who have a career break
[57] As part of the consent position, the IEU and the ACA/ABI propose a new clause 14.10
to address how the new classification structure applies to teachers who have had a career break.
The consent variation proposes that for a teacher who has had at least two years’ service prior
to taking a career break will be paid at Level 2 for 12 months (that is, as if they were proficient).
Provided the teacher obtains or is recognised as having proficient status within that 12 month
period, they will from the date of achieving that status be classified based on their years of
service at a proficient level (with all years of teaching other than the first 2 years being deemed
to be at that level). The provision would take effect on or after 1 January 2023 and prior to that
date, the proposed transitional provisions would apply.
[58] In support of the consent variation, the IEU submitted that when a teacher takes a career
break, they are unable to maintain their proficient status (in jurisdictions that have such
schemes) and must reapply on their return, as proficient status cannot be maintained if a teacher
is not actually teaching. It submitted that it is not uncommon for a teacher to take up to 12
months to reobtain this status. Further, it noted that a teacher returning to teaching in a
jurisdiction that has only recently introduced accreditation or registration may not have
previously obtained proficient status even if they have taught for many years. The IEU noted
that the NSW Teachers Award has a similar provision. The ACA/ABI submitted that the
proposed consent variation promotes return to the industry by allowing experienced teachers to
be deemed proficient whilst working towards re-attaining accreditation on a similar basis to
how the accreditation jurisdictions already operate.
[59] The AEU did not oppose, and CCSA supported, the consent position in this respect.
CER did not strongly object to the consent position, noting it is not dissimilar to provisions
which operate in industrial instruments, such as clauses 15.1(b) and 15.3(c)(ii) in the NSW and
ACT Catholic Systemic Schools Enterprise Agreement 2020. It submitted that the proposed
clause should also include a provision whereby a teacher who has not become re-accredited as
proficient within a certain time period (e.g. 12 months) will revert to being paid as a graduate
until such time as they achieve proficient status.
[60] The AFEI characterised the consent position as “problematic” on the basis that it does
not take into account the need for the returning teacher to demonstrate current knowledge in
education to maintain proficient status, how long the teacher has been absent from teaching,
and in what capacity the teacher will be returning, either full or part-time.
Consideration
[61] We consider that the provision proposed in the consent position should be adopted (as
clause 14.7 and subject to minor drafting modifications) except, as earlier stated, it should
operate from 1 January 2022.
2.5 Support available to new teachers seeking to obtain proficient status
[2021] FWCFB 6021
21
[62] The IEU and ACA/ABI propose as part of the consent position that a new clause 14.11,
to provide as follows:
14.11 Support for new teachers
(a) It is the responsibility of the individual Level 1 teacher to achieve
accreditation or registration at the level of proficient teacher within the
required timeframes. The employer will support the Level 1 teacher to
obtain accreditation or registration at the proficient teacher standard,
which will include reasonable release from ordinary duties for the Level
1 teacher where operationally practicable.
(b) If a Level 1 teacher has concerns regarding the support being provided
by the employer, they should discuss the matter with the employer. If the
matter remains unresolved, the matter may be dealt with in accordance
with Clause 31 - Dispute Resolution.
[63] In support of this aspect of the consent position, the IEU submitted that, in jurisdictions
with mandatory accreditation or registration as a proficient teacher, proficient status must be
obtained within a certain time. It relied on the example of a full-time teacher in NSW, who must
achieve proficient status within 3 years of completing their teaching qualifications and noted
that a teacher cannot progress to Level 2 of the new classification structure without such status.
It noted that preparing the application to become proficient is time-consuming and must include
documentary evidence and observation reports to the accrediting authority covering at least one
of the Proficient Teacher Standard Descriptors for each of the seven Standards and demonstrate
their engagement in a range of professional activities. It submitted that the expectations are the
same in all sectors, including in early childhood education and care. It referred to the
requirement for a teacher seeking to obtain proficient status needing access to a supervisor or
mentor who has proficient status and noted the difficulty for some early childhood teachers to
identify and/or access a mentor, as it is not uncommon for there to be only one early childhood
teacher employed at a location. It further submitted that the staffing and ratio obligations in the
sector may make it difficult to allow an early childhood teacher time away from their teaching
duties to prepare their application. To this end, the consent variation proposes that employers
have a balanced obligation to provide assistance to teachers to the extent that it is operationally
practicable.
[64] CCSA supported the consent position and CER did not object to it.
[65] The AEU supported the consent position insofar as it provides “reasonable release” to
a Level 1 teacher where operationally practicable. However it proposed in addition that
“reasonable release” ought also to be extended to supervising/mentor teachers without loss of
pay to the supervisor/mentor. It submitted that the Commission must ensure that modern awards
provide a fair and relevant safety net of terms and conditions under the modern awards objective
and that “reasonable release” makes available to new or proficient teachers a safety net level
of support to enable the new remuneration structure to work in a fair and relevant manner. The
AEU submitted that extending “reasonable release” to a supervising teacher where it is
operationally practicable is necessary because of the significant additional time required to
mentor a Level 1 teacher and add value. Without this, it submitted, the remuneration structure
will rely upon supervising teachers voluntarily assuming an extra burden in addition to their
ordinary duties out of selfless collegiality or pride in profession.
[2021] FWCFB 6021
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[66] In support of its position, the AEU relied upon a witness statement made by Ms Cara
Nightingale, the Vice President Early Childhood of the Victorian Branch of the AEU made on
14 July 2021.5 Ms Nightingale was not required by any party for cross-examination. In her
statement, Ms Nightingale expressed the opinion that both provisionally-registered teachers
(PRTs) and their mentors/supervising teachers should be provided with some reasonable release
from ordinary duties because of the additional work, time and support required for a PRT to
achieve full registration. Ms Nightingale described the position pertaining in Victoria whereby
the Victorian Institute of Teaching (VIT) has set out a five-stage process for teachers to apply
for full registration. Ms Nightingale’s assessment was that a total of approximately 10 days’
work over and above a PRT’s normal duties was necessary to complete this process, and said
on average it takes a PRT two years to progress to full registration. She said that she regularly
discussed the process with PRTs and their mentors, and they reported to her that a significant
workload was required for both the PRT and their mentor. In respect of mentors, Ms
Nightingale’s estimate was that the process requires the equivalent of 7 days of work in addition
to the ordinary duties for that teacher, and she said that this made some senior teachers reluctant
to act as mentors at all or for a second time. She noted that in the Victorian Early Childhood
Teachers and Educators Agreement 2020, which applies to 383 early childhood sector
employers, provision is made for up to 4 days’ paid leave for PRTs and mentors for the purposes
of moving to full registration, and requests for leave must not unreasonably be refused. Ms
Nightingale also said that a PRT in the early childhood sector may face challenges in accessing
a mentor because many workplaces are small, employ few teachers and frequently only roster
one teacher to work at a time, unlike in schools. This may mean that a mentor needs to be found
from another employer.
[67] The ACA/ABI opposed the AEU’s proposal. It was submitted that the proposal could
apply in two distinct scenarios: first, where the employer had encouraged or supported one of
their teachers to become a mentor/supervisor for use in the employer’s business or, second,
where a teacher has chosen to become a mentor/supervisor and makes themself available at
large for different employers. The ACA/ABI submitted that it was questionable whether the
award needed to deal with the first scenario, since the employer and the employee would no
doubt resolve any operational issues arising. As to the second scenario, it was submitted that
the award should not deal with this issue taking into account that a decision to become a
mentor/supervisor does not necessarily arise in the context of the employment relationship,
concern the work the teacher otherwise does for their employer, and may concern teachers in
an entirely unrelated business. In those circumstances, ABI submitted, a requirement for an
employer to provide paid release time to a teacher who is also a mentor/supervisor would not
align with the notion of a fair and relevant minimum safety net, since it would involve an
employer paying an employee to do something in another employer’s business without the
employer’s consent which is outside the duties and role for which the employee was hired.
[68] ABI relied on two witness statements, the makers of which were not required for cross-
examination. The first was made by Rhonda Drake, the approved provider, director and owner
of Snuggles Early Learning Centre in Victoria, on 2 August 2021.6 Ms Drake is registered as
both a primary school teacher and an early childhood teacher, is a mentor for PRTs, and has
mentored approximately 4 PRTs and is currently mentoring another 7. In her witness statement,
5 Statement of Cara Nightingale dated 14 July 2021 (Exhibit 137)
6 Statement of Rhonda Drake dated 2 August 2021 (Exhibit 138)
[2021] FWCFB 6021
23
Ms Drake described the process by which she became a mentor, including that she was asked
by the VIT to become a mentor and undertook a 2-day workshop conducted by the VIT. Ms
Drake said that she “believe[d] strongly in ‘giving back’ to the profession” and that becoming
a mentor has allowed her to mentor early childhood teachers in the Snuggles business and also
at other centres. Ms Drake said she managed to ‘juggle’ her role as a mentor with her other
duties and that, in her experience, early childhood teachers who had been through the process
did not require time off other than when visiting teachers to observe practice or having
scheduled discussions with herself as mentor. She also said that the evidence and documentation
required is not arduous. Ms Drake went through the five-stage process, and her estimate was
that only about 4 days were required “off the floor” to complete the process. Her opinion was
that “this is a personal formal accreditation and thus should be viewed as such by the teacher”.
[69] The second witness statement was made by Ms Rita Totinto, the approved provider,
CEO and owner of three long day-care centres in NSW.7 She is qualified as an early childhood
teacher and works as such for three days per week. Ms Totinto said that it is the responsibility
of the individual teacher to find a supervisor and to achieve proficient accreditation, and it was
up to the teacher to contact the NSW Education Standards Authority (NESA) to be assigned a
supervisor. Ms Totinto, of her own initiative, had contacted the NESA in 2018 about becoming
a supervisor, but was informed that this would be too complex for a small business operator to
undertake and that it was easier to assign a mentor. She said in her business, she does not require
any teacher to become a supervisor, and she does not consider it prudent as a business owner
to release from duty a teacher acting as a supervisor for someone else outside of her centres
since this would be a significant disruption to her business and cause additional costs with no
benefit to her business. Ms Totinto said that, in her experience, a lot of the work required to
achieve accreditation can be done while the early childhood teacher is at work, and her teacher
who went through the accreditation process did not have any release from duty.
[70] The AFEI opposed the inclusion of any mentoring clause.
Consideration
[71] It is clear that, under the new classification structure which will be implemented arising
from the April decision, the capacity of a teacher to obtain accreditation as a proficient teacher
is a significant matter since such accreditation is necessary in order for a teacher to progress
from Level 1 to Levels 2, 3 and 4. However, in our view, the responsibility to obtain (and
maintain) professional accreditation/registration is a fundamental characteristic of being in a
professional occupation, such that the primary burden for obtaining proficient accreditation
must fall on the teacher themselves. In this respect, we consider that new clause 14.11 proposed
by the IEU and the ACA/ABI as part of the consent position is correct in principle. The
obligation proposed for the employer to support a graduate teacher in obtaining proficient
accreditation, including by providing reasonable release from ordinary duties where
practicable, appears to us to strike a fair and appropriate balance as to the extent of assistance
which is to be provided by the employer.
[72] As to the AEU’s proposed further variation, it may be accepted that the evidence before
us in the primary hearing showed that, in early childhood education and in particular in regional
areas, graduate teachers are likely to have difficulty in obtaining a mentor/supervisor within
7 Statement of Rita Totinto dated 30 July 2021 (Exhibit 139)
[2021] FWCFB 6021
24
their workplace and will have to look further afield. This is primarily a function of the small
and dispersed nature of early childhood centres, where there is likely only to be a small number
of teachers at any given centre. This may result in senior teachers acting as mentor/supervisor
for teachers employed in other businesses.
[73] It is obviously important for the teaching profession in the early childhood sector that
senior teachers, as Ms Drake put it, ‘give back’ to the profession by acting as
mentors/supervisors in this way. However, it does not follow that it would be fair for the
employer of any such senior teacher acting in this way to be required to bear the cost of this by
releasing the teacher from ordinary duty, in circumstances where it is not proposed that the
employer’s consent to the teacher taking on the mentor/supervisor’s role would be required and
where the employer may not employ the teacher who is being mentored/supervised and thus
would derive no benefit from the arrangement. Accordingly, we will not accede to the AEU’s
proposed further variation.
[74] The EST Award will be varied to insert the proposed clause 14.11 in the consent position
(as clause 14.8). However, the parties should engage in continuing review of the practical
capacity of graduate teachers to obtain proficient accreditation/registration such as to enable
progression from Level 1 to Levels 2-4. If it proves to be the case that there are structural
impediments to obtaining proficient accreditation/registration so that graduate teachers are
unable to progress to the higher levels in the classification structure as we intend they should,
then it may be necessary for the EST Award to be varied further to overcome this.
3. Educational Leader allowance
[75] In respect of the Educational Leader allowance as set out at paragraph [658] of the April
decision, the consent position provides for the allowance to be payable to Educational Leaders
in addition to any Director’s allowance (where applicable). The proposed variation stipulates
that where the position of Educational Leader is shared, the payments may also be shared and
in circumstances where a centre operates less than five days a week, the allowance is reduced
pro rata. In support of the consent position, the IEU submitted that the proposed variation
clarifies that where the responsibilities of being Educational Leader are shared with another
teacher or teachers, the allowance is similarly shared, however this does not mean that merely
because a teacher works part-time hours the allowance is to be paid pro rata. It submitted that
the full allowance is payable to the person who bears the responsibilities of Educational Leader
regardless of their working hours, unless the early childhood facility operates less than five days
a week, in which case the allowance is payable on a pro rata basis. Should an Educational
Leader also be a Director, the proposed consent variation stipulates that they are entitled to both
allowances.
[76] The CCSA and CER supported the consent position and the AEU did not object to it.
[77] The AFEI filed a submission opposing the consent position. It submitted that it was
unclear why the allowance is stated as $3,845.14 per annum in the proposed consent variation
when applying the national minimum wage increase of 2.5% to $3,302.46 as set out in the April
decision which equates to $3,385.02. Further, it submitted that part-time employees should get
a pro rata entitlement as is the case with the director’s allowance pursuant to clause 19.2 of the
EST Award.
Consideration
[2021] FWCFB 6021
25
[78] We accept the consent position in relation to the quantum of the Educational Leader
allowance. In the April decision at [658], we determined that the allowance should be equal to
the Level 1, category C leadership allowance currently provided for in clause 19.3(g) of the
EST Award. Clause 19.3(g)(i) provides that the quantum of the allowances is based on a
percentage of the “standard rate”, which is defined in clause 2 to mean “the minimum annual
rate applicable to Level 1 in clause 17.1”. No party suggested that we should change this
definition of “standard rate”, or remove the linkage between the leadership allowances and the
“standard rate”, by reason of the new classification structure and its redefined Level 1. The
percentage amount for the Level 1, category C leadership allowance is 0.63%. The proposed
variations advanced as part of the consent position correctly quantifies the allowance at
$3,845.14 per annum (that is, 0.63% of the Level 1 classification rate of $61,034, as adjusted
in accordance with the most recent Annual Wage Review).
[79] We also accept 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 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. The consent position involves a
new clause 19.4 which deals with the Educational Leader allowance. We do not consider that
proposed clauses 19.4(e) and (f) deal with pro-rata payment situation with sufficient precision.
These proposed provisions will be replaced with the following:
(e) Where an employee is required to act as educational leader for less than 5 days
per week, the annual allowance prescribed by clause 19.4(c) 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.
4. Scope of award coverage – definition of “teacher”
[80] In addition to the consent variation proposed by the IEU and the ACA/ABI, CCSA
proposed the amendment of the definition of “teacher” in clause 2 of the EST Award to extend
its coverage to include employees with conditional teacher accreditation working in an early
childhood education service. This would encompass some diploma-qualified educators who are
taken to be teachers for the purposes of the Education and Care Services National Regulations
2011 (National Regulations) after they have completed 50% of an approved early childhood
degree. CCSA proposed that the new Level 1 classification should only be applicable to these
individuals.
[81] The IEU submitted that the proposed amendment would not make a practical difference
since any person employed as a teacher who has conditional accreditation/registration would
be a teacher for the purposes of the National Regulations. The ACA/ABI opposed CCSA’s
amendment on the basis that it sought to extend the coverage of the EST Award beyond
“teachers” as defined in the award, the National Regulations are not applicable in all
jurisdictions or are due to expire within the next two years and, if CCSA wished to prosecute
the issue, it should be done by filing an application under s 158 of the FW Act in the normal
and proper manner.
Consideration
[2021] FWCFB 6021
26
[82] Clause 4.1 of the EST Award provides that it covers employers in the school education
industry and the children’s services and early education industry and their “employees”. Clause
2 defines “employee” to mean, relevantly, “a person employed as a teacher” in either of the
industries identified in clause 4.1. “Teacher” is defined by clause 2 to mean:
teacher means a person employed as such by a school, children’s service or early
childhood education service and who performs duties which include delivering an
educational program, assessing student participation in an education program,
administering an education program and performing other duties incidental to the
delivery of the education program. So as to remove any doubt, teacher includes a teacher
in a senior leadership position, but not a principal or deputy principal.
[83] To the extent that CCSA’s proposed change to the definition of “teacher” would expand
the coverage of the EST Award, this would presumably come at the expense of the Children’s
Services Award 2010 which otherwise covers the children’s services and early education
industry. Section 163(1) of the FW Act provides, relevantly, that the Commission must not
make a determination varying a modern award so that certain employers or employees stop
being covered by the award unless the Commission is satisfied that they will instead become
covered by another award “that is appropriate for them”. We do not consider that we have
sufficient material for us to reach the requisite state of satisfaction that the EST Award is
“appropriate” for the category of employees to which the CCSA refers (as compared to the
Children’s Services Award 2010). Indeed, these proceedings have not been concerned with any
issues of the scope of coverage of the EST Award, so that there has been no evidence addressing
the issue. Further, the current phase of the proceedings is concerned with the implementation
of the April decision, and the issue now raised by the CCSA does not appear to us to have any
real connection to the April decision. Accordingly, we will not make the variation proposed by
the CCSA. This issue may be pursued by way of a separate application made pursuant to s
158(1) of the FW Act.
C. Conclusion and next steps
[84] We consider that the variation to the EST Award to implement the new remuneration
structure determined in the April decision and further articulated in this decision is necessary
to meet the modern awards objective in s 134(1) and would be consistent with the minimum
wages objective in s 284(1). In respect of s 134(1), we set out our consideration of the matters
specified in paragraphs (a)-(e) and (g) in [661] of the April decision. Having regard to the
matters identified in [19] above, we consider that paragraphs (f) and (h) are to be assigned
neutral weight. As to s 284(1), we set out our consideration of the matters in paragraphs (b)-(e)
at [663] of the April decision. In relation to paragraph (a), we again assign this matter neutral
weight having regard to our conclusion in [19] of this decision.
[85] A draft determination to vary the EST Award to give effect to the April decision and
this decision shall be published in conjunction with this decision. Interested parties will be
allowed 14 days from the date of this decision to file any submission they wish to make about
the terms of the draft determination. After any such submissions are received, the presiding
member shall, if necessary, conduct a conference of the parties to resolve any outstanding
issues.
[2021] FWCFB 6021
27
VICE PRESIDENT
Appearances:
I Taylor SC with L Saunders of Counsel on behalf of the Independent Education Union.
M Champion of Counsel on behalf of the Australian Education Union.
N Ward on behalf of the Australian Childcare Alliance and Australian Business Industrial.
R Warren of Counsel on behalf of the Australian Federation of Employers and Industries.
J Gunn on behalf of Community Connections Solutions Australia Ltd.
C Owens on behalf of Catholic Employment Relations Ltd.
C Rawson on behalf of the Commonwealth.
I Arrabalde on behalf of herself and Ms E Arrabalde.
Hearing details:
2021.
Sydney (via video-link):
23 August.
Printed by authority of the Commonwealth Government Printer
PR734736
THE FAIR WORK COMMISSION THE
[2021] FWCFB 6021
28
Attachment A – Proposed variations to give effect to the consent position
2. Definitions
…
full registration has the same meaning as Proficient accreditation.
Proficient accreditation means accreditation as a Proficient Teacher that meets the
requirements for full registration by a body which oversees accreditation and
recognition of teachers’ professional capacity in any State or Territory. A reference to
full registration is a reference to Proficient accreditation.
…
14. Classifications
…
14.2 Classification on Appointment
On appointment, an employee will be classified according to the criteria set out below
and paid in accordance with Clause 17 - Minimum Rates.
Classification Criteria
Level 1 Graduate Teacher and all other teachers (as defined) including those
holding provisional or conditional accreditation /registration
Level 2 Teacher with Proficient accreditation/registration or equivalent
Level 3 Teacher with Proficient accreditation/registration or equivalent after
three years’ satisfactory service at a proficient level
Level 4 Teacher with Proficient accreditation/registration or equivalent after six
years’ satisfactory service at a proficient level
Level 5 Teacher with Highly Accomplished / Lead Teacher accreditation /
registration or equivalent
14.3 Satisfactory Service
(a) All service will be deemed satisfactory for the purposes of subclause 14.2 unless the
employer disputes for a given year that it is satisfactory by notifying the Fair Work
Commission of the dispute pursuant to Clause 31—Dispute Resolution following a
formal review and the provision of specific reasons.
(b) Service is satisfactory if the teacher has complied with the requirements of the
Australian Professional Standards for Teachers (APST).
14.4 Transitional Provisions
(a) On 1 January 2022 [“the classification structure transition date”], the classification
and pay structure was varied from a twelve level incremental system to a five level
[2021] FWCFB 6021
29
system based on accreditation/registration status and teaching service at a proficient
level.
(b) An employee shall transition to the new classification structure based on the
following table:
Classification prior to the
classification structure
transition date
Classification after the
classification
structure transition date
Level 1 Level 1
Level 2 Level 1
Level 3 Level 1
Level 4 Level 1
Level 5 Level 2
Level 6 Level 2
Level 7 Level 2
Level 8 Level 3
Level 9 Level 3
Level 10 Level 3
Level 11 Level 4
Level 12 Level 4
No transition Level 5
(c) Provided that if an employee covered by this Award prior to the classification
structure transition date is better off being classified pursuant to subclause 14.2 then
those provisions apply at the point of transition.
(d) An employee who is employed after 1 January 2022 and before 1 January 2023 who
was, prior to the classification structure transition date, qualified as a teacher or who
held teaching accreditation / registration status, shall be classified in accordance with
subclause 14.4 (b) and the provisions in Schedule H, or in accordance with subclause
14.2, whichever is the more beneficial.
(e) For employees who transition pursuant to 14.4 (b) or (d), all service, in excess of
two years, will count as service at a proficient level where that service has followed the
attainment of a recognised teaching qualification. Provided that where a teacher gained
proficiency within two years, all service will be at a proficient level from the date that
they gained proficiency.
(f) Following transition pursuant to this subclause 14.4, such employees will progress
in accordance with subclause 14.7.
(g) To avoid doubt, these transitional provisions apply to employees who are covered
by the award on the relevant dates, even if the award did not apply to them on the
relevant dates.
(h) When transitioning to the new classification structure:
[2021] FWCFB 6021
30
(i) no employee shall suffer a reduction in their annual rate of pay as a
consequence of the transition; and
(ii) an employer is not required to increase monetary obligations above the
relevant minimum annual rate and any increase may be absorbed into existing
over award payments.
14.5 Recognition of previous service
(a) Service as a part-time teacher will normally accrue on a pro rata basis according to
the percentage of a full-time teaching load undertaken in any year. However, subject to
clause 11.3, where the hours are more than 90% of a fulltime load, service will count as
a full-time year.
(b) In the case of a casual employee, the equivalent of a full-time year of teaching service
is 200 full casual days in Australian schools.
(c) In the case of an early childhood/preschool teacher, the following will count as
service:
(i) teaching experience in preschools, kindergartens, multi-purpose centres, early
intervention services, long day care centre and other similar services;
(ii) teaching experience of children from 4 to 8 years (or in the infants
department) of a school registered and/or accredited under the relevant authority
in each state or territory;
(iii) service as a lecturer in early childhood education or child development, as a
child development officer or equivalent; and
(iv) service as a diploma qualified childcare worker, at the rate of one year for
every 3 years’ service up to a maximum of 4 years.
(d) For the purpose of this award teaching experience does not include employment as
a teacher in a TAFE program (unless the teacher is employed to teach a Vocational and
Educational Training (VET) program) or in an English Language School.
14.6 Evidence of qualifications and teaching experience
(a) On engagement, the employer may require that the employee provide documentary
evidence of qualifications and teaching experience.
(b) If an employer considers that the employee has not provided satisfactory evidence,
and advises the employee in writing to this effect, then the employer may decline to
recognise the relevant qualification or experience until evidence is provided. The
employer will not unreasonably refuse to recognise the qualifications or teaching
experience of an employee.
(c) Where an employee has completed further teaching experience with another
employer (for example during unpaid leave) or additional qualifications after
[2021] FWCFB 6021
31
commencement of employment, they will be entitled to be classified accordingly and
back paid from the date of completion of the experience or qualifications, provided the
employee provided satisfactory evidence to the employer within 3 months of
completion. In all other cases the employee will be classified and paid from the date
satisfactory evidence is provided.
14.7 Progression
(a) Subject to subclauses 14.8-14.10, an employee on Level 1 will progress to Level 2
from the first full pay period after the teacher has been accredited as Proficient.
(b) Subject to subclauses 14.8-14.10, progression from Level 2 to Level 3 and Level 3
to Level 4 will occur from the first full pay period after the employee has completed the
years of service set out on subclause 14.2.
(c) Provided however the total number of years of service at a Proficient level will be
deemed to be not less than the total service of the teacher minus two years in the case of
teachers covered by the transition provisions pursuant to subclause 14.4.
14.8 Jurisdictions without compulsory accreditation / registration of Teachers
(a) Where a State or Territory has not introduced a requirement for teachers (or a subset
of teachers) to be accredited as proficient/ fully registered, such teachers in these
jurisdictions will:
(i) be deemed Proficient for the purposes of this Award either after two years of
service or on obtaining proficient accreditation/full registration, whichever
occurs sooner; and
(ii) count all service beyond the first 2 years of service, or after they obtain full
registration, (whichever is the greater) as service at a proficient level for the
purposes of subclause 14.2.
(b) A teacher will not be deemed proficient after 2 years pursuant to subclause 14.8(a)(i)
if during the first 18 months’ service the employer notifies the Fair Work Commission
of a dispute pursuant to Clause 31 - Dispute Resolution as to whether the teacher has
met the requirements of the Australian Professional Standards for Teachers (APST) for
a proficient teacher. Such a dispute may only be notified following a formal review and
the provision of specific reasons and a reasonable period to respond.
(c) A teacher who forms the view that they have equivalency to a proficient teacher
before they have completed 2 years of service, can utilise the provisions of Clause 31 -
Dispute Resolution to seek recognition that they have reached Proficient status.
(d) A teacher in a State or Territory which does not have a method to obtain accreditation
as a proficient teacher has that status if they meet the requirements of the Australian
Professional Standards for Teachers (APST) for a proficient teacher.
(e) These provisions also apply if a State or Territory introduces a requirement for
teachers (or a subset of teachers) to be accredited as proficient/ fully registered after 1
[2021] FWCFB 6021
32
January 2022 in respect of teachers who, as at that date the requirement was introduced
had commenced employment.
14.9 Progression to Level 5
(a) A teacher in a State or Territory which does not have a method to obtain accreditation
as a highly accomplished or lead teacher can utilise the provisions of Clause 31 - Dispute
Resolution to seek recognition that they meet the requirements of the Australian
Professional Standards for Teachers (APST) for a highly accomplished or lead teacher.
(b) A teacher in a State or Territory which does not have a method to obtain accreditation
as a highly accomplished or lead teacher has that status if they meet the requirements of
the Australian Professional Standards for Teachers (APST) for a highly accomplished
or lead teacher.
14.10 Returning to Teaching
(a) A teacher with at least two years’ service who was previously registered / accredited
as Proficient or who was not required to be registered/accredited as Proficient who:
(i) is returning to teaching following a break of service, where they have not
obtained or maintained proficient status; or
(ii) otherwise does not hold proficient accreditation/registration status;
shall be classified on Level 2 for one year full-time equivalent teaching service,
during which period the teacher may apply for proficient teacher accreditation
or registration or apply for mutual recognition (in the case of an interstate
teacher) with the relevant teacher accreditation authority. Upon attaining
proficient teacher accreditation or registration, the teacher will progress to the
relevant Level between Level 2 and Level 4 based on their service at a proficient
level. All service, in excess of two years, will count as service at a proficient
level where that service has followed the attainment of a recognised teaching
qualification.
(b) If the teacher does not attain proficient teacher accreditation or registration within
the one year full-time equivalent teaching service, the teacher will be paid at Level 1
until the teacher achieves proficient teacher accreditation; on such date the teacher will
progress to the relevant Level between Level 2 and Level 4 based on their service at a
proficient level. All service, in excess of two years, will count as service at a proficient
level where that service has followed the attainment of a recognised teaching
qualification.
(c) Subclause 14.10 applies on or after 1 January 2023. Prior to that date, the provisions
of subclause 14.4 apply.
(d) If a teacher to whom this subclause 14.10 applies is employed in a State or Territory
that has not yet introduced a requirement for teachers (or a subset of teachers) to be
accredited as proficient/ fully registered, then subclause 14.8 applies.
[2021] FWCFB 6021
33
14.11 Support for new teachers
(a) It is the responsibility of the individual Level 1 teacher to achieve accreditation or
registration at the level of proficient teacher within the required timeframes. The
employer will support the Level 1 teacher to obtain accreditation or registration at the
proficient teacher standard, which will include reasonable release from ordinary duties
for the Level 1 teacher where operationally practicable.
(b) If a Level 1 teacher has concerns regarding the support being provided by the
employer, they should discuss the matter with the employer. If the matter remains
unresolved, the matter may be dealt with in accordance with Clause 31 - Dispute
Resolution.
…
19.4 Wage-related allowances—educational leader
(a) Clause 19.4 applies only to a teacher in the children’s services and early childhood
education industry.
(b) The allowance is based on a percentage of the standard rate.
(c) An educational leader’s allowance of $3845.14 per annum will be paid to an
employee who is required to discharge the responsibilities of the educational leader
under Regulation 118 of the National Regulations.
(d) The educational leader’s allowance is payable in addition to any director’s allowance
payable under Clause 19.2.
(e) Where the position of educational leadership is shared, the payments may also be
shared.
(f) In respect of an early childhood facility that operates less than 5 days a week, the
allowance payable is reduced pro rata.
