1
Fair Work Act 2009
s.158 - Application to vary or revoke a modern award
Indigenous Education And Boarding Australia
(AM2022/28)
Educational Services
DEPUTY PRESIDENT CLANCY
COMMISSIONER BISSETT
COMMISSIONER YILMAZ
MELBOURNE, 1 NOVEMBER 2023
Application to vary the Educational Services (Schools) General Staff Award 2020.
[1] This decision deals with an application under s.158 of the Fair Work Act 2009 (the
Act) made by Indigenous Education and Boarding Australia (IEBA) (hereinafter described as
“the Application”) to vary the Educational Services (Schools) General Staff Award 2020
(General Staff Award) 1 by broadening its coverage.
Background
[2] By way of background IEBA outlined in the Application:
a) In Australia, in addition to approximately 198 boarding schools, there are 41 boarding
residences that operate independently of a school, often referred to as hostels.
b) The boarding residences/hostels provide residential accommodation and educational
support for students who study away from home.
c) The boarding schools and boarding residences/hostels provide the same
accommodation and educational support to secondary students.
d) Both boarding schools and boarding residences/hostels employ employees who
provide ‘boarding supervision services’ as defined in clause 2 of the General Staff
Award.
e) The classifications in the General Staff Award for employees providing ‘boarding
supervision services’ in boarding schools are capable of applying to employees in the
boarding residences/hostels.
f) Clause 4 of the Award extends coverage to the ‘school education industry’ to include:
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DECISION
AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/awards/variations/2022/am202228-f46-ieba-020922.pdf
[2023] FWCFB 138
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i) any employer which supplies labour on an on-hire basis in the school education
industry (Clause 4.5); and
ii) employers which provide group training services for apprentices and/or trainees
engaged in the school education industry (Clause 4.6).
g) It sought for residential boarding residences/hostels to be included within the coverage
of the General Staff Award because such employers provide a service to the education
sector and their employees perform the same duties as those employees in
classifications detailed in the General Staff Award.
[3] A conference before Deputy President Clancy took place on 19 December 2022. In
attendance were representatives from IEBA, the Australian Education Union (AEU), the
Independent Education Union (IEU) and the Australian Services Union (ASU). IEBA
outlined some additional information and it became apparent that these particular unions had a
range of questions arising out of the Application. It was suggested that the issue of coverage
raised by the Application might also be of interest to the United Workers’ Union (UWU) and
the Health Services Union (HSU). The transcript of the conference was published on the
Commission website on 9 January 2023.
[4] A previously constituted Full Bench of the Commission issued a Statement dated 23
December 2022. The 23 December 2022 Statement contained directions requiring the
Applicant and various interested parties to file and serve material in relation to the
application.
[5] Subsequently, on 14 March 2023, the President confirmed that as a consequence of
amendments made to the Act by the Fair Work Legislation Amendment (Secure Jobs, Better
Pay) Act 2022, the application was required to be dealt with by an Expert Panel for the Care
and Community Sector.
[6] As a consequence, the previously constituted Full Bench issued the Statement dated 5
April 2023 in which it vacated the directions outlined in the 23 December 2022 Statement and
advised the parties that they were not required to take any further steps, but instead await
further advice from the Commission in relation to the future conduct of the Application.
[7] On 24 May 2023, the President directed that the Application be dealt with by this
presently constituted Expert Panel for the Care and Community Sector.
[8] The directions outlined in the 23 December 2022 Statement had afforded IBEA the
opportunity to file an outline of submissions addressing, inter alia, the modern awards
objective, together with any witness statements and documents upon which it intended to rely
in support of the application. IBEA responded by filing a Submission dated 23 February 2023.
[9] In this submission, IBEA advised it was seeking to vary the General Staff Award so
that it covered employees employed by standalone boarding residences/hostels providing
boarding accommodation to school students but operating independently of a school, who
perform ‘boarding supervision services’ as defined in clause 2 of the General Staff Award.
https://www.fwc.gov.au/documents/transcripts/19122022-am202228.htm
https://www.fwc.gov.au/documents/awards/variations/2022/2022fwcfb247.pdf
https://www.fwc.gov.au/documents/awards/variations/2022/2022fwcfb247.pdf
https://www.fwc.gov.au/documents/awards/variations/2022/2023fwcfb70.pdf
https://www.fwc.gov.au/documents/awards/variations/2022/2023fwcfb70.pdf
https://www.fwc.gov.au/documents/awards/variations/2022/am202228-sub-ieba-230223.pdf
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[10] The ASU sent a collective response on 17 March 2023 on behalf of the AEU, the IEU
and the UWU (collectively, the Unions). Through their Response dated 17 March 2023, the
Unions submitted:
a) They were unable to make a meaningful contribution to the Commission’s assessment
of the merits of the Application given the “limited material” filed by the Applicant;
b) The directions outlined in the 23 December 2022 Statement ought be varied to provide
the Applicant with an extension of four weeks to provide further detail in relation to
the Application;
c) The Applicant be granted a further four weeks to provide the following material:
i) Submissions addressing how the proposed variation supports the modern
awards objective under section 134 of the Act.
ii) Further details in relation to the cohort of employees potentially impacted,
including:
• The number of workers currently employed in the sector.
• The number of workers who would be affected by the variation sought.
• The Awards and classifications under which the potentially affected
workers are currently employed.
• The employment locations of the relevant workers.
• Modern awards or Agreement (if any) applicable to their employment.
iii) Further information concerning the nature of the work performed by
potentially affected workers, including:
• De-identified position descriptions for such employees; and
• Materials setting out in detail the current terms and conditions of the
relevant employees.
iv) Submissions setting out why the Applicant believes that its objectives are best
achieved through an award variation rather than through its members engaging
in good faith enterprise bargaining.
[11] Having regard to the Submission dated 23 February 2023 and the Response dated 17
March 2023, we issued a Statement dated 30 May 2023, containing directions requiring:
a) IEBA to file an outline of submissions addressing, inter alia, the modern
awards objective, together with any witness statements and documents upon
which it intended to rely in support of the Application, addressing the matters
raised in the Response dated 17 March 2023 and in particular, outlining a
description of the sector and services provided, including the profile of the
employers in the sector and the boarders residing in the hostels (e.g. secondary
school students, trainees and/or school-based apprentices) and the work
performed by employees in the sector.
https://www.fwc.gov.au/documents/awards/variations/2022/am202228-corr-asu-ors-170323.pdf
https://www.fwc.gov.au/documents/awards/variations/2022/2023fwcfb100.pdf
[2023] FWCFB 138
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b) The Unions, together with any other interested parties, to file and serve an
outline of submissions together with any witness statements and documents
upon which they intended to rely in response to the Application.
c) The Applicant to file any submissions and material in reply.
[12] At the Hearing, Mr Greg Franks appeared for the IEBA, Mr Jack Kenchington-Evans
appeared for the AEU and also represented the IEU. Mr Thomas Malone and Mr Nikolas
Pefanis appeared for the UWU and Ms Virginia Wills appeared for the ASU.
Submissions
[13] IEBA filed Submissions dated 27 June 2023, summarising what is sought by the
Application as the variation of the General Staff Award to include award coverage for
employees of standalone boarding residences/hostels providing boarding accommodation to
school students, but operating independently of a school, who provide ‘boarding supervision
services’, as defined in clause 2 of the General Staff Award. IBEA submits the effect of the
Application, if granted, would be to ‘rope in’ student hostels employing boarding supervisors
currently excluded from the General Staff Award and suggests the proposed variation will
extend clause 4, which it says already provides extended employer coverage to labour hire
employers and employers providing group training services for apprentices and/or trainees in
the school education industry.
[14] At the Hearing, the IEBA confirmed that the variation they seek would “rope in”
employers providing residential accommodation services for young people who are studying
away from home and attending a school, registered and/or accredited under the relevant
authority in each state or territory, in regard to employees in the classification of “boarding
supervisor” covered by the General Staff Award. Mr Franks explained the purpose of the
Application as follows:
“So some of the larger hostels will have a range of other occupations. In this
application, we weren't actually proposing to rope in those other occupations. It is just
those boarding supervisory occupations that were looking to be included. So the
expectations around a cleaner, for example, having anything other than the appropriate
award coverage that relates to cleaners wasn't there. It was there to be able to cover the
specific roles around boarding supervision and their managers.”2
[15] Mr Franks also detailed that with 11 of the 41 separate stand-alone boarding
residences operated through State or Territory governments and a further 8 operated by the
Australian Government, through Aboriginal Hostels Limited, there were approximately 20
employers that don't have coverage under the General Staff Award. Mr Franks also proffered
that the total number of employees potentially affected was not significant, having put
forward an estimate that these 20 employers would have approximately 15 staff.3
[16] IBEA asserts the occupational classifications defining ‘boarding supervision services’
are the same for hostels as they are for boarding schools and identifies the following
classifications from the General Staff Award4 as being relevant:
a) A.2.2 Level 2 - Boarding supervision services grade 1:
https://www.fwc.gov.au/documents/awards/variations/2022/20230816_am202228.pdf
https://www.fwc.gov.au/documents/awards/variations/2022/am202228-sub-ieba-280623.pdf
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b) A.2.3 Level 3 - Boarding supervision services grade 2;
c) A.2.4 Level 4 - Boarding supervision services grade 3;
d) A.2.5 Level 5 - Boarding supervision services grade 4.
[17] Mr Franks submitted that despite independent boarding residences varying between
small and large operations, the duties and functions of boarding supervisors across the
different establishments do not significantly vary and the classifications in the General Staff
Award would allow for any variability, depending on the range of activities boarding
supervisors are doing.5
[18] IBEA outlined that hostels are recognised by the Australian Government’s Department
of Social Services ABSTUDY Policy and Assistance for Isolated Children (AIC) Scheme
Guidelines and are identified under the ABSTUDY Policy Manual Glossary establishments
providing boarding accommodation for guests, usually in a dormitory where guests share a
bathroom and kitchen facilities.
[19] IBEA further outlined that students residing in hostels are only in attendance during
the school year. They are funded by Services Australia through ABSTUDY or AIC funding
arrangements, with payments made based on the reported number of students in residence at a
hostel at set reporting dates.
[20] IBEA indicated that the Hostels provide boarding over a 40-week period of school
attendance and proffered that this is the same as boarding schools. It suggested the 40-week
period is provided for in clause 14.5 of the General Staff Award, which accommodates the
averaging of hours for boarding supervision services employees and argued this clause is not
provided for in the Hospitality Industry (General) Award 2020 (Hospitality Award) or other
modern awards. Mr Franks said of the independent boarding residences, “they're not operating
as hotels/hostels that have people coming and going. They have the same group of students
there for those 40 weeks of every year. They operate around rosters of the same for those that
operate inside schools and those that operate outside schools.”6
[21] IBEA gave the following examples of how the hostels operate:
a) an extension of a school, such as CASLAU House which is part of Unity College in
Murray Bridge;
b) a private body operating independently of a school, with students in residence
attending a range of schools, such as the NRL Cowboys House in Townsville; and
c) State or Australian Government organisations, such as Wiltja Boarding (South
Australia) or Aboriginal Hostels Limited.7
[22] Material submitted in relation to Unity College outlined that CASLAU (Central
Australian Students Learning at Unity) House provides accommodation in home-stay
facilities for up to 15 indigenous students from Areyonga in the Northern Territory. CASLAU
House ‘parents’ supervise the accommodation and are responsible for the provision of meals,
establishment of routines, upkeep of the house and liaison with the House Parent Coordinator
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and Business Manager. Writing in support of the variation, the principal of Unity College
submitted:
“The application to vary coverage of the Educational Services (Schools) General Staff
Award 2020 will unify the expanding landscape of secondary student boarding and
Home-Stay services. It will also improve and strengthen the industry workforce,
encouraging people to consider boarding as a career pathway with the provision of
clear and concise occupational classifications under the modern award.
The student boarding sector providers and employees will benefit greatly from
consistency through the provision of a modern award that covers and keeps up with
the industry variations in services, covers its employees and providers, and is truly
reflective of the unique occupational classifications, roles, and responsibilities
exclusive to the student boarding industry.”
[23] NRL Cowboys House is a boarding facility for young Aboriginal and Torres Strait
Islander men and women attending 13 partner schools in Townsville. Residents come from
remote North Queensland indigenous communities. In the letter in support of the Application
submitted from NRL Cowboys House, it was outlined that the ABSTUDY student boarding
entitlement is paid to the boarding provider, while the ABSTUDY education fee component is
paid to the school and suggested that the only operational difference between independent
providers and school boarding facilities is that the independent providers extend student
boarding services to multiple schools who do not have boarding attached to their facilities.
The letter also suggested that the exclusion from the coverage of the General Staff Award
leads to confusion about the coverage for independent student boarding facilities and denial of
the benefits of industry consistency.
[24] A letter in support of the Application was also submitted from Torres Strait Kaziw
Meta Inc., a non-profit charity that has provided boarding facilities on Thursday Island for
outer islands secondary students so that they can attend high school on Thursday Island, the
only secondary education available to them in the Torres Strait.
[25] As to the modern awards objective, IBEA submitted that the considerations in
s.134(1)(da), s.134(g) and s.134(h) of the Act are relevant. In broad compass, IBEA asserted
boarding residences/hostels struggle to find appropriate award coverage for their staff and
argued that the awards providing coverage for occupations in hospitality, catering, and
community and social services are not specifically relevant to providers of boarding services
for school students. IBEA submitted that other than the General Staff Award, there is no
specific award coverage that is a good fit for such employers. IBEA also argued that providers
of boarding services are essential for the delivery of education to all children in Australia and
that a more educated population will generate more employment opportunities, better
economic conditions and economic growth.
[26] The Unions confirmed their opposition to the Application in Submissions dated 26
July 2023.
Legislative Context
[27] Key provisions of the legislative framework pertaining to applications to vary a
modern award relating to the Care and Community Sector are as follows:
https://www.fwc.gov.au/documents/awards/variations/2022/am202228-sub-asu-ors-260723.pdf
https://www.fwc.gov.au/documents/awards/variations/2022/am202228-sub-asu-ors-260723.pdf
[2023] FWCFB 138
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a) Section 157 of the Act provides that the Commission may make a determination
varying a modern award.
b) Section 617(8) of the Act provides a determination made under s.157(1) that the
President considers might relate to the Care and Community Sector must be made by
an Expert Panel constituted for the purpose of deciding whether to make the
determination.
c) Section 158 grants an organisation that is entitled to represent the industrial interests
of one or more employers that would be covered by the General Staff Award, standing
to apply for a variation.
d) Section 136 of the Act provides that a modern award:
• must only include terms that are permitted or required by the Act; and
• must not include terms that contravene the Act.
e) Section 138 provides that a modern award may include terms that it is permitted to
include and must include terms that it is required to include, only to the extent
necessary to achieve the modern awards objective.
[28] Section 157 of the Act provides that the Commission may make a determination
varying a modern award if it is satisfied that making the determination is necessary to achieve
the modern awards objective.
[29] The modern awards objective is defined by s 134(1), as follows:
“134 The modern awards objective
What is the modern awards objective?
134(1) The FWC must ensure that modern awards, together with the National
Employment Standards, provide a fair and relevant minimum safety net of terms and
conditions, taking into account:
(a) relative living standards and the needs of the low paid; and
(aa) the need to improve access to secure work across the economy; and
(ab) the need to achieve gender equality in the workplace by ensuring equal
remuneration for work of equal or comparable value, eliminating gender-based
undervaluation of work and providing workplace conditions that facilitate
women’s full economic participation; and
(b) the need to encourage collective bargaining; and
(c) the need to promote social inclusion through increased workforce
participation; and
[2023] FWCFB 138
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(d) the need to promote flexible modern work practices and the efficient and
productive performance of work; and
(da) the need to provide additional remuneration for:
(i) employees working overtime; or
(ii) employees working unsocial, irregular or unpredictable hours; or
(iii) employees working on weekends or public holidays; or
(iv) employees working shifts; and
(f) the likely impact of any exercise of modern award powers on business,
including on productivity, employment costs and the regulatory burden; and
(g) the need to ensure a simple, easy to understand, stable and sustainable
modern award system for Australia that avoids unnecessary overlap of modern
awards; and
(h) the likely impact of any exercise of modern award powers on employment
growth, inflation and the sustainability, performance and competitiveness of
the national economy.
This is the modern awards objective.”
[30] Section 134(2)(a) outlines that the modern awards objective applies to the
performance or exercise of the Commission’s powers under Part 2-3 of the Act.
[31] The following guidance as to the nature of the Commission’s task in determining an
application to vary an award was provided by the Full Bench in Horticulture Award 2020:
“[14] Variations to modern awards must be justified on their merits. The extent of the
merit argument required will depend on the circumstances. Significant changes where
merit is reasonably contestable should be supported by an analysis of the relevant
legislative provisions and, where feasible, probative evidence.
[15] Under s.157(1) of the Fair Work Act 2009 (Cth) (the Act), the Commission may
only make the variation sought by the AWU if satisfied that the variation is ‘necessary
to achieve the modern awards objective’. The ‘modern awards objective’ is defined in
s.134(1) as “provid[ing] a fair and relevant minimum safety net of terms and
conditions”, considering the matters at s.134(1)(a) to (h) (the s.134 considerations).
[16] Section 138 of the Act emphasises the importance of the modern awards
objective:
‘A modern award may include terms that it is permitted to include, and must
include terms that it is required to include, only to the extent necessary to
achieve the modern awards objective and (to the extent applicable) the
minimum wages objective.’
[2023] FWCFB 138
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[17] There is a distinction between what is ‘necessary’ and what is merely ‘desirable’.
Necessary means that which ‘must be done’; ‘that which is desirable does not carry the
same imperative for action.’
[18] Reasonable minds may differ as to whether a proposed variation is necessary
(within the meaning of s.138), as opposed to merely desirable. What is ‘necessary’ to
achieve the modern awards objective in a particular case is a value judgment, taking
into account the s.134 considerations to the extent that they are relevant having regard
to the context, including the circumstances of the particular modern award, the terms
of any proposed variation and the submissions and evidence.
[19] Further, the matters which may be taken into account are not confined to the
considerations in s.134. As the Full Court observed in Shop, Distributive and Allied
Employees Association v The Australian Industry Group:
‘What must be recognised, however, is that the duty of ensuring that modern
awards, together with the National Employment Standards, provide a fair and
relevant minimum safety net of terms and conditions itself involves an
evaluative exercise. While the considerations in s 134(a)-(h) inform the
evaluation of what might constitute a “fair and relevant minimum safety net of
terms and conditions”, they do not necessarily exhaust the matters which the
FWC might properly consider to be relevant to that standard, of a fair and
relevant minimum safety net of terms and conditions, in the particular
circumstances of a review. The range of such matters “must be determined by
implication from the subject matter, scope and purpose of the” Fair Work
Act.’
[20] In 4 Yearly Review of Modern Awards – Penalty Rates (Penalty Rates Decision)
the Full Bench summarised the general propositions applying to the Commission’s
task in the four-yearly review of modern awards, as follows:
‘1. The Commission’s task in the Review is to determine whether a particular
modern award achieves the modern awards objective. If a modern award is not
achieving the modern awards objective then it is to be varied such that it only
includes terms that are ‘necessary to achieve the modern awards objective’
(s.138). In such circumstances regard may be had to the terms of any proposed
variation, but the focal point of the Commission’s consideration is upon the
terms of the modern award, as varied.
2. Variations to modern awards must be justified on their merits. The extent of
the merit argument required will depend on the circumstances. Some proposed
changes are obvious as a matter of industrial merit and in such circumstances it
is unnecessary to advance probative evidence in support of the proposed
variation. Significant changes where merit is reasonably contestable should be
supported by an analysis of the relevant legislative provisions and, where
feasible, probative evidence.
3. In conducting the Review it is appropriate that the Commission take into
account previous decisions relevant to any contested issue. For example, the
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Commission will proceed on the basis that prima facie the modern award being
reviewed achieved the modern awards objective at the time it was made. The
particular context in which those decisions were made will also need to be
considered.
4. The particular context may be a cogent reason for not following a previous
Full Bench decision, for example:
• the legislative context which pertained at that time may be materially
different from the Fair Work Act 2009 (Cth);
• the extent to which the relevant issue was contested and, in particular,
the extent of the evidence and submissions put in the previous
proceeding will bear on the weight to be accorded to the previous
decision; or
• the extent of the previous Full Bench’s consideration of the contested
issue. The absence of detailed reasons in a previous decision may be a
factor in considering the weight to be accorded to the decision.
[21] The above observations are apposite to the Commission’s consideration of the
Application.
[22] Section 578 of the Act is also relevant, it provides:
‘In performing functions or exercising powers, in relation to a matter, under a
part of this Act (including this Part), the FWC must take into account:
(a) the objects of this Act, and any objects of the part of this Act; and
(b) equity, good conscience and the merits of the matter; and
(c) the need to respect and value the diversity of the work force by
helping to prevent and eliminate discrimination on the basis of race,
colour, sex, sexual orientation, age, physical or mental disability, marital
status, family or carer’s responsibilities, pregnancy, religion, political
opinion, national extraction or social origin.’” 8
(references omitted)
Standing of IBEA
[32] In addition to opposing the Application, the Unions queried whether IEBA has
standing to make the Application. Mr Franks confirmed IBEA is a membership organisation
providing broad-based advocacy.9 Based on the material before us and the support for the
Application expressed by a number of employers, we are satisfied that the IEBA falls within
Item 3(b) of the table in s.158(1) of the Act as an organisation entitled to represent the
industrial interests of one or more employees who would be covered by the Award that would
become covered by the General Staff Award if the variation was made.
Should the proposed variation be made?
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[33] IBEA has ultimately sought to vary the General Staff Award so that it covers
employees employed by standalone boarding residences/hostels providing boarding
accommodation to school students (but operating independently of a school) who perform
‘boarding supervision services’ as defined in the definition of ‘general employee’ in clause 2
of the General Staff Award.
[34] Mr Franks, Chief Executive Officer of IBEA, summed up the purposes of the
Application as follows:
“The request is a simple one, to create a rope-in clause that would allow those - there's
not a large number of them, a small number of residences that exist to do the same
work to look after students to have the same award coverage as their colleagues who
do that withinside [sic] a boarding school.”10
[35] The modern awards objective is to ‘ensure that modern awards, together with the NES,
provide a fair and relevant minimum safety net of terms and conditions’, taking into account
the particular considerations identified in ss.134(1)(a)–(h) of the Act.
[36] As outlined above, the Full Bench stated in Horticulture Award 2020:
“Reasonable minds may differ as to whether a proposed variation is necessary (within
the meaning of s.138), as opposed to merely desirable. What is ‘necessary’ to achieve
the modern awards objective in a particular case is a value judgment, taking into
account the s.134 considerations to the extent that they are relevant having regard to
the context, including the circumstances of the particular modern award, the terms of
any proposed variation and the submissions and evidence.”11
[37] The considerations in s.134, which have been characterised as broad social objectives,
do not necessarily exhaust the matters to which the Commission might properly consider to be
relevant to a fair and relevant minimum safety net of terms and conditions. We have had
regard to the material submitted by IBEA, an organisation which is, by its own admission, not
a sophisticated proponent of industrial advocacy. Turning firstly to the evidence and
submissions put forward to address the modern awards objective, it may be observed that
these were not extensive. IBEA’s submissions regarding s134(1)(da) and s.134(1)(h) were not
persuasive but we can accept that the proposed variation would lessen the regulatory burden
on hostels by providing a certain, single reference point for the engagement of boarding
supervision services employees (s.134(1)(f)), which in turn contributes towards answering the
need for a simple, easy to understand, stable and sustainable modern award system
(s.134(1)(g)).
[38] The broader material submitted by IBEA makes plain that the provision of boarding
services to school students in Australia is discrete and niche and further, that boarding
services are predominantly provided in boarding facilities located within a school. In these
school settings, the General Staff Award applies and contains classifications for employees
performing boarding supervision services with terms and conditions to reflect the work they
are required to perform. The only obvious difference that applies to the members for whom
IBEA seeks the proposed variation is that they provide boarding services exclusively to
indigenous school students in separately located, organisationally distinct settings. In
supporting the educational advancement of indigenous children of school age, IBEA members
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engage employees to perform functions that are similar to, if not the same as, those performed
by employees providing boarding supervision services in schools.
[39] That the General Staff Award has specific classifications for employees performing
boarding supervision services and other terms and conditions specifically applicable to them
is supportive of an outcome whereby employees performing boarding supervision services in
hostels providing residential accommodation for indigenous school students have the same
award coverage as boarding supervision services employees in schools. This is particularly so
where there is no other obvious, appropriate award coverage for them. We also accept that
access to adjusted annual salary arrangements accounting for non-term weeks could have a
positive impact. However, the possibility that there may also be other classifications of
employees engaged to work in boarding hostels who do not carry out boarding supervision
gives rise to some reservation about the consequences of varying the General Staff Award in a
way that potentially results in coverage for some employees of boarding hostels, but not all.
[40] Ultimately, we do not consider the Application has been accompanied by probative
evidence that sufficiently supports a conclusion that the variation sought is necessary to
achieve the modern awards objective. Only a small subset of employer opinion was before us.
As such, the number of employees engaged to carry out boarding supervision who would
potentially be impacted by the variation was not known, nor was information available
outlining their duties. Further, there was no information to inform the Commission as to the
current terms and conditions of employment of the range of employees who may currently be
engaged in hostels operated by members of IBEA and nor could we determine whether
boarding hostel accommodation is provided for secondary school students in other contexts.
[2023] FWCFB 138
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Conclusion
[41] There is a distinction between what is ‘necessary’ and what is ‘desirable’.12 As
recounted above, in giving effect to the modern awards objective the Commission is
performing an evaluative function taking into account the matters in s.134(1)(a)–(h) and
assessing the qualities of the safety net by reference to the statutory criteria of fairness and
relevance. For the reasons given, and after weighing the s.134 considerations, we have not
been persuaded that the variations contemplated in the Application are ‘necessary’ to achieve
the modern awards objective in this case. Accordingly, the Application is not granted.
[42] That said, we do not consider that IBEA should be deterred from making a further
application to vary the General Staff Award with evidence that is sufficiently probative to
persuade the Commission that any variations subsequently sought are justified on their merits.
In this regard it is encouraging to note that IBEA has crossover membership with the
Australian Boarding Schools Association (ABSA), that the two bodies work constructively in
relation to indigenous boarding students and that ABSA has indicated they could assist IBEA
with a future application. This may be contrasted with the disappointing approach the Unions
have adopted in this case.
DEPUTY PRESIDENT
Appearances:
G Franks for Indigenous Education and Boarding Australia.
J Kenchington-Evans for the Australian Education Union and Independent Education Union.
T Malone and N Pefanis for the United Workers Union.
V Wills for the Australian Services Union.
Hearing details:
2023.
By Video via Microsoft Teams.
16 August.
Printed by authority of the Commonwealth Government Printer
MA000076 PR765013
1 MA000076.
2 Transcript 16 August 2023 at PN 131.
3 Ibid at PN 142 – 143.
4 See clause 13 and Schedule A -Classifications from the Educational Services (Schools) General Staff Award 2020.
THE FAI ORK COMMISSION THE SEA
[2023] FWCFB 138
14
5 Transcript 16 August 2023 at PN 139.
6 Ibid at PN 127.
7 Aboriginal Hostels Limited (AHL) is an Australian Government organisation described as being an operator of 7 secondary
education hostels throughout Australia.
8 [2021] FWCFB 5554.
9 Ibid at PN 184 and PN 188.
10 Ibid at PN 127.
11 [2021] FWCFB 5554 at [18].
12 [2021] FWCFB 5554 at [17].
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwcfb5554.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwcfb5554.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwcfb5554.htm
