[2021] FWCFB 6053

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.156—4 yearly review of modern awards

4 yearly review of modern awards—Award stage—Children’s Services Award 2010 and Educational Services (Teachers) Award 2020
(AM2018/18; AM2018/20)

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT CLANCY
COMMISSIONER LEE

MELBOURNE, 24 NOVEMBER 2021

4 yearly review of modern awards – Award stage – Group 4 awards – Children’s Services Award 2010 – Educational Services (Teachers) Award 2020 – Substantive issues.

Background

[1] On 10 June 2020 we issued a decision 1 (the June 2020 decision) in which we determined a number of claims to vary the Children’s Services Award 2010 (Children’s Services Award) and the Educational Services (Teachers) Award 2020 (Teachers Award) (collectively, ‘the awards’). We issued two further decisions on 19 October 20202 and 28 October 20203. A variation determination varying the Children’s Services Award was issued on 28 October 20204, operative 1 November 2020. A variation determination varying the Teachers Award was issued on 19 October 20205, operative 1 November 2020.

[2] On 4 November 2020 the United Workers’ Union (UWU) wrote to the Commission 6 submitting that:

• the Children’s Services Award had not been varied to delete clause 18.1(e) as set out in the June 2020 decision; and

• prior to the determination PR724049, clause A.3.2 of Schedule A of the Teachers Award (Hours of Work and Related Matters—Teachers employed in early childhood services operating for at least 48 weeks per year) reflected clause 21.5 of the Children’s Services Award.

[3] We issued a statement on 26 November 2020 7 (the November 2020 statement) outlining the issues raised by the UWU in its 4 November 2020 correspondence and provided interested parties the opportunity to:

• comment on a draft determination giving effect to the June 2020 decision in relation to the higher duties issue at clause 18.1(e) of the Children’s Services Award; and

• file submissions in response to the UWU’s submissions concerning the non-contact time issue and clause A.3.2 of the Teachers Award.

[4] Submissions were received from the following organisations:

• Community Child Care Association (CCCA) 8

• Independent Education Union (IEU) 9

• Community Connections Solutions Australia (CCSA) 10

• Australian Federation of Employers and Industries (AFEI) 11

• Australian Childcare Alliance, Australian Business Industrial and the NSW Business Chamber Ltd (ABI) 12

[5] A reply submission was received from the UWU on 18 December 2020. 13

Higher duties issue

[6] In the November 2020 statement we noted that there was a residual issue relating to the deletion of clause 18.1(e) of the Children’s Services Award; that the clause had been inadvertently omitted from the variation determination that was issued on 29 October 2020.

[7] The November 2020 statement attached a draft determination giving effect to the June 2020 decision in relation to the removal of clause 18.1(e) and interested parties were provided an opportunity to comment on the draft. No party opposed the draft determination 14. The variation determination will be issued in final form concurrently with this decision.

Non-contact time issue

[8] The second issue that was outlined in the November 2020 statement relates to non-contact time. In the June 2020 decision we granted a claim made by the UWU to provide an additional two hours non-contact time for Educational Leaders under the Children’s Services Award. 15 Clause 21.5 of the Children’s Services Award was varied16 on 1 November 2020 and now provides:

‘21.5 Non-contact time

(a) An employee responsible for the preparation, implementation and/or evaluation of a developmental program for an individual child or group of children will be entitled to a minimum of two hours non-contact time per week. During non-contact time, an employee will not be required to supervise children or perform other duties as directed by the employer.

(b) An employee appointed as the Educational Leader will be entitled to a minimum of two hours non-contact time per week. During non-contact time, an employee will not be required to supervise children or perform other duties as directed by the employer.

NOTE 1: Educational leader is defined in Regulation 118 of the Education and Care Services National Regulations (2011).

NOTE 2: The entitlements at clauses 21.5(a) and 21.5(b) are cumulative. An Educational Leader who also has programming responsibilities for an individual child or group of children will be entitled to a minimum of four hours non-contact time per week.’

[9] The UWU submits in its correspondence of 4 November 2020 that the variation of clause 21.5 of the Children’s Services Award, but not clause A.3.2 of the Teachers Award, creates an unintended inconsistency in the application of the June 2020 decision and the awards.

Submissions

General submissions

[10] CCCA and the IEU support the UWUs submission. 17

[11] CCCA submits that for teacher-qualified Educational Leaders in long day care settings, accessible planning time is vital for providing high quality care and education. It submits that they, like their Diploma qualified colleagues, have responsibility to support all the educators in their service to plan and reflect on the educational curriculum provided to all children attending their service. 18

[12] CCCA further submits that increasing planning hours from two to four for this group of teachers would ease the significant pressure this cohort faces in trying to manage their planning and support around other commitments. 19 It states that two hours alone is not adequate and many teachers undertake hours of planning and preparation beyond this, in their own time.

[13] CCSA supports UWU’s position but contends that a further area of inconsistency would remain if the UWU’s claim is granted. 20 CCSA submits that the Teachers Award has only ever made provision for non-contact time in the Schedule covering ‘Hours of Work and Related Matters—Teachers employed in early childhood services operating for at least 48 weeks per year’, but no similar provision is made for Early Childhood Teachers (ECTs) working in services that operate for less than 48 weeks per year, such as preschools.

[14] CCSA submits that preschool ECTs have the same responsibilities for planning, preparing, evaluating and programming activities for children, and the same obligations ‘under the National Law when appointed’ as Educational Leader as either their fellow ECTs in long day care and other 48 week a year settings, or their diploma/certificate III-qualified colleagues in the preschool, but their place in the award structure does not provide similar non-contact time. 21 It submits that the inconsistency in approach is further exacerbated in mixed service types, such as where the one employer operates both a preschool and a long day care service from the same premises.

[15] CCSA contends that the non-contact time clause in the Teachers Award should be updated as suggested by the UWU to bring it into alignment with the Children’s Services Award but moved out of Schedule A into the main body of the Teachers Award as a new clause 15.10, applicable only to early childhood teachers. CCSA submits that this would provide for a consistent treatment of non-contact time for both ECTs and early childhood educators with other qualifications across all early childhood education and care service types.

[16] ABI submits that the June 2020 decision provides no reasoning as to why the claim to provide an additional two hours non-contact time for employees who are appointed Educational Leaders in relation to the Teachers Award was not considered and ultimately accepted or rejected by the Commission. It submits that no decision has been made in relation to the Teachers Award or if such a decision was made, it has been inadvertently omitted from the June 2020 decision. 22

[17] ABI submits that a variation to ‘cure’ the inconsistency between the relevant awards must be justified on its own merits, that is, the Commission must be satisfied that the relevant legislative principles are satisfied in relation to the Teachers Award in addition to the Children’s Services Award. 23 ABI set out a series of questions that it submits are likely to be relevant to the Commission making any further determination;24 a point to which we shall return shortly.

[18] ABI notes that its clients opposed the introduction of the claim prior to the June 2020 decision but acknowledge that the findings in the June 2020 decision relating to the Children’s Services Award are likely transferable in large part to the Teachers Award. ABI submits that it does not propose to advance any substantive submission that the circumstances applying to the Teachers Award warrant a different outcome to that applying in the Children’s Services Award. 25

[19] AFEI opposes the variation proposed by UWU. 26 AFEI submits that the Commission’s determination to vary the Children’s Services Award is not a sufficient basis to vary the Teachers Award to include additional non-contact time for Educational Leaders. It submits that the Commission’s conclusion in the Children’s Services Award does not disturb the fact that the Teachers Award already achieves the modern awards objective and submits that any variation to the Teachers Award is not necessary.27

[20] In its reply submission, the UWU notes that the Commission in the June 2020 decision found in favour of the claim ‘that employees designated as Educational Leaders require additional non-contact time in order to undertake their role’ and submits that the meaning of this decision was that a clause be inserted into both Awards providing two hours additional non-contact time for the role of Educational Leader. 28

[21] The UWU contends that it presented the claim for additional planning time as applying to both the Children’s Services Award and the Teachers Award and that the matter was heard as a common claim, as noted in the June 2020 decision at [5]. 29 It submits that all claims which related only to the Children’s Services Award were heard after the common claims and are found in section 7 of the June 2020 decision – “Claims in relation to the Children’s Services Award 2010”.

[22] The UWU opposes AFEI’s submission that the matter should be re-prosecuted on behalf of employees covered by the Teachers Award. UWU does not support or oppose the CCSA submission to extend the entitlement of non-contact time to employees not covered by Schedule A of the Teachers Award. 30

Proposal to consider the non-contact time entitlement in the Teachers Award

[23] We agree that the issue of non-contact time as applicable to the Teacher’s Award requires further consideration.

[24] In its submissions of 15 March 2019 31 and 29 May 201932, the UWU proposed equivalent variations to both the Children’s Services Award and the Teachers Award in relation to additional non-contact time for Educational Leaders.

[25] In its 15 March 2019 submission, the UWU sought an amendment to clause 21.5(b) of the Children’s Services Award, and clause B.3.2 of the Teachers Award (now clause A.3.2) as follows:

“…

(b) We seek to insert a new clause 21.5(b) in the Children’s Services Award that provides specific non-contact time for Educational Leaders. We seek 2 hours per week non-contact time for an Educational Leader at a service licensed for up 39 children, 3 hours per week non-contact time for an Educational Leader at a service licensed for between 40 and 59 children and 4 hours per week for an Educational Leader at a service licensed for 60 or more children.

(c) We seek to amend clause B.3.2 of the Teachers’ Award to ensure that teachers in early childhood services operating for at least 48 weeks per year receive the same increase, in that non-contact time for teachers in a service is increased from two hours to four hours. Further, we seek to insert an additional clause which provides a teacher who is an Educational Leader with non-contact time on the same terms as outline above in (b).” 33

[26] The UWU set out its proposed amendment to A.3.2 of the Teachers Award in a draft determination as follows:

(a) Non-contact time will be provided for the purpose of planning, preparing, researching and programming activities. During non-contact time, an employee will not be required to teach or perform other duties directed by the employer.

(i) An employee responsible for the preparation, implementation and/or evaluation of a developmental program for an individual child or group of children will be entitled to a minimum of ~~two~~ four hours non-contact time per week.

(ii) The educational leader will be entitled to additional non-contact time per week, according to the size of the centre, as follows:

Centres with:	Additional non-contact time
No more than 39 places	2 hours
40-59 places	3 hours
60 and above places	4 hours

[27] The findings sought by UWU in relation to non-contact time for Educational Leaders were restated in its submission of 29 May 2019 34, and were outlined in the June 2020 decision at [302] as the following:

1. The person designated as Educational Leader has a number of responsibilities including leading the programming for the service, mentoring other employees, leading critical reflection and undertaking research.

2. The Educational Leader performs an important leadership role, which is significant in terms of service quality and compliance with the NQF.

3. An employee who is an Educational Leader requires specific non-contact time in which to undertake their duties.

4. The 2 hours of non-contact time currently provided under the Awards for employees responsible for the preparation, implementation and/or evaluation of a developmental program is insufficient,

5. The non-contact time for Educational Leaders (2 hours per week in centres licensed for no more than 39 places, 3 hours per week for centres licensed for 40-59 places and 4 hours per week for centres licensed for 60 and above places) is an appropriate minimum standard under the Awards.

[28] In the June 2020 decision we considered the UWU’s claim to insert a new clause 21.5(a)(ii) in the Children’s Services Award and we proposed to vary the award as outlined at [316]. We issued two further decisions in relation to the proposed variation of the Children’s Services Award as outlined above at [1].

[29] It is useful to set out below the relevant paragraphs of the June 2020 decision:

“[303] We note that the ECEC Employers and AFEI did not seek any specific findings in respect of the non-contact time claim for Educational Leaders.

[304] The ECEC Employers contest findings 1, 2, 4 and 5 sought by the UWU. Finding 3 is partially contested, with the ECEC Employers submitting that an Educational Leader may require specific non-contact time in which to undertake their duties.

[305] We begin our consideration by accepting Dr Fenech’s evidence that regarding the importance of educational leadership and the need to provide time to effectively undertake the role,:

‘Findings from national and international research consistently show that leadership of educational programming and planning is a hallmark of high-quality ECEC services.

Consistent with Element 7.2.2 of the NQS (ACECQA, 2018) educational leaders will most impact the provision of quality ECEC at their service when they are supported and resourced to enact the responsibilities of the role (ACECQA, 2017b). Identified supports include leadership training; time to effectively undertake the role; networking opportunities; time for collaborative in-house professional learning; and funding and access to quality professional development for all educators (ACECQA, n.d.-a; Colmer, Waniganayake, & Field, 2014; Fenech, 2013; Grarock & Morrissey, 2013; Rouse & Spradbury, 2016).’

[306] Dr Fenech’s evidence is consistent with the ACEQA Information sheet on ‘the role of the Educational leader’ (see [54] – [57] above). Further, Element 7.2.2 of the National Quality Standard requires Educational Leaders to be supported in their role and the ACEQA Information sheet notes that this support could include:

Capacity building opportunities – e.g. the opportunity to develop and build their knowledge, skills and competencies

Empowerment – e.g. autonomy and professional influence to effectively undertake their role

Resourcing – this could include:

• clearly defined role description, expectations and outcomes

• time

• professional learning materials and opportunities

• networking and collegial support opportunities. (emphasis added)

[307] In the course of her oral evidence, Dr Fenech was asked about the ACEQA Information Sheet and said:

‘what that document does is emphasise that the role is a significant one, and it’s a significant role of leadership … - it’s above and beyond an educational role, and one of the points that it makes time and time again is the time that’s required to do that role effectively.

The providers are advised to allocate set hours for the role. … the amount of meetings, for example, that the educational leader is advised to have with educators, the influencing role, the building of collaborations, the building of a learning community, mentoring staff - these are things that require an investment of time I guess and don’t happen on the run.’

[308] The UWU witness Ms Hennessy, who works at Community Kids Greenacres Early Childhood Centre (a centre licensed for 75 children), gave evidence that she received 2 hours of non-contact time per week for Educational Leader work, but that it was difficult to complete the work within this time:

27. I am provided 2 hours per week non-contact time to complete my work as an educational leader. This role requires a significant amount of research into current methods of programming and curriculum models that I then work to implement at Greenacres. I do much of this work in my own time, usually on weekends or during the evenings. Last year, I began the application process to Gowrie to secure extra funding for three children in the Kindergarten room that had special needs. The application process took over 12 months and eventually reached a point where I was not able to continue with it because I did not have enough non-contact time to complete it. The Director had to take over the application and see it through because I did not have the time to do it.

28. The work that I produce now is of a high quality, but my practice would be improved by having enough time to research new ideas on programming and curriculums. The two hours allocated provides me with barely enough time to complete the basic work required of an educational leader, but it is rare that I am able to read into new curriculum research or write the programs in extensive detail during work hours.

[309] The ECEC Employers concede that an Educational Leader may require specific non-contact time to undertake their duties.

[310] A number of the witnesses called by the ECEC Employers recognised that the Educational Leader role requires specific time allocation and the evidence indicated that some employers already provided specific non-contact time for this role.

[311] As mentioned earlier, Ms Llewellyn, the owner/approved provider of the Mill Park Centre, employs a full-time Educational Leader with a non-contact role. In the course of her evidence, Ms Llewellyn agreed that, to do their role well in a large centre, the Educational Leader ‘needs significant preparation time, quiet time, to prepare materials and so forth to fulfil the role of educational leader’.

[312] During cross examination, Ms Llewellyn agreed with the proposition that her decision to appoint an Educational Leader who does not work ‘on the floor’ was an acknowledgement of the importance and complexity of the role, the size of the centre and the service that the educators and families require.

[313] Similarly, Mr Fraser typically appointed his assistant centre managers as the educational leader in the service in recognition that ‘it’s a significant, an important function within a service’.And, Mr Mahony (the owner/operator of 2 long day care centres) tends to designate assistant directors as the Educational Leader in ‘recognition of the fact that the role involves some complexity and specialisation’.

[314] Ms Brannelly (the CEO of the Queensland Children’s Activities Network) accepted that ‘Educational Leaders need to do some program preparation work to support effective implementation for each session of case’ but went on to say that:

‘The guaranteed minimum 2 hours (as per the award) meets this basic needs (sic) with anything extra negotiated in a contract informed by the operating context of the service’.

[315] But Ms Brannelly’s evidence needs to be contextualised. It is clear that she was giving evidence as to the impact of the UWU’s claims on the Outside of School Hours Care (OSHC) sector and that at [56] and [62] of her statement she says:

In OSHC services there is a lot of opportunity to complete non-contact time activities given the service operates around a school day and there are 6 hours typically available each day for non-contact duties between sessions of care.

Not all non-contact duties are related to the service’s educational program. The Director, Coordinator or Assistant Coordinator must have the discretion to apply their non-contact hours according to the priorities in their workload.

[316] We are satisfied that employees designated as Educational Leaders require additional non-contact time in order to undertake their role. In our view the provision of an additional 2 hours non-contact time per week is appropriate and we propose to vary the Children’s Services Award to so provide. We acknowledge that the role of an Educational Leader in a large ECEC centre may require more than an additional 2 hours non-contact time. But, at present, we propose to leave the provision of such additional non-contact time to individual negotiation. As this will be a new entitlement we think a cautious approach is appropriate.

[317] In relation to the s.134 considerations, the variation we propose will assist those low paid employees designated as Educational Leaders to better meet their needs, as they will be provided with paid non-contact time in order to undertake their role; rather than undertaking tasks in unpaid time, after work (s.134(1)(a)). We accept that the variation proposed will not encourage collective bargaining (s.134(1)(c)) and will increase employment costs and regulatory burden upon some ECEC businesses (s.134(1)(f)).

[318] 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 considerations in s.134(1)(a)-(h). We have taken those considerations into account, insofar as they are relevant, and we are satisfied that it is necessary to vary the Children’s Services Award in the manner proposed in order to achieve the modern awards objective.’ (footnotes omitted)

[30] In its correspondence of 4 November 2020, UWU proposes that the variation of the Children’s Services Award but not Schedule A of the Teachers Award creates an unintended inconsistency between the awards in the application of the June 2020 decision. It submits that the result of these omissions is to not give full effect to the previous decisions of the Commission and suggests that further amendments be issued.

[31] No consideration or decision has been made in relation to the proposed variation of Schedule A in the Teachers Award.

[32] We agree with ABI that any decision to vary the Teachers Award must be justified on its own merits.

[33] In light of this, we will now proceed to consider the claim for non-contact time for Educational Leaders in the Teachers Award. In our consideration it is appropriate to address the questions posed by ABI in its 11 December 2020 submission. 35 The questions are outlined at 3.2 of the submission.

‘Educational Leaders’

[34] We turn first to the question of whether Educational Leaders can be both early childhood teachers (ECTs) (covered by the Teachers Award) and Educators (covered by the Children’s Services Award).

[35] ABI submits that this question is uncontroversial.

[36] The role of Educational Leader is one which arises not in the awards themselves, but from the National Quality Framework which operates under an applied law system, comprising the Education and Care Services National Law and the Education and Care Services Regulations. 36

[37] A reference to an ‘Educational Leader’ was inserted in the Children’s Services Award at clause 21.5(b). The note at the end of clause 21.5(b) states:

“NOTE 1: Educational leader is defined in Regulation 118 of the Education and Care Services National Regulations (2011).”

[38] Regulation 118 of the Education and Care Services National Regulations (2011) (Regulations) states:

“The approved provider of an education and care service must designate, in writing, a suitably qualified and experienced educator, co-ordinator or other individual as educational leader at the service to lead the development and implementation of educational programs in the service.”

[39] Regulation 118 does not specify particular qualifications for being designated as an Educational Leader.

[40] ABI also posed the question as to whether Educational Leaders who are also ECTs perform the same Educational Leader ‘duties’ as non-degree qualified employees in Early Childhood Education and Care (ECEC), and again submit that this question is uncontroversial. We agree with ABI in this respect.

[41] The expectations and responsibilities of the Educational Leader are stated in Regulation 118 of the Education and Care Services National Regulations (2011) (Regulations) and in Standard 7.2 and Element 7.2.2 of the National Quality Standards. 37 Specific qualifications for the role are not specified in these resources.

[42] ABI queries whether the ‘duties’ of Educational Leaders are already considered or covered by the classification structure in the Teachers Award. The classification structure for the Teachers Award is set out at clause 14.

[43] Clause 14.1—Classifications provides as follows:

“14.1 Duties of an employee

The duties of a teacher may, include, in addition to teaching, activities associated with administration, review, development and delivery of educational programs and co-curricular activities.”

[44] Clause 14.2(a) of the Teachers Award provides that “[o]n appointment, an employee will be classified and placed on the appropriate level on the wage scale in clause 17—Minimum Rates, according to their qualifications and teaching experience”.

[45] Clause 17 of the Teacher Award sets out a classification structure of Level 1 through to Level 12. The classification structure does not on its own refer to duties applicable to each Level and does not provide any additional details regarding leaders or leadership positions.

[46] The Teachers Award provides a leadership allowance at clause 19.3. Clause 19.3(a) outlines eligibility for the allowance and states:

“(a) Eligibility

(i) Clause 19.3 applies only to a teacher in a school.

(ii) A leadership allowance will be paid to an employee where the employer requires the performance of administrative, pastoral care and/or educational leadership duties additional to those usually required of teachers by the employer.

(iii) An allowance is linked to a position of leadership rather than tied to an individual employee.

(iv) The principal of the school determines who holds a position that is eligible for a leadership allowance.”

[47] This allowance does not cover teachers who work outside a school setting, such as teachers covered by the provisions of Schedule A.

[48] AFEI submits that the nature of employees covered by the awards are different and the terms that flow from each award are different. AFEI argues that employees covered by the Teachers Award:

‘…should already have (by virtue of their qualifications) certain knowledge and skills to enable them to perform educational functions more efficiently (than what may be reasonably expected of educational leader counterparts covered by the Children’s Services Award) without the need for additional non-contact time.’ 38

[49] We do not agree with the submissions of AFEI that the qualifications of employees covered by the Teachers Award who are designated Educational Leaders mean that they do not have a need for additional non-contact time to undertake those duties.

[50] In the June 2020 decision we accepted the evidence of Dr Fenech that the Educational Leader role is a significant one, and a significant role of leadership within a centre. 39 Whilst clause 14.1 provides that the duties of employees under the Teachers Award include the “development and delivery of educational programs and co-curricular activities”, we do not consider that these duties include those which are undertaken by Educational Leaders. We will deal with our acceptance of the evidence of Dr Fenech in further detail below.

Evidence

[51] ABI asks whether the evidence provided by Dr Fenech, Ms Hennessy and Ms Llewellyn (as it was set out for the Children’s Services Award in the June 2020 decision) is also relevant to the Teachers Award. ABI also poses the question as to whether the evidence obtained in relation to Educational Leaders and their duties (including evidence relating to the Educational Leader Allowance claim) is relevant to granting the claim in the Teachers Award.

[52] In the June 2020 decision, we stated that:

“We do not propose to determine two of the claims before us, at this time. These claims are the claims in respect of an Educational Leader Allowance and a Responsible Person Allowance. These claims will be listed for Mention after the Full Bench in C2013/6333 and AM2018/9 has handed down its decision.” 40

[53] On 19 April 2021, the Full Bench handed down a decision 41 in C2013/6333 and AM2018/9 (the Equal Remuneration and Work Value Case). The Full Bench has called for further submissions and the matter remains on foot. We confirm that the above two claims will be listed for Mention after the Full Bench in those matters hands down a final decision.

[54] We agree that whether the evidence adduced in these proceedings is relevant to the claim as it applies to the Teachers Award should be considered.

[55] AFEI submits that the UWU did not rely on witness evidence from employees covered by the Teachers Award in these proceedings. 42

[56] The UWU opposes AFEI’s submission that the matter should be ‘…re-prosecuted on behalf of employees covered by’ 43 the Teachers Award. The UWU submits that:

‘The merits of the case for awarding the additional non-contact time were prosecuted across both employers and employee parties including evidence from Educational Leaders who hold diploma and teaching qualifications. This includes evidence from ACECQA at [54-57] of the June 2020 Decision which confirmed that the role of Educational Leader is not linked to holding a particular qualification but rather to the responsibilities and duties performed.’ 44

[57] In the June 2020 decision we began our consideration of the matter by accepting Dr Fenech’s evidence regarding the importance of educational leadership and the need to provide time to effectively undertake the role. 45 Dr Fenech is an Associate Professor in Early Childhood Education and Program Director of the Bachelor of Education/Master of Teaching (Early Childhood) at the University of Sydney and produced a report which was filed in these proceedings entitled ‘Report for the Fair Work Commission for the Four Yearly Review of Modern Awards AM2018/18 Children’s Services Award 2010 & AM2014/266 Educational Services (Teachers) Award 2010’. During her oral evidence, Dr Fenech was asked about the Australian Children’s Education and Care Quality Authority’s Information sheet and the role of the ‘Educational Leader’ and said:

[58] It is our view that the evidence of Dr Fenech, as set out in the June 2020 decision is relevant to our consideration of the Teachers Award.

[59] The evidence of Ms Hennessy and Ms Llewellyn was also set out in the June 2020 decision.

[60] Ms Hennessy gave evidence that she is an Educational Leader and assistance nursery room educator who works at Community Kids Greenacres Early Childhood Centre. Ms Hennessy gave evidence that she holds a Certificate III in Early Childhood Education and Care and is employed under the Children’s Services Award.

[61] Ms Llewellyn is the owner/approved provider of the Mill Park Centre. She gave evidence that she employs an Educational Leader under the Children’s Services Award in a full time ‘off the floor’ role. 47 As set out in the June 2020 decision, Ms Llewellyn did agree, during cross examination, with the proposition that her decision to appoint an Educational Leader who does not work ‘on the floor’ was an acknowledgement of the importance and complexity of the role, the size of the centre and the service that the educators and families require.48

[62] A review of the evidence filed in the proceedings indicates that witnesses identifying themselves as Educational Leaders were subject to the Children’s Services Award.

[63] One employer witness, Ms Tullberg (Company Director and approved provider of Knox Chilcare and Kindergarten and Operations Manager of three Wallaby Childcare Centres) gave evidence that Educational Leaders were generally classified under the Children’s Services Award, but that the “Knox and Wallaby Centre’s Educational Leader is paid under the Teachers Award”. 49

[64] We have previously accepted evidence of Dr Fenech with regard to the role of Educational Leaders and the need to provide time to effectively undertake that role. Educational Leaders are not required under the Education and Care Services National Regulations (2011) (Regulations) to hold particular qualifications and we have received evidence that some Educational Leaders are employed under the Teachers Award.

[65] We are prepared to accept that the role of an Educational Leader is the same under both Awards, and as such, evidence regarding the duties required of that role is relevant to our consideration of whether the variation should also apply under the Teachers Award.

[66] We consider that the evidence applied in the June 2020 decision demonstrates a need for Educational Leaders to be provided with additional non-contact time in the Teachers Award. In particular, we note the following evidence as outlined in the June 2020 decision:

“[309] The ECEC Employers concede that an Educational Leader may require specific non-contact time to undertake their duties.

Rates of pay

[67] ABI also raises the question of whether the difference between the wages of employees under the Teachers Award and employees under the Children’s Services Award warrant the differential treatment of the Educational Leader role in relation to non-contact time.

[68] AFEI submits that the minimum rates of pay in Teachers Award already include compensation for a person who ‘…performs duties which include…administering and educational program’. 50 AFEI’s submissions refer to the definition of ‘teacher’ at clause 2 which is as follows:

“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.”

[69] AFEI submits that this is also reflected by the higher rates of pay in the Teachers Award. 51

[70] As noted above, clause 14.1 of the Teachers Award outlines the duties of an employee covered by the Award and includes the development and delivery of educational programs and co-curricular activities.

Cogent reasons

[71] ABI invites us to consider whether the same cogent reasons for granting two additional hours of non-contact time to employees who are appointed Educational Leaders applies to both the Children’s Services Award and the Teachers Award.

[72] We will deal with this matter in conjunction with the submission posed by AFEI that the Commission’s determination to vary the Children’s Services Award is not a sufficient basis upon which to vary the Teachers award to include additional non-contact time for Educational Leaders.

[73] AFEI submits that the nature of employees covered by the Children’s Services Award and the Teachers Award and the terms that flow from each award are different. 52 As outlined above, it submits that employees covered by the Teachers Award should already have (by virtue of their qualifications) certain knowledge and skills to enable them to perform educational leader functions more efficiently (than what may be reasonably expected of educational leader counterparts covered by the Children’s Services Award) without the need for additional non-contact time.

[74] In its reply submission the UWU contends that the merits of the case for awarding the additional non-contact time were prosecuted across both employers and employee parties including evidence from Educational Leaders who hold diploma and teaching qualifications. 53 It also submits that the Commission noted the consistency between clause 21.5 of the Children’s Services Award and clause A.3.2 of the Teachers Award at [258] of the June 2020 decision. 54

[75] The UWU submits that the inconsistency between the two awards will result in the outcome of two employees performing the same role within the same educational setting receiving different entitlements and that this was not the meaning or intention of the June 2020 decision. 55

Minimum ratio requirements (AFEI objection)

[76] AFEI submits that a variation to clause A.3.2 of the Teachers Award to replicate clause 21.5 of the Children’s Services Award will compound existing issues for employers in meeting minimum ratio requirements for educators to children, in circumstances where the National Quality Framework requires that educators be working directly with children at the service to be counted in the educator to child ratios. 56 It contends that any additional requirement for non-contact time can increase costs for employers where replacement staff need to be employed in order to ensure ratios are met in accordance with Regulation 123 of the National Regulations. It submits that this result is inconsistent with s.134(f) of the Fair Work Act 2009.57

[77] AFEI further submits that this increase to cost is further compounded by the fact that multiple employees could be in receipt of non-contact time at the same time. It submits that this additional cost would be inconsistent with s.134(f) of the Act. 58

[78] We consider that the issue pertaining to minimum ratio requirements for educators to children does not weigh against granting UWU’s claim. Minimum ratio requirements under the Regulations are imposed on employers at centre-based services and their employees who may be covered by the Children’s Services Award or the Teachers Award. We are not persuaded that employers engaging employees under the Teachers Award are at a unique disadvantage in this regard.

[79] We note that in the July 2020 decision we accepted that the variation to the Children’s Services Award will increase employment costs and regulatory burden upon some ECEC businesses. 59

[80] While the abovementioned witnesses gave evidence of being or employing Educational Leaders under the Children’s Services Award, we remain satisfied that employees who are designated Educational Leaders require additional non-contact time in order to undertake their role.

[81] As set out above, The National Quality Framework at Regulation 118 provides that:

‘The approved provider of an education and care service must designate, in writing, a suitably qualified and experienced educator, co-ordinator or other individual as educational leader at the service to lead the development and implementation of educational programs in the service.’

CCSA claim

[82] We decline to move the non-contact time clause in the Teachers Award from Schedule A to the body of the Award as proposed by CCSA. We consider that this claim falls outside the scope of the claim pressed by the UWU.

[83] We also note that the evidence put forward relates largely to childcare centres and long day care centres and to this extent does not support a variation to the entitlements of all Educational Leaders covered by the Teachers Award.

Outcome and modern awards objective

[84] We propose to vary clause A.3.2 of the Teachers Award so as to reflect clause 21.5 of the Children’s Services Award as outlined at [8] above.

[85] We are satisfied that this variation is necessary in order to achieve the modern awards objective. Our views in relation to the s.134 considerations were outlined at [317]-[318] of the July decision. We adopt the same views in relation to the Teachers Award.

Next steps

[86] A determination varying clause A.3.2 of the Teachers Award in the manner proposed at [8] will be published with this decision and will commence operation on 1 January 2022.

[87] A determination removing clause 18.1(e) from the Children’s Services Award will also be published with this decision and will commence operation on 1 January 2022.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2020] FWCFB 3011.

2 [2020] FWCFB 5531.

3 [2020] FWCFB 5766 and PR724049.

4 PR724049

5 PR723627. A correction to determination was issued on 27 October 2020, PR723865

6 UWU, correspondence, 4 November 2020.

7 [2020] FWCFB 6341

8 CCCA, submission, 10 December 2020

9 IEU, submission, 11 December 2020

10 CCSA, submission, 11 December 2020