Keeping Up With Modern Awards: Upcoming Changes to the Children’s Services Award, to come into effect 1 November 2020

Employment Law

Co-written by: Brianna Ellul (Paralegal)

The Fair Work Commission is currently undertaking their four-yearly review of the modern awards, under section 156 of the Fair Work Act 2009.

Most recently, on 19 October 2020, the Fair Work Commission made a determination in relation to the Children Services Award 2010. This determination added to the decisions made on 10 June 2020 and 29 September 2020.

The 29 September decision left the commission with four outstanding issues to resolve, which included the following:

  1. Part time employment – the means of communicating ad hoc agreed changes;
  2. Educational Leaders – additional 2 hours non-contact time per week;
  3. Minimum engagement (no substantial changes, just re-wording); and
  4. Coverage (no substantial changes).

The most recent decision of the Fair Work Commission, on 19 October 2020, dealt with the above outstanding issues, with the amendments to be effective from 1 November 2020.

Outstanding Issue One: Communication of ad hoc agreed changes

The first outstanding issue relates to the ability of an employer and employee to change agreed regular patterns of work, the process of doing so, and the notice required when doing so. The previous requirements, and amendments that are effective as of 1 November 2020, are set out below.

Previous requirement Current requirements
(as at 1 November 2020)
  • Changes in the agreed regular pattern of work can only be made by agreement in writing
  • Changes in the days to be worked or starting and finishing times may also be made in writing
  • Changes can only be made in writing, however an agreement inwriting can be made by any electronic means of communication
  • Employers are not required to provide 7 days’ notice of a change of roster, if the change is due to an emergency outside of the employers control
  • No change to the employer being excused from providing 7 days’ notice if the change is due to an emergency, however the employers must now pay the employee at overtime rates for the additional time the employee remains in the workplace.
  • Employers are required to provide 7 days written notice of a change to rostered hours
  • Employers are still required to provide 7 days written notice of a change, however this can be done by electronic means of communication

Outstanding Issue Two: Educational Leaders – additional two hours non-contact time

The second outstanding issue is in relation to the amount of non-contact hours afforded to staff and education leaders for planning purposes, per week. The purpose of non-contact hours is to allow the education leader to plan, prepare, evaluate and program activities. The Fair Work Commission has now allowed an additional two hour of non-contact time for educational leaders, in addition to those responsible for planning.

Previous requirement Current requirements
(as at 1 November 2020)
  • An employee responsible for the preparation, implementation, and/or evaluation of a developmental program will be entitled to 2 hours of non-contact per week.
  • Wherever possible the non-contact time should be rostered in advance.
  • An employee responsible for the preparation, implementation and/or evaluation of a developmental program will be entitled to 2 hours non-contract per week.
  • An employee appointed as the Education Leader will be entitled to a minimum of 2 hours non-contact per week.
  • The entitlements above are cumulative, meaning an educational leader who also has programming responsibilities is entitled to a minimum of 4 hours non-contact per week.

Other Changes and Information

Reimbursement for reasonable costs

Clause 15.2(c) was amended so that the requirement for an employer to reimburse an employee for the costs of protective clothes or equipment (such as hats and sunscreen lotion), will be limited to reasonable costs incurred only.

Minimum wage

The Fair Work Commission undertook their annual wage review in June 2020. The minimum rates and allowances were increased by 1.75% and were raised in a staged structure: so that the industries effected by coronavirus received the raise first. The Children Services Award 2010 raised was modified from 1 July 2020.

For Employers

To ensure you are compliant with the changes to the award, it is important to:

  • Allow for online rostering and electronic communications as acceptable when changing hours;
  • Review communication procedures and notice periods with staff in relation to rostering changes to ensure they are compliant with the award;
  • Ensure payroll is informed of the overtime rates that apply where an employee’s hours are changed due to an emergency, and further, the 1.75% increase effective from 1 July 2020;
  • Familiarise yourself with the definition of ‘emergency’ under the award to ensure you are compliant with the award;
  • Facilitate or provide employees with hats and sunscreen where available or be prepared for reasonable reimbursement requirements; and
  • Consider where non-contact time is required (per week) and roster your staff accordingly.

For Employees

It is important to know your employment law rights and to understand new laws that affect you. It is necessary to:

  • Understand that your employer can alter rostered hours with adequate notice through electronic means;
  • Familiarise yourself with the definition of emergency under the award;
  • Ensure you are being paid accurately for emergency changes to rostered hours and with respect to changes to minimum rates;
  • Request access to hats or sunscreen or alternatively retain receipts for reasonable sun protection products and provide them to your employer for reimbursement; and
  • If an Educational Leader or are working on developmental programs, ensure you are rostered the minimum weekly required non-contact time.

ABOUT ALLYCE SILM:

Allyce Silm

Allyce Silm is a senior lawyer within our commercial, dispute resolution and employment law teams. She has previously acted for a diverse range of clients, from young individuals, parents, families, investors, and owners of small to medium businesses. She has experience in a range of commercial areas including dispute resolution, employment law, commercial litigation and building, and construction law.


For further information please don’t hesitate to contact:

Allyce Silm
Senior Lawyer
allyce@couttslegal.com.au
1300 268 887

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