s.739 - Application to deal with a dispute

Davmat Investments Pty Ltd T/A Little Saints Early Learning

Alleged dispute about matters arising under the modern award and the NES; [s146]; change to the regular pattern of part-time work made under the Children's Services Award 2020; whether change to days and hours can be made without written agreement.

[1] Ms Katherine Poynton filed an application in the Fair Work Commission pursuant to s 739 of the Fair Work Act 2009 (the Act), relating to a dispute with her employer, Davmat Investments Pty Ltd (T/A Little Saints Early Learning) (Davmat). The dispute relates to a decision purported to have been made by Davmat to change to Ms Poynton's hours of work.

[2] Davmat agreed that I may arbitrate the dispute pursuant to clause 9.5 of the Award and s 739(4) of the Act, after attempts to resolve the dispute through conciliation proved unsuccessful.

[3] I conducted a hearing in relation to the matter on 10 December 2025. Ms Poynton appeared at the hearing, assisted by a support person, Mr Thomas. Ms Manser appeared for Davmat. Ms Manser is the People and Culture Manager for Davmat.

[4] I made directions prior to the hearing that both parties file an Outline of Submissions and Statements of Evidence in relation to the matter. Both parties filed submissions, of sorts, but the only witness statement was filed by Ms Poynton, from Mr Thomas. Both parties agreed that their written submissions, which contained various factual assertions and attached other documentary material, constituted their evidence in the proceeding, where that evidence was given for Davmat by Ms Manser. Davmat indicated that it did not wish to cross examine Ms Poynton or Mr Thomas and so their material was accepted into evidence unopposed. Ms Manser was subjected to cross examination by Ms Poynton.

[5] The documentary material raised several matters of dubious relevance to the issues it appears I am required to determine. I have had regard to all of the material filed by the parties in this matter, and their oral evidence and submissions, even if not specifically referred to in this decision - the decision focuses on those matters relevant to answering the question I have been asked to determine.

[6] The dispute is about whether Davmat is entitled to alter Ms Poynton's agreed regular pattern of work without her agreement, in circumstances where she is a part time employee within the meaning of the Children's Services Award 2010 (the CS Award), taking into account in particular clause 10.4 of the Award, which deals with part time employment. Ms Poynton asserts that Davmat is purporting to change her agreed regular pattern of work without her agreement, and that this is impermissible. Davmat contends that it is entitled to change Ms Poynton's agreed regular pattern of work without her written agreement. The resolution of this question is required to determine this dispute.

[7] Ms Poynton also contends that the change Davmat purported to make has occurred in circumstances where she was not consulted about it, within the meaning of clause 8A of the Award.

[8] Both parties agreed I should answer the following question in order to arbitrate this dispute:

"Is Little Saints ELC entitled under the terms of the Children's Services Award 2020 to change Ms Poynton's hours of work in the manner in which it has proposed to do so?"

(a) An employer may employ a part-time employee in any classification in this award.

(i) works less than full-time hours of 38 per week;

(ii) has reasonably predictable hours of work; and

(iii) receives, on a pro rata basis, equivalent pay and conditions to those of full-time employees who do the same kind of work.

(c) At the time of engagement the employer and the part-time employee will agree in writing on a regular pattern of work, specifying at least the hours worked each day, which days of the week the employee will work and the actual starting and finishing times each day.

[10] Clause 10.4(d) of the CS Award provides:

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

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

(iii) The employer is not required to provide the full 7 days' notice of change of the days an employee is to work where the employer makes the change as a result of an emergency outside of the employer's control.

(iv) For the purposes of clause 10.4(d)(iii), the overtime provisions in clause 23.2(c) apply.

(v) In clause 10.4(d)(iii), emergency means:

• a situation or event that poses an imminent or severe risk to the persons at an education and care service premises (for example, a fire at the education and care services premises); or
• a situation that requires the education and care service premises to be locked-down (for example, an emergency government direction).

(e) An employer is required to roster a part-time employee for a minimum of two consecutive hours on any shift.

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

(g) A part-time employee employed under the provisions of this clause must be paid for the ordinary hours worked at the rate of 1/38th of the weekly rate prescribed in clause 14_ - Minimum wages._

[11] Clause 21.7 of the CS Award also provides:

(a) An employer will post a legible roster at a place readily accessible to employees indicating the rostered hours of work.

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

(ii) The employer is also not required to provide the full 7 days' notice where the employer makes the change as a result of an emergency outside of the employer's control.

(iii) It is not an emergency for the purposes of clause 21.7(b) (ii) if an employee is required to stay beyond their rostered hours because a parent fails to arrive on time to collect a child.

(iv) For the purposes of clause 21.7(b) (ii) , the overtime provisions in clause 23.2(c) apply.

• a situation or event that poses an imminent or severe risk to the persons at an education and care service premises (for example, a fire at the education and care services premises); or

• a situation that requires the education and care service premises to be locked-down (for example, an emergency government direction).

(c) An employee may be transferred from one location to another within their rostered hours at the direction of the employer. An employee transferring from one location to another during a shift will be paid for the time taken to travel from one location to the other.

(d) Where an employee is required to permanently transfer to another location (other than by mutual agreement) they must be given seven days' notice of the change or paid overtime until seven days have transpired from the date notice was given.

• [12] For present purposes, the manner in which the regular pattern of work agreed at the time of the engagement of a part time employee might be altered has been broadly the same since the CS Award was made through Award modernisation. The initial iteration of the Award provided that changes in hours of work were only to be made by agreement in writing between the employer and employee, but changes in the days to be worked could be made by the employer giving seven days' notice in advance of the change "in accordance with clause 21 - ordinary hours of work and rostering". The current versions of clauses 10.4(d) and 27.1(b) were inserted into the CS Award after Award modernisation, as a result of an application made by the relevant Union, United Voice (as it then was), with the support of a number of other Unions, the Australian Chamber of Commerce and Industry and Australian Business Industrial, as part of the review of modern Awards conducted in 2012. No particular rationale for the change was recorded in the decision granting the variation, save that it was made with consent, and was consistent with the legislative requirements regarding the review[1]. The notable change is to introduce the provisions allowing for a change to days of work where the change results from an emergency outside of the employer's control. Otherwise, despite some changes in language, clauses 10.4(d)(i) and (ii) in particular, retain the previous arrangement - that changes may be made in agreement in writing, and where agreement cannot be reached, the employer may change the days the employee is to work by giving seven days' notice in advance of the change.

[13] Clause 8A of the CS Award also provides that:

"8A. Consultation about changes to rosters or hours of work

8A.1 Clause 8A applies if an employer proposes to change the regular roster or ordinary hours of work of an employee, other than an employee whose working hours are irregular, sporadic or unpredictable.

8A.2 The employer must consult with any employees affected by the proposed change and their representatives (if any).

8A.3 For the purpose of the consultation, the employer must:

(a) provide to the employees and representatives mentioned in clause 8A.2 information about the proposed change (for example, information about the nature of the change and when it is to begin); and

(b) invite the employees to give their views about the impact of the proposed change on them (including any impact on their family or caring responsibilities) and also invite their representative (if any) to give their views about that impact.

8A.4 The employer must consider any views given under clause 8A.3(b).

8A.5 Clause 8A is to be read in conjunction with any other provisions of this award concerning the scheduling of work or the giving of notice."

[14] Davmat is an early childhood education and care provider operating in Victoria. Ms Poynton has worked at one of its services - the Princes Way Service, located in Drouin in Victoria - since 23 September 2024.

[15] Ms Poynton signed a contract of employment on 19 September 2024 with Davmat which relevantly provided as follows:

"Your minimum hours of work are 15 per week plus reasonable additional hours in order to complete your duties".

[16] The contract described the "ordinary days and time of work" as "as per roster between the hours of Monday to Friday 6.30am to 6.30 pm or as agreed".

[17] There is no dispute Ms Poynton was engaged on a part-time basis, within the meaning of clause 10.4 of the CS Award.

[18] It appears Ms Poynton was often sent an email confirming her hours of work. On 18 September 2024 and, on the evidence before me, at least a number of times thereafter, Ms Poynton was sent an email from Davmat entitled "Your shifts for the week", describing her working hours as Monday - Friday, 9:00AM - 3:00PM each day.

[19] On 20 September 2024, Ms Poynton sent an email to Ms Doyle, the Administrative Manager which said:

"The only question I have so far is that I've seen in my contract that it states 15 hours, I was under the impression that it was 30 hours (5 days 6 hours each day) can you please clarify what hours I will be working each week?"

The 15 hours in the contract are the minimum hours that we can offer, however 9am - 3pm Monday to Friday as discussed, is your correct schedule".

[21] The parties agreed that this email exchange between Ms Poynton and Ms Doyle on 20 September 2025 is the written agreement in writing on a regular pattern of work required by clause 10.4(c) of the Award. I will stress that Davmat conceded this without objection - that the email exchange on 20 October 2024 which said Ms Poynton's days and hours of work were 9:00AM - 3:00PM Monday to Friday was the agreement about her regular pattern of work for the purposes of clause 10.4(c) of the Award.

[22] On 10 September 2025, Ms Poynton had some discussions with the Princes Way Centre Director, Ms Morris, and another person, Ms Peterson, and as a result of the meeting sought to adjust her working hours to remove Wednesday as a working day, so that she worked Monday, Tuesday, Thursday and Friday, "keeping the same shift (9am - 3pm)". Ms Morris' response was that she would discuss the request further with Ms Poynton when she returned from leave.

[23] On 3 October 2025, Ms Morris sent Ms Poynton an email which said:

"Following our previous discussions, I'd like to clarify the options that were offered. The initial proposal was a schedule of 9:00 AM to 3:00 PM, three days a week. However, I understand that you have chosen to submit a counter-offer.

Unfortunately, the original arrangement is no longer available. As such, your revised working days and hours will now be Tuesday and Wednesday 9:30 AM to 6:00PM effective 15 October. This arrangement is in alignment with you current General Terms and Conditions of Employment.

Please let me know if you have any questions or require further clarification."

[24] Ms Poynton said at hearing that after this email, her hours were changed in the "Deputy" system ("Deputy" is a reference to Davmat's electronic rostering system).

[25] Ms Poynton sought a meeting to discuss this email, which occurred on Wednesday 8 October 2025. The meeting was attended by Ms Poynton and her support person, and Ms Morris. I am unclear as to whether Ms Manser was also at this meeting, although she later joined the exchange of correspondence between the parties as to what was said to have occurred at the meeting. I do not consider a great deal turns on whether Ms Manser was present or not - the nature of the discussion that occurred at the meeting is largely agreed.

[26] Ms Poynton said she read from prepared notes in this meeting, which were provided in evidence. From these notes it was evident that she sought to characterise her existing "roster" as her "established pattern of work" and asserted that "this pattern can only be changed by mutual written agreement" (referring to clause 10.4 of the Award). She also sought to characterise the request she had made on 10 September 2025 for a change in her working hours as a "flexible work request made pursuant to s 65 of the Act".

[27] This was reflected in an email Ms Poynton sent to Ms Morris and Ms Manser following the meeting. Some of the things recorded in this email are:

1. That Ms Poynton said that it was explained the reason behind the "proposed change" (the change to her hours communicated to her by Ms Morris' email of 3 October 2025) was "due to my absences and that I had attended an average of 3.1 days per week since December 2024";
2. That it was said that centre utilisation had increased significantly and that there was a need to "spread staff across the centre" and "balance full time staff across the service".
3. That it was said that Ms Poynton's previous request to change her working days of 10 September 2025 was not processed formally as a flexible work arrangement as she did not complete the centres flexible workplace request form.
4. That the proposal that Ms Poynton work Tuesday and Wednesday, 9:30AM to 6:00PM was "not manageable" for her due to her caring responsibilities.

[28] On 9 October 2025, Ms Manser sent Ms Poynton a letter in response. This letter largely confirms that Ms Poynton's account of what was said in the meeting was agreed by Davmat. Some of the matters covered in the letter include:

1. That Ms Manser had contacted "Fair Work" who she said confirmed that because Ms Poynton's contract stipulates a minimum of 15 hours per week, the business was only obliged to provide those 15 hours, and the fact Ms Poynton had regularly worked in excess of 15 hours per week is irrelevant to the business' minimum obligation.
2. That Ms Manser confirmed the assertion that it was said during the meeting that the reason behind the proposed change was due to Ms Poynton's absences and that centre utilisation had increased significantly.
3. That Ms Manser confirmed it was correct that Ms Poynton's earlier request for a change in her hours had not been processed as a request for a flexible work arrangement made pursuant to s 65 of the Act because Ms Poynton had not used the correct form.
4. That as "confirmed in Kirra's email on Friday, September 20, 2024, your agreed regular pattern of work is 15 hours per week 9:00am - 3:00pm, Monday to Friday. While your contract specifies a minimum of 15 hours per week, your actual discussed schedule or the roster posted is the one confirmed". She said that in the meeting Ms Poynton's attention was also drawn to clause 10.4(d)(ii) of the Award which, as she stated, provides "the employer may change the days the employee is to work by giving seven days' notice in advice of the change ...", and said the "posting of the roster seven (7) days in advance is confirmation of your hours".

[29] On 9 October 2025, Ms Poynton sent an email with her request for flexible working arrangements set out in the format required by Davmat. The request sought a change to Ms Poynton's hours as had been previously requested - to remove Wednesday as a working day and to continue to work the other days of the work week, 9:00AM - 3:00PM. She also sought a meeting with Ms Manser for the following day, but Ms Manser was not available, and arrangements were made to meet the following Tuesday 14 October 2025

[30] On 13 October 2025, Ms Manser sent an email to Ms Poynton which said:

As discussed on Wednesday 8th October 2025, we are unfortunately unable to approve your original request for the following operational reasons:

Due to ongoing staffing issues, we are undertaking a strategic review of our business needs. This involves assessing the distribution of qualification across our workforce to guarantee continuous compliance with required staff-to-child ratios throughout our operational hours of 6:30am to 6:30pm.

To accommodate this and support our limited number of permanent full-time staff, we are required to roster part-time staff strategically. Since Monday and Friday are typically our quietest days, we are focused on distributing staffing needs across the rest of the week.

However, as discussed with you, we confirm our proposal on the following alternative arrangements to accommodate your circumstances:

Your revised working days will be Tuesday and Wednesday from 9:00am to 5:30pm, including a one hour (1) lunch break daily. This schedule ensures your contracted 15 hours per week are met and allows you time to manage your caring, studying and well-being responsibilities."

[31] On 14 October 2025, Ms Poynton met again with Ms Manser and Ms Morris. She read from pre-prepared notes which were provided in evidence. She also sent an email on 14 October 2025 recording what she said was discussed during the meeting and Ms Manser sent her a letter on 15 October 2025 which also referred to some of things said during the meeting. It is unnecessary to summarise all of the evidence as to what was discussed during this meeting, save to say that once again Mr Poynton disagreed with the basis upon which her request to change her hours had been refused and that Davmat re-asserted it had a basis to refuse her request based on the needs of its business, and disagreed as to its obligations with respect to the CS Award. In her letter, Ms Manser once again said she had contacted the "Fair Work Ombudsman" and was advised that the "email which outlined the 9:00AM to 3:00PM does not establish your regular hours of work ... The primary workplace obligation remains to provide you with a minimum of 15 hours per week. The days and hours are formally set by the roster when it is posted in advance on Deputy". Ms Manser's letter set out two "working options" in relation to Ms Poynton's hours of work in relation to the proposition she work on Tuesday and Wednesday, either 8:30AM to 5:00PM with a 60-minute unpaid lunch break (option A), or 9:00AM to 5:00PM with a 30-minute unpaid lunch break (option B). The letter said:

"Please review these two options and advise the undersigned of your preferred option by Friday 18th October 2025. In accordance with the Childrens Service Award clause 10.4(d)(iii) which reads -

Where agreement cannot be reached, the employer may change the days the employee is to work by giving seven days' notice in advance of the change in accordance with clause 21 - Ordinary hours of work and rostering."

"Little Saints ELC proposes that this change will take effect from Tuesday 28th October 2025."

[33] On 15 October 2025, Ms Poynton wrote to Davmat and said that she did not accept either Option A or Option B and said that there was a dispute regarding the proposed changes to her agreed pattern of work. She said further that in accordance with the dispute resolution clause in the CS Award, while the matter is being resolved work should continue in accordance with the Award and the usual work practices that applied before the dispute arose. Ms Poynton said she would continue to work her roster Monday to Friday, 9:00AM to 3:00PM until the dispute was resolved.

[34] Davmat responded to Ms Poynton on 17 October 2025 acknowledging her email and noting that as she did not select an option nor propose an alternative, Davmat was "exercising its right under Clause 10.4(d)(ii) MA000120 of the Children's Services Award 2010" and that:

"In the absence of your input into your preferred start and finish times Little Saints ELC has made the decision to roster you Tuesday and Wednesday 9am-5pm with a 30 min lunch break.

This change will take effect from the week commencing Monday 27th October 2025".

[35] Ms Poynton filed this application in the Commission on 17 October 2025, and on 17 October 2025 wrote to Davmat and said:

I have received your email dated 17 October 2025.

I do not agree to the proposed changes to my hours and days of work. The pattern of Monday to Friday, 9:00 am to 3:00 pm was confirmed in writing during my onboarding and has been worked consistently for more than 12 months. This constitutes my regular patter of work under clause 10.4(c) of the Children's Services Award 2010 (MA000120).

While clause 10.4(d)(ii) allows an employer to change the days of work with seven days' notice where agreement cannot be reached, it does not authorise any change to the hours of work. My regular hours of 9:00 am to 3:00 pm therefore remain in effect and cannot be changed without my written agreement under clauses 10.4(c) and 10.4(d)(i).

Additionally, as the proposed change affects my caring responsibilities, the requirements for consultation under clauses 8 and 8A of the Award apply. I have not been properly consulted in accordance with those provisions.

In accordance with Clause 9 - Dispute Resolution of the Children's Services Award 2010 (MA000120), I have now lodged a formal application with the Fair Work Commission for the conciliation regarding this matter. As the dispute is currently being addressed through the Commission's process, I request that no changes be made to my hours, or days of work until the matter has been resolved.

Based on advice from the Fair Work Ombudsman, mu current roster of Monday to Friday, 9:00am to 3:00 pm remains in effect unless and until a mutually agreed written variation is made or the Fair Work Commission determines otherwise.

I remain committed to supporting the children, families, and team throughout this process."

[36] Throughout the course of the Commission attempting to assist the parties to resolve this dispute and arbitrating the matter, Ms Poynton has continued to work Monday to Friday, 9:00AM to 3:00PM and the various changes to her working hours Davmat said it would make have not been implemented. Davmat indicates that if this application is decided against Ms Poynton, it will implement a change to her hours, but has not done so, apparently in adherence to clause 9.8 of the CS Award which says that while procedures are being followed under the clause in relation to the dispute, work must continue in accordance with the Award and the Act. As I understand it this position, will continue until a decision is handed down.

[37] There was some material before me about the extent to which Ms Poynton was or has been absent from work due to annual leave, personal leave and the like. It may be that perceptions about her absences influenced some of the initial discussions about a change to her hours. Ms Poynton said that to the extent Davmat was reliant on alleged absenteeism, but then later relied on other matters to justify its changes, it was "shifting the goalposts". However, neither party was really able to explain to me how Ms Poynton's absences from work, whatever their frequency, is relevant to whether a change to the agreed regular pattern of work can be made without an employee's consent, or not, within the meaning of the part of the Award in contest. Both parties ultimately appeared to concede this is not a relevant matter to this dispute as it has been characterised.

[38] Davmat made persistent submissions that there were operational reasons why it was and is necessary to change Ms Poynton's hours of work. It referred to "ongoing staffing issues", a "strategic review of business needs" and the distribution of qualification across the workforce in order to comply with staff-to-child ratios. However, despite repeatedly being invited to, Davmat was not able to explain to me why these matters are relevant to the question as to whether it may alter Ms Poynton's hours of work without her written consent. I will deal with this matter again below.

[39] There was evidence before me that Ms Poynton made at least one - perhaps two - requests for a flexible work arrangement. There was also evidence that at least one such request was refused. However Ms Poynton clarified that despite material having been brought before me about these matters, I am not being asked to deal with a dispute about a request for a flexible work arrangement. This is plainly so, and I do not intend to refer to those matters except in passing.

[40] As mentioned above, both parties filed written material of various kinds, including documents containing a combination of submission and evidentiary assertion. Both parties also made oral submissions at hearing. My summary of the parties' submissions is an attempt to elucidate their submissions from their written documents, informed by their oral submissions.

[41] To summarise, Ms Poynton submits that she had at the time of her engagement a written agreement as to her regular pattern of work within the meaning of clause 10.4(c) - that being recorded in the email exchange with Ms Doyle of 20 October 2024. As I have said above, Davmat agreed that this email exchange constitutes the agreement as to her regular pattern of work within the meaning of this clause (but maintains it is entitled to change it, including without agreement in certain circumstances).

[42] Ms Poynton submits that clause 10.4(d)(i) of the Award only permits a change to that agreement by further agreement in writing.

[43] She submits that where agreement cannot be reached to change the regular pattern of work, the employer may change the days the employee is to work without agreement, by providing seven days' notice - but only the days of work - not the hours.

[44] Ms Poynton took me to several decisions of the Commission in relation to the CS Award when it and other Awards (including the Educational Services (Teachers) Award 2020, which also deals with early childhood education and care sector) were the subject of the 4-Yearly Review of Modern Awards. I consider these submissions to be generally misconceived. They seek to derive from the Commission's adoption of the language which can now be found in the Award a level of statement of principle which is not evident from the decisions themselves.

• [45] For example, Ms Poynton asserts that in [2020] FWCFB 3011, a Full Bench "confirmed that the Award's part time provisions are designed to ensure predictability and security of hours for employees [Ms Poynton's emphasis]", and that clause 10.4 of the plays a "protective role" by preventing employers from unilaterally changing a part-time employee's agreed pattern of work. It is not entirely clear to me how Ms Poynton has arrived at the view that this decision provides that the CS Award's part time provisions are designed to ensure predictability and security of hours and play a "protective role". These words are not used in the Full Bench's decision. It did in the decision consider a proposed amendment to clause 10.4(d) of the CS Award. The amendment sought would have allowed less than seven days' notice to be provided by an employer of a change in days of work, where mutual agreement could not be reached for the change, in circumstances where the change related to another employee providing less than seven days' notice of their inability to perform a rostered shift, or in order for a service to comply with its statutory obligations in respect of maintaining staff to child ratios. The Full Bench refused to make this amendment on the basis it did not consider the case had been made out that it was necessary to achieve the modern awards objective[2]. If Ms Poynton is submitting that it can be taken by implication that the Full Bench's refusal to make the amendment sought amounts to a confirmation the provisions are designed to include "predictability" and "security of hours", and the clause plays a "protective role" I consider the decision reads too much into what might be derived from the refusal to make the amendment sought. The Commission's reason for its decision was made clear - that the test set out in s 138 of the Act had not been met. It did not go further and comment on the broader meaning of the clause itself. Something similar may be said in relation to the other decisions Ms Poynton referred me to.

[46] Ms Poynton also submitted that in [2020] FWCFB 5176 a Full Bench "rejected employer arguments that a later sub-clause could override an earlier one", describing this as an "interpretive principle - sub-clauses read harmoniously". I can find no reference to such a principle in this decision. I understand Ms Poynton to be referring to the interaction between clause 10.4 of the Award, which deals with part-time arrangements, and clause 21.7 of the Award, which deals with roster changes. I will deal with this interaction below.

[47] Ms Poynton also submitted that I should consider the dispute with regard to the "overarching principles of consultation and good faith required by" the Act. This submission was not entirely explained. As I will explain further, to some extent the industrial context of the clause in dispute is relevant, and I consider this below.

[48] Ms Poynton also submitted that I should consider whether Davmat's justification for the proposed change was based on inaccurate and misleading attendance data. However, as I mentioned above, at hearing, neither party was able to explain to me why these matters are relevant.

[49] Ms Poynton submitted that, to the extent Davmat claims she agreed to a reduction in days or hours, this is incorrect, and that at no time did she give written or verbal consent to permanent extend her working hours or reduce her working days.

[50] Ms Poynton also submits that the change to her hours of work purported to be made occurred without the consultation required by clause 8A of the Award. She did not expand to any great extent on this submission.

[51] Davmat submitted that it is entitled to change the agreed regular pattern of work of a part time employee without their agreement. It does not agree that it may only do so with respect to the days of work and submits it is also entitled to change the hours of work as well. It says this despite the fact that clause 10.4(d)(ii) of the CS Award provides that the employer may change the days the employee is to work by giving seven days' notice in advance of the change. It says notice may also be given of the change in hours.

[52] It says this is enabled by clause 10.4(d)(ii), which it "invoked" in respect to Ms Poynton. It submits that the reference clause 10.4(d)(ii) to clause 21 - Ordinary hours of work and rostering - allows a change to be made with notice both to days and hours of work, because clause 21.7 of the CS Award provides the employer may change an employee's rostered hours, by giving seven days' notice. In this sense, it appears to argue the reference in clause 10.4(d)(ii) to clause 21 of the CS Award - which deals with "rostering" - creates a connection between the clauses which overwhelms the limit apparently provided for in clause 10.4(d)(ii) of the Award only to "days". This proposition seems to be central to its contention that its change to Ms Poynton's pattern of work is permitted without her agreement.

[53] Davmat also relies on Ms Poynton's contract of employment, which provides that her minimum hours of work are 15 per week plus reasonable additional hours. In a manner that was not entirely explained in its submissions, Davmat says that the extent of its obligation to provide Ms Poynton work during a week is 15 hours, in accordance with this contract. By implication it submits it is entitled to change Ms Poynton's hours of work in one of the ways in which it said it would, without her written agreement, because each such proposition provided at least 15 hours of work per week.

• [54] As I referred to above, Davmat repeatedly made submissions in relation to its operational requirements and business needs in respect of the change it wants to make to Ms Poynton's working hours. It said, among other things, its operational pressures require it to have the flexibility to "flex up and flex down". It referred to the decision of Schneider C in Gagandeep (Skye) Kaur v G8 Education Trading AS Jellybeans Childcare[3], which relates to an application made pursuant to s 65B of the Act for the Commission to deal with a dispute about a request for a flexible work arrangement, because the decision is said to mention similar operational issues associated with its business, which were said to justify the refusal to grant a flexible work arrangement in that case on "reasonable business grounds". It did appear however Davmat accepted the proposition this decision has limited relevance to this matter, because it relates to a different section of the Act. Generally, Davmat was unable to explain with any precision why the underlying business case or compelling nature of a unilateral change to an employee's regular pattern of work makes it any more permissible, within the meaning of the CS Award, than if there were not operational or business factors driving the change.

[55] Davmat further submitted that it did consult with Ms Poynton about this change, both by discussing a number of options as to how her hours might change before and after the email sent to her on 3 October 2025, which advised her of her "revised working days and hours", and in relation to subsequent iterations of this change. It says this despite the unqualified language used in those communications. It further notes that it did not implement the changes - discussion continued - and it still has not implemented the changes.

Is Davmat entitled to change Ms Poynton's hours of work without her written agreement?

[56] It is important to note at the outset that, as I have mentioned above, both parties agreed that the email exchange of 20 October 2024 between Ms Poynton and Ms Doyle constituted the agreement required to be made by clause 10.4(c) of the CS Award in relation to her regular pattern of work. This exchange said that Ms Poynton's "schedule" was 9:00AM to 3:00PM Monday to Friday. From early in her discussions with Davmat, Ms Poynton asserted this to be so, and it appears to have been accepted - expressly by Ms Manser in a meeting held on 8 October 2025 (confirmed in Ms Manser's letter of 9 October 2025) - and without question at the hearing of this matter. In these circumstances, I find this email exchange to be that agreement in writing, which provides that the pattern is "9am - 3pm Monday to Friday".

[57] I also consider it has been established in evidence that no written agreement has been made to change that regular pattern, within the meaning of clause 10.4(d)(i) of the CS Award. I have thus been asked to determine whether Davmat is permitted to alter the regular patten without such written agreement.

• [58] To determine that question, I must construe the meaning of clause 10.4 of the CS Award - particularly clause 10.4(d)(ii) of the Award, and its interaction with other parts of the Award in so far as it does or does not allow for a change without written agreement of the regular pattern of work. The principles used to construe an Award provision are well settled and are not dissimilar to those used to construe an enterprise agreement[4]. The task begins with the natural and ordinary meaning of the words used[5], but an Award is to be interpreted in light of its industrial context and purpose, and the commercial and legislative context in which it applies[6]. It is not to be interpreted "in a vacuum divorced from industrial realities"[7]. Context may extend to the origins of the clause, however "most often the immediate context, being the clause, section or part of the award in which the words to be interpreted appear will be the clearest guide[8]. Narrow or pedantic approaches to the construction task "are misplaced" but the exercise does not involve "some anteriorly derived notion of what is far or just regardless of what has been written in the award"[9].
• [59] With those principles in mind, it is first appropriate to observe that clause 10.4 of the CS Award creates a type of employment consistent with the nature of part time employment described in 4 yearly review of modern awards - Casual employment and Part-time employment[10]. In that decision - in which a Full Bench of the Commission embarked on a comprehensive analysis of the history and development of the concept of part time work - an earlier Full Bench's comment about the nature of part-time employment was cited:

"... part-time work needs to be clearly distinguished from casual employment. While the provision of pro rata benefits is one means of providing such a distinction other measures are also needed. In particular part-time work provisions should specify the minimum number of weekly hours to be worked and provide some regularity in the manner in which those hours are worked.

Regularity in relation to hours worked is an important feature of part-time employment ..."[11]

[60] Regularity and predictability of hours is germane to the concept of part-time work. As another Full Bench put it:

"This requirement for reasonable predictability in hours of work stems, we consider, from the originating concept of part-time employment as being suitable for and attractive to persons who have other significant and reasonably predictable family, employment and/or educational commitments and therefore require some certainty as to the days upon which they work and the times they start and finish work. It follows that the other provisions of the Award applying to part-time employees must so far as the language permits be read as giving content to the definitional requirement of reasonable predictability in hours of work.[12]"

• [61] The underlying principle of regularity and predictability in hours of work extends to the manner in which the pattern of work, once agreed, may be changed. In the Casual and Part-Time Decision the Full Bench also observed that in "many modern awards this means that part-time employees, unlike full-time employees, may not have their rostered hours changed by the employer on the provision of a specified period of notice, but must consent in writing to any change ..."[13].

[62] The plain meaning of clause 10.4 is consistent with that industrial context. Clause 10.4(b)(ii) establishes, among other things, that the nature of the engagement is one involving reasonably predictable hours of work. Clause 10.4(c) provides for the establishment by agreement of the pattern of those reasonably predictable hours. On the plain meaning of clause 10.4(d)(i), a rule is created whereby two matters associated with an employee's work times can be changed by agreement made in writing between the employer and the employee. Those two matters are first, changes to the agreed written regular pattern of work established in the manner set out in clause 10.4(c), and secondly, changes in the days to be worked or in starting and/or finishing times (whether on going or ad hoc).

[63] An exception to the rule that changes to the reasonably predictable pattern of work may be changed by agreement in writing is established by 10.4(d)(ii). It allows for a change to be made by the employer "where agreement cannot be reached" provided seven days' notice is given. However, such a change is expressed only to be to the days the employee is to work.

[64] If the clause was also intended to create an exception in relation to matters beyond the days the employee is to work, such as the regular pattern of work or in starting and/or finishing times, it would have said so. It does not. The result is a predictability of hours consistent with clause 10.4(b)(ii) and the underlying nature of part-time work, as referenced in the authorities.

• [65] Davmat submits that the "exception to the rule" I have described above referred to in clause 10.4(d)(ii) extends further than just changes to days of work, to changes to hours of work, because of the reference in clause 10.4(d)(ii) to clause 21 - Ordinary hours of work and rostering. I do not agree. This type of contention was considered by the Full Bench in Appeal by Leading Age Services. In that decision the Full Bench dealt with the "interpretational contest" between the relevant part-time provisions, and the clause in the Award dealing with roster changes. It found that the provisions of the relevant part-time clause should be read as "prevailing over the other more general provisions of the Award in the case of inconsistency unless the context dictates otherwise"[14], taking into account the originating concept of part-time employment. It considered that if a provision that allows a "roster" to be altered without written agreement could render such a change made unilaterally to the agreed part-time pattern, the Award's part time arrangements are left "without any substance"[15]. A similar conclusion was reached by another Full Bench in Transport Workers' Union of Australia v Qantas Airways Limited[16] which observed in relation to the interaction of similar provisions, "the conflict should be resolved by according greater weight to the provisions which deal specifically with changes in part=time hours. To do otherwise would render those provisions almost meaningless ..."[17].

[66] I consider there are sufficient similarities between the clauses considered by the Full Bench authorities referred to, and the part-time and rostering provisions of the CS Award. In this regard I note, as pointed out by Davmat, that clause 10.4(d)(ii) of the CS Award specifically refers to clause 21 of the Award (rostering), requiring a change made by the employer to be given "in accordance with clause 21 - Ordinary hours of work and rostering". I do not agree that that this reference should be read as having the effect of overwhelming the express provision in clause 10.4(d)(ii) to changes only in the days of work - not hours. I consider the reference is more likely to refer to the manner in which the notice as to the change in days may be made (in the same way as notice of a change of roster might be notified). If the more expansive submission made by Davmat were accepted, the requirement as to agreement being made about the pattern of hours to be worked by a part-time employee would be watered down significantly - essentially allowing most of the elements of that "agreement" to be altered unilaterally at any time with the provision of seven days' notice. I do not agree the cross-reference to the rostering provision is intended to render the parti-time arrangements in the CS Award otiose in that way.

[67] The submissions made by Davmat as to Ms Poynton's contract of employment do not assist it. It is not the case, and it was not submitted before me that Ms Poynton's contract of employment somehow overwhelms or varies the agreement made pursuant to clause 10.4(c) of the Award, as to Ms Poynton's agreed regular pattern of work, which was accepted by Davmat as having been for a pattern Monday - Friday, 9:00AM - 3:00PM. It seems to me to create a separate right and obligation, operating through the contract, that Ms Poynton be provided with at least 15 hours of work each week. That right and obligation does not bear on the dispute before me, which is about the operation of the CS Award.

[68] Davmat did not submit that, had it only changed Ms Poynton's days of work (to reduce them), and not her hours of work as well, the change would have been permissible. Had such a submission been made, it seems to me it would have little merit. A unilateral change to reduce days of work from five to two per week would likely raise questions as to whether the employment has been terminated (notwithstanding the reference to 15 hours per week in the contract of employment). It is also inconsistent with the nature of regularly predictable hours of work.

[69] The submissions made by Davmat as to its operational and business requirements also do not assist it. I am required to construe the meaning of the Award and its impact over the circumstances before me according to its ordinary and plain meaning, in the light of its industrial, commercial and legislative purpose. The exercise does not involve a search for an anteriorly derived notion of what is far or just regardless of what has been written in the Award. As I have observed above, the industrial purpose of the clause in question is the creation of a form of employment to be distinguished from casual engagement, with the feature that it involves reasonably predictable hours of work. The provisions are thus not to be ignored simply because they are commercially or operationally inconvenient.

[70] On this formulation of the Award, Davmat was not and is not entitled to change Ms Poynton's pattern of work from Monday to Friday, 9:00AM to 3:00PM each day, Tuesday and Wednesday, either 9:30AM to 6:00PM, or to 8:30AM to 5:00PM, or to 9:00AM to 5:00PM, without such a change being made in agreement in writing between it and Ms Poynton.

[71] The question I have been asked to answer - "Is Little Saints ELC entitled under the terms of the Children's Services Award 2020 to change Ms Poynton's hours of work in the manner in which it has proposed to do so?" - must therefore be answered in the negative.

[72] I note that neither this question, nor Ms Poynton's submissions, pressed significantly as to her other contention: that the purported change to her pattern of work occurred without the consultation required by clause 8A of the CS Award. I do observe, as Davmat submitted, that the various iterations of its changes occurred in a context in which an ongoing discussion, in meetings and correspondence, were occurring with Ms Poynton. I also note however that the changes - particularly the change notified in the email of 3 October 2025 (after which the "Deputy" system was changed), and the changes notified on 13, 15 and 17 October 2025 - were to a large extent communicated as directives, not propositions inviting feedback or consultation. I do not however consider it necessary for the purposes of disposing of this dispute that the question as to whether Davmat consulted with Ms Poynton as to the purported change to her hours occurred in accordance with clause 8A of the Award given that I have determined the change not to be in accordance with the Award, in any event.

[73] Ms Poynton sought the following orders be made in this matter:

1. A declaration confirming that my agreed and established pattern of work is Monday to Friday, 9:00 am to 3:00 pm and that this pattern remains in force and cannot be changed without my written consent or a lawful order of the Commission, in accordance with clause 10.4(c) and (d)(i) of the Children's Services Award 2010.
2. The Commission to find that Little Saints ELC is not entitled under the Award to unilaterally change my agreed pattern of work in the manner proposed.
3. The Commission to find that the attendance data is unreliable and improperly used.
4. The Commission to find that the consultation process was flawed and not in compliance with clauses 8A and 10.4 of the Award.
5. A written apology from Little Saints Early Learning acknowledging that the inaccurate use of attendance data, misrepresentation of approved leave, and subsequent coercive pressure caused me distress and anxiety, and that these actions were inconsistent with the principles of good-faith consultation.
6. A direction that the Respondent review its rostering, attendance-tracking and consultation practices to ensure compliance with the Award and the Fair Work Act 2009, particularly sections 340 and 351 relating to adverse action and discrimination for exercising workplace rights.
7. That the Commission invite or recommend that Little Saints ELC agree to provide a period of two weeks of paid leave, separate from any accrued annual leave entitlements, in recognition of the significant psychological distress, loss of security, and anxiety caused by the Respondent's conduct - including the reliance on inaccurate attendance data, inconsistent explanations, and the coercive pressure to accept unlawful changes.

[74] In her oral submissions, Ms Poynton appeared to accept, to some extent, the questionability about some of the orders sought, and suggested that some might even more properly be a recommendation or a suggestion made by the Commission to Davmat.

[75] Taking into account the nature of the matter, I do not consider it appropriate to make the orders sought at (c) - (f). These orders are not necessary for the resolution of this dispute, which is about whether Davmat's change is permissible or not.

[76] Having determined the question, I also do not consider it necessary (or likely permissible) to grant the orders apparently sought by (a), (b) and (g).

[77] During the hearing, I asked Ms Manser what would happen if I determined the answer to the question I have been asked to answer in Ms Poynton's favour. Ms Manser indicated that Davmat would obviously be aggrieved by such a decision, but that Ms Poynton's current hours of work would continue. Having determined as I have, that Davmat was not entitled to unilaterally change Ms Ponton's hours of work in the manner it proposed, and continues to propose to, I consider that this is what should happen: that her hours should not be so changed.

• [78] I will issue an Order[18] to give effect to this determination as follows:

The change to Ms Poynton's hours of work set out by Davmat in its correspondence on 3 October 2025, 13 October 2025, 15 October 2025 and 17 October 2025 shall not be implemented without her written agreement, in accordance with clause 10.4(d)(i) of the Children's Services Award 2020.

[1] United Voice and others re Children Services Award 2010 [2012] FWA 9296

[2] [2020] FWCFB 3011 [244]; see Fair Work Act s 138

[3] [2025] FWC 3396

[4] See Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2025] FWCFB 149 [43]

[5] Swissport Australia Pty Ltd v Australian Municipal Administrative Clerical and Services Union (No 3) [2019] FCA 37; (2019) 284 IR 97 [43(2] (Swissport)

[8] Ibid [43(6)}; Short v FW Hercus Pty Limited (1993) 40 FCR 511 [517 - 519]

[9] Ibid [43(7)]; Kucks v CSR Limited (1996) 66 IR 182 [184]

[10] [2017] FWCFB 3541 (Casual and Part-Time Decision)

[11] Personal Carer's Leave Test Case - Stage 2 (1995) 62 IR 48 [73]; Casual and Part-Time Decision [48] - [49]

[12] Appeal by Leading Age Services Australia NSW - ACT [2014] FWCFB 129 [19] (Appeal by Leading Age Services)

[13] Casual and Part-Time Decision [95]

[14] Appeal by Leading Age Services [19]

[16] [2008] AIRCFB 1198

[18] PR795928

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