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[2026] NSWIRComm 1098
General information, not legal advice.
Industrial Relations Commission (NSW)
2026-10-23
Commissioner Webster
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Medium Neutral Citation: Re Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award 2024 [2026] NSWIRComm 1098
Hearing dates: 23 October 2026
Date of orders: 23 October 2026
Decision date: 23 October 2026
Jurisdiction: Industrial Relations Commission
Before: Commissioner Webster
Decision: (1) Pursuant to s 19(6) of the Industrial Relations Act 1996 (NSW), the Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award 2024 (Award) is varied in accordance with Annexure A of the short minutes of order filed by the parties on 12 October 2026.
(2) The parties file a short minute of variation order reflecting this decision.
(3) The varied Award be marked as reviewed.
(4) The parties are to include in any future application to make an award replacing the Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award 2024 a statement recording:
(a) the undertakings given to the Commission in these proceedings;
(b) the terms of those undertakings;
(c) the consideration given to the matters the subject of the undertakings;
(d) the outcome of that consideration; and
(e) the parties’ reasons for any agreed position concerning the incorporation into the Award of the substance of, or an express reference to, any determination identified in these reasons.
(5) The proceedings are otherwise dismissed.
Catchwords: EMPLOYMENT AND INDUSTRIAL LAW - Award review under s 19 - Modernisation of Award - Teaching Service determinations - Substantive employment entitlements contained in external determinations and other instruments - Parties’ undertakings concerning future consideration of integration and/or reference to terms and conditions - Commission not bound by parties’ agreed categorisation - Award varied by consent
Legislation Cited: Education Commission Act 1980 (NSW)
Fair Work Act 2009 (Cth), Pt 6-3
Industrial Relations Act 1996 (NSW) ss 3, 19
Teaching Service Act 1980 (NSW)
Cases Cited: Award Review Principles Case 2025 (No 2) [2025] NSWIRComm 1101
Texts Cited: Nil
Category: Principal judgment
Parties: Australian Education Union New South Wales Teachers Federation Branch
Secretary, Department of Education
Representation: S Clay, for the Australian Education Union New South Wales Teachers Federation Branch
M Whitington, for the Department of Education
File Number(s): 2026/209779
Publication restriction: Nil
These proceedings concern the review of the Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award 2024 (Award) pursuant to s 19 of the Industrial Relations Act 1996 (NSW) (IR Act).
The Award applies to teachers and related employees in the Teaching Service. It is a substantial industrial instrument which regulates the remuneration and conditions of employment of a large and diverse group of employees working throughout New South Wales.
In accordance with the modernisation principles, I have decided to make some amendments to the Award now. Consistent with the parties’ submissions, I have accepted that broader consideration of the restructuring of the Award, and of the inclusion of terms and conditions not presently contained in it, should be deferred until negotiations for the next Award in 2027.
The Award was listed before me at a first call over on 12 June 2026, together with other award review matters concerning education employees. The review of the Award thereafter proceeded separately from the reviews of the awards applying to employees of the New South Wales Education Standards Authority and employees working in Corrective Services.
The matter was listed for conciliation on 13 August 2026. Before that listing, the Commission provided the parties with questions directed to the matters required to be considered in conducting a review under s 19 of the IR Act.
On 13 August 2026, the parties informed the Commission they had met and identified a range of agreed amendments to the Award. The parties also addressed the existing structure and ordering of the Award and the operation of determinations issued under the Teaching Service Act 1980 (NSW) and related legislation.
The parties submitted that a substantial reordering of the Award should be undertaken during negotiations for the next Award, rather than as part of the present review. The Award has a nominal expiry date in October 2027. They explained that the Award contained extensive internal cross-referencing and numerous schedules and restructuring it would require considerable time and resources.
The parties adopted a similar position concerning the possible integration into the Award of determinations issued under the Teaching Service Act 1980 and related legislation. They informed the Commission there were numerous operative determinations, some of which contained employment entitlements and some of which dealt with policy, administrative practice or operational arrangements. The parties submitted that significant work would be required to identify the determinations suitable for incorporation and to translate their provisions into appropriate award terms.
During these proceedings I expressed my preliminary view that it is desirable that all terms and conditions relating to the employment relationship are contained, as far as practicable, in a single industrial instrument. I observed that the transparency and enforceability of entitlements may be diminished where substantive conditions of employment are contained in numerous determinations.
Pursuant to the directions made following the conciliation on 13 August 2026, the parties filed joint submissions dated 18 September 2026 and supporting material. The material included:
(a) a schedule identifying the proposed amendments to the Award and the agreed reason for the proposed amendment as either administrative, for ease of understanding, or directed at modernisation; (b) the parties’ responses to questions concerning the applicable test case standards; (c) submissions concerning the requirements of ss 19(3) and (4) of the IR Act; and (d) an annexure identifying and categorising the determinations issued under the Teaching Service Act 1980 and related legislation.
The parties identified 100 proposed changes to the Award. Most of those amendments are administrative in nature or directed to modernisation and ease of understanding. They include the correction of punctuation and internal cross-references, the updating of terminology and statutory references, and amendments intended to improve the clarity and consistency of the Award.
The parties also proposed that the substance of the determinations dealing with lactation breaks and paid domestic and family violence leave be incorporated into the Award as part of the present review. The parties submitted that the proposed provisions preserve the substantive entitlements presently provided by those determinations.
The matter returned for further conciliation on 28 September 2026. At the conclusion of the conciliation, I adjourned the matter generally indicating I anticipated being able to finally determine the matter in chambers.
On 12 October 2026, the parties provided the Commission with an undertaking by way of correspondence with the Registry to address issues arising from the review, as referred to below at [31].
I listed the matter today in order to provide the parties with an opportunity to address the Commission with respect to the form of the orders I might make pursuant to s 19(6). In particular, whether they would be seeking a new award or a variation to the existing award given the number of proposed amendments. The parties agreed they are seeking a variation and have prepared a short minute of variation in anticipation of the mention today.
Section 19(1) of the IR Act requires the Commission to review an award at least once in every three years. The purpose of the review is to modernise, consolidate, or rescind obsolete awards: s 19(2).
Section 19(3) requires the Commission to consider the following matters in the review of awards:
(a) any decision of the Commission under Part 3 or any other test case decision of the Commission,
(b) rates of remuneration and other minimum conditions of employment,
(c) part-time work, casual work and job-sharing arrangements,
(d) dispute resolution procedures,
(e) any issue of discrimination under the awards, including pay equity,
(f) any obsolete provisions or unnecessary technicalities in the awards and the ease of understanding of the awards,
(g) any other matter relating to the objects of the Act that the Commission determines.
Section 19(4) further requires the Commission to consider the effect of the Award on productivity and efficiency in the industry concerned.
The Award contains provisions concerning rates of remuneration and other minimum conditions of employment, part-time and casual work, flexible work arrangements and dispute resolution. The parties submitted the review has not identified any issue of discrimination, including pay inequity, requiring further amendment of the Award.
The parties have also addressed the test case standards referred to in Principle 14 of the Award Review Principles Case 2025 (No 2) [2025] NSWIRComm 1101. Principle 14 provides:
“The test case standards presently applying which must be taken into account by the Commission in a review are:
(a) State Personal Carer's/Leave Case - August 1996 (1996) 68 IR 308;
(b) State Personal Carer's/Leave Case 1998 (1998) 84 IR 416;
(c) State Part-Time Work Case (1998) 78 IR 172; [1998] NSWIRComm 142;
(d) State Working Hours Case 2003, Re (2003) 124 IR 253; [2003] NSWIRComm 86;
(e) National Union of Workers v Employers’ Chamber of Commerce & Industry (Vic) (Redundancy Case) (2004) 129 IR 155; [2004] AIRC 287;
(f) Re Storage Services – General – Award (Re Redundancy Case- Supplementary Decision (2004) 134 IR 57;
(g) Secure Employment Test Case 2006 (2006) 150 IR 1; [2006] NSWIRComm 38;
(h) State Wage Case 2024 (No 4) (2024) 337 IR 182; [2024] NSWIRComm 25; and
(i) Superannuation Case 2025 (No 4) [2025] NSWIRComm 1071.”
“Test Case Standards:
5. The parties have identified the following Award provisions, determinations and external instruments that reflect the test case standards referred to in Principle 14 of the Award Review [Principles] Case, and make the following submissions where a standard is not otherwise reflected:
(a) Personal/carer’s leave and bereavement leave (State Personal Carer’s/Leave Case August 1996 (1996) 68 IR 308 and State Personal Carer’s/Leave Case 1998 (1998) 84 IR 416): cl 23.6 of the Award provides casual teachers and casual school counsellors with a loading in lieu of, among other things, sick leave and family and community service (FACS) leave. Determination 5 of 2006 provides casual teachers with unpaid personal carer’s leave and up to 48 hours’ unpaid bereavement leave on each occasion.
For permanent and temporary teachers, Determination 4 of 2016 provides 15 days’ sick leave per year, together with access to special sick leave, while Determination 5 of 2016 provides FACS leave, including for the care of dependants and following the death of a family member.
Where a permanent or temporary teacher has exhausted their accrued FACS leave, an additional grant of two days FACS leave is [granted] on a discrete per occasion basis on the death of a family member as defined within the Determination 5 of 2016.
Having regard to the provisions of the Award and the determinations identified above, which together provide for personal/carer’s leave and bereavement leave entitlements for employees covered by the Award, the parties submit that the existing arrangements adequately address these entitlements and that no variation to the Award is required.
(b) Part-time work (State Part-Time Work Case (1998) 78 IR 172; [1998] NSWIRComm 142): cl 22.1 - 22.3 of the Award provides entitlements to temporary part-time employment on a pro-rata basis. Clause 22.3, in particular, reflects the department’s commitment to maximising the filling of vacancies in schools by appointment of permanent teachers including permanent part-time teachers. Clause 38 of the Award provides for flexible work arrangements, including part-time work for all teachers, to support employees in balancing work, family and caring responsibilities.
Long-standing Department policy, which was referred to in the test case, provides that teachers may be employed on a permanent part-time basis between 0.2 and 0.8 equivalent full-time, corresponding to one to four days which are the ordinary working days of a school. Accordingly, the parties submit that no variation to the Award is required.
(c) Reasonable overtime (State Working Hours Case 2003, Re (2003) 124 IR 253; [2003] NSWIRComm 86): the Award does not prescribe ordinary hours of work or provide for overtime for teachers.
Teachers are required to be on duty during the school day, for 30 minutes before or after where necessary for the care and supervision of students, and may be required to be on duty beyond those hours for specified reasons, in accordance with Determination 1 of 2026. Teachers are not required to attend their workplace during non-term weeks, unless otherwise required by the Department, and continue to be paid for those periods. Furthermore, teachers’ annual salary takes into account the broader professional responsibilities of the role.
Principals must consult with teachers when developing the school supervision plan for the 30 minutes before and after the school day and where attendance at work is otherwise required, the decision must be reasonable with measures to determine reasonableness specified in the Determination. This approach ensures that arrangements are manageable and that teachers are well supported.
Given the longstanding and well-understood arrangements governing teachers’ working hours and attendance, the parties do not consider that the absence of a reasonable overtime provision leaves teachers with a less favourable entitlement. Accordingly, the parties submit that no variation to the Award is required.
(d) Termination and redundancy (National Union of Workers v Employers’ Chamber of Commerce & Industry (Vic) (Redundancy Case) (2004) 129 IR 155; [2004] AIRC 287 and Re Storage Services – General – Award (Re Redundancy Case- Supplementary Decision (2004) 134 IR 57): the Award does not contain general termination or redundancy provisions.
Section 50 (6) of the TSA provides temporary employees with at least four weeks’ notice of termination or payment in lieu of notice, other than in cases of misconduct. Section 72 deals with circumstances in which the services of an excess employee may be dispensed with.
In practice and in policy, the Department does not make permanent classroom teachers redundant. Where workforce change requires a reduction in staffing, affected teachers retain permanent employment within the NSW Teaching Service and are managed through transfer and placement arrangements. In the rare circumstances where permanent employees (non-school based teachers) are made redundant, Department policies provide for up to five weeks of notice and up to 52 weeks of total severance payment, which exceed the minimum entitlements under the National Employment Standards.
Regarding notice of termination generally, it is the Department’s longstanding practice for temporary engagements to ordinarily have a duration which coincides with the conclusion of a school term, or known period of leave for relieving arrangements, having regard to the need to minimise disruption to students and maintain continuity of teaching and learning. The Department has policy which goes to the grounds on which temporary engagements may be ceased early, and in each circumstance the notice period specified in the TSA applies. The parties submit that this practice, together with the particular operational context of the NSW Teaching Service, is relevant to and appropriately addresses the protections reflected in the test case standard concerning notice prior to termination.
Accordingly, having regard to the established processes governing termination and workforce change, the parties agree that no variation to the Award is required to meet this test case standard.
(e) Secure Employment (Secure Employment Test Case 2006 (2006) 150 IR 1; [2006] NSWIRComm 38): cl 34 of the Award provides work health and safety protections for labour hire and contract workers including consultation, induction and training, and the identification and management of workplace risks.
The Award also limits the circumstances in which a teacher may be engaged on a casual basis. Clause 2.65 provides that a teacher engaged full-time for four weeks or more, or part-time for one to four days per week for two terms or more, is a temporary teacher. Accordingly, engagements extending beyond those periods would ordinarily fall within temporary rather than casual employment.
Furthermore, cl 22.2 provides part-time temporary employees with a right to request conversion to permanent employment.
While the Award provisions do not replicate the casual conversion mechanism established by the test case, prolonged casual engagement in a single position is not possible under the Award. Meaning that longer-term engagements attract temporary employment and the associated entitlements.
The parties therefore submit that no amendment to the Award is required to reflect this standard.
(f) Superannuation (Superannuation Case 2025 (No 4) [2025] NSWIRComm 1071): the minimum entitlement to make superannuation contributions in accordance with applicable Commonwealth superannuation legislation is provided by the NSW Public Sector and Local Government Employees Minimum Conditions of Employment (Superannuation) Award 2025 which applies to employees covered by the Award.
Clause 8 of the Award also provides for salary sacrifice to superannuation and preserves the calculation of superannuation guarantee contributions by reference to the employee’s salary before salary packaging. The parties therefore submit that no further amendment to the Award is required to reflect this standard.”
“Part 6 – 3 of the FWA:
6. The parties have considered whether the Award provides benefits no less favourable than those referred to in Part 6-3 of the FWA in relation to:
(a) notice of termination and payment in lieu of notice, the parties rely on the statutory and administrative protections identified in paragraph 5 (d) above and the parties do not consider it necessary to reproduce those provisions in the Award; and
(b) paid family and domestic violence leave, Determination 3 of 2023 provides permanent, temporary and casual teachers with 20 days’ paid leave per calendar year, which exceeds the 10-day minimum provided under the FWA.”
The parties conducted a review of the determinations issued under the Teaching Service Act 1980 (NSW), the former Teaching Services Act 1970 (NSW) and the former Education Commission Act 1980 (NSW) which set or support conditions of employment for employees covered by the Award.
The parties submitted that to the best of their knowledge, there are presently 31 operative determinations. The parties divided the determinations into three categories:
(a) determinations suitable for integration into the Award during the present review; (b) determinations which the parties consider are not suitable for integration into the Award; and (c) determinations potentially suitable for integration, subject to consideration and agreement during negotiations for the next Award.
The parties agreed the determinations dealing with lactation breaks and paid domestic and family violence leave are suitable for integration into the Award during the present review.
The parties proposed 15 of the determinations are potentially suitable for integration and should be actively considered during negotiations for the next Award. During the conciliation, the parties agreed to expand that list to include an additional 5 determinations. That list of determinations is expressly provided for in the undertakings given by the parties as set out at [31].
The parties’ undertaking to consider those determinations does not amount to a submission that each determination is appropriate for incorporated into the Award. Rather, the parties have accepted the subject matter of those determinations may be capable of being considered for inclusion in an industrial award.
Further, the fact parties do not agree to incorporate a particular determination into the Award does not mean the Commission accepts the determination is unsuitable for incorporation. Nor does it mean the Commission will necessarily accept the same position when considering any application to make, vary or replace the Award in the future. The parties agreed position cannot displace the Commission’s obligation to consider whether the Award is readily understandable, remains relevant and effective, and is consistent with the Commission’s award making powers.
I accept that incorporating all relevant determinations into the Award during the present review would involve significant work. I also accept the impending negotiations for the next Award will provide an appropriate opportunity for the parties to undertake that task comprehensively. It is for those reasons I have allowed the parties to consider this issue further during the negotiation of the next Award in 2027.
1. During negotiations for the next Award, the parties will actively consider:
(a) incorporating into the Award, where appropriate, the substance of, or an express reference to, the entitlements presently contained in the determinations (which may result in the rescission of a determination):
Determination 21 of 1970, Travelling Expenses of Members Stationed West of the 145th Meridian of Longitude when Proceeding on Recreation Leave;
Determination 32 of 1982, Travelling Compensation;
Determination 39 of 1982, Excess Hours and Compensatory Leave;
Determination 5 of 2006, Casual School Teachers: Adoption, Bereavement, Maternity, Parental and Personal Carer’s Entitlements;
Determination 4 of 2007, Principal Liaison Officers: Conditions of Employment;
Determination 6 of 2006, Extended Leave;
Determination 1 of 2010, Teacher Mentors;
Determination 1 of 2016, Principal, School Leadership;
Determination 4 of 2016, Sick Leave;
Determination 5 of 2016, Family and Community Service Leave;
Determination 6 of 2016, Annual Leave and Payment for Non-Attendance by Teachers in Non-Term Weeks;
Determination 7 of 2016, Maternity Leave;
Determination 8 of 2016, Parental Leave;
Determination 9 of 2016, Adoption Leave; and
Determination 3 of 2022, Special Conditions of Employment for the Principal and Deputy Principal at the Secondary College of Languages.
Determination 10 of 2006 – Increase of Meal, Travel and Related Allowances for Teaching Service Staff;
Determination 2 of 2006 – Public Service Holiday;
Determination 1 of 2009 – Workers Compensation – Accident Leave;
Determination 7 of 2009 – Broken Hill Teaching Service Staff – Medical and Dental Expenses; and
Determination 2 of 2016 – Multi-campus Colleges – Principal Salary.
(b) the rescission of obsolete determinations;
(c) including express references in the Award to entitlements arising under the Teaching Service Act 1980, other applicable legislation, and/or other industrial instruments applying to employees covered by the Award, including the NSW Public Sector and Local Government Employees Minimum Conditions of Employment (Superannuation) Award 2025; and
(d) reviewing the structure, ordering and index of the Award, with a view to aligning the Award, where appropriate, with the Commission’s standard form and index.
2. When seeking the making of the next Award or varying the current Award, the parties will provide the Commission with:
(a) an explanation of the consideration that has been given to each of the matters identified in paragraph 1 of this undertaking;
(b) the outcome of that consideration;
(c) the parties’ position concerning the incorporation into the Award of the substance of, or references to, the relevant determinations;
(d) the reasons for any agreed position that a determination should not be incorporated or referred to in the Award; and
(e) details of any determination which the parties consider should be rescinded as obsolete or unnecessary.
Most of the amendments proposed by the parties are administrative or modernising in nature. They improve the clarity, consistency and ease of understanding of the Award without altering its essential industrial character.
The incorporation of provisions dealing with lactation breaks and paid domestic and family violence leave is also an appropriate modernising measure. Those provisions make significant employment entitlements more readily identifiable within the Award and are consistent with the objects of the IR Act, including the prevention and elimination of discrimination in the workplace and the promotion of fair and just industrial relations: s 3 (a), (f), (h) and (i) of the IR Act.
I am satisfied that the review has addressed the matters required by s 19(3) of the IR Act.
The parties have presented the proposed amendments on a consent basis. No contested issue has been identified which presently requires separate determination.
I am satisfied the Award should be varied pursuant to s 19(6) of the IR Act in the form filed by the parties on 12 October 2026.
I am also satisfied it is appropriate to delay the review of the ordering of the Award and the inclusion of determinations and entitlements arising under external instruments until the next Award negotiation. That work is a significant undertaking and is best considered in that context.
I make the following orders:
Pursuant to s 19(6) of the Industrial Relations Act 1996 (NSW), the Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award 2024 (Award) is varied in accordance with Annexure A of the short minutes of order filed by the parties on 12 October 2026.
The parties file a short minute of variation order reflecting this decision.
The varied Award be marked as reviewed.
The parties are to include in any future application to make an award replacing the Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award 2024 a statement recording:
(a) the undertakings given to the Commission in these proceedings; (b) the terms of those undertakings; (c) the consideration given to the matters the subject of the undertakings; (d) the outcome of that consideration; and (e) the parties’ reasons for any agreed position concerning the incorporation into the Award of the substance of, or an express reference to, any determination identified in these reasons.
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(1996) 68 IR 308
(1998) 84 IR 416
(1998) 78 IR 172
(2003) 124 IR 253
(2004) 129 IR 155
(2004) 134 IR 57
(2006) 150 IR 1
(2024) 337 IR 182