The evidence would suggest that any additional costs to a small service will impact on its viability and would be counterproductive toward the goals and objectives of increasing women's participation in the workforce.

[13] The applicant also observed in reply that the UWU, AEU and IEU's submission 'neglected to mention the Outside School Hours Care sector... indicating a distinct lack of tacit knowledge of the dynamics of this sector.' The reply submission was not accompanied by any evidence.

[14] Section 138 of the FW Act provides:

A modern award may include terms that it is permitted to include, and must include terms that it is required to include, only to the extent necessary to achieve the modern awards objective and (to the extent applicable) the minimum wages objective.

[15] Section 134 of the FW Act sets out the modern awards objective and when it applies. It relevantly provides:

1. The modern awards objective

(1) The FWC must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account:

(a) relative living standards and the needs of the low paid; and

(aa) the need to improve access to secure work across the economy; and

(ab) the need to achieve gender equality in the workplace by ensuring equal remuneration for work of equal or comparable value, eliminating gender-based undervaluation of work and providing workplace conditions that facilitate women's full economic participation; and

(b) the need to encourage collective bargaining; and

(c) the need to promote social inclusion through increased workforce participation; and

(d) the need to promote flexible modern work practices and the efficient and productive performance of work; and

(da) the need to provide additional remuneration for:

(ii) employees working unsocial, irregular or unpredictable hours; or

(iii) employees working on weekends or public holidays; or

(f) the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and

(g) the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards; and

(h) the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.

(2) The modern awards objective applies to the performance or exercise of the FWC's modern award powers, which are:

(a) the FWC's functions or powers under [Part 2-3 of the FW Act, which includes s 158, the section under which the present application is brought]...

1. It is well established that the applicant for a variation to a modern award bears the onus of proving that the variation sought is necessary (not just desirable)[9] to achieve the modern awards objective, including by filing evidence where feasible.[10] The Commission, in considering the application, will proceed on the basis that, prima facie, the modern award being reviewed achieved the modern awards objective at the time it was made.[11] The burden on an applicant for an award variation will be greater where the modern award provision the subject of the application was made as a result of a recent and comprehensive decision-making process and was based upon an industry consensus.[12]

[17] In this case, as we have earlier outlined, clause 15.8 of the CS Award, which contains the entitlement to the educational leader's allowance, was added to the award only in 2022 and has been in operation for less than 18 months. The variation adding clause 15.8 was made on the basis of a consensus of industry employer and employee organisations and was intended to mirror the educational leader's allowance entitlement in the Teachers Award, which was itself made after extensive proceedings conducted by a different Full Bench. These circumstances cast a heavy burden on the applicant to demonstrate why a provision which, in its current form, was so recently found to be necessary to achieve the modern awards objective must now be modified.

[18] The case advanced by the applicant goes nowhere near meeting this burden. It essentially rests on the following bare propositions:

• not all employees in outside school hours (OSH) care who are deemed the Educational Leader work a full day;

• some may work as little as two hours a day;

• this is not fair or equitable for 'smaller sites' as the additional cost will impact on the viability of these sites which will reduce the number of services for parents and employees.

[19] These propositions are advanced in a factual vacuum. The applicant provided no evidence, or even information, about its business, its hours of operation, its employees (including their working hours), its experience to date paying the educational leader's allowance including the cost impact, its profitability or its capacity to provide places for children. Accordingly, we are not in a position to assess the merits of the above propositions even in the context of the applicant's own business and its employees.

1. Moreover, what is sought is a variation to the CS Award, which applies to the entire ECEC sector. A consideration of the merits of an application of this nature requires consideration of the interests of the ECEC sector as a whole. It is plainly deficient for an applicant to seek an industry-wide variation to an industry award by reference only to their own circumstances and interests.[13] The applicant has made no attempt to relate its application to the broader interests of employers and employees across the entirety of the ECEC sector. It involves no consideration, for example, of how the application if granted might affect the interests of employers and employees in the ECEC sector who are not engaged in businesses which provide OSH care. Even in the case of businesses which do provide OSH care, we are aware that they often (perhaps usually) do so in conjunction with the provision of other types of ECEC, but nothing has been said by the applicant about how its application might affect such businesses and their employees. No employer organisation or employer covered by the CS Award expressed any support for the application. The relevant unions opposed it. There is therefore no reason to conclude that the application would (apart from the applicant) meet the interests of any employer or employee in the ECEC sector.

[21] We are therefore not satisfied that the variation sought is necessary for the CS Award to achieve the modern awards objective. Nothing has been put forward to suggest that any of the considerations specified in s 134(1) of the FW Act weigh in favour of making the variation sought, and the need to ensure stability in the award system (paragraph 134(1)(g)) would weigh against varying an award provision which was established so recently on the basis of an industry consensus.

P Paterson for The Allison and Phil Family Trust t/a my OSHC.

L Harrison and A van Gent for the United Workers' Union.

J Kenchington-Evans for the Australian Education Union.

I Bailey for the Independent Education Union of Australia.

N Ward and J Lombardelli for Australian Business Industrial.

Melbourne with video link using Microsoft Teams (directions):

Sydney with video link using Microsoft Teams (directions):

United Workers' Union, Australian Education Union and Independent Education Union of Australia (joint submission): 2 November 2023.

1. [1]MA000120.
2. [2] [2022] FWCFB 164.
3. [3]Ibid at [8]; PR745330.
4. [4]MA000077.
5. [5] [2022] FWCFB 105.
6. [6] [2021] FWCFB 6021.
7. [7] [2022] FWCFB 141 at [7].
8. [8]Royal Commission into Early Childhood Education and Care (Final Report, August 2023).
9. [9]Re Horticulture Award 2020 [2021] FWCFB 5554, 311 IR 1 at [17]- [18].
10. [10]4 yearly review of modern awards - Penalty Rates [2017] FWCFB 1001, 265 IR 1 at [269]; Application by Indigenous Education and Boarding Australia [2023] FWCFB 138 at [40].
11. [11]Ibid.
12. [12]Application by Treves [2023] FWCFB 98 at [69].
13. [13]Application by Woolworths Group Limited [2023] FWCFB 139 at [39]; see also Application by Treves [2023] FWCFB 98 at [70] and [72]-[74].

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