Around 130,000 staff members care for an estimated 1.5 million children across Australia, making the Children’s Services Award a crucial aspect of Australia’s employment law for those working in the childcare industry. This award lays out the minimum standards for employers regarding pay, working hours, leave entitlements, and other important conditions for employees in this sector.
Our guide aims to provide a comprehensive overview of the Children’s Services Award, including information on employment types, pay rates, allowances, and other important terms and conditions for employers.
The aim is to assist employers in understanding their obligations under the Children’s Services Award and ensure compliance with the legislation.
Here’s what you need to know.
Who Does the Children’s Services Award Cover?
The Children’s Services Award is a set of wage rates and conditions that apply to the early childhood education industry. It largely covers employers who provide early childhood education services, including:
- Long day care
- Nurseries
- Out of school hours care
- Childcare centres and daycare facilities
- Occasional care
- Kindergartens and preschools
- Family based childcare
- Vacation care
- Early childhood intervention programs
- Adjunct care (For example, places like shopping centres where children are cared for, for short periods of time, usually up to 3 hours, while the caregiver remains on the premises.)
- Mobile centres
- In-home care
Examples of employees that the Children’s Services Award covers include:
- Child care workers
- Room leaders and co-ordinators
- Directors and assistant directors
- Support workers who perform tasks including administration, cooking, cleaning and maintenance.
Aside from these employees, the Children’s Services Award also covers employers in the labour-hire industry who employ employees in the Award-covered classifications while working for a children’s services employer.
Importantly, it does not cover:
- Qualified preschool teachers (including early childhood teachers)
- Childminders in gyms and fitness centres
- Early childhood physical education providers
- Carers in family day care
It doesn’t cover employers and employees when they are covered by one of the following awards:
- Educational Services (Schools) General Staff Award
- Higher Education General Staff Award
- Local Government Award
- Social and Community Services Award.
Employment Types in the Children’s Services Industry
Your children’s services employees will generally fall into one of three employment categories:
| Full-Time Employee | Part-Time Employee | Casual Employee |
| Engaged to work 38 ordinary hours per week, or an average of 38 hours worked over either a 76-hour fortnight or 152 hours per four weeks. | Engaged to work a specific number of hours, fewer than 38 ordinary hours and has reasonably predictable hours of work. | There are no guaranteed working hours. |
Terms of Part-Time Employment: Pay Rates, Agreed Work Pattern
Part-time employees must receive equal rates and employment conditions as full-time employees, but on a proportional basis according to their average number of hours per week. This includes entitlements such as annual leave and personal leave.
At the time of engagement the employer and the part-time employee must 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.
Terms of Casual Employment: Purpose of Employment, Minimum Engagement, Loading Rates
Unlike other modern awards, employers can only hire casual staff under the Children’s Service Award for the purpose of providing temporary relief. For example, let’s say one of your full-time or part-time employees is on sick leave, you can bring in a substitute caregiver on a casual basis.
The terms of their casual employment must include the following:
- At least 2 hours of pay per shift
- 25% loading on top of their ordinary base pay rate (since they don’t receive annual and personal leave, paid public holidays, potential redundancy benefits, and notice of termination)
- Payment in terms of applicable penalty rates if their shift exceeds 8 hours per day and/or 38 hours per week (see discussion below)
- The option to enter into a weekly pay agreement
Casual Employees Can Request to Convert Employment Type
In compliance with the National Employment Standards, casual employees who have completed a minimum of one year of service and have maintained a regular schedule for the past six months are entitled to request a conversion to full-time or part-time employment.
Employers are obligated to consider such requests and may only deny them for valid business reasons, such as a foreseeable alteration in the employee’s schedule. It is worth noting that the employee has the right to reject the conversion offer.
Higher Duties
Generally, when an employee is required to perform duties higher than their normal classification for two or more hours, they are eligible for higher pay for that time.
However, there are some exceptions to the general rule:
- Assistant Directors will only receive higher pay if they are required to perform duties of a Director for two consecutive days or more.
- Employees who are required to act as a Director or Supervising Officer will be paid at the rate applicable for those positions for the entire period.
- Level 3 employees who are required to perform the higher duties of a Director outside of normal working hours are not eligible for higher duties pay.
- Employees who are required to take over another employee’s duties during their absence are not eligible for higher pay.
Minimum Pay for Employees in the Children’s Services Industry?
Employers must pay their employees at least the pay rates and entitlements specified in the award on a weekly or fortnightly basis, depending on the pay period cycle.
The Fair Work website has various tools and resources to help you calculate your childcare wages.
Alternatively, you can access the pay guide summaries, which contain information about the minimum wages (pay rates), penalties, and allowances.
However, note that these pay rates are adjusted annually per the national minimum wage. Therefore, you need to use the applicable pay guide summary when determining the relevant pay rates.
What are the Ordinary Hours of Work?
Employees must not exceed ordinary 38 hours per week over a period of 4 weeks. The maximum number of ordinary hours per shift is 8 hours.
The span of ordinary weekly hours for part-time and full-time employees under the Children’s Services Award runs between 6:00 am and 6.30 pm, Monday through Friday. However, despite this provision, employees may be engaged as shift workers. Shift work provisions are set out in the Award.
How Should Employers Manage Rosters and Rostered Days Off?
Employers must ensure staff rosters are easily accessible to all employees on the roster. Changes to the roster can be made with the agreement of both the employer and employee or if the employer gives the employee at least seven days’ notice in writing. This written record can be digital, such as an email or text.
However, in cases of emergencies beyond the employer’s control, the requirement for seven days’ notice may be disregarded. Examples of such emergencies include imminent risks to the safety of individuals at the workplace, such as a fire, or the need to lock down the workplace due to a situation like COVID-19.
Rostered Days Off
A rostered day off is a designated day within a scheduled period when an employee is not required to work. An employer can decide to roster full-time employees for an average of 38 hours per week over a one, two or four week cycle. Consequently, an employer can decide to roster full-time employees in a way that allows for their taking either one paid rostered day off during a roster period or accumulating a maximum of five rostered days off to be taken at a mutually convenient time.
Example
Let’s say you have a full-time employee who is rostered to work 8 hours per day (instead of 7.6 hours) since they are required to stay on a bit later than other employees to wait for those parents who do not pick up their child on time.
The extra 0.4 hours (or 24 minutes) adds up to one full workday (i.e., 7.6 hours) over a period of 19 days.
This arrangement involves the employer having agreed to let them accumulate these extra hours as one rostered day per four weeks that they can take off.
What is Non-Contact Time?
An employee responsible for creating, implementing, or evaluating a developmental program for a single child or group of children is entitled to a minimum of two hours of paid non-contact time per week. During this non-contact time, the employee will not be expected to supervise children.
What Are Your Obligations When Staff Work Overtime?
The Children’s Services Award makes provisions for staff who work beyond their ordinary hours of work. These provisions define overtime according to their employment type:
| Full-Time Employee | Part-Time Employee | Casual Employee |
| A full-time employee is eligible for overtime pay if they work – beyond their regular weekly schedule – outside the span of ordinary hours, being 6:00 am to 6:30 pm, Monday to Friday. | A part-time employee is entitled to overtime pay if they work: – beyond their regular weekly schedule – more than 8 hours in a day – more than their agreed-upon hours – outside their agreed- upon schedule – if they have been given less than seven days’ notice, or – outside the span of ordinary hours, being 6:00 am to 6:30 pm, Monday to Friday. | A casual employee is entitled to overtime pay if they work more hours than their roster. |
Employers are obligated to compensate them according to the following overtime rates:
| Overtime Hours | Overtime rate for full- and part-time employees | Overtime rate for casual employees (including casual loading) |
| First 2 hours (Monday – Friday) | 50% | 75% |
| After 2 hours (Monday – Friday) | 100% | 125% |
Are Employees Allowed to Take Time Off Instead of Receiving an Overtime Payment?
Yes, under the Children’s Services Award, an employer and employee may come to an agreement in writing that allows the employee to take time off instead of receiving overtime pay. However, there are a few conditions to consider:
- The amount of time off given is based on the overtime pay the employee would have received. For instance, a part-time employee who works 2 hours of overtime is entitled to 3 hours of time off (i.e. 2 x 1.5).
- The time off must be taken within six months of working the overtime and at a mutually agreed upon time within that period. If the employee does not take time off within six months, the employer must pay the employee at the overtime rate.
- If the employee requests it, the employer must pay the employee for overtime covered by the agreement but not taken as time off. Following the employee’s request, the payment should be made in the next pay period.
- Employers are not allowed to exert undue influence or pressure on employees to take time off instead of receiving overtime pay.
- In the case of termination of the employee’s employment, the employer must pay the employee for the overtime worked at the applicable overtime rate.
Conditions of Employing Staff to Work Shift Work in the Early Childhood Education Industry
Shift workers are employees who work on any of the seven days of the week and are regularly scheduled to work on Sundays and public holidays. For the purposes of the Children’s Services Award, employers may employ staff to do shift work.
However, the provisions indicate that shift workers’ ordinary working hours, including meal breaks, must not exceed an average of 38 hours per week over a one, two, or four-week cycle without overtime payment.
Employers must also pay shift workers penalty rates for all ordinary hours worked during their shifts, as follows:
| Shift Type | Penalty Rate |
| Monday to Friday(5.00 am – 6.00 am) | 10% |
| Monday to Friday(6.30 pm – midnight) | 15% |
| Monday to Friday night shift, rotating with a day or afternoon(midnight – 8.00 am or before midnight – 5.00 am) | 17.5% |
| Monday to Friday night shift, non-rotating | 30% |
| Saturday*ordinary hours + first 2 hours of overtime | 50% |
| Saturday*after 2 hours of overtime | 100% |
| Sunday* | 100% |
| Public holidays* | 150% |
Employees Must Receive Breaks
Employers must provide paid rest (tea) breaks and unpaid meal breaks to employees based on their normal working hours as follows:
| Number of hours worked | Paid tea (rest) break | Unpaid meal break |
| 4 hours to 5 hours | Employees receive one x 10-minute paid rest break | Employees receive one meal break of not less than 30 minutes and not more than 60 minutes (noting that employees who are engaged for a shift of 6 hours or less may elect to forego a meal break). |
| 7 or more | Employees receive two 10-minute paid rest breaks that they can only take after the first hour of work and/or the first hour after their meal break. |
However, where an employee is required to stay on the employer’s premises during their lunch break, the employee is entitled to a paid meal break of not less than 20 minutes or more than 30 minutes and this time counts as time worked.
What are the Children’s Services Award Allowances?
Eligible employees under the Children’s Service Award receive additional pay, in the form of allowances, for specific work conditions and work-related skills, including:
| Allowance Type | Description |
| Broken shift allowance | If an employee works two separate shifts in a single day, they are entitled to receive an allowance to compensate for the inconvenience of the broken shift. Note: the maximum spread of hours for a broken shift is 12 hours per day, with the usual limit of a maximum of 8 hours worked within that spread of hours. |
| Special clothing | If full-time or part-time employees are required to purchase specialised clothing or protective items that are not part of a regular uniform, the employer must reimburse the employee for the cost of these items. |
| Laundry | If an employee is required to launder their clothing as part of their job, they are entitled to receive an allowance to cover the cost of laundry. If an employee is also required to have their clothing ironed, they will receive a separate allowance for that. |
| Excess fares allowance | If an employee is asked to work away from their normal place of work, they are entitled to receive an allowance to compensate for any excess fares they incur. |
| First-aid allowance | Employees who are certified first-aiders (below level 3) and are required to administer first aid to children in their care are entitled to receive an allowance for this. Employees working out-of-school hours and who are also certified and required to administer first-aid, are entitled to a slightly higher allowance. |
| Meal allowance | If an employee is required to work more than 2 hours of overtime with less than 24 hours notice, the employer must provide them with a meal or pay them a meal allowance. |
| Qualifications allowance | Directors or Assistant Directors who hold a Graduate Certificate in Childcare Management or equivalent, must be paid an all-purpose allowance. |
| Transport allowance for delivery drivers | Transport Allowance for Delivery Drivers: If an employer requests that an employee use their own car or motorcycle to perform employment duties, the employee is entitled to receive an allowance for the use of their personal vehicle. |
| Educational leader allowance | Employees who fulfil the duties of an educational leader as outlined in Regulation 118 of the Education and Care Services National Regulations 2011 are eligible for an allowance. (This is a new allowance, which is available from the first full pay period starting on or after 1 November 2022.) |
These allowances are generally adjusted annually. You can access the full allowance conditions in clause 15 of the Children’s Service Award and the allowance rates in the relevant pay guide.
Superannuation Guarantee
All employers must pay a superannuation guarantee on behalf of their employees. The current rate is 10.5% of an employee’s ordinary earnings for the 2022–23 financial year.
What are the Annual Leave Provisions and What Occurs if the Workplace Closes for Vacation Periods?
The National Employment Standards (NES) prescribe the annual leave provisions for employees covered by the Children’s Services Award
In addition to the employee’s annual leave, employers must pay 17.5% leave loading.
For workplaces that close during vacation periods other than Christmas vacation (e.g. pre-schools which operate on a three pre-school term model in line with school terms), if no work is available during the time the workplace is closed, full-time and part time employees must continue to be paid at their ordinary rate of pay.
However, where the workplace closes during the Christmas vacation period, employees may be directed to take annual leave. Where an employee does not have enough annual leave to cover the entire Christmas vacation period, the employer may require them to take a maximum of four weeks of leave without pay.
Shift workers are required to receive the higher of:
- an annual leave loading of 17.5% of their ordinary pay rate; or
- the weekend and shift penalties the employee would have received if they weren’t on leave during that period.
Further, those who work shifts and are rostered regularly to work on Sundays and public holidays receive five weeks of paid annual leave.
What Alternative Annual Leave Arrangements Can an Employee Request?
- Leave in advance: An employee and employer can agree in writing on paid annual leave in advance of the leave accruing.
- Cashing out annual leave: Employees and employers may agree in writing to cash out certain amounts of paid annual leave, provided certain conditions are met, including that at least four weeks of accrued annual leave remain.
- Excessive leave accruals: Employees and employers may agree to reduce or eliminate excessive leave accruals by taking some of their leave. Fair Work defines excessive leave accrual as having accrued more than eight weeks of paid annual leave, or ten weeks for a shift work employee.
Key Takeaways
If you are unsure of your responsibilities under the Children’s Services Award, it might be helpful to engage an employment law firm.
WilliamsonBarwick lawyers have experience with the Children Services Award and can help you understand your obligations. They can also help you with any conflicts that may arise under the Award between yourself and an employee.
Contact us today to discuss your needs.
