The 2026 ECEC Roadmap: Award Changes, Retention Payments, and NES Updates

In this episode of Learn Play Thrive, host Simone Brand broadcasts live from the ECA Regional, Rural & Remote Forum to tackle the most pressing legal and industrial shifts hitting the ECEC sector. We are joined by Leanne Cruden, a seasoned industrial relations lawyer leading the charge on gender-based undervaluation proceedings for the Australian Industry Group.  Victor Lin, a senior solicitor and employment law expert from the Australian Federation of Employers and Industries also joins the conversation. Together, they pull back the curtain on the complex intersection of fair pay, legislative reform, and the future of the ECEC workforce, providing much-needed clarity for providers navigating a rapidly changing regulatory landscape.

The discussion dives deep into the updates surrounding the Children’s Services Award 2010, specifically focusing on the Fair Work Commission’s review of gender-based undervaluation and the rollout of the Worker Retention Payment. Leanne explains the practical mechanics of these payments and how they aim to stabilise the ECEC sector, while Victor provides a vital update on the latest changes to the National Employment Standards (NES). Whether you are an employer seeking to remain compliant or an educator curious about how these landmark proceedings impact your professional value, this episode serves as an essential guide to the industrial evolution of early childhood education in Australia.

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Transcript

SPEAKER_03 0:01

Welcome to Learn Play and Thrive the podcast, the ultimate early learning podcast for educators and leaders in the sector. Let's learn, play, and thrive together.

SPEAKER_01 0:11

The Learn Play Thrive podcast was recorded on the land with the Dark and John people. We pay our respects to the traditional custodians, past, present, and emerging. Hands up, hands down, clear and dark and young land.

SPEAKER_03 0:24

Hello and welcome to Learn Play Thrive the podcast, where we dive deep into the heart of early childhood education and care. And the inspirational educators, researchers, and sector leaders who make it happen. I'm your host, Simone Brand. We are coming to you today with a very special episode recording live from the ECA Regional, Rural and Remote Forum in Coss Harbour. Today we are chatting with Leanne Cruden and Victor Lynn. Leanne is a workplace and industrial relations lawyer with 20 years' experience in the legal industry spanning private practice, in-house and employer association roles. Leanne has recently taken a lead role on behalf of the Australian Industry Group in relation to the gender-based under-evaluation proceedings for the Children's Service Award 2010. She is also the project manager for service provider by the Australian Industry Group under Worker Retention Payment Engagement Program. In this capacity, she has gained a deep knowledge and practical understanding of the operation of worker retention playmate, particularly in relation to how it intersects with the gender-based under-evaluation proceedings. Victor Lynn is a highly experienced senior consultant and senior solicitor in employment law and human resources with the Australian Federation of Employers and Industries, AFEI. Victor has extensive experience providing advice and guidance to employers in the early childhood sector. He has worked with employers across Australia in navigating complex employment issues, including modern awards, employment contracts, and workplace policies and investigations. Welcome to Learn Play Thrive, the podcast, Leanne and Victor.

SPEAKER_02 1:52

Thank you very much.

SPEAKER_03 1:53

Thank you so much for coming on, especially when we're here at the conference in Coss Harbour. It's a very busy time, but I'm very grateful to have you guys sit down and have this chat with us. In the real time when it's all happening and being developed and sent through to the sector. Leanne, you've been at the forefront of the Fair Work Commission's gender-based under evaluation review for the Children's Service Award 2010. In leading this review for Australian Industry Group, what are the changes and when do they apply?

SPEAKER_00 2:17

Well, the proceedings were quite long-running. They were kicked off around mid of 2024, and we have now, just from the 1st of March this year, had the first uh gender-based increase to the rates of pay under the Children's Services Awards. So just a little bit of context, the the proceedings were quite significant. In April 2025, the uh an expert panel of the Fair Work Commission concluded that there had been undervaluation of the work of educators under the Children's Services Award. The key finding there was that in particular these educators have invisible skills which had been previously undervalued. So the Commission had decided to award uh increases of varying amounts for different classifications under the award, and many uh educators will receive increases phased in over time of at least 15%. But there are a large number of classifications that will get increases of over 20% once they're fully phased in. So after that uh initial uh what's called provisional view in April last year, the Fairwork Commission went through a process of finalising what the changes to the award would look like and how many years they would be phased in over. And following that process, we've now just had the first um set of increases under a new classification structure implemented from the 1st of March this year.

SPEAKER_03 3:35

Congratulations, but a lot of work and time and effort and driving has come together into fruition. Yes, yeah. And what does that process look like?

SPEAKER_00 3:42

There is a new classification structure under the Children's Services Award. So uh any uh services that have staff employed or for their staff employed up to the 28th of February this year, it's really important that those services apply what's called a translation process to get their educators translated from their old classification into their new classification, and that will also have the new rate of pay attached to it as well. So that needed to happen from the first full pay period after 1st of March. It's really important that services get on top of that now. And then for all new employees who are joining a service after the first of March, there is the new classification structure in the award and ensure that you're applying that one, not the old version of the award.

SPEAKER_03 4:24

That's right. Victor, could you share an update for our listeners on the national employment standards for the sector and what changes have been made recently?

SPEAKER_02 4:31

Yeah, thank you for that. So, of course, the national employment standards often abbreviated as just the NES or the NES. So, this is a recap. They are a series of entitlements that are enshrined in the Fair Work Act. They're often referred to as the ultimate safety net for employees because that's something there's something every employer under the Fair Work Act is entitled to. So there's 12 of them now. And these are maximum weekly hours, request for flexible working arrangements, casual employment, parental leave and related entitlements, annually, personal carers leave, community service leave, long service leave, public holidays, superannuation contributions, notice of termination and redundancy pay, and the fair work information statements. So some of these entitlements have received some amendments over the years, and I'm happy to just have to a quick recap on that.

SPEAKER_03 5:17

Yeah, I love that. Thank you.

SPEAKER_02 5:18

So we might start with flexible working arrangements. So just as a recap, the Fair Work Act provides that staff, employees that have certain characteristics or in certain circumstances can make a request for flexible working arrangements under the Fair Work Act. These characteristics or circumstances include if someone is a parent of a school-aged child or younger, if they have a disability, if they're over 55. There's a bit of a list. Now, recently that list was expanded to also include pregnancy, as well as if a staff member, an employee is experiencing domestic or family violence as well. Further, the provisions have been amended so that the Fairwork Commission, so that's the tribunal power, has been expanded a little bit so that they can deal with disputes in relation to request for flexible working arrangements, and that includes by conciliation or by arbitration. Casual employment that's received a bit of an update as well. So that's one of the newer additions to the NES. So, as you may be aware, a few years back, changes were made to the NES so that employers were required to look at casual conversion. A few years back, um, employers were required. If uh if an employer had a casual employee with them for over a year or 12 months, they were required to look at if in the last six months of those 12 months if they have had work regular and systematic hours, and if so, they may have had to offer that casual employee full-time or part-time conversion. So that's changed now. So more recently, the amendment has been changed into what's often referred to as the casual employee choice pathway. It's much more employee focused. So it's not the employer having to look at everything for the last well, all the casuals now, it's more about the casual employee feels like they meet the eligibility criteria. They can make a request to convert as well. So the VAR Commission's power is also extended as well. So in that regard, if there's any disputes arising for that, the commission has the ability to deal with the disputes, including by arbitration as well.

SPEAKER_03 8:22

Can you explain what that is for Alice?

SPEAKER_02 8:23

Sorry, yes, of course. So arbitr conciliation is when the commission might hold a conference to see if the parties income, trying to assist the parties into reaching a resolution. But arbitration is when they make a legally binding decision on the lab. So they make a there'll be a hearing that goes through it with parties. Now uh parental leave, we've got a bit of an update as well. So everyone's fairly familiar with entitlement, 12 up to uh the basic entitlement of 12 months off um for adoption or for birth of a child. Um it used to be that more or less you had to take that 12 months in a block or so, but now um there's a new concept that's coming for flexible, unpaid parental leave, so you can take a portion of that 12 months flexibly, so not necessarily a block, up to 100 days. And they've also introduced protection for all the employee entitlements to employer-funded pay leave. So if an employer has not all employees have this, and you're not required to have it, but some employees have, you know, like if they're maybe through a policy, a paid parental leave uh system or something like that. So these protections came in to say that that still needs to apply, if you've got one, that still needs to apply in circumstances where perhaps a child is stillborn or uh unfortunately very tragically passes away after birth as well.

SPEAKER_03 9:32

And when we're talking about parental leave and that 12-month period, is that a negotiation that the employee and the employer have? Or is it more on the side of the employee chooses if they would like to take it partially?

SPEAKER_02 9:43

Yeah, it's up to the employee's choice, but there are notification requirements as well, so you have to give a certain amount of notice to your employer. Yep. So there's um family and domestic violence leave now, though. That's been around for in one shape or another for quite some time now. But more recently, um, a few years back, it's now part of the Fair Work Act and National Employment Centers itself. It's paid now. So it's 10 days per year. It's available to full-time, part-time, and casual employees. And unlike annual leave or sick leave, which accrues as you go along in a year, all 10 days is available in full at the commencement of every 12 months of employment. But it unlike again, not like unlike annual leave and sick leave, it does not accrue to yeah. It's always just going to be capped at 10 at most. Also, superannuation has made its way into the fair work act as well. Of course, all employees were obligated under superannuation laws to make super pay superannuation, but now it's part of the fair work act as well. But if you satisfy if you are doing the right thing, if you're paying um super as per superlords, you also be satisfying the Fair Work Act. So the other changes include redundancy pay. So small businesses, that is, businesses with 14 or less staff, have always been exempt from making redundancy payments. Um by the way, that includes that's a pretty strict headcount, and that includes any associate entities that an organization might have. So if you're part of a larger group of organizations, you might not be a small business because you've taken to account those other organizations as well. So recently that exemption has been diluted a little bit. So if you have become a small business as a result of shrinkage and within six months of going bankrupt or going to liquidation, then that small business exemption won't apply to an organization anymore. They'll still need to make redundancy payments as well. And I guess the last major change is just the information statement. So the fair the employers provides that employees need to provide certain information statements to their staff. So one of the newer ones that have come out is that there's also a casual information statement now, and that needs to be provided before or as soon as possible when a casual employee starts, and they need to need to be provided every 12 months thereafter as well. So that's a quick summary of some of the amendments.

SPEAKER_03 11:46

That's a lot that has been um updating and happening. Yeah, you would have been um very busy as as time's gone. Leanne, can you outline how the worker retention payments work for educators employed in licensed children's services across Australia and what are the changes and when do they apply?

SPEAKER_00 12:02

Certainly. So the worker retention payment is uh able to be applied for by long day care and outside school hours care and vacation care services. Um you applied to the Department of Education to the Federal Government, and your service can receive payments to cover a pay increase of 15% for your workforce, and that's until the 30th of November this year that that um those amounts apply. Now, uh the worker retention payment has been available for organisations since uh around December 2024 to be applying for that and receiving it, but it's not too late to apply now. So if any organizations haven't yet applied for the worker retention payment, they really should have a think about it. In terms of how uh the worker retention payment interacts with the gender undervaluation increases that we're just talking about, the worker retention payment was designed to account for what the final outcomes of those proceedings would be. So even though the worker retention payment started operating and was available before the Fair Work Commission had finalised and implemented the increases, it was always intended that the worker retention payment would be able to effectively absorb the extra amounts that were going to become payable under the Children's Services Award. Up to 15%. So the guidelines for the worker retention payment explain it and say that where someone's award rate has increased by a particular percentage, you decrease the amount of worker retention payment that you have to pay so that the overall effect is still 15% above what they used to be receiving. So take an example if uh you have an employee in a classification under the Children's Services Award, and from one March they were entitled to a 5% increase. That means that the worker retention payment amount they receive is now 10% of the award rate. So overall, it's a 5% increase under the award, 10% extra topped up under the worker retention payment. They're still 15% above. So for providers who are participating in the worker retention payment scheme, they need to understand that that's largely uh an internal reconciliation change that they need to be doing in terms of how they apportion and account for worker retention payment versus what's minimum award payment in their organizations. It's also really important that their educators understand that because they were already receiving the worker retention payment and it effectively was designed to absorb and account for, you know, up to 15% of the gender undervaluation increases, they may not have actually received an increase to their actual rate of pay on one March. That's because, as I said, it was really an accounting difference in terms of how much worker retention payment you're receiving versus award payment. So it is important that if educators are not sure about why their pay has sort of stayed the same, or if any of the services are, you know, not sure about how that was intended to work, that they reach out to get assistance in relation to understanding that.

SPEAKER_03 14:50

Can I throw you a curve for and talk about uh educators that may have already been paid above award wage before the worker retention and gender evaluation payment? What does that look like?

SPEAKER_00 15:02

Yeah. So if they were paid above award before the well, even in under the worker retention payment, above award wage employees would be entitled to receive an amount that was equal to the percentage of the award rate. So uh and that would just be applied on top of their above award rate. And that effectively continues to be the similar rule that applies from now. Now, as to whether or not someone's above award rate needed to change um come 1 March, that really depends on how that was expressed in perhaps their letter of offer or their contract of employment or the agreement that they've got um with their employer. So sometimes, for example, a a letter of offer or a contract may state that you are entitled to you know X rate and that is in satisfaction of the award. Now, if that's the case, then they may not have been entitled to have their above award rate increased from one March. But if they had, for example, a contract that said you are entitled to receive uh an alley rate of pay that is at all times 10% above the award rate, then if the award rate changes, then uh on that uh interpretation of your contract, you would have been entitled to have your above award rate adjusted in line with the movement in the awards. So again, it's important that people check their individual contracts. If they have an enterprise agreement at the service, they should understand how that works as well.

SPEAKER_03 16:21

What that looks like amazing. Great information and great changes that have been making for early childhood educators. Thank you so much for both coming onto the podcast and taking the time to share that with our listeners. I think this is going to be an extremely hot topic at the moment. So it's very good to have clarity and be able to hear it from you both and what it looks like in practice. So thank you so much for coming on. Thanks for having us.

SPEAKER_02 16:42

Thank you.

SPEAKER_03 16:43

Thank you for joining us on this episode of Learn Playthrive the podcast. We hope you found inspiration and valuable insights to fuel your journey in early childhood education. Remember the key to fostering learning, promoting play, and empowering young minds lies with your dedication and creativity. Stay connected between episodes by following us on Instagram at learnplaythrive underscore and join the conversation on Facebook at LearnPlaythrive Australia. If you've enjoyed today's episode, please like, subscribe, rate, or review our podcast on your favourite platform. Your feedback helps us to continue to deliver content that resonates with you. And don't forget to visit us at our website at learnplaythrive.com.au for additional resources, blog posts, and professional development opportunities. Until next time, keep learning, keep playing, and keep thriving. We'll see you in the next episode of Learn Playthrive the podcast.