1 KU Children's Services (KU) filed an application for a new award entitled the KU Children's Services (Other Than Teachers) (State) Award 1998 (the 1998 KU Award) on 24 December 1997.
2 It was proposed that that new award would:
… consolidate the KU Children's Services (Other Than Teachers) (State) Consent Award made 11 September 1996 which is Schedule B attached [264 IG 302], the variation to this award made 8 July 1997 (copy of Exhibit Not Marked attached) as well as the respective terms and conditions from the parent award the Miscellaneous Workers' (Kindergartens and Child Care Centres) (State) Award …
This new award shall also include a new definition of "Fixed Term Employee"…
3 The Grounds and Reasons to support the application were:
1. The current award has expired.
2. The parties have been in dispute over the terms and conditions of employment of employees to be engaged on fixed term contracts.
3. The making of the new award will resolve this dispute.
4 On 13 January 1998, an affidavit of urgency was filed on behalf of KU, seeking an urgent hearing on the basis that while KU had fixed term positions available and wished the recruitment process for those positions to commence on 19 January 1998, KU and the Australian Liquor Hospitality and Miscellaneous Workers' Union, Miscellaneous Workers Division, New South Wales Branch (the union) were still in dispute over the terms of employment of such staff.
5 Conciliation was undertaken by Harrison DP on 15 January 1998 and the matter later reallocated to myself. Further conciliation before me failed to achieve a resolution of the differences between KU and the union, and the matter proceeded to arbitration.
6 At a Report Back on 30 January 1998, a timetable for the exchange of documents was agreed. The parties thought one day would be sufficient to complete the hearing, but for greater caution a second day was reserved, those days being 23 and 24 February.
7 On 23 February, the Commission was advised that the timetable had not been complied with. A further agreed timetable was put in place, to culminate in a hearing over three days on 2, 3 and 9 July.
8 The hearing commenced as rescheduled on 2 July 1998, Ms M Underwood being called as KU's first witness. (The hearing for 3 July had been vacated by consent on 23 June.) I do not find it either constructive or a productive use of time to detail the course of the hearing over the following 15 months. Examination of the file shows that the pattern of hearings/vacation of dates by consent continued from then forward and that some 30 hearing days were eventually utilised. (A further attempt at conciliation before another member of the Commission on 26 August 1999 was not successful.)
9 KU called the following witnesses:
Michelle Underwood, Manager Long Day Care Services and Business Development for KU. Ms Underwood possesses a Diploma in Teaching (Early Childhood), has had 15 years teaching experience in child care centres with KU and, in total, over 30 years experience in the early childhood industry. Her responsibilities in her present position include the management of centres that are known as "work based/sponsored services", together with AMEP (Adult Migrant Education Program).
Narelle Coad, originally Centre Consultant, KU. Her responsibilities included providing management support for KU Services at 3 Sydney University Centres, 2 long day care centres, 2 pre-schools and 4 after school care programs. Formerly Director for 3 years of Wattle Lane Child Care Centre, a work based service. Her latest role was as the Defence Child Care Program Co-ordinator. The services under that Program relate to child care centres accommodating families working at various defence forces bases. They are work based services.
Malcolm Thurston, employed by TAFE as Manager Services, Sydney Institute of Technology. His overall responsibilities included overseeing the management of the TAFE child care at Ultimo and Petersham. (At the time his affidavit was sworn - 24 May 1998 - those two centres had been managed under a recently concluded contract with KU). Mr Thurston's statement relates to the Sydney Institute of Technology rather than to TAFE as a whole.
10 The following witnesses were called by the union:
Maria Bassili, employed by KU under the provisions of the Miscellaneous Workers' - Kindergartens and Child Care Centres, &c. (State) Award (the parent award) and of the KU Children's Services (Other than Teachers) (State) Award (the KU Award) at the Fairfield Adult Migrant Education Program (AMEP) child care centre. She was first employed by KU at Blacktown AMEP on 16 July 1990 and at Fairfield AMEP in January 1993.
Janee Binnie, employed by the Hunter Institute of Technology (TAFE) at Carinya Child Care centre (Carinya) under the parent award. Previous to her employment at Carinya she worked for KU as a casual Child Care Worker.
Silvana Failla, previously employed by KU as a child care worker in accordance with the provisions of the parent award and of the KU Award. She was first employed by KU on 19 July 1993. She stopped working for KU in January 1999.
Annie Owens, Branch Secretary of the union. Included in her responsibilities is the children's services industry. Since May 1997 she has participated in award negotiations and discussions in relation to both the parent award and the KU Award.
Gay Richardson, employed in accordance with the parent award as a child carer at the House at Pooh Corner Child Care Centre, a 67 place long day care centre located on the Kensington Campus of the University of N.S.W.
Monica McAuliffe, manager, TAFE's Children's Services within the Department of Education and Training (DOEAT). There are 20 TAFE campuses, 18 of them as at 6 May 1999, owned and operated by TAFE, the other two (Petersham and Ultimo) managed by KU in accordance with TAFE policies, including the staff to child ratio. Her position is a centralised position as part of TAFE management and is responsible for policies, coordinating the centres, providing support to the staff in centres, staff development, and providing advice to Institutes on provision of children's services. The Institutes are separate bodies who have a certain amount of autonomy but are still under the umbrella of TAFE and many of the policies and procedures are from TAFE.
11 In response to a summons to produce issued pursuant to s 165 of the Industrial Relations Act, 1996 (the 1996 Act) by the union, the Department of Education and Training produced five lever arch files containing Service Provision Reports, together with a three page summary of the material in those files, that summary having been compiled at the instance of the Manager of TAFE Children's Services. The union later wrote to the Department seeking further particulars limited to 3 TAFE centres. The Department produced three additional cartons of documents. Although the union and KU were able to make use of parts of that material, the use of it was limited as to comparisons sought to be made with material produced by KU, because of the differences in approach to record keeping in the child care centres concerned.
12 The union tried to overcome its problems with that material by arranging for Ms McAuliffe to give evidence. Ms McAuliffe's first appearance before the Commission was in accordance with an agreement reached with the Department by the parties, but not discussed with the Commission, that her evidence would be restricted to the explanation of documents produced by the Department. At a later stage of the proceedings, a summons to attend was issued by the union to overcome problems that inevitably arose as a consequence of the original approach.
Wage Fixing Principles
13 The question as to which is the correct principle under which to process this application was raised by Ms Lowson of counsel after she was very late in the proceedings briefed for the union, Mr Magner of the union having previously appeared on its behalf. She queried whether the Special Case principle might not be the appropriate principle. If it were, the application would need to be processed before a Full Bench of the Commission, unless otherwise allocated by the President.
14 Ms Stanko on behalf of KU submitted that, firstly, it was not a matter that needed to be determined given the time that had elapsed and, secondly, the application fell to be decided in accordance with the Enterprise Agreement principle.
15 The State Wage Case 1999 [(1999) 88 IR 363] was handed down on 3 June 1999. The Wage Fixing Principles contained in that decision included the following:
2. When an Award may be Varied or Another Award Made Without the Claim Requiring Consideration as a Special Case
In the following circumstances an award may, on application, be varied or another award made without the application requiring consideration as a special case:
(a) to include previous State Wage increases in accordance with Principle 3;
(b) to incorporate test case standards in accordance with Principle 4;
(c) to adjust allowances and service increments in accordance with Principle 5;
(d) to adjust wages pursuant to work value changes in accordance with Principle 6;
(e) where the application is consented to by the parties;
(f) to adjust wages for the State Wage Case 1999 in accordance with Principle 8; and
(g) to approve of an enterprise arrangement reached in accordance with Principle 11.
…
16 KU's application did not fit within any of the circumstances set out in paras (a) to (g). That being so the provisions of the Special Case principle had to be considered. That principle is in the following terms:
10 Special Case
Except for the flow on of test case provisions, any claim for increases in wages and salaries, or changes in conditions in awards, other than those allowed elsewhere in the principles, will be processed as a special case before a Full Bench of the Commission, unless otherwise allocated by the President.
This principle does not apply to applications for awards consented to by the parties, which will be dealt with in the terms of the Act, or to enterprise arrangements, which will be dealt with in accordance with the Enterprise Arrangements principle.
17 Having considered the submissions, I formed the view that the application as it then stood did fall to be decided within the Special Case principle and so advised His Honour the President. The following determination was made by him:
Determination Pursuant to s193 of the Industrial Relations Act 1996 and Principle 10 of the State Wage Case 1999 Principles.
KU Children's Services (Other Than Teachers) (State) Award 1998 - Application by KU Children's Services for a new award - IRC97/7343
Having considered the reference to the President of the Commission by the Honourable Justice Glynn in this matter dated 19 October 1999, and the matters set out therein, I determine that these proceedings, including any Special Case aspect of them, are to be dealt with by Her Honour.
Dated this 25th day of October 1999
Wright J
President
18 This application is therefore determined in accordance with the Special Case principle. In so doing, the Commission, will, in accordance with the requirements of the Preamble to the Wage Fixing Principles, State Wage Case 1999 [(1999) 88 IR 363 at 399] apply structural efficiency considerations.
19 Following a similar Determination to that set out above, Schmidt J in Re Dispute: NSW Office of the Board of Studies and the NSW Teachers' Federation (unreported; IRC99/6190; 17/12/99) set out the onus that falls on an applicant in special case proceedings and which is applicable in these proceedings:
In Occupational Health Nurses' Superannuation (State) Award (unreported; Bauer J, Schmidt J and French C; 6 November 1996) the Commission discussed the onus which fell on an applicant in special case proceedings, which was that described by the Commission in Court Session in Teachers (Non Government Schools) (State) Award and other Awards (unreported; Fisher P, Sweeney J and Varnum DP; 17 August 1990). Applicants in a special case must meet the ordinary requirements that a case must be made out on the evidence and matters of the cost of the claim and the public interest also arise for consideration.
Final Claim
20 The claim as finally amended, over objection, at the time of final submissions, is for a variation to the KU Children' Services (Other Than Teachers) (State) Consent Award 1996 (the KU Award 1996) (302 IG 264) in the following terms:
1. Add the following new subclause (v) to Clause 3, Definitions:
"(v) "Fixed Term Employee" means an employee (not employed in a pre-school service) engaged pursuant to Clause 4A of this Award.
2. Renumber subclauses 3(v) and 3(vi) to 3(vi) and 3(vii) respectively.
3. Add the following new Clause 4A, Fixed Term Employees:
"4A. Fixed Term Employees
Notwithstanding anything contained in the parent awards [sic] the employer may engage employees on a full-time or part-time basis for a specified period which is not less than 3 months nor more than 2 years on the following terms:
(a) Such employees:
(i) shall accrue pro-rata sick leave and be able to carry their sick leave accrual from one engagement to the next, provided that the break in service is not more than three months.
(ii) shall have their period of service deemed as continuous for the purpose of long service leave provided that the break in service is not more than three months;
(iii) shall be entitled to pro-rata leave (bereavement leave; jury duty leave; examination and study leave; attendance at in-service [courses] etc.) provided for under the award;
(iv) shall be eligible for casual employment with the employer outside any periods of fixed term employment;
(v) shall not be entitled to take RDO's [sic] during term time - RDO's [sic] are to be taken during non-term time.
(vi) shall be paid their annual leave entitlement at termination and shall not be entitled to take their annual leave during term-time.
(vii) shall be paid pro-rata annual leave loading at termination.
(viii) shall be entitled to parental leave once their period of service is a continuous aggregate period of 52 weeks - breaks of not more than 3 months of service shall not be deemed to be a break in service for this purpose, excluding periods of casual service.
(b) Where a fixed term employee has taken parental leave and upon return to work the employees position no longer exists, the employer will endeavour to try and place such employee in an alternative position.
(c) Any replacement employees of fixed term employees and [sic] will only be offered employment for the duration of the original fixed term employee's period of engagement. Such employee shall be advised of the nature of the period of employment accordingly.
(d) As the duration of fixed term contract employment is generally to be within a calendar year only, such employees cannot be guaranteed a position upon resumption of parental leave.
(e) Fixed Term Employees will not be entitled to any redundancy provisions on termination, either upon conclusion of period(s) of parental leave or generally.
(f) Fixed Term Employees may be terminated by the employer within a period of fixed term employment provided that the employer gives two weeks notice of such termination, or payment in lieu of notice. In such circumstances, the employer is not required to make redundancy payments under the award or Act.
(g) Fixed Term Employees may terminate their employment by providing written notice of two weeks or forfeiture of wages accordingly. In such circumstances, the employee shall not be entitled to pro-rata annual leave loading on termination or for continuity of service for the purpose of long service leave in the event of re-employment.
(h) Fixed Term Employees will be treated by the employer as permanent employees for the purpose of applications for permanent positions within KU in accordance with KU's Staff Appointment and Transfer Policy, including internally advertised positions.
(i) Permanent employees will not be directed to be engaged in fixed term positions.
4. This variation shall take effect on and from .
21 The fixed term employment proposed will not apply to preschool services, as originally sought, but it would apply to long day care services.
22 It was claimed that, at every point, fixed term employees under KU's proposal would be treated more beneficially than temporary employees under the award, eg they would receive pro rata long service leave and accrue an entitlement to other forms of leave which temporary employees cannot.
Background to the Application
23 Ms Underwood described KU Children's Services. KU was established in 1895 and is a non profit organisation. It is the largest employer of child care in New South Wales outside Government. It has some 130 different services which include work based care, pre-schools, long day care, occasional care, out of school hours care, adult migrant education programmes and mobile services. (The application, as originally pressed, would affect all those services but KU later indicated it would accept modification of the application to certain services). As already indicated, the application if granted would not apply in the pre-school service area.
24 KU is the largest manager of work based centres in Australia. Work based services are grouped primarily into three categories: TAFE, Universities and corporate. The corporate sector includes both private sector employers and Government or statutory authorities.
25 At present KU administers some 19 work based centres in New South Wales - two TAFE centres, six University centres and eleven corporate centres.
26 The client base (ie parents and their children) of work based services is restricted to employees or, in the case of University and TAFE centres, students, of the "sponsor". Ms Underwood accepted that the restrictions were not total, in that, in some circumstances, places were offered to children from the general community.
27 In relation to work based centres, KU has to comply with the terms of management contracts made with the centre sponsor. Such contracts are for a fixed term, generally for approximately three years. Typically, KU tenders for the management of work based centres and the tenders are very competitive.
28 The sponsors nominate to KU the number of weeks per annum that the service will operate and this varies dependent upon the needs at the sponsor's workplace.
29 From one calendar year to the next KU cannot guarantee that the numbers of children will be the same in any centre. This means that KU cannot guarantee all employees permanent employment. KU has to be in a position to respond to changes at short notice. Circumstances tend to dictate that KU can not be involved in the planning process of either the sponsor or of the provider of the child care service.
30 KU had problems as to how it could address fluctuations of attendances, both as to downturns and, in fewer cases, the increasing numbers of children attending at long day care centres and traditional day care.
31 KU is not in favour of standing down employees and in any case the award capacity, if it exists as is contended by the union, to stand staff down for four weeks would not necessarily resolve the problem in TAFE, for instance, when there are some 16 weeks of lower attendances. KU gave consideration to varying the award to make provision for, say, a 12-week period of stand-down per annum. However, that option would not resolve the difficulty of not being able to employ staff with certainty from one year to another.
32 KU did give serious consideration to the option of engaging staff on a permanent basis and then making them redundant as needed. Because KU was aware that there could be circumstances in which the period of employment at any one time might be less than 12 months, it was decided that it was not responsible to give prospective employees the expectation of permanent employment whilst knowing that quite likely there would be the need to make them redundant within twelve months. KU did not wish to have the situation of employees for instance, borrowing money for mortgages and then facing the prospect of unemployment.
33 Another option available under the KU Award given serious consideration was the employment of staff as casuals. Once more, this does not provide a resolution to the problem of, say, 30 weeks of work per annum, a criteria that it was said KU on average does meet. Under the terms of the current award casual employees are restricted to working 20 days at any one time. Further, it is not desirable from the point of service to have different persons dealing with the children and for the need for such employees to be shown each time they are employed how that particular service operates.
34 KU's position was that if KU were to have the flexibility of employing staff on a fixed term basis, at universities and at TAFE it would have a core of staff and that would be the majority of the staff. A core staff of permanent employees is absolutely essential for the operation of the centre for the consistency of care for families, and to give the programme its underlying consistency. Then, for the busy period, or the times when enrolments went above anticipated levels, KU would use the fixed term contracts to match the staffing to the demand for child care and so cover the periods that KU was confident it could utilise those employees. The fixed term employees would usually be unqualified child care workers who provide the back up essential to the operation. At the end of those periods KU could then review the situation and see what adjustments it would need to make to staff based on the next enrolments.
Submissions - KU
35 Final submissions for KU were delivered in two stages, the first by Ms Stanko and the second by Mr Murphy of counsel appearing for the first time on behalf of KU.
36 In her submissions, Ms Stanko stated that there were two main issues before the Commission:
1. the fundamental difference between the parties as to whether there ought to be any form of fixed term employment; and
2. the terms and conditions of such employment and what, if any, safeguards needed to be included to protect the rights of the parties if KU succeeded in its application.
37 Ms Stanko described the application as KU's last resort in trying to obtain the flexibility of employment in the situation where, primarily, there are a considerable number of weeks per annum where children are not in attendance at the services and therefore employees are not able to be gainfully employed at those times. In TAFE and University services, for instance, the number of children present would fluctuate between term and non-term time. The availability of fixed term contracts would allow the staffing to be enrolment driven so KU would wait until KU could determine what was the profile of the service and then staff to that level.
38 The position is further complicated by the fact that the regulations for child care services determine minimum staffing ratios and minimum qualifications to be held by staff.
39 The key point of the application is that KU is simply seeking to extend the flexibility of temporary employment to circumstances other than those set out in the parent award. KU's application is based on the parent award's definition of "temporary employee". The proposed new clause incudes some benefits for temporary employees, those benefits either not available under the parent award or only currently available to permanent employees under the KU Award.
40 The current award provisions in relation to the employment of staff are restrictive because the periods the centres have to be open exceeds the period of useful employment for a number of employees in a number of services. KU already uses the flexibility available in provisions that go to part-time and casual employees available in the KU Award 1996 and in the the parent award, including the provision for temporary employees (cl 3(iv) ) in the latter award. Other existing award flexibilities utilised relate to rostered days off, the timing of the taking of annual leave at Christmas and the standing down of employees in certain circumstances.
41 KU has consistently stated that it does not intend to employ existing permanent employees on a fixed term contract basis.
42 Ms Stanko supported KU's application by reference to the similar definitions of "temporary teacher" in the Teachers (Non-Government Early Childhood Services Centres other than Pre-Schools) (State) Award (Teachers (Non-Government etc) Award) (300 IG 150 at 152) (cl 2(a)(iii): not more than full centre year/not less than 20 days) (the award applies to teachers outside of KU who are employed in long day care settings) and in the Teachers (KU Children's Services) (State) Award (304 IG 449 at 452) (cl 2(h): not more than a full year/not less than 20 days).
43 Mr Murphy submitted that the starting point for consideration is the undoubted right at common law for employees and employers to enter into a contract for a specified period of time (i.e. a fixed term contract). It is a right unfettered by statute in New South Wales, except to some extent in certain areas of public sector employment, as, for instance, by s 38 of the Public Sector Management Act 1988 and s 50 of the Teaching Services Act.
44 The concept of temporary employment is not something unusual, and is not something repugnant to the system of industrial regulation established under the Industrial Relations Act 1996 (NSW). It is a common, well understood, well known concept. The Industrial Arbitration Act 1940 by and large left the conditions of employment and matters such as that to be determined by the former Industrial Commission. The modern trend as reflected in the 1996 Act seems to be the legislation imposes certain fetters in relation to particular conditions of employment, eg equal remuneration, maximum hours, minimum sick leave provisions, parental leave, part-time work and the like. Given that the legislature has taken on a more hands on approach in setting parameters within which the Commission operates, eg part-time work, it is interesting to note that the area of temporary or fixed term employment has been left at large.
45 Where awards do purport to fetter or impose restrictions on the rights of parties, those awards, including the parent award in this case, have departed from the clear common law right of parties to enter into such contracts. KU says those restrictions ought to be modified in the terms put forward in its proposed cl 4A.
46 The so called existing flexibilities are insufficient to meet KU's needs. The evidence discloses that in certain long-day care centres operated by KU that there is a reduction, primarily in the months of December, January and February, in demand and, as a consequence of that, an inability to gainfully employ the full complement of staff generally required for the later period from March through to November. The evidence of Mr Thurston confirmed the evidence of Ms Underwood and Ms Coad in relation to the reduction in the level of usage.
47 KU is under no obligation to "invent" work in order to occupy the full complement of staff over the whole period of the year, despite the downturn in demand. To suggest otherwise would be entirely contrary to the notion of "gainful employment". The fact that other centres which are managed directly by TAFE or a university, operate differently to those managed by KU on behalf of its clients is entirely irrelevant. KU is entitled to manage its centres according to its needs and the needs of its clients. Those needs dictate that the required number of staff at a given centre reduces for a significant portion of the year.
48 KU does not believe it to be either sensible or responsible to achieve the result it seeks by simply employing people in an apparently permanent situation in March, then terminating them in November due to turn down. KU rejects the union's criticism of KU's preferred approach.
49 The employment of casuals for periods of nine months, an approach put forward by the union, is also rejected by KU. To do so would be an abuse of the concept of casuals.
50 Employees will not be forced into taking up fixed term contract positions. In terms of the positions, if there is a permanent position, it is not an intention to convert that into a fixed term position. But these things cannot be set in concrete for all time. If there are numbers of permanent positions in a centre which, for example, closes down, something needs to be done. KU did not wish to be placed in a situation where there is now a permanent position and that will have to continue as such for ever more.
51 The proposition by the Union that KU needs to demonstrate some economic need is entirely misconceived. What KU needs to do is persuade the Commission, on the basis of evidence and submissions, that the variation it seeks is appropriate and that it will deliver enhanced flexibility and productivity.
52 The continued viability of an employer is not the test when one is seeking to introduce flexibility and productivity. In national and state wage case decisions productivity and fairness are to the fore and it is not consistent with those concepts to have numbers of people employed over the summer months when demand is reduced by 20, 30 per cent, to a point where some of those people cannot be reasonably gainfully employed.
53 The term "ideological" has been used by the union in relation to some of KU's witnesses. What is before the Commission is a union ideologically opposed to the concept of fixed term employment on any basis at all and which will raise any arguments it can find in an attempt to dissuade the Commission from varying the award in the manner sought, not because those arguments or concerns are matters that cannot be negotiated or resolved, but because it simply wishes to place whatever obstacle it can in the path of the achievement of fixed term employment within KU's workforce. That was demonstrated by the fact that when KU sought to amend the proposal to make it clear that permanent employees would not be directed to be engaged in fixed term positions, something said on a number of occasions from the outset to be the concern of the union, counsel for the union opposed the application to amend. The union opposes amendments designed specifically to address the concerns it has raised. It is a position of total opposition, no matter how far KU is prepared to go to meet its concerns.
54 To the extent that the Commission forms the view that temporary or fixed term employment should be permitted, but considers there is some force in the concerns raised by the union's witnesses, to the extent that the application even as further amended does not satisfy the Commission in relation to those concerns, it is open to the Commission to give a decision in principle in favour of the concept and to direct the parties into conference with a report back, and if necessary, determination by the Commission on those particular matters. The union was ultimately driven into conceding that that ought to occur if, against everything it had put, the Commission took a different view. Consultation with the union can only really take place if there is a ruling from the Commission that fixed term employment is appropriate and that the parties work out the detail. Ms Lowson indicated if that was the position the union would be sensible about that and engage in that process.
55 In relation to the submissions of the Labor Council, KU entirely rejected the opinion expressed by Mr Christodoulou as to sub-cl (i) of the proposed cl 4A that KU can "recommend, could possibly harass, could possibly pressure existing employees into a fixed term employment but they will not direct". On the issue of potential harassment KU has demonstrated its bona fides by amending the provision to make it clear it will not impact on permanent employment. That amendment was also opposed by the union.
56 A number of important awards which cover large number of employees across a range of industries - storemen and packers, transport, retail, steel, restaurants, clubs, security, including some to which the union is a party, do not restrict fixed term employment. Amongst others is the Health Employees Conditions of Employment (State) Award, an award in the public sector that covers tens of thousands of employees in hospitals and area health services. The sort of abuse of fixed term contracts, dealt with by Cambridge C in Clark v Mid North Coast Health Service (unreported; 98/4263; 1/10/99), would not be available under the proposal put forward. If that was abused in that way, the Commission is entirely capable of effecting a remedy.
57 In relation to the Pay Equity Report and reliance placed on that, that Report was very important and documents a very important exercise in this Commission. It is too important an issue to be misused and it is misused in the submissions of the Labor Council and of the union in this case. This application is not about remuneration, it is about a quite common, quite unsurprising form of employment. On that point one of the factors which makes this case "special" is that it involves an employer seeking the Commission's endorsement for a form of employment which is common in many industries governed by awards of the Commission. It has nothing to do with under remuneration of female employees.
Submissions - Union
58 Ms Lowson, on instructions, placed on record that to the extent that KU says it has responded to concerns of the union in its amendments to its application, those concerns have perhaps been inferred from matters that have arisen in evidence, but do not reflect any attempt by the union to engage with KU to improve its application, because the union would not want any inference to be drawn that it has in some way done anything other than oppose this application.
59 The applicant appeared to rely on the following issues in support of its claim: (1) fluctuation in child care numbers, (2) economic necessity (3) insufficient work; not gainful employment and (4) impact on employment.
60 Having regard to the evidence that has been brought by the applicant in support of its claim, the provisions of wage fixing and the Special Case principle, the public interest test set out in s 17 of the 1996 Act, and the ordinary rules of litigation as to onus in arbitrated proceedings, the Commission would not grant this application.
61 The union's primary submission is that KU, having come to the Commission claiming the need to vary the KU Award, has not discharged the evidentiary onus it bears. The Briginshaw v Briginshaw ( (1938) 60 CLR 336 at 362) test is applicable in these proceedings. Whether or not Briginshaw applies, on the balance of probabilities the application has not been made out. The evidence simply is not there. The application should fail on that basis.
62 To the extent that there is evidence, there is only evidence in relation to some eight work based centres. The claim must fail to the extent it was intended to apply at other centres.
63 The respondent's position is that the current award provides sufficient flexibility. Nothing has been put forward by KU to precisely explain why it is that the provisions of the award would not adequately address the need for flexibility which it says it has.
64 The clause sought by the applicant is really of a completely different nature to the work contemplated in the existing provisions, which contemplate specific periods of engagement to cover specific absences. What the applicant wants is a capacity to employ persons at the same child care centre year after year after year without paying them for periods of time at KU's convenience, whether that be over the Christmas break or the July vacation period or any period whatsoever.
65 In order to be successful in the claim, KU would have to indicate some sort of economic need for the variation or perhaps would have to indicate some off-setting benefits to the employees, given the nature of the application.
66 What is the economic necessity to have this provision when the applicant is successfully able to tender for contracts under the current award terms? The absence of those contracts in evidence means the Commission has no evidence about the economic issues which allegedly arise in respect of those contractual arrangements. To the extent that this employer is relying on economic need to introduce this provision into the award, the same high standards contemplated by principle 14 in relation to a claim of economic necessity, as demonstrated by the vigorous approach in AMIEU, WA v WA Meat Commission [(1993) 49 IR 104] should be applied.
67 The application itself has a number of difficulties. In cl 4A and (a)(i) and (ii) it provides that if the break in service is for more than three months, then employees shall not be able to carry their sick leave accrual and their long service leave accrual from engagement to engagement. However, KU has produced no evidence whatsoever as to whether the three month break in service is more than or less likely to operate to exclude or include employees in this benefit. There is nothing to prevent an employer manipulating the terms of engagement to ensure there is more than a three month break between periods of employment so that those employees do not receive the benefits of the clause, and then employ those persons as casuals as required.
68 The essence of the fixed term contract employment application is a lack of availability of work in certain periods of time. The evidence is that in fact work may well be available and work has been made available to persons who have been engaged on fixed term contracts, eg Ms Bassili who worked two to three weeks in casual employment.
69 The applicant suggested it intended to keep permanent staff with some temporary support staff. This is not reflected in its application. KU has not produced any figures to demonstrate what it says would be a satisfactory establishment of core versus temporary staff for a fixed term contract.
70 The variation would mean a significant diminution in the terms and conditions of employment of child care workers. The sort of losses that an employee would undergo includes specific losses of income over a period of non employment. There is loss of entitlements to redundancy, loss of accrual of sick leave benefits and long service leave benefits. In addition to those specific losses, there are non specific losses. The question of insecurity is a significant matter, eg the evidence of Ms Failla and why she would not bother applying for a loan in circumstances of fixed term engagement.
71 There is the question of status for persons involved in this industry. Permanent employment carries with it, whether part time or full time, a certain amount of status for a person, a certain amount of security. Fixed term work is appropriate in the limited circumstances that arise in the award currently. It is not appropriate that fixed term employment should become the norm.
72 There is no evidence to show why KU cannot employ permanent full time or other sorts of staff to cater for any extra demand. The inference is that the only reason that fixed term employee contracts is sought is it will involve greater profitability to KU in respect of those children attending. It is simply a sham to suggest that this contract provision will by itself create employment, which appears to be the second basis on which KU has brought this application.
73 The union, like the Labor Council, concedes that there are fluctuations in enrolments. However, there is no evidence to demonstrate the links between the income derived from children attending child care centres; the link between fluctuations in child care numbers and staffing requirements established by the child care regulations; the steps taken to manage fluctuations in the uptake of child care places and the anticipated application of the fixed term employee variation so as to address the alleged overstaffing arising from the fluctuations in child care numbers. To the extent these are issues which could be managed by KU, employees should not have to bear the burden.
74 The whole of the evidence such as that of Jane Binnie demonstrated that fluctuation in child numbers is not necessarily even as great as that relied upon by KU. Hers is credible evidence that the Commission would be entitled to rely upon in its entirety to find that if there is a problem of fluctuating numbers it is a management problem. It is not a problem that needs to be addressed by so-called flexible staff.
75 Miss McAuliffe gave evidence about how TAFE centres managed fluctuation in child care numbers. There is nothing in the evidence suggesting the same could not be done in KU centres. Staff take leave, some centres offer vacation care and this covers the staffing.
76 Overall Mr Thurston's evidence was a drive for cost effectiveness.
77 Where evidence shows fluctuations on a week to week basis, Ms Coad's evidence shows that a reduction in numbers does not necessarily equate with a reduction in income. Therefore, it does not mean KU has an economic viability problem.
78 The material tendered in July and November of 1998 was not updated by the applicant during the course of the proceedings. Indeed, the inference to be drawn from Ms Underwood's evidence on 29 October 1999 is that there has been some degree of overall improvement in respect of child care services.
79 Further the fact of fluctuations of itself does not mean that a child care worker may be recognised as seasonal. There is nothing in the evidence to suggest that child care work has somehow been transformed from regular work to seasonal work. (I note that the reference to employment of staff in children's centres as being "on a seasonal basis" was made in a letter by the Acting General Manager of DOEAT, and was not a term used by KU.)
80 The second part of the applicant's claim is that during periods of lower attendance of the children at child care centres there is insufficient work for child care workers to perform. The evidence is that there is no need for KU to invent the work. Evidence was brought by the respondent to the effect that these periods of time are gainfully used, not directly in care of children certainly, but in relation to matters that are essential to the good management and welfare of the child care centres. The evidence is that a well-run child care centre that offers vacation care, is able to provide sufficient work and indeed is not able to meet the demands for vacation care that are brought, because of the need to provide leave during the downturn period.
81 The context with this case is that one employer in the whole child care industry is claiming to have a need for fixed term employment. The effect of the fixed term employment could be that persons would be out of work for periods of time without income.
82 The union is not submitting that this issue can be addressed by saying that persons during the period of non-employment by KU should be paid half pay, nor is it suggesting that a proper approach is to introduce a stand down clause or to put a stand down clause in the award with half pay.
83 The union says that there is a history of cases which indicates that fixed term employment is a source of industrial grievance and the Commission would have to be well satisfied as to the need to introduce such a clause in the KU award before it did so.
84 The union also relied upon two decisions of a Full Bench of the AIRC: National Tertiary Education Industry Union v Australian Higher Education Industrial Association [(1997) 74 IR 326] and the later decision which in form was the settlement of an order to give effect to a decision to make an award (Print Q0702; 11/5/98). In those cases there were six categories and six categories only where such employment was found to be appropriate.
85 The Commission is bound by s 10 of the 1996 Act. The fact this is a variation application is not excluded by s 10. The Commission must be satisfied that this variation involved fair and reasonable conditions of employment. The respondent says it does not in that it is unfair, it is unreasonable and should not be granted.
86 The second prohibition in Regulation 5(B) of the Industrial Relations (General) Regulation 1996 would apply quite possibly to the fixed term employment provision that currently exists in the parent award with regards access to the unfair dismissal provisions. If this variation were granted that provision would seem to make it more difficult for a person engaged on contracts of less than six months to have access to the unfair dismissal provisions, e.g. someone in Ms Bassili's position in a three month period.
87 Cooper v Darwin Rugby League [(1994) 57 IR 238] considered the particular provisions of the Federal jurisdiction and as to whether a fixed term contract which also had a notice provision was excluded from remedies as to unfair dismissal by those regulations. Northrup J found it did not. The complexities arising out of the contracts of this sort and their possible interaction with the unfair dismissal provisions can be seen to lead to some difficulties.
88 In conclusion employer flexibility is being sought at the cost of employee security; savings to the employer means a loss to the employees. The Commission will find that there is not sufficient evidence to make out the claim at all, especially in the light of the contradictions in it. Even if the Commission was satisfied that there was some evidence, then when this is balanced against the potential detriment against employees, the Commission would not grant the application sought.
Submissions - Union - In reply
89 As to the dispute notified by the union in respect of termination of employment of two employees at the Ultimo child care centre, Ms Lowson acknowledged that to be a subsidiary matter. The thrust of the respondent's submissions were to raise an issue as to how the Commission might assess KU as an employer and how KU may implement this award variation if it were to be granted. It is one matter the Commission was invited to take into account, as with a great many matters, and it is of limited relevance but nevertheless important. Mr Murphy had suggested the union's submissions somehow indicated that there had been a finding of victimisation. Of course, there was no such finding. The union took a view about a connection between the dismissal of employees and the filing of evidence which was rejected by KU. The respondent accepts there is no finding by the Commission concerning victimisation, prejudice or duress, or any link between termination and the giving of evidence.
90 The union's position is that it does not see that the applicant has demonstrated the need, nor does it see a particular need for a fixed term contract with all the loss of benefits to employees that would otherwise accrue from continuity of service with one employer. Given its position it is therefore logical for it to have opposed applications by KU to amend and no adverse inference can be drawn against the union in that respect.
91 In the overall scheme of things there are many flexibilities available which can be used and are less detrimental than a fixed term contract. Amongst those flexibilities is the use of casuals, but the union does not say that is the only flexibility available.
92 The union says the matters that were broadly considered in the Pay Equity Inquiry are irrelevant but asks whether the change of the sort being sought by KU would be inserted into a male-dominated award without any thought of compensation to employees.
93 The union put an alternative submission, but only if the Commission finds that it is satisfied that the applicant has established the need for some more flexible employment arrangements than those already available under the KU and parent awards. The union has conceded that if the Commission finds the application made out that the union should be directed to confer, subject to exercising its statutory rights.
94 In those circumstances the union supports any restrictions that the Commission would see as being appropriate, whether or not they are ones where a concession has been made by KU which could apply; for example, that the term of the contract be reduced from two years to one year or some lesser amount. The union also says the Commission should take all steps to minimise the impact of such flexible arrangements on employees, and to that end - and it is very much a submission in the alternative - the union would endorse the directions of the parties to confer in respect of introducing limited amounts of more flexibility in the award. Such flexibility should not involve fixed term employment contracts or any other flexibility that would involve lost continuity of employment, and also that such flexibility would preserve, as far as possible, the financial position of employees in the context of that increased flexibility.
Submissions - Labor Council
95 Mr Chris Christodoulou made submissions on behalf of the Labor Council of New South Wales in support of the position of its affiliate, the Australian Liquor and Hospitality Miscellaneous Workers' Union, that this Commission should reject the proposal put forward by the KU Children's Services to introduce fixed term employment.
96 The Labor Council had been appraised of the contents of the awards applicable to the Kindergarten Union, and it was its view that those awards together already provide KU with ample flexibilities in dealing with what would be regarded as any fluctuation in enrolment numbers.
97 In the view of the Labor Council, these flexibilities already tip the balance in favour of the employer. The proposal by the KU, if agreed to by this Commission, would be unjust and unfair because it would add to what is already generally the child care workers' precarious employment and, in particular, the bargaining position that they are in.
98 Australia already has experienced one of the highest increases in casual and temporary employment work in the OECD, a submission supported by an extract supplied from a book by the Australian Centre for Industrial Relations Research and Training entitled "The Australian at Work". The Labor Council fully endorsed ACIRRT's comments on the effects that casual or temporary employment place on the employees: job insecurity, psychological pressure and limitation of future options because of the financial uncertainty.
99 The proposal put forward by KU is both unconditional and non-restrictive in its application, with the result that each and every new employee respectively of KU could end up with a fixed term employment contract. There is nothing to limit its application in any way. Fixed term employment could replace permanent employment as the pre-eminent form of employment by KU in the future.
100 The position of fixed term employment would have further imbalances by the ability of the employer to terminate the employee during the fixed term of employment (para (f) ) and also by para (i) which states that permanent employees will not be directed to be engaged in fixed term positions. Now, what that is basically saying is that the KU can recommend, could possibly harass, could possibly pressure existing permanent employees into fixed term employment but they will not direct. Certainly that is of concern.
101 Labor Council's view is that the proposal provides the employer with so much flexibility, including the ability to have absolute power in determining a person's ongoing employment future, that the proposal will seriously disadvantage the employees of the KU for a number of reasons. There is a relatively low unionisation rate in the industry and it is recognised as in part being one factor possibly in contributing to the relatively low pay in the industry (see Pay Equity Inquiry: Vol.1, pages 157, 177, 178). It would potentially weaken what is already a very weak bargaining position for childcare workers. Childcare workers do not readily take industrial action to improve or protect their conditions of employment because of those other environmental circumstances in which they work.
102 If KU's proposal were to be accepted then it is inevitable that this provision will flow through to the rest of the childcare industry. KU, which is one of the biggest employers in New South Wales, would be able to obtain such a flexibility and then be at a competitive advantage to other childcare centres, including the private sector in New South Wales.
103 The proposal, as indicated, has a potential to be abused, in a sense that workers would really have no certainty of ongoing employment once their fixed term employment discontinued. There may be ongoing work, but they are not the persons chosen to be given that ongoing work, because in KU's own proposal, once an employee's fixed term is up, that person needs to reapply for ongoing employment.
104 Although the employer might attest that it did not intend to introduce all these fixed term employment arrangements in the future, there is nothing in the proposal to suggest that it cannot. They do not limit the numbers of people that can be used in their centres with this proposal.
105 [At the conclusion of his submissions, Mr Christodoulou was advised by Mr Murphy of two further proposed amendments to the application going to the minimum engagement period and the treatment of fixed term employees as permanent employees if applying for permanent positions. Mr Christodoulou said that that information did not change Labor Council's mind about the position it had put forward.]
106 In relation to those submissions, I note that the Labor Council supported its affiliate, the respondent union, in its opposition to the application. The majority of its submissions were generalisations, not directed to specific evidence in these proceedings, one example being the Table attached to the ACIRRT publication. That Table in fact discloses that of all of the industry divisions there identified, the division covering child care work, namely community services, has between 1984 and 1993 experienced the lowest rate of growth of casuals as a percentage of total employees (less than 1% over 10 years).
107 The list of awards added, over objection by Ms Lowson, to Mr Murphy's submissions was produced in response to submissions made by Mr Christodoulou, in which he asserted that "as with most awards, the applicable KU Award provides for casual and part-time employment as well as a [sic] fixed term employment in certain defined circumstances". I did not find that reference helpful and the need for KU to reply to it with a list of awards that did not contain provisions as to fixed term contracts, resulted in an unproductive use of the Commission's, Mr Murphy's and Ms Lowson's time.
Consideration
108 Ms Stanko's submissions dealt with the background to this application by KU and with the rationale for KU seeking the option of an extension beyond the "temporary employee" provision in the parent award to "fixed term employees" in the KU Award.
109 Evidence was advanced by KU directed to substantiating its claim that the ability to employ persons on fixed term contacts would overcome problems it had experienced for some years in being able to employ the number of staff that could be appropriately adjusted to cover decreases and increases in the numbers of children enrolled, with particular regard to the TAFE, university and work based centres. Its position was that centres are staffed to the anticipated levels of enrolments. When those children do not enrol the centre is operating at a deficit to the extent that it is overstaffed. If KU had some level that it could move to once the enrolments were confirmed, it would not end up overstaffed. It is up to KU to match its management and staffing of the centre to the demand.
110 Currently when the numbers of children attending in a centre are greater than the regular attendance pattern, KU accommodates that need by putting on additional staff.
111 Award provisions currently used to cover the low utilisation periods at centres, particularly the long period between November to March are those directing the time annual leave is to be taken, the "stockpiling" of RDOs and the standing down without pay of employees who have insufficient leave entitlements to cover 4 weeks annual leave.
112 According to Ms McAuliffe, TAFE centres adopted similar measures to those adopted by KU when, during TAFE breaks, the number of children was reduced quite significantly: staff take all leave, including annual leave and RDOs as well as any leave accrued in lieu of overtime worked.
113 The position of the union was and continues to be, one of absolute opposition to the fixed term employment provisions sought to be included by KU in the award. Even the union's very reluctantly put alternative submission seeks that, should the Commission find that KU had established some need for the variation sought, the parties be directed to discuss flexible arrangements other than fixed term contracts. That opposition can only be to the variation as sought, not to a position in principle, because the parent award already includes a provision for "temporary employees" in certain specified situations. KU has availed itself of those provisions in the course of its operations.
114 Clause 3(iv) of the parent award (297 IG 874 at 876) is in the following terms:
(iv) Temporary Employee -
(a) Means an employee engaged to work full-time or part- time for a specified period which is not more than two years but no less than 20 days.
(b) Such employees shall be engaged solely for the following specified purposes:
(i) to replace existing employees proceeding on annual leave, maternity leave, long service leave, workers' compensation or leave without pay;
(ii) to occupy specially funded positions;
(iii) to occupy positions approved by the Department of Community Services which vary a centre's licence.
In relation to stand downs, that same award provides, in cl 4(ii) that:
(ii) Payment During Vacations - Notwithstanding the foregoing provisions, where an establishment is closed during a vacation period and no work is available, an employee shall be paid the ordinary rate of pay during such a period, provided that during the Christmas vacation only an employee with insufficient credit of annual leave to maintain the ordinary rate of pay during the said vacation period may be stood down without pay for a maximum of four weeks.
External Factors affecting the Operation of Child Care Centres
115 Ms Underwood deposed that in order to comply with Government funding requirements, centres must be open for a minimum of 48 weeks per annum. This is to ensure that the parents are eligible for child care assistance.
116 Child care assistance is the government funding which helps the parents meet the fees. It is paid to the centre on behalf of the parent. The parent then pays a reduced fee. It is means tested and it is created so that students, for instance, may obtain maximum benefits because typically they have no other income. In the case of TAFE and universities, because the academic terms total approximately 36 weeks per annum only, technically the services do not need to operate 48 weeks a year but are bound to do so in order to meet the requirement that enables the students to access child care assistance. Therefore when the students are not using a service it cannot be closed. It has to be operational. Ms Coad described the Wattle Lane centre, a work based centre sponsored by a newspaper for its employees as "unique" in that it was required to be open for 52 weeks of the year.
117 The Centre Based and Mobile Child Care Services Regulation (No 2) 1996 (the Regulation) provides in s 34 as follows:
34 Staff to child ratios
(1) The licensee of a service must ensure that the ratio of primary contact staff to children being provided with the service is:
(a) 1:5 in respect of all children who are under the age of 2 years, and,
(b) 1:8 in respect of all children who are 2 or more years of age but under 3 years of age, and
(c) 1:10 in respect of all children who are 3 or more years of age but under 6 years of age.
(2) The licensee of a service must ensure that, on and after 1 June 1997, at least 2 persons who are staff (whether or not primary contact staff) of the service are present on the premises of the service whenever children are being provided with the service at the premises.
118 As can be seen from the above, it is the ages of the children attending which will determine what staff profile in the first instance that KU must have. A second factor affecting that profile will be the levels directed by the particular sponsor.
119 Ms Coad explained that as children move through a service and become two, three, four or five years all the ratio of staff requirements change. Fixed term contracts could be utilised, for instance, if a large number of under twos who were 20 months old, would turn two during the year. In that case, the centre would not want to employ someone for a long period or permanently to be with the younger group, because when they turned two the ratio of staff requirements would change. Staff needs would again change when they turned three.
Evidence
120 The union criticised the evidence adduced by KU, and, in particular, the evidence provided in schedules as to the numbers of children attending various child care centres. The data provided by Ms Underwood related to some eight out of eighteen services, because KU had tried to address a cross section of such services. There was difficulty in obtaining the raw data because enrolments had not been as closely monitored previously as they were after mid 1997, at which time changes to funding had made the likelihood of vacancies and the financial management of services, as she said, fairly critical. The figures in her tables, being averaged do not give a really clear picture of variations such as that some of the children are only in for half a day and not a full day.
121 Ms Underwood's evidence was given over a lengthy period of time, her statements being dated 30 April 1998, 5 May 1999 and 23 August 1999. At the beginning of that period waiting lists no longer existed though they had in the past. In her later evidence, waiting lists had again been reinstated.
122 The information supplied by TAFE relating to 11 centres also presented a snapshot of enrolments, rather than attendances, for week five of each semester from 1996 to 1998.
123 In my view, the tables tendered by KU in relation to attendances at a number of child care centres provide an indication, or, as Ms Coad said, a snapshot, rather than an exact picture of the enrolments on a day to day or even on a week to week basis. They form part of the mosaic of oral and documentary evidence I have taken into account.
TAFE/University Centres
124 There are eleven TAFE Institutes in New South Wales altogether, with a training network which is also considered an Institute. Eight of those Institutes have child care centres. There are only twenty child care centres located amongst the 120 TAFE college campuses. Students from any campus, in or across Institutes, can access those centres.
125 The university and TAFE centres cater primarily for children of students. If there are places still available, they can be offered to children of staff. If there are still vacancies, those vacancies may be offered to people in the local community, a situation that occurs particularly when vacation care is being offered between semesters. In general, although there are some notable exceptions as the evidence of Ms Binnie showed, offers to the community do not fill many of the vacancies.
126 In relation to Ms Coad's evidence, the attachment to her statement clearly shows, when compared with a community based service, a significant drop in utilisation in the university day care centres at certain periods. She said that in the university child care centres there tended to be a high staff need throughout the year, then that drops throughout the four month period from November to February.
127 Mr Thurston's evidence as to the pattern of usage at TAFE child care premises, and that there was insufficient work for all employees at certain times, confirmed that of Ms Underwood. He also described the difficulties in attracting children from the community to fill vacancies including the fact that TAFE students are able to book their children for half a day only.
128 Whether or not KU can offer vacancies to the community to take up the slack as to numbers of children attending a centre, it not a decision KU can make independently of the wishes of the centre's particular sponsor, whether that be TAFE, university or the relevant corporate employer.
129 In my view, it is not so easy to keep the numbers of children up by recourse to community placements in TAFE or university centres, and so be able to retain or employ more staff, as was suggested by the union, when the number of placements from the primary groups serviced drops. Community places are only available to maximise income when all primary users' needs have been met. They can only be guaranteed for short periods which often does not suit the needs of community users, who are often working parents.
130 KU's evidence as to the pattern of utilisation at KU centres was similar to that given by, or through, Ms McAuliffe and Mr Thurston as to centres operated directly by TAFE. That evidence from TAFE was that "enrolments are high at the beginning of each semester and tend to decline towards the end of the semester as parents complete courses and sit for exams. Attendance is very low during TAFE breaks and non teaching weeks. Many centres offer vacation care for school aged children during these times with reduced staffing and consequently reduced capacity".
131 TAFE and universities have similar cycles. There are lecture weeks, there are marking weeks, there are stuvac-type weeks and exam weeks as well as close-down weeks. The lecture periods are the peak times and they do not exceed the 36 weeks of the academic year. It was said that the peak times for TAFE particularly are very predictable and very precise.
132 TAFE has some 16 weeks down time, that being four weeks of close down, eight weeks of vacation care and four weeks of low times. KU's experience was that for that 16 week period students or the lecturers make very little use of the child care provided by KU. KU operates vacation care during some of the down periods.
133 TAFE centres typically are the ones that would end up with overstaffing i.e. a higher ratio of staff to children even by KU's standards. That is because TAFE has a lot longer downtime than many services and there are particular times in the year when TAFE students are just not in attendance.
134 However, it seems that further changes that could affect staffing are already in train. Ms McAuliffe said that even now it is not a blanket rule that TAFE child care centres close down over Christmas. Because some courses are running during TAFE breaks, centres may be required to be open in the January period. She said that TAFE is actually moving to a 50 week year. When and how that occurs will depend upon the requirements of each Institute and how they organise their classes.
135 There is also another layer of variability that affects staffing, that layer being based on the profile of students who enrol in TAFE courses, so that even from term to term the enrolments can vary and can be unpredictable. TAFE courses can be as short as eight weeks, while others may extend over two years. A number of TAFE courses have lectures only for the morning and not the full day. In TAFE services, the centres provide half-day care for children which complicates the staffing levels. Enrolments in the morning sessions are far higher than those in the afternoon.
136 TAFE students are charged on a sessional basis. A session is a morning or an afternoon. TAFE policy actually restricts the amount of child care that students can use to around half an hour outside of lecture times so that if their lectures finish they are required to collect their children. It is not an option for them to take a full day if they do not need it for their lectures.
137 For enrolments to such centres, people can just turn up on enrolment day. They come to the centre and enrol in the centre when they enrol in their course.
138 There are difficulties trying to forecast use of a centre. KU does survey the existing users of a centre at the end of a TAFE year, but it can only survey those families who are using the service at that time. Because TAFE has such a high turnover of students, KU's experience is that there will be a very few students who are returning and therefore KU can only survey a small part of its potential users. Even then, those students who are looking to enrol might be doing other studies or applying for admission to TAFE, not knowing whether they have been successful.
139 The Acting General Manager of DOEAT advised that:
In relation other aspects of the information specified in the above summons. I wish to advise that staff in TAFE Children's Centres other than early childhood directors accrue rostered days off and are required to take all leave during TAFE breaks.
The majority of staff in TAFE Children's Centres are permanent employees. In some circumstances temporary staff are employed full time or in a job share position. There are currently two centres which employ staff on a seasonal basis to accommodate the fluctuating demand in term time and TAFE breaks.
Staff may be employed on a fixed term through the Jobs Education and Training Scheme which is funded by the Commonwealth. The scheme provides funding for child care for single parents participating in education or training.
140 Ms McAuliffe said she was not familiar with the two centres mentioned above saying that she did not necessarily know how the staff are employed at each particular time. That was an Institute issue and did not come through her section. The Institutes were responsible for recruiting staff for the child care centres.
141 Ms McAuliffe's understanding of "temporary staff" as employed at TAFE child care centres, was that when a vacancy occurs, TAFE would employ someone on a temporary basis until that position was filled on a permanent basis. Temporary employees also covered absences of staff on sick or maternity leave. Such temporary employees could also be employed when a centre may initially be set up at half capacity, and then as student demand increased, the staffing levels may be increased. Until those levels were finalised, temporary staff would be employed.
142 I do not accept the union's submissions that the situation at KU child care centres is the same as at other TAFE centres, that the evidence was that TAFE did not need fixed term employment like a KU centre and that if TAFE does not have that need neither does KU.
143 The evidence of Ms McAuliffe as to the different patterns of operation of various TAFE Institutes explains how Ms Binnie's experience at Carinya could differ from that of Mr Thurston and of the TAFE centres managed by KU. Such evidence gives further support to KU's claims that because patterns of usage vary so much and are so difficult to predict, a further option of employment is necessitated, namely that of "fixed term employment", to cope with that unpredictability.
AMEP Centres
144 The difficulties for KU in staffing the six AMEP centres managed by KU was the subject of evidence from Ms Underwood:
…
10. The AMEP Program for english language are no longer scheduled as blocks of ten week sessions but vary from one service to another. This makes it very difficult for KU to plan for staffing levels.
11. On average, the parents attend classes for 20 hours per week. Usually, this is 4 hours per day but may vary at each service.
12. All parents are entitled to a maximum of 510 hours of tuition and child care or whatever is needed for parents to reach a level of 'functional english'.
13. As far as the provision of child care is concerned, this means that a parent could utilise 510 hours or only 100 hours. [or none or any number up to 510 as determined by the parent.]
14. This is a variable that is very difficult to assess. KU needs to be in a position to exercise flexibility in its staffing levels in order to accommodate this need.
15. Not all students of the AMEP Program require child care. This further variable contributes to the need for KU to be flexible in its staffing levels.
16. The term starting and finishing dates vary each year and from Centre to Centre dependent upon the particular educational needs of the families enrolled at the time.
17. Unlike a 'typical' child care centre, AMEP Centres are expected to provide multiple sessions of care per day to match the english language classes provided.
18. Typically in other mainstream centres, the structures are based around only 1 or 2 sessions per day.41