Employers First v NSW/ACT Independent Education Union [2009] NSWIRComm 198 | Case summary

Employers First v NSW/ACT Independent Education Union [2009] NSWIRComm 198 | Case summary | Zoe

Work Value Changes (a) Changes in work value may arise from changes in the nature of the work, skill and responsibility required or the conditions under which work is performed. Changes in work by themselves may not lead to a change in wage rates. The strict test for an alteration in wage rates is that the change in the nature of the work should constitute such a significant net addition to work requirements as to warrant the creation of a new classification or upgrading to a higher classification. In addition to meeting this test a party making a work value application will need to justify any change to wage relativities that might result not only within the relevant internal award structure but also against external classification to which that structure is related. There must be no likelihood of wage leapfrogging arising out of changes in relative position. These are the only circumstances in which rates may be altered on the ground of work value and the altered rates may be applied only to employees whose work has changed in accordance with this principle. (b) In applying the Work Value Changes principle, the Commission will have regard to the need for any alterations to wage relativities between awards to be based on skill, responsibility and the conditions under which work is performed. (c) Where new or changed work justifying a higher rate is performed only from time to time by persons covered by a particular classification, or where it is performed only by some of the persons covered by the classification, such new or changed work should be compensated by a special allowance which is payable only when the new or changed work is performed by a particular employee and not by increasing the rate for the classification as a whole. (d) The time from which work value changes in an award should be measured is the date of operation of the second structural efficiency adjustment allowable under the State Wage Case 1989, 30 IR 107. (e) Care should be exercised to ensure that changes which were or should have been taken into account in any previous work value adjustments or in a structural efficiency exercise are not included in any work evaluation under this Principle. (f) Where the tests specified in (a) are met, an assessment will have to be made as to how that alteration should be measured in money terms. Such assessment will normally be based on the previous work requirements, the wage previously fixed for the work and the nature and extent of the change in work. (g) The expression ' the conditions under which the work is performed ' relates to the environment in which the work is done. (h) The Commission will guard against contrived classifications and over-classification of jobs. (i) Any changes in the nature of the work, skill and responsibility required or the conditions under which the work is performed, taken into account in assessing an increase under any other principle of these principles, will not be taken into account under this principle. (j) In arbitrating an application made under this Principle, the Commission is required to determine whether or not future State Wage Case general increases will apply to the award. 10 Principle 10 of the Wage Fixing principles provides: 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. NATURE OF INDUSTRY

22 In the 2001 Pre-school Teachers Award case, the IEU sought an increase of 26 per cent to be phased in over three years, which would have resulted in rates for teachers in early education being parallel with their counterparts in schools, and long day care teachers being awarded 4 per cent higher than teachers in schools. The employers claimed a nil increase in award rates. Schmidt J favoured the IEU's case. Importantly, her Honour's conclusions regarding the disparity between rates of pay for teachers were set out at [395] - [401]. [395] In 1990 the parties agreed that the nexus between these awards and those applying to schools should no longer operate. Of course, that was at a time when rates for teachers employed in long day care were agreed to be 4% higher than those of school teachers and those of preschool teachers the same as those applying to schools. That position was abandoned by the employers in 1999 and now they seek rates, which over time, will be 26% lower than those for teachers employed in schools. I am utterly convinced on the evidence that such a differential can not be awarded. It would not result in fair and reasonable conditions of employment for these teachers. [396] Nor, however, have I been able to conclude on the evidence, that precisely the same rates should here be awarded, as those paid to teachers employed in Catholic and Government schools. I do not exclude the possibility that a case for such rates could be made out, but have taken the view that it would require a closer examination of the basis upon which increases for such teachers were agreed under the awards being relied upon, together with a more detailed investigation of the similarities and differences in the work of the two groups than was here undertaken. That is not to say that I accept the views expressed by employer witnesses as to the nature of the differences in the work of teachers employed in early childhood and those employed in schools. I am convinced that no proper basis for such views was demonstrated. Nevertheless, I am not convinced that on the evidence here led, the rates claimed can be awarded.

[400] What agreements were reached in relation to these various rates of pay was in the main unclear on the evidence. It is thus not possible to ascertain precisely how, or why, the various rates were fixed, although it is undoubted that current rates of pay reflect various agreements reached between the relevant parties over the years and in some cases, decisions of the Commission. What such agreements comprehended is difficult to say. It is entirely possible, and no doubt likely, that they reflect wage increases agreed having regard to productivity improvements and accepted work value increases. While there was no evidence about this, they could also have included a whole host of other matters, such as attraction and retention payments, an issue which arose here. On the evidence, it is, however, not possible to know, nor helpful to speculate. As I have noted there are also significant differences in award conditions not explored in these proceedings. [401] In those circumstances, I have refrained from the undeniably attractive option of simply awarding the rates claimed, as reflecting the rates paid to many school teachers, having in mind the evidence of the similarities in the work performed by these teachers, compared to those employed in schools, as well as their respective responsibilities. The fact that some teachers employed in preschools also already receive the rates here claimed under the awards which apply to them, made this even more attractive, but there was no evidence led as to that work or the circumstances in which that agreement was made. The end result is that the rates fixed by these awards, will increase significantly during the term of these awards, but will not exceed those paid to teachers in schools. It may be that in other proceedings a different result could emerge in future. I am satisfied that this is a proper result on the case and the evidence here advanced. 23 Schmidt J awarded preschool and long day care teachers an increase of 20 per cent over three years. 24 The IEU also sought higher rates for directors of early childhood centres and this claim was granted by her Honour: [419] On the evidence, I am satisfied that the work of directors has been affected by the changes identified, to an even greater degree than the teachers covered by the award. The evidence called by EF supported this, giving rise no doubt to its alternative submission. There was no evidence that any teacher who was appointed to the position of director, was not also appointed as the authorised supervisor. Like the position of the teacher, there was evidence of significant change in the work and responsibilities of directors, sufficient to warrant an increase in their remuneration, in addition to the increases flowing to teachers. I have therefore also concluded that it is appropriate to adjust the award directors' allowances by an overall 30%. Those increases will also be phased in, in six adjustments of 5% over the life of the award, six months' apart, commencing on the first pay period commencing on or after 1 January. 25 There were two conditions claims before her Honour in 2001: first, the Union's claim for a public holiday and, secondly, a claim for overtime for long day care workers. Schmidt J was satisfied that both claims should be granted. The award rates were increased in accordance with the Commission's orders in 2001, with the final increment being granted in July 2004. 26 Teachers employed under the terms of the current Long Day Care and Pre-School Awards received annual increases to pay rates during the three-year term of their current awards. The parties' most recent agreement on rates and conditions was before Wright J, President in 2006 in Re Teachers (Non-Government Early Childhood Service Centres Other Than Pre Schools) (State) Award [2006] NSWIRComm 4. The parties agreed on annual pay increases of 4.5 per cent per annum over three years, totalling 13.5 per cent. Early childhood teachers employed pursuant to the Pre-School and Long Day Care Awards received their most recent increase to rates of pay in January 2008. 27 A significant aspect of the current claim for increases in rates of pay relates to the new disparity that has emerged since 2001 between teachers in the non-government and government sectors. In this respect, the IEU presented a table showing the maximum rates awarded to three and four-year trained teachers in the government and non-government sectors spanning the years 1990 to and projected to 2011. The Union submitted that 'even if the claims sought were to be granted in full, including the 2.8 per cent that will leave still the early childhood teachers approximately six per cent behind the teachers as of 1 January 2011'. The table is set out in Annexure A. SPECIAL CASE CLAIM

IEU's case 28 Mr M Kimber of senior counsel with Ms C Howell of counsel for the applicant, referred to the decision of Re Nursing Homes &c, Nurses' (State) Award (No 4) [2005] NSWIRComm 88; 138 IR 409 in summarising the basis of the claims: [18] The special case and work value principles have been recently considered in a number of decisions of the Commission, including, in particular Re Social and Community Services Employees (State) Award (2001) 113 IR 119 at 128 - 130 ; Re Operational Ambulance Officers (State) Award (2001) 113 IR 384 at 418 - 420 ; Re Public Hospital Nurses (State) Award (2002) 115 IR 183 at 186 - 190 ; Re Health Employees Pharmacists (State) Award and other Awards (2003) 132 IR 244 at [23] - [27]; Re Public Hospital Nurses (State) Award (No 4) (2003) 131 IR 17 at [16] - [22]; and Re Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award (2004) 133 IR 254 at [30] - [32] and [86] - [96]. It is unnecessary, in light of those recent decisions, to reconsider the principles except to emphasise that: 1 In order to satisfy the requirement for a special case, the applicant must demonstrate that the case has "special attributes" or is "out of the ordinary" so as to take it outside the restrictions which may otherwise apply under the wage fixing principles: Re Operational Ambulance Officers at [166]. 2 An applicant to a special case needs to establish an "adequate evidentiary foundation" to establish the special factors that warrant an award variation in order to set fair and reasonable conditions of employment: Re Operational Ambulance Officers at [168]. 3 A tribunal charged with determining whether the tests under the work value principle have been met must carefully sift through the material that has been placed before it and separate out those changes which have occurred to the nature of the work, skill and responsibility of employees or to the environment in which the employees work and which have not previously been the subject of compensation. An objective assessment then has to be made as to whether the changes that have occurred amount to such a significant net addition to work requirements as to warrant the creation of a new classification or upgrading to a higher classification. The change is to be measured from the last time wages were increased on the basis of work value or from the date of operation of the second structural efficiency adjustment allowable under the State Wage Case 1989 , whichever is the later. An assessment is then to be made as to how that change should be measured in money terms. Such assessment will normally be based on the previous work requirements, the wage previously fixed for the work and the nature and extent of the change in work: Re Public Hospital Nurses' (State) Award (No 4) (2003) 131 IR 17 at [20]. Factors underpinning claim 29 The IEU identified the following factors as underpinning its claims under the special case principle:

Unless teachers in early childhood programmes achieve wages parity the early childhood sector will continue to be beset with teacher shortages. These shortages seriously erode the quality of children's care and education and undermine polices designed to improve children's educational outcomes. 34 The IEU also relied on expert evidence from Ms Sandra Cheeseman, Lecturer at the Institute of Early Childhood, Macquarie University. Ms Cheeseman gave evidence in relation to the teacher shortage and her understanding of the reasons for such shortages. Ms Cheeseman's evidence, together with that of Ms Press, was critical to the applicant's case and so we have extracted those aspects of particular relevance. Ms Cheeseman dealt firstly with the introduction of the National Early Years Learning Framework and its importance: Teachers in Department of Education and Training (DET) schools in either preschools or in the first years of school are paid more than those working in non DET preschools or childcare settings. This disparity occurs despite early childhood teachers in non DET settings teaching children of the same age and providing the same educational programs. This anomaly will become more obvious with the Introduction of the National Early Years Learning Framework (EYLF). This important document will see all early childhood teachers, no matter the setting, having responsibilities for the delivery of educational programs based on agreed national outcomes. This will carry with it responsibilities for teachers in relation to the delivery of curriculum and the assessment and reporting to families of children's progress against the stated outcomes. The educational programs and therefore the expectations on teachers will be consistent across all early childhood settings in Australia both in the school sector and the prior to school sector. The introduction of the EYLF will bring increased responsibilities and expectations for staff working in prior to school settings. Early childhood teachers will be expected to carry the major responsibility for implementation of the EYLF and ensuring that all Australian children experience high quality teaching and learning in the early childhood years and in particular in the year prior to full-time schooling. The Rudd government's announcement of a Universal preschool year for all four year old children which is to be delivered by four year qualified early childhood teachers is a recognition of the important role that University qualified teachers will play in the introduction of the EYLF and the success of this policy initiative. These changes will see early childhood teachers in prior to school settings required to demonstrate accountability under the EYLF in relation to the stated outcomes for all children and commitment to assessment and reporting against these outcomes. For the first time in history, Australia will have stated outcomes and expectations for all children in prior to school settings for which early childhood teachers will be responsible. This will place teachers in prior to school settings in the same position as teachers in primary schools in relation to their responsibilities for curriculum development, assessment and reporting and as such it will be essential that their pay and working conditions reflect this parity. 35 Ms Cheeseman addressed the wage disparity issue and cited her experiences in that respect:

I … spoke to Rachel, who has been working as an early childhood teacher for a few years. Rachel said "There is such disparity between prior-to-school and school teachers. Only five out of 150 in my uni class said they would work in early childhood. They loved their pracs, it's just for financial reasons and the holidays. We should be earning much more than teachers in schools because we do not have school holidays". [Amanda, director]: "We feel undervalued in job status and wages. You're viewed as if you're "upgrading" when you work in a school rather than early childhood. We need pay rises for early childhood teachers. Paid maternity leave would help us to retain our staff and you should be able to have a guarantee of working part-time when you return to work." When I asked Amanda, if there were any changes in the work of an early childhood teacher, she named school readiness. "There's a lot of work and pressure involved but there is no paperwork for the transition. You have to write your own program and reports. For children with special needs it may take four meetings with the child's future school. We have information nights and newsletters about school readiness for parents. Five years ago we had one child with special needs, now we have seven plus the ones that are not diagnosed, and as I said before no funding or extra staff". Monique… told me the responsibility of the job has increased substantially and she enjoys working as a teacher less than she used to. Monique has two children in the room with special needs and the untrained support worker is not able to care for both children at once. Monique says she cannot spread herself far enough and there needs to be more support for teachers who have children with special needs in their class. School readiness is an increasing expectation and teachers now have to combine child development and the emergent curriculum. Monique says that a real issue that needs to be addressed in long day care is burnout. There is a big difference between working in a preschool where she had an hour before and after the children arrived to set up the room - she now has to do this whilst the children are present. Monique also says that working 48 weeks a year with the children is very draining and the children in long day care are more needy due to the long hours they are in care - they need more emotional support, affection, entertainment etc.

Consideration 55 There was a very large amount of evidence, including expert evidence, relating to a severe shortage of early childhood teachers in the non-government sector. That there is such a shortage is beyond doubt and, indeed, this was accepted by the employer parties in the proceedings. 56 It also must be accepted by the employers that there is a very significant gulf between the rates paid to teachers under the subject Awards and the rates paid to their counterparts in government schools. It was contended by the applicant Union that this disparity was a prime reason for the shortage. That is to say, early childhood teachers or those being trained in that vocation, were more likely to be attracted to work in government schools than non-government centres because, in the former, the pay was 21 to 27 per cent higher. 57 The employers' position, however, was that the Commission should not attempt to resolve the shortage by increasing rates of pay. It was contended that this was against principle, that there were other reasons for the shortage, that the increases sought were not affordable and that it would not resolve the shortage problem in any event, citing the continuing shortage notwithstanding the significant pay increases awarded in the 2001 decision of Schmidt J. 58 As AFEI correctly pointed out, in order to satisfy the requirement for a special case within the meaning of the Commission's Wage Fixing principles, the applicant must demonstrate that the case has 'special attributes' or is 'out of the ordinary' so as to take it outside the restrictions which may otherwise apply under the principles. 59 The gross disparity that exists between the award rates of pay for early childhood teachers under the subject awards and their counterparts in government schools suggests, prima facie, there is a significant anomaly in need of correction. Both classes of teacher receive the same professional training and, it would appear, perform similar work. However, the evidence was not sufficient to make a precise comparison of the work value of the two groups of teachers. 60 What is clear from the evidence, however, is that there has been a paradigm shift in public policy towards the education of young children as demonstrated by the recent initiatives of the federal and state governments. There have been substantial developments in understanding the importance of early childhood education in recent years, and this understanding has led to a range of government initiatives designed to improve the quality of early childhood education across a range of services including preschools and long day centres. There is no doubt on the evidence, including the IEU's expert evidence, that this proposition was made out. There is clearly an awareness across the community that has previously not been so apparent, of the fundamental importance of childhood education, particularly to address issues of social and educational disadvantage. 61 There is to be a massive injection of funds aimed at improving the quality of early childhood education across a range of services, including preschools and long care day centres. As discussed below, the evidence strongly supports a finding that unless steps are taken to alleviate the shortage of teachers in the early childhood sector, the effectiveness of the governments' initiatives will be seriously impeded. The evidence also supports a conclusion that the level of salaries presently applying under the subject awards is acting as a disincentive to attracting and retaining early childhood teachers. 62 In our opinion, these cumulative circumstances demonstrate that the case is 'out of the ordinary' and, consequently, the IEU has established that a special case exists.

66 In any event, as we have indicated, the first hurdle is overcome as it has been demonstrated that the applicant's case raises matters out of the ordinary that require consideration. The second hurdle is that the applicant must establish the special factors that warrant an award variation in order to set fair and reasonable conditions of employment: Re Operational Ambulance Officers [2001] NSWIRComm 331; (2001) 113 IR 384 at [168]. 67 It has usually been the case that reliance by an applicant solely on a shortage of labour has not been regarded by the Commission as a special factor justifying a wage increase. However, in Re Public Hospital Nurses (State) Award (No 3) [2002] NSWIRComm 325; (2002) 121 IR 28 at [91] the Full Bench stated: [91] When considering an application for wage increases on the basis that a special case exists and where it is claimed that there is a shortage of labour, the Commission is entitled to look at all of the circumstances in order to determine whether a special case is made out. The circumstances will include the important consideration of the public interest. In our opinion, the disadvantaged position of nurses and the difficulties being experienced in the public hospital system because of the nursing shortage are powerful public interest considerations. 68 In Nurses (No 3), the Full Bench also considered the loss of relativity between nurses and other comparable health professionals to be a significant factor in considering whether a Special Case had been demonstrated: [107] Nonetheless, in circumstances of a nursing shortage where nurses' wages are at levels lower than they historically have been compared to all other comparable health professionals, we consider a wage increase at this time that redresses this situation in significant measure will have a positive effect on nurses' decisions about whether they stay in their chosen profession. If we were not to address this issue there is no doubt that it would be, and would be seen by nurses to be, a negative signal and lack of appreciation which could have the effect of exacerbating the nursing shortage and the mounting problems facing the public health system. 69 Further, in Health Employees Pharmacists (State) Award [2003] NSWIRComm 453; 132 IR 244 at [54] and [55] the Full Bench held that a shortage of labour could be a significant factor in finding that a special case existed: [54] Accordingly, we are, of the view that the shortage of labour is a significant factor in finding that a special case exists, the reasons for which are primarily twofold. Firstly, as discussed earlier, the shortage of labour is connected to changes in work value. There is little doubt that a shortage of labour in the relevant streams has resulted in changes in the way work is now performed, such that it has resulted in changes in the nature of the work (that is, the requisite skills and responsibilities) and in the value of that work. [55] Secondly, given that this matter is concerned with significant shortages in a number of occupational streams in the public health sector, it is plainly a matter of considerable public interest. In this context, the fact that there is a labour shortage, and the magnitude of that shortage in some areas (such as pharmacy), is sufficient to make out a special case in this matter. 70 Here, it was contended for the IEU that all of the elements identified in the two cases above, that is, loss of relative wages, increases to work value, and a shortage that is a matter of very considerable public interest, were present. It is undeniably the case that there has been a loss of relative wages by teachers under the subject Awards compared to their counterparts in government schools. Teachers in the early childhood sector had substantial parity with teachers covered by the school teachers' awards in 1990, only to fall significantly behind from the mid 1990s. This situation was partially remedied by the decision of Schmidt J in 2001. However, early childhood teachers have once again fallen significantly behind school teachers. As compared to early childhood teachers, teachers employed in schools and government preschools earn 27 per cent more than teachers in non-government preschools and 21 per cent more than teachers in long day care.

72 Clause 52 of the 2004 Regulation requires one teacher for each centre of 30 - 40 children, two teachers for centres with 40 - 60 children, and three teachers in centres with 60 - 80 children. However, it appears that the admitted shortage of teachers is forcing many long day centres and preschools to apply for exemptions from this requirement. Alternatively, the strategy has been to lower the number of places to below 29, so no teacher is then required. We agree with the applicant's submission that these solutions are contrary to the public interest, given the Federal Government policy and funding support for more quality teaching in the early childhood sector. 73 The Regulation Impact Statement for Early Childhood Education and Care Quality Reforms released by the Council of Australian Governments ('COAG') on 3 July 2009 provides that by 2013 it is proposed that both preschools and long day care centres with 25 children would have to have to employ at least one university qualified teacher and services with less than 25 children would be required to have access to a qualified teacher for educational leadership. An additional objective has been set that every child should have access to a program of 15 hours of early childhood teaching in the year before formal schooling commences. It follows that both of these measures will significantly increase the demand for teachers in the early childhood sector and, as the applicant submitted, if not otherwise addressed will worsen the shortage situation. 74 It would also appear that turnover in teacher positions in early childhood is high, in the vicinity of 25 per cent per annum: National Children's Services Workforce Study, August 2007 at p127. Ms Press noted in her evidence that consistency and stability of staff were important features of effective teaching in early childhood. We agree that high staff turnover seriously undermines the quality of education and care that may be offered. 75 The evidence that the wages disparity has contributed significantly to the shortage of teachers is, in our opinion, overwhelming and not really challenged by the respondents. We refer to the evidence of Ms Cheeseman, Ms Press, Ms James, Ms Connors, Ms Connell, Ms Fanning and Ms Jacobsen. What Ms Connors said was striking: Since 2005 there has been a reduction in the number of early childhood education students studying at the University of Newcastle who are choosing fourth year intern placements in child care centres and preschools. They quote the inequality of pay between schools and child care, longer working hours, shiftwork, and less holidays. There are currently 60 students in 2009 completing internships from the University of Newcastle. Of those, 8 have chosen to do their internship in early childhood centres (our emphasis). Conclusion

76 We find that a special case has been made out by the applicants for increases to rates of pay under the two Awards. There is a critical shortage of early childhood teachers that is almost certainly going to get worse as the Commonwealth's policy agenda on early childhood is implemented. As we have noted, without adequate intervention, a shortfall of at least 7000 early childhood education and care workers by 2013 is estimated. 77 We are satisfied that the very large gap of up to 27 per cent between the pay of early childhood teachers in the non-government sector compared to the government sector, is a significant contributing factor to the teacher shortage. The gap is not justifiable on any test, especially when what is at stake in early childhood education. Ms Press noted in her evidence that the link between poor wages and conditions and the shortage had been identified in numerous reports over recent times. Her unchallenged evidence concluded: Unless teachers in early childhood programmes achieve wages parity the early childhood sector will continue to be beset with teacher shortages. These shortages seriously erode the quality of children's care and education and undermine polices designed to improve children's educational outcomes. 78 It was submitted for the respondents that the shortage of teachers could not be resolved by industrial means and that a political solution was required. A political solution is not likely to repair the pay gap. Significant extra funds have been made available by governments in relation to early childhood services. We deal with the detail of that funding later in this decision, but part of it is to enable centres to employ more teachers. The Commission may facilitate the application of that funding to employ more teachers by increasing current award rates of pay and, in doing so, assist in ameliorating a major disincentive to teachers being attracted into and retained in the early childhood sector. 79 In our opinion, for the reasons we have explained the public interest would be best served by increasing rates of pay in the subject awards. We shall deal with the respondent's case regarding affordability after addressing work value.

Policies to be made available (1) The licensee of a children's service must develop policies to promote the health, safety and well-being of children attending the service, and must ensure that copies of those policies are available at the premises of the service for inspection by the children's parents. (2) In particular, the policies must deal with the following matters: (a) child protection, (b) ethical conduct, (c) development and education, (d) the treatment of children with special needs, (e) interactions with children, (f) procedures for handling complaints, (g) parental involvement, (h) access, (i) arrival and departure, (j) excursions, (k) confidentiality of records, (l) child health, (m) illness, accident and emergency treatment, (n) administration of medication, (o) infectious diseases, (p) food and nutrition, (q) water safety, (r) sun protection, (s) storage of dangerous substances and dangerous equipment. 85 The applicant Union adduced evidence from directors of centres regarding the implications of the above clause, contending that it had resulted in increased workload and work value changes for directors and teachers. Ms Heron submitted that the requirements regarding policies were more onerous and detailed, a marked difference from the requirements under the previous regulation. For example: Many of these policies were not required by the previous Regulation or other legislation. Even where they were required, other clauses of the current Regulation are more prescriptive in relation to the content of the policy, whereas previously frequently merely the requirement to have a policy was specified. … The 2004 Regulation strengthens the requirement to provide adequate supervision at all times. For example, for the first time there is a requirement that children must be supervised in the toilet or washing area, if that area in not visible or easily accessible from the main area (Clause 66 (4) of the Regulation). There is also a specific requirement for the first time that in a mixed age group of children, requirements for staffing must be set as those applicable to the youngest child in the group. Where more than one group is in one area, it must be clear which children are being supervised by particular staff.

Quality Area 1 - Staff Relationships with Children and Peers Principle 1.1: Staff interact with each child in a warm and friendly way Principle 1.2: Staff guide each child's behaviour in a positive way Principle 1.3: Staff initiate and maintain respectful communication with each child Principle 1.4: Staff respect each child's background and abilities Principle 1.5: Staff treat all children equitably Principle 1.6: Staff communicate effectively to promote respect and professional teamwork Quality Area 2 - Partnerships with Families Principle 2.1: Staff and families communicate effectively to exchange information about each child and the centre Principle 2.2: Staff encourage family participation and involvement in the centre Principle 2.3: The centre has orientation processes for children and families Quality Area 3 - Programming and Evaluation Principle 3.1: The program reflects a clear statement of centre philosophy Principle 3.2: Each child's learning is documented and is used in planning the program Principle 3.3: The program assists each child to be a successful learner Quality Area 4 - Children's Experiences and Learning Principle 4.1: Staff encourage each child to make choices and participate in play Principle 4.2: Staff promote each child's ability to develop and maintain relationships Principle 4.3: Staff promote each child's language and literacy abilities Principle 4.4: Staff promote each child's problem solving and mathematical abilities Principle 4.5: Staff promote each child's enjoyment of and participation in the expressive arts Principle 4.6: Staff promote each child's physical abilities Quality Area 5 - Protective Care and Safety Principle 5.1: Staff act to protect each child Principle 5.2: Staff supervise children at all times Principle 5.3: Staff ensure that potentially dangerous products, plants and objects are inaccessible to children Principle 5.4: The centre ensures that buildings and equipment are safe Principle 5.5: The centre promotes occupational health and safety Quality Area 6 - Health, Nutrition and Wellbeing Principle 6.1: Staff promote healthy eating habits Principle 6.2: Staff implement effective and current food safety and hygiene practices Principle 6.3: Staff encourage children to follow simple rules of hygiene Principle 6.4: Staff ensure toileting and nappy changing procedures are positive experiences Principle 6.5: Staff support each child's needs for rest, sleep and comfort Principle 6.6: The centre acts to control the spread of infectious diseases and maintains records of immunisations Quality Area 7 - Managing to Support Quality Principle 7.1: Written information about the centre's management is readily available to families Principle 7.2: Written information about the centre's management is readily available to staff Principle 7.3: Staffing policies and practices facilitate continuity of care for each child Principle 7.4: Management provides professional development opportunities for staff 92 The DoCs Office of Child Care released a paper in 2002 entitled A Framework for Constructing Meaning, Rationale for the practice of relationships: Essential provisions for children's services. Ms Heron explained how the paper gave 'recommendations or suggestions about the way in which services can support the learning of children, the way in which children learn, the role of parents, interactions between children and adults, and the type of experiences ("provisions") which centres should provide for child': This document was intended to validate and document existing excellent practice in early childhood services, to clarify the common elements of good practice and to provide an endorsed framework that is a strong statement about the importance of the early years and the types of experiences that support children's learning and development appropriately [page 10].

Centres and parents are increasingly aware of the obligations of centres to enrol and provide an appropriate program for children with disabilities, even where a centre may feel it has difficulty if meeting the special needs of such children. 95 Guidelines for education providers were formulated under the Disability Discrimination Act 1992, entitled Disability Standards for Education 2005. The standards are binding on preschool and are a guide for child care providers. Ms Heron described the effect of the standards on the early childhood sector: These obligations in relation to special needs children are increasingly clear notwithstanding that the funding available has been reduced, under the current Supporting Children With Additional Needs (SCAN) scheme of the Department of Community Services. Information about this scheme is [in DoCs paper: Guidelines for Identifying Level of Support Needs]. Pursuant to this scheme, centres may receive some additional funds for physical adjustments to the centre or for staff training but funding is usually not available for additional trained staff as occurred previously. As a consequence teachers need to plan and adjust the program including by the development of an Individual Education Plan, for each special needs child, for the child, in addition to the teacher's usual duties without time being available and without specialist support. This requires additional expertise, and adds to the complexity of the work of the teacher in devising and delivering the program for the group of children. 96 A significant issue arising from the proceedings before the Commission was the Commonwealth's discussion paper, A National Quality Framework for Early Childhood Education and Care. The paper was produced in August 2008 by the Productivity Agenda Working Group - Education, Skills, Training and Early Childhood Development. Arising from the paper was a draft for trial released in February 2009, Belonging, Being and Becoming: an Early Years Learning Framework for Australia. Ms Heron explained in broad terms how the new framework will impact on the early childhood sector: The Framework seeks to establish an approach to learning, teaching, assessing, documenting and planning that is based on individual children's strengths. It will be an over arching document that provides the basis for natural consistency across the years from birth to the age of five and during transition to school.

The report of the Commonwealth Childcare Advisory Committee Childcare Beyond 2001 highlighted the "contrast between the high level of commitment many early childhood professionals bring to their complex role compared with the wide undervaluing and misunderstanding of their contribution". Thus for many working in early childhood, there is a sense that the significance of their work in the lives and development of children and the multiple responsibilities which they are required to undertake everyday are overlooked. Teachers working in early childhood are underpaid for the level of responsibility that they undertake, and have few opportunities for career advancement within the field. 102 The Union further relied on expert evidence from Ms Cheeseman relating to the current environment of early childhood teaching and the requirements placed on teachers: Early childhood education has received greater social and political interest in recent years. No longer considered merely childminding or a place to play, early childhood experiences are now considered to be of great importance in the formation of habits and dispositions necessary for success in later life (Heckman, 2006). This increased attention to the early childhood years has brought with it increased societal expectation of what should be happening and what should be the outcomes of children's participation in early childhood programs prior to formal schooling. These increased expectations bring increased pressure and demands on early childhood teachers. Comparable to the expectations of teachers in schools, parental expectations have increased and require early childhood experiences offered in prior to school settings to be suitably rigorous to equip children to make smooth transitions to formal school and lay the foundations for lifelong learning success. Early childhood teachers have experienced increased pressure to demonstrate that their teaching is effective and based on latest research evidence. In particular recent attention to the importance of children's emerging literacy and numeracy development requires early childhood teachers to provide evidence to parents that their educational programs take adequate account of these important learning areas.

Q. You don't say this in your evidence in paragraph 16 do you, you say the reason was because of the increased workload and increased documentation, you don't say different skills and you don't say it's more complicated there? A. Yes but the different skill sets does require more time for them. I think in one of my statements you either sink or swim. If you don't have that skill set you have to go and participate in extra training to bring yourself up to date with it. That takes time as well, you don't get paid to attend all these courses. … There was a marked increase in children with additional needs which were not necessarily learning difficulties or developmental delays. I found as an early childhood teacher I had to take myself off to do a course on administering an epi-pen because we are finding a lot more children are coming in with nut allergies and anaphylaxis or children with asthma so staff are required to have training to deal with situations like that. Not only that, you're managing children's allergy charts as well because it's got to be up to date and displayed so staff are aware. You have casual staff come into the centre for that day; you've got to make sure they're aware as well so you're also managing their allergies on a day to day basis. If you're doing cooking activities you've got to be aware that this particular child has this allergy. Many more children had special dietary needs then previously. These are the issues that I do not have to deal with anymore. 109 Ms Simon explained her experience in dealing with increased needs from students: The last five years have seen an increase in the number of children with additional needs enrolling in our service, the amount of time required to apply for limited support funds for these children, training of staff to support these children, to attend team meetings with other agencies involved with the children and their families, to develop Individual Education Plans (IEP's), follow up meetings, evaluations for funding bodies, continuation of funding forms each term etc equates to on average at least 1 hour per week per term. Currently at my service we have 4 children per week that have funded additional needs. One of these children requires 1 on 1 attendance to manage his diabetes and insulin each day and for the two days that he attends I manage his health needs throughout the day so as not to pull staff off the floor and away from the other children. The time commitment for this individual child averages at least half an hour per day. This is just one example of the additional time and responsibility required for additional needs children. 110 Much of the IEU's evidence went to the general work value changes for teachers in the early childhood sector. However, the applicant Union adduced evidence from teachers for whom some specific and unique changes had arisen. Ms Jacobsen, director and teacher at Coolah Preschool, gave examples of her varied roles in her community: Teaching, itself, is not just a frivolous thing. I have to manage staff, work closely with all children, including developmental records and digital records of each child's learning journey and progression, working with many more special needs children and their families, as well as working with other specialists, including speech pathologists, occupational therapists, and early intervention staff for the benefit of those children who require this help.

111 The Union adduced evidence from all of its witnesses regarding the greater expectations placed on early childhood teachers and their increased client needs. The evidence went to two main areas: first, the increased expectations placed on teachers by parents and members of the community; and, secondly, the greater involvement and support required of teachers in the everyday lives of their students' families. 112 Ms Connell described these pressures as adding to the workload of teachers: It is a requirement that parents are welcomed more into preschools and are encouraged to take a more active role in their child's education. They are requiring and expecting more information to be passed on about their children both formally and informally. As a teacher this adds to the workload. 113 Ms Connell also described the parents' expectations in preparing their children for school and the increased workload in this respect: As parents have become more informed about the importance of early education they are more demanding of information and as the Director there is an expectation to run evenings on school readiness and other relevant topics. Planning meetings, presentation, finding speakers, panels usually takes place after hours. As a teacher I am increasingly required to speak to parents privately on topics such as school readiness, behaviour, nutrition, literacy, numeracy, choosing schools, sibling rivalry, separation, divorce, abuse etc. etc. etc. There is a requirement for me as a teacher and a Director for me to keep abreast with new research and educational practice. While this has always been part of our program we now find that we spend more time with parents on an individual basis explaining the best time for starting school and talking about their child's development. As current research proves that Early Childhood is the most important time for a child's learning, parents are becoming more aware of the issues involved in school readiness and the importance of Early Childhood education, and they are asking more questions about programs and the importance of play based curriculums. Parents are also more anxious about their child's development and feel that their child should reach certain developmental milestones before school. As we are often their first Early Childhood experience we must ensure they understand what is best practice and that their child is receiving a quality Early Childhood experience. 114 Ms Jacobsen described the general changes in attitudes by the community: The community expect a lot more of teachers, including being able to do all sorts of managerial and administrative skills and tasks: including being an IT expert, working on and writing budgets, business plans, writing grant applications after sourcing them from all sorts of different places which in itself takes a lot of time to research, being computer literate and savvy to a high standard, and expecting to be trained and run a business efficiently and effectively without cutting any corners on funding that was the standard 20 years ago. And on top of all this, teach the children within our care and produce a high quality standard early childhood education program and work with the families, the community and any other experts or professionals that may be involved in the provision of service to the children and also our service. 115 Ms Simon's evidence summarised the increased expectations placed on teachers by their clients: Our clients are changing; they are informed and have very clear expectations and beliefs in relation to what they think they are looking for. It is rare now for a family to accept a Preschool position sight unseen. Most families visit many Preschools prior to making a decision and tours of the centre conducted by me can take anywhere from half and hour to an hour, depending upon the needs of the family and the information that they require. In any week we can average 3 or 4 families drop in off the street that would like to have a tour of the preschool and time to ask questions etc. These tours are a very important marketing tool, however they remove me from primary role as director.

Early childhood teachers tell me they have experienced significant increases in the number of enrolments of children with additional needs, particularly autism and language delay. As a Special Needs Teacher at Lorikeet Child Care Centre (SESIAHS), I was responsible for writing detailed reports of children's development, writing and evaluating Individual Education Programs, meeting with specialists including paediatricians, psychologists and speech therapists, carrying out specialist-designed programs between sessions (speech therapy programs, Applied Behaviour Analysis programs), assisting by providing written information and securing the cooperation of children during formal diagnostic assessments, educating parents on how to support their children's learning and development, feeding a child through a Percutaneous Endoscopic Gastrostomy (PEG) tube, writing Health Care and Treatment Plans and distributing these and training staff in regards to these procedures. I wrote developmental summaries prior to six-monthly meetings with primary caregivers, organised visits by Inclusion Support Facilitators and filled in funding applications, made referrals to external agencies, speech therapists and physiotherapists), developed educational plans for children to be carried out by primary contact staff, updated centre policies including Behaviour Management and Special Needs, maintained staff resources on Special Needs and set up displays to promote inclusion. Upon the commencement of my employment in 2002 I was responsible for three children with special needs and this increased each year to a total of twelve in 2006. 118 Ms Fanning gave evidence about her experience with increased client expectations and, in particular, the demand for school readiness programs: Parents were requiring far more of me as a teacher and director then they had previously. They have higher expectations now. In the past, parents' view of children attending preschool was that they were here to play and to make friends. Parents want their child to do well academically and they feel that if they don't have the foundations in preschool it kind of puts them behind the 8 ball when they start school. So they are very involved in the whole process of wanting to look at their child's portfolio, the developmental profiles, they want to know how their child's going, how they can support their child academically. You often have questions like, 'can I get him into tutoring classes' and you feel like saying to the parent "for god's sake he is not doing his HSC yet". Parents want to have constant feedback from you.

123 There was evidence from the IEU concerning the increased workload placed on teachers and directors resulting from greater regulation in the industry and higher volume and more varied administrative work. These duties included, for example: the reporting to and communicating with DoCs in relation to funding; understanding, implementing, and communicating to workers the impact of the relevant Occupational Health and Safety regulations, child protection regulations, the Children's Services Regulations, the accreditation scheme; the administrative duties arising out of increased teaching regime; and increased expectations from clients and their families. The 2004 regulatory changes were outlined in Ms Heron's evidence. 124 Ms Press outlined the administrative duties required of teachers: In addition, teachers in early childhood programmes frequently have to assume daily management responsibilities within the service. Under the Children's Services Regulation 2004 a teacher can be employed as the Authorised Supervisor of the service. This is common practice for services licensed for 30 children and over. Clause 56 (1) of the Regulation states that: the authorised supervisor for the service has the overall supervision of the provision of the service. Further, clause 64 (2) states that: the authorised supervisor of a children's service must ensure that there is provided a program of activities that: (a) balances indoor and outdoor experiences, and (b) stimulates and develops each child's social, physical, emotional, cognitive, language and creative potential, and (c) is appropriate to the individual needs and development level of each child, and (d) is capable of engaging the interest of children, and (e) allows children to freely select experiences, and (f) is appropriate to the development of children. Whilst teachers within school classrooms are responsible for the teaching within their classroom, the teacher who is an Authorised Supervisor within a service, must provide overall leadership and ensure that the early childhood programme as a whole meets administrative, regulatory and curricula requirements.

Teachers within the school system receive a much greater level of systemic support, have much less administrative responsibility, and do not have to assume a leadership role with other lesser trained staff. In addition, they work shorter hours and for fewer weeks in the year. The inequity in pay between the school sector and teachers in the non-school sector is a serious anomaly that must be addressed. 125 Ms Cheeseman gave the following evidence in relation to what she considered to be the onerous administrative duties placed on teachers: Teachers in the prior to school sector also have substantial and more complex management and administrative loads than do their school teacher counterparts. Their workloads often involve accountabilities under licensing and accreditation of services, collecting and storing information about children's background and health information, formal documentation of complaints and investigations, responsibilities for reporting and documenting incidents of suspected child abuse along with Head of Agency responsibilities under the NSW Ombudsman legislation. In addition early childhood teachers are required to ensure the safety and maintenance of buildings and equipment, collection and handling of fees and the production of communication systems including health alerts, fee reminders and newsletters. Within school settings many of these roles are undertaken by dedicated administrative staff under the supervision of a senior salaried officer. There is limited recognition of these comparatively more complex roles and responsibilities in the current pay scales of teachers or teacher/directors in prior to school settings. 126 Ms Jacobsen spoke of the impact that administrative tasks have had on her role as a teacher and director: I find that more and more precious teaching time is being spent in the office (a room away from the playroom) in front of a computer. I am required to read emails, find information/forms on the internet, from DOCS, Early childhood groups, source grants and also information and knowledge from other groups in our sector, including newsletters from peak early childhood groups which need to be read, and many other work related emails, including messages from the management committee and also some parents. Computers/technology are beginning to dictate our work hours whereas our priority should be the children within my care.

I… spoke to director Jenny and early childhood teachers Jenny, Kogi and Jill. Jenny told me "Expectations are getting higher and higher and I work longer hours outside of face-to-face teaching - six hours more paperwork a week than three years ago - with portfolios, record-keeping changes, making learning visible and all that. There are higher expectations of paperwork and the program and evaluations. You make visuals to support children with additional needs etc. Meeting the needs of young children and so many families facing difficulties (marriage breakdown, financial stress)… Parents all want to know what their children do each day". Jenny added "Parental expectations have increased, parents are better-educated in what they want and we are much more accountable to parents now. You have to be a support person for parents too - tell them about other services (speech therapy for example), counselling them - there are many families in need, emotional need - marriage breakdowns, those with children who have additional needs, stress etc. We now offer extended hours care and we used to have five children take it up but now we have 15 to 18 every day. We used to try to do some paperwork before the children arrived but you can't do that with 18 children in the room. It impacts on time for setting up too. Paperwork for OH&S and accident reports has increased - you put a bandaid on a child and you have to record it - everything has to be documented. There are more children with anaphylaxis and other food allergies. More than 10% of our children have additional needs and require an Individual Education Plan (IEP), you have to research different conditions, parents need more support, you need to do more detailed report writing, attend meetings with families and specialists, apply for special funding and even when the director does much of this of course the other staff are always involved. These children need more time, energy, patience and 1:1 support. It is a struggle and a burden trying to secure SCAN and DEET funding. Budgeting for the centre is more complex - PIRP funding has not been matched to CPI for three years but costs go up. Enrolments are a lengthy and arduous process. You have to give priority to four year olds so you have to call and wait for responses from 200 parents of four year olds before you can start enrolling three year olds. We used to be able to fill up our spaces with the first 60 families that responded but now we can't do that. It's also led to many services offering one day places, which is not good for the children and it means an extra 20 portfolios per week per teacher. A lot of the job as a director is now marketing the service - updating the website, brochure design and printing, leaflet drops etc. Teachers need computer skills for digital documentation, making slideshows, DVDs, digital photos etc but where do they get the training and support?" 129 Ms Simon explained the effect changes to the DoCs structure had on her role as director and teacher:

167 The datum point from which the IEU seeks the claimed changes in work value to be assessed is January 2006. That is a relatively short period in which to demonstrate that the changes that have occurred amount to such a significant net addition to work requirements as to warrant the creation of a new classification or upgrading to a higher classification. 168 Nevertheless, the IEU submitted there have been significant developments in the theory and practice of early childhood education in recent years, which have translated into ever more rigorous regulation of the sector by both State and Federal Governments. These factors, it was submitted have led to more complex and onerous demands upon teachers, both in terms of pedagogy and in terms of administration and associated duties. Counsel for the IEU submitted this was readily translated, for work value change assessment purposes, into a significant change in the conditions under which the work of teachers is performed. 169 The principal changes relied upon by the IEU covered a range of different aspects of the teaching role, including the following: (i) More rigorous, structured and documented teaching regime; (ii) Increased administrative responsibilities; (iii) Increase in extent and complexity of client requirements; and (iv) More onerous regulatory requirements. 170 Particular reference was made to the evidence of increased complexity of programming and reporting, particularly on child development over recent years, and the increased volume and complexity of work associated with care for children with special needs. 171 The employers, on the other hand contended that the IEU had not met the requisite tests in the work value principle; the Union had not demonstrated that the applications had 'special attributes' or were 'out of the ordinary' so as to take them outside the restrictions which may otherwise apply under the wage fixing principles; the Union had not identified, on an objective assessment basis, whether any changes that have occurred amount to such a significant net addition to work requirements as to warrant the creation of a new classification or upgrading to a higher classification from the datum point of January 2006.

Special Needs · More children enrolling in EC programs as parents are encouraged to mainstream their children · Team meetings · Transition to school visits and meetings are more frequent · Preparation of transition programs for children who are going to mainstream · Collaboration with school on funding document since 2007 · Parents now source 2 or 3 schools before making a primary school choice so we are involved in collaboration with more schools. 174 To take just a few of the matters referred to earlier in the applicant's evidence: first, there was evidence of Ms Connell, Ms James, Ms Connors, Ms Fanning and Ms Simon of greater complexity of programming and reporting particularly on child development over recent years. Parents have increasing expectations for structured education and detailed recording and reporting of their child's progress. It was Ms James' evidence that: The emergent curriculum means a style and philosophy about teaching in the early childhood sector that includes the child's focus as primary, with the focus of learning from the child's perspective. Teachers are now completing very detailed portfolios of children that include work samples, digital photographs, interactions with peers and staff, emerging skills and interests, and strengths in the Curriculum Framework domains. These domains are language/communication, social-emotional development, creativity, thinking/problem-solving, physical development (skills and activity levels), spirituality and moral development. Teachers are also responsible for daily journals (written and digital), which demonstrate to parents the interactions and learning that have occurred throughout the day. Teachers plan individual activities based on their observations and interactions with children and evaluate these on a daily basis in order to modify their programs to better-assist children to achieve desired outcomes. 175 Secondly, on parents' expectations Ms Connell stated: As parents have become more informed about the importance of early education they are more demanding of information and as the Director there is an expectation to run evenings on school readiness and other relevant topics. Planning meetings, presentation, finding speakers, panels usually takes place after hours. As a teacher I am increasingly required to speak to parents privately on topics such as school readiness, behaviour, nutrition, literacy, numeracy, choosing schools, sibling rivalry, separation, divorce, abuse etc. etc. etc. There is a requirement for me as a teacher and a Director for me to keep abreast with new research and educational practice. While this has always been part of our program we now find that we spend more time with parents on an individual basis explaining the best time for starting school and talking about their child's development. As current research proves that Early Childhood is the most important time for a child's learning, parents are becoming more aware of the issues involved in school readiness and the importance of Early Childhood education, and they are asking more questions about programs and the importance of play based curriculum. Parents are also more anxious about their child's development and feel that their child should reach certain developmental milestones before school. As we are often their first Early Childhood experience we must ensure they understand what is best practice and that their child is receiving a quality Early Childhood experience.

177 Fourthly, there was evidence that teachers are now required to develop a greater range of policies and review them more regularly. Ms Connell's evidence in that respect was as follows: In relation to policies, the number of policies required has certainly increased not only due to the Children's Services Regulation but because of other regulatory requirements and insurance requirements. For example, it was once necessary to have only one evacuation policy. We now have separate evacuation policies in the event of: Fire or Gas Leak Flood Building Collapse Bomb Threat Suspicious Mail Invasion of Insects Invasion of Reptiles Invasion of Agitated or Aggressive Parent or Family Member. We also have policies for evacuation from outside to inside in the event of: Adverse weather Flood Invasion of Insects Invasion of Reptiles Toxic leaks and spills in the community One policy has now grown to 13 policies. Each policy needs to developed, discussed, amended if required, reviewed and staff need to be trained in the policy. This work is done by the teacher and has increased the complexity of our work. 178 Fifthly, in relation to regulatory requirements there are: · more extensive requirements in relation to accident recording in services; · stricter requirements in relation to supervision of children while toileting; · in relation to keeping of animals, changed procedures in how they are handled within the centre; · new standards in relation to food hygiene. 179 When regard is had to the combination of all of the work value factors that have been addressed in the IEU's evidence, it is overwhelmingly in support of an increase having occurred in the work value of preschool teachers. However, having regard to the employers' evidence, we accept that whilst changes had occurred during the relevant period, there were elements of the change that did not constitute a significant net addition to work requirements, that in so far as responsibility was concerned a significant proportion of this had to be borne by the licensee or owner and not teachers or directors, and that some of the changes relied upon by the IEU were more in the nature of evolutionary change to work that had always been undertaken by teachers and directors. These are considerations to be taken into account in assessing the size of any wage increases justifiable on work value grounds.

By definition preschools usually operate on hours and terms approximating schools. As schools operate about six hours per day, preschools would be able to accommodate the non-contact time without cost and almost all would already provide it. In relation to long day care centres, teachers (including Directors) may be rostered to perform face to face teaching for the whole of the 38 hours per week for which they are employed. Pursuant to clause 9.1 of the award no overtime is payable to a teacher in relation to preparation and programming duties but only in relation to duties required to be performed by the employer outside the ordinary hours of work, such as remaining late to supervise children who have not been collected. As a teacher is responsible for preparation, programming, keeping of developmental records, etc, if time is not provided during work time to fulfil these duties then they must necessarily be performed by the working of unpaid overtime. This is even more the case for Directors who have significant administrative responsibilities in relation to compliance with the Regulation, supervision of staff, review and updating of policies, meeting new parents, etc. 206 The IEU adduced evidence of a survey the organisation conducted amongst their members in 2009. Ms Heron summarised the results of the survey: The Union conducted a survey of non contact time received by teachers and Directors. A summary of the survey results, entitled ECS Survey Results 2009, is attached and marked as Annexure 3. This survey showed that, of the respondents, 82% stated that teachers in their centre received non contact time; and 91% said Directors/Authorised Supervisors in their centre received non contact time, with 73% of those who said yes to the latter question said the release was in excess of 3 hours per week. Of the respondents in private centres, 55% said teachers received more than one hour per week non contact time and 81% said Directors/Authorised Supervisors received more than three hours of non contact time.

Accordingly, if an early childhood teacher is doing non-contact time work, this would no doubt fall within the definition in subparagraph (d), and the staff member could not be considered part of the primary contract staff in such circumstances. Therefore, unless, the centre is large enough, or has the resources to employ an additional staff member as a "floater" to take over the duties of a primary contact staff member in such circumstances, which is not the case for most of the AQCCC's members employing staff pursuant to the Awards the subject of these proceedings, this staff member would have to be replaced, during any such non-contact time. Even if the replacement primary contact staff member is an employee pursuant to the Miscellaneous Workers Kindergarten and Child Care Centres (State) Award , such an employee would have to be engaged for a minimum of three hours (clause 9(iv) (b) 4). Once again employers would be required to incur additional costs, which would be passed onto to the parents by way of further fee increases. I have already expressed the AQCCC's concerns in this regard. IEU's response 214 Ms Connell gave the following evidence in response to the employers' opposition to the claim regarding non-contact time: I do not believe [sic] agree with the analysis in… the statement of Vicki Skoulogenis, concerning the effect of the Regulation on the rostering of staff. Teachers and child care workers employed in long day care centres work in staggered shifts with different starting times to ensure opening hours are completely covered. For example, staff might commence work at differing times between 6.30am and 9.30am. In order to maintain DoCS ratios, staff should be replaced in the room when they leave the room to have their lunch break, but there is no requirement to replace them with a staff member of equivalent qualifications. Relief during breaks is possible because these breaks are scheduled during periods of the day when the full complement of staff are on the premises. In centres that provide non contact time for teachers, they do not have difficulty in allocating time during the hours when the full complement of staff are in attendance at the centre (in many centres this occurs between 9.30 am and 2.30 pm). I believe that many centres that do not currently allocate non contact time to teachers should be able to make use of existing staff during such times.

218 It is apparent from the evidence that a large proportion of preschool teachers receive non-contact time whilst a minority do not. We note the survey of members working in the early childhood sector conducted by the IEU which showed that 82 per cent of centres responding already provided some non-contact time to teachers, and 91 per cent provided non-contact time to Directors. In relation to the Directors, 73 per cent received more than three hours per week of non-contact time. By contrast, in long day care some teachers were required to work 38 hours per week in direct contact work. We also note the concession made by Mr Alchin that he did not disagree non-contact time was an established practice in the industry. 219 The evidence suggests that non-contact time is at least a widespread practice, that teachers and directors do significant numbers of unpaid hours as a result of not being granted some amount of non-contact time, that the lack of non-contact time was identified as an additional factor which encouraged teachers to seek work in the school sector rather than in long day care centres, that no overtime is payable to a teacher in relation to preparation and programming duties but only in relation to duties required to be performed by the employer outside the ordinary hours of work, such as remaining late to supervise children who have not been collected. 220 These are strong reasons for introducing an award provision requiring employers to provide non-contact time. The employers' main objection is one of cost. Indeed, we consider most of the reasons for the employers' opposition to the whole of the IEU's claim is based on cost and so we will deal with that as a separate consideration. 221 Ms Skoulogenis also objected on the ground that centres would have to totally reorganise their rosters in order to ensure that the child to staff ratios are maintained and that, therefore, unless the centre was large enough, or had the resources to employ an additional staff member as a 'floater' to take over the duties of a primary contact staff member in such circumstances, (which Ms Skoulogenis said was not the case for most of the AQCCC's members), this staff member would have to be replaced, during any such non-contact time and that would involve additional cost. However, we note the evidence of Ms Connell to the effect that existing staff, not necessarily teachers could be utilised whist the teacher or director takes non-contact time. Ms Connell stated that: In centres that provide non contact time for teachers, they do not have difficulty in allocating time during the hours when the full complement of staff are in attendance at the centre (in many centres this occurs between 9.30 am and 2.30 pm). I believe that many centres that do not currently allocate non contact time to teachers should be able to make use of existing staff during such times. 222 We intend to vary the Awards to provide for paid non-contact time. For teachers the non-contact time will be a minimum of one and a quarter hours per week. For Directors and Authorised Supervisors a minimum of two and a half hours per week will be provided. COST IMPACT AND FUNDING

Q. So there still needs to be a substantial differential between the wages paid to teachers in this sector and those that occupy the positions of directors, correct? There needs to be a differential of some significance? A. Yes. Yes, I do agree. 225 In 2001, whilst Schmidt J was mindful of the assertions of unaffordability and the perceived risks of damage to family and childcare objectives generally if teachers' salaries were increased substantially, her Honour was not ultimately satisfied that there was any proper evidence to support these assertions and, in any event did not see that the Commission's role in fixing fair and reasonable wages and conditions of employment as being governed by arguments of unaffordability: see [320]-[329]. 226 Further, her Honour concluded that if the concerns about affordability were 'in truth seriously held' then there was a proper basis for expecting that an appropriate application would have been made to the Commission in accordance with the Economic Incapacity Principle, yet no such application was made: see [326]-[329]. More specifically, her Honour concluded (at [327]) that: Whilst very serious concerns were expressed by the employer witnesses about the consequences of granting this claim, no attempt was made to put on evidence which allow such concerns to be properly tested. Nor was there any attempt to meet the requirements of the economic incapacity principle in respect of any individual employer. 227 As the applicant submitted to the Full Bench, in spite of having been 'on notice' of the need for evidence regarding the consequences of granting the claim since Schmidt J's decision in 2001, the respondents did not adduce evidence of a quality that could assist the Commission in that regard. This was notwithstanding the ability of Ms Skoulogenis to gather data as to the financial position of the members of her organisation. However, that exercise had simply not been undertaken. 228 Accordingly, the applicant submitted that the inference was overwhelming, namely, that there was no such data to support the allegation of serious consequences and hence the Commission should not discount or otherwise modify the rates it is otherwise mindful to award to teachers in the early childhood sector on the basis of 'mere emotional assertions about "unaffordability"'. 229 The applicant also referred to Schmidt J citing with approval the remarks made by the Full Bench in Re Crown Employees (Teachers - Department of Education) Award 1970 AR (NSW) 345 at 514-515 and 521, to the effect that whilst it was not the Commission's role to award salary increases to attend to attraction and retention problems, nevertheless the Commission was under a 'duty' to 'pay regard to the public interest' and hence that the Commission should not act in a way that may serve to cause a deterioration in existing staffing problems: at [364], [391]-[392]. The applicant submitted, that a similar approach was both open and appropriate in these proceedings. It was submitted: The Commission, on the evidence, would be well entitled to conclude that if it sets wage rates for teachers in the ECS [early childhood sector] on par with, or close to being on par with, the rates paid to teachers in the public and independent school system, that this will, at the very least, ensure that there will be no further deterioration in the existing teacher staffing problems in the ECS. Furthermore, such a wage outcome would not be contrary to the public interest, given the Commonwealth and New South Wales Governments' clear and firm commitment to ensure that sufficient funding is made available to the ECS such that " cost is not a barrier " to the achievement of the Federal Government's laudable goals with respect to early childhood education. Increased funding 230 A consideration of the utmost significance in these present proceedings and which was not in 2001 is that both the Commonwealth and State Governments have increased funding of early childhood services very substantially over recent years. 231 Since 2006, the New South Wales Government has invested an additional $25.9 million into preschools. State Government funding of preschools and childcare centres increased from $113.4 million in 2006/7 to $164.2 million for 2009/10.

240 Clause 4 of the BA provides for the Commonwealth to make payments to NSW subject to the State meeting agreed 'Performance Benchmarks' and 'Deliverables'. The clause states that if New South Wales does not meet the necessary objectives 'the Commonwealth will consider whether or not further payments should be made and the timing and amount of such payments.' Clause 5 also provides that the Commonwealth reserves the right to withhold or discontinue funding if New South Wales does not fulfil its obligations under the BA or the NP ECE. 241 The Benchmarks include such matters as the percentage of children having access to an early childhood education program for 15 hours per week, 40 weeks per year (to be 95.0 per cent by 30 June 2013 - 81.9 per cent as at September 2008); the number of teachers delivering early childhood programs who are four year university trained and early childhood qualified (5,624 by 30 June 2013 - 4680 as at September 2008); the proportion of disadvantaged children enrolled in (and attending, where possible to measure) an early childhood education program (95 per cent by 30 June 2013); and the proportion of Indigenous children enrolled in (and attending, where possible to measure) an early childhood education program (95 per cent by 30 June 2013). 242 The BA sets out the increase in the Pre School Investment and Reform Package: 'Action A'. Under that Package every service is funded for every child that attends the preschool, up to two days per week. Total expenditure under this reform package rose from $78 million in 2007-2008 to $90 million in 2008-09. 'Action D', details the additional funding increases based on Local Government Areas and specific increases for low income families and Indigenous Children. The amount of the funding increase for each preschool service is based on the local government area in which it is located (previous funding ranged from $780 - $1600 per annum. It has been increased to $1200 - $2986 per annum.) These increases in funding have already flowed through to services. 243 'Action J' is a commitment by New South Wales to introduce a new Teacher Costs Contribution Scheme. This involves a commitment to fund each service that employs a teacher an additional amount of $6000 per annum for each three year trained teacher, $8000 per annum for each four year trained teacher employed in the service and an additional $1000 payable for services in remote areas. These monies will be available to all licensed services with an implementation date of July 2011, including for profit services, for each teacher employed to deliver the early childhood program. This funding is part of the total funding package referred to in the immediately preceding paragraph. 244 'Action M' details additional increases in funding of $10.2 million in 2008-09, an additional $20.3 million in 2009-10 and $25.9 million in 2010-11 onwards. These funds are to be invested in community preschools to ensure all children have access to a preschool program run by a qualified teacher. They are not part of but additional to the funding increases referred to in the immediately preceding two paragraphs. AFEI's response 245 In responding to this new material Mr Boyce, for AFEI, raised two matters. First, he referred to cll 4 and 5 of the BA. He submitted that in no way was the level of funding stipulated within the BA guaranteed to be flowed on to early childcare providers in New South Wales. Mr Boyce submitted that throughout his evidence, Mr Alchin was resolute in the fact that whilst various commitments towards funding was positive, it in no way guaranteed funding in the future. The information contained within the BA did not impact on Mr Alchin's evidence, it was submitted. 246 The second matter related to earlier evidence of Mr Alchin where he indicated that whilst his organisation was pleased with the additional funding, he was concerned about how the resource allocation model would work: So that, in relation to funding generally, when that, as that picture became clearer about the funding that was coming out from the State Government, which we're very, very pleased about and have been advocating for as an organisation for some time, government needs to step up to the plate and really address the affordability issues in pre schools, and that will ease the situation for many pre schools but will not fix the situation for some regional and remote services in particular. But even though we are pleased with that result, we now have a question about how the resource allocation model is going to apply in relation to the COAG's requirement that there be 15 hours a week pre school provided through the system. So both ourselves, and other people, organisations, are both saying we now have this significant concern, because the way the resource allocation model works is that essentially it's saying a maximum, or has been saying a maximum of 2 days pre school that will be funded for each child. If you're looking at, for example, 20 places for a pre school, for example, and if that pre school is full, that is all those 20 places are filled in that week, a centre might commonly then set up to say: Okay, there will be, Mondays/Tuesdays, 2 days. Thursdays, Fridays, two days. And Wednesday is a single day of attendance with a total of 50 enrolments.

247 In her written response, Ms Kenneally made the following pertinent points: (i) The Bilateral Agreement is an "incentive scheme" in respect of privately operated childcare centres operating a preschool program, in order to attempt to achieve by 2013, the goal of giving every child access to early childhood education programs in the 12 months prior to full-time schooling. Such a program is to be delivered by a four year trained university qualified teacher for 15 hours a week, 40 weeks a year. (ii) Privately operated child care centres, (whether or not they provide preschool programs), will still otherwise receive the indirect funding through the Federal Government's Child Care Benefit (CCB) scheme. Further, those families who meet the work and study test, will continue to receive the Child Care Tax Rebate (CCTR). Any privately operated centre electing not to participate in the Teachers Costs Contribution Scheme, will currently not lose the indirect funding available to the parents through the CCB scheme, who enrol a child or children at any such centre. (iii) Privately operated child care centres operating with more than 29 children, which are required by the Children Services Regulation 2004, to employ one or more early childhood teachers, and which have a preschool program, will be entitled to apply for the funding. Under the Teachers Costs Contribution Scheme, the funding will be $6,000.00 per annum for each 3 year trained teacher, $8,000 per annum for each 4 year trained ECT, and an additional $1,000.00 for each remote service.… However, such funding will not be available in time to assist those centres governed by the Awards in question, in covering the proposed increases sought by the Applicant in these proceedings…. Any such increases will have to be initially passed onto the parents by way of increased fees. (iv) Privately operated child care centres operating with less than 29 children, will be entitled to the subsidy up to a limit of one early childhood teacher ('ECT'). Any such smaller centres, if they decide to participate in the Scheme, will then have to meet the shortfall or difference in the wages, (and allowances if applicable), of any such ECT that they may employ. It is therefore doubtful that such centres will be able to afford to do so, particularly if the wages and allowance increases currently being claimed pursuant to these proceedings, are granted in whole, or in part. That is, the "incentive" will unlikely to be sufficient to encourage such centres to employ an ECT. (v) Given the accounting requirements referred in the Bilateral Agreement, it would appear that child care centres which employ more than 1 ECT, will only be eligible for the Teachers Costs Contribution Scheme in respect of those ECT's who are " in a primary contact teaching role or a leadership role in the design, development and implementation of the developmental educational child program" . Therefore it appears that not all ECT's employed by a child care centre may be eligible to claim the funding. (vi) The Teachers Costs Contribution Scheme will not commence in respect of privately operated child care centres until sometime in the 2011-2012 financial year, that is, not until on or after mid 2011. 248 In responding to the applicant's submission that in the next three years ample funding will be available to ensure that quality teachers are attracted and retained in the early childhood sector, Ms Kenneally submitted: a. There are no proposed increases, or changes, to be made to the indirect funding provided by the Child Care Benefit, which will assist privately operated child care centres to fund the proposed wage and allowance increases claimed by the Applicant in these proceedings. Nor are there any anticipated changes to be made to the Child Care Tax Rebate scheme for the eligible families pursuant to the work and study test. b. There may be some assistance for eligible privately operating child care centres from the Bilateral Scheme; however this will not come into place until at mid 2011 at the earliest. c. The "incentive" provided by the Scheme will be unlikely to attract smaller centres employing ECT's, as it will come nowhere near close to compensating them for the costs of engaging such an ECT, and the difference would have to be paid for by the parents via increased fees. Consideration

249 It seems to us that there are aspects of the funding arrangements between New South Wales and the Commonwealth that are 'work in progress' and the form of the arrangements as they will apply in practice has not been finalised. 250 Nevertheless, it cannot be doubted that there has been a massive injection of funds into early childhood education. That injection is obviously not going to entirely pay for the salaries of teachers, but across the industry it will make a significant contribution in that respect. That contribution, however, will not take effect until 2011. 251 AFEI has expressed the concern that the level of funding stipulated within the BA has not been guaranteed to be flowed on to early childcare providers in New South Wales. In the strict sense that is so, but we do not consider the safeguards the Commonwealth has proposed are anything other than normal prudential provisions and the milestones or benchmarks, likewise. They do not signal a likelihood that the funding would be withdrawn on a whim and given the critical importance of the BA to achieving universal access to early childhood education we would expect that both parties to the agreement would do their utmost to make it work. 252 In any event, the additional funding is but one consideration in these proceedings and although it is an important factor in favour of increasing salaries for teachers, a decision to do so does not revolve around that sole criterion. 253 In 2001 the respondents contended that the increases sought at that time were not affordable - could not be sustained - and that the consequences would be further depression of the job market because employers would seek to reduce their licence numbers below 29, at which point they would not be obliged to employ teachers. Alternatively, it was submitted that the increase in salaries would have to be passed on to families thereby putting financial pressure on families and perhaps undermining the very objective of childcare education. 254 Essentially, the same contention is made in 2009. But no attempt was made by the respondents to demonstrate any negative consequences flowing from the decision of Schmidt J in 2001 and no sufficiently probative evidence of incapacity or severe financial stress amongst operators of centres was produced in these proceedings, notwithstanding the criticisms made by Schmidt J of the absence of such evidence in the proceedings before her Honour. The failure to adduce quality evidence about incapacity to pay was in the face of a very strong evidentiary case put on by the IEU. 255 Moreover, the additional funding for early childhood education that has been provided, or is in the pipeline, weakens even further the respondents' case about unaffordability, although as we have commented, much of that funding will not be available until 2011. 256 We do not consider that the respondents have established a case on economic grounds that an increase in salaries should be limited to those flowing from State Wage Case adjustments. Nor do we consider the respondents have made out a case which would otherwise limit the wage increases that would be appropriate having regard to the provisions of s 10 of the Industrial Relations Act 1996 to provide fair and reasonable rates of pay. It has not been established that there is a particular economic vulnerability in this sector that would result in a significant amelioration of any adjustment to salaries, but we consider it is appropriate to take into account, on economic grounds, the nature of the industry and the particular circumstances of the enterprises that continue to fall within this jurisdiction. We will discuss those matters further below. AMOUNT OF INCREASE

257 The applicant seeks three wage increases of 5 per cent to be operative respectively from the date of decision, 1 January 2010, and 1 January 2011 plus the immediate application of the 2.8 per cent wage increase granted in the State Wage Case 2009. 258 We have already indicated that grounds have been established in the Commission's Special Case and Work Value principles for increases to be granted and that there is capacity for employers under the Awards to sustain a fair and reasonable increase. 259 In the 2001 decision, Schmidt J considered the question of the amount of increase and in so doing stated: The difficult question which the Commission must come to grips with here, is how the demonstrated undervaluation of this work is to be remedied. I am well satisfied that a case has been made out for significant wage increases and that a clear assessment of proper rates for the teachers employed under these awards, cannot be made in a context where rates paid to other similarly qualified and experienced teachers is ignored. 260 Similarly, on this occasion we cannot ignore the rates paid to the counterparts of preschool teachers employed in Catholic and Government schools. As we earlier noted, even if we were to award the full extent of the increases sought, that would still leave early childhood teachers approximately six per cent behind the teachers as of 1 January 2011. 261 There was insufficient comparative analysis to allow us to conclude that the work value of preschool teachers is precisely the same as their counterparts in Government schools: it may be less, it may be more, it may be the same. Whatever may be the case in that respect, it is patently apparent that it is not a fair and reasonable state of affairs, nor in the public interest, to have preschool teachers being paid 21 to 27 per cent less in salary. This is especially so in circumstances where there is a critical shortage of university trained preschool teachers at a time when a concerted effort is being made by governments to provide universal access to early childhood education. The evidence strongly suggests that unless salary levels are increased teachers will not be attracted to work in preschools and attempts to achieve an exponential improvement in childhood education standards will fail. 262 Despite the poor quality of the respondent's evidence about the unaffordability of the claim, we are required to consider the economic impact of our decision. This requires an assessment of both general economic impacts and the consequences for the industry affected by our decision. In this respect, Mr Alchin stated: With cost, funding and competitive restraints still confronting the sector, the increases to wages sought by the IEU will cause difficulty for some services, particularly small regional and remote services in that: (a) staffing costs can represent up to 85% of overall costs in the not-for-profit sector;

Employers First v NSW/ACT Independent Education Union

At a glance

Court

Decision date

Before

Source

Judgment (530 paragraphs)

Parties

Cases Cited (17)

Cited By (1)