Miscellaneous Workers Kindergartens and Child Care Centres &c (State) Award, Re [2006] NSWIRComm 64

INTERVENOR: Association of Quality Child Care Centres of NSW Inc

CORAM: Wright J President; Walton J Vice-President; Schmidt J; McLeay C

CATCHWORDS: Award - child care industry - competing claims for new award - special case; work value and equal remuneration principles - employers' claim for reduced wages for pre-school employees and reduced conditions for co-ordinators not made out - union's claim for work value change for support workers not made out - union's claim for work value change and gender based undervaluation of work of child care workers made out - new classification structure - conditions of employment - wage increases - phasing in - new award made

Children's Services Regulations 2004 LEGISLATION CITED: Children and Young Persons (Care and Protection ) Act 1998 Industrial Relations Act 1996 Occupational Health and Safety Act 2000

Child Care and Kindergarten Employees' Award - State (1991) 137 QGIG 399 Miscellaneous Workers' - Kindergartens, &c. (State) Award (unreported, Manuel C, 14 March 1969) Miscellaneous Workers Kindergartens and Child Care Centres (State) Award (unreported, Redman C, 23 August 2000 Children's Services (Victoria) Award 1998 (AIRC, Ross VP, Marsh SDP and Deegan C, 13 January 2004 Equal Pay Case 1973 [1973] AR (NSW) 425 CASES CITED: Pay Equity Inquiry (unreported, Glynn J, 14 December 1998) Re Child Care Industry (ACT) Award 1998 (AIRC, Deegan C, 24 June 2005) Re Clerical and Administrative Employees (State) Award (No 2) [2005] NSWIRComm 397 Re Equal Remuneration Principle (2000) 97 IR 177 State Wage Case 2005 (2005) 142 IR 337 Re Teachers (Non-Government Early Childhood Service Centres Other Than Pre Schools) (State) Award [2006] NSWIRComm 4 Re Teachers (Non-Government) Pre-schools Award (2001) 120 IR 3

HEARING DATES: 17/08/2005; 18/08/2005; 19/08/2005; 22/08/2005; 23/08/2005; 24/08/2005; 25/08/2005; 20/09/2005; 21/09/2005; 22/09/2005; 21/10/2005; 07/11/2005; 10/11/2005; 22/11/2005; 06/12/2005; 14/12/2005; 31/01/2006; 01/02/2006

Mr A Searle of counsel and Mr N Quinn for Liquor, Hospitality and Miscellaneous Union, New South Wales Branch

LEGAL REPRESENTATIVES: Mr T McDonald with Ms D McManus for Employers First Mr G McKay for Catholic Commission for Employment Relations Ms B Kenneally and subsequently Mr J Pearce of counsel and Mr L Maloney for Australian Child Care Centres Association and Peppercorn Holdings (No 4) and Hutchinson Child Care Services and for Association of Quality Child Care Centres of NSW Inc Mr RJ Burbidge QC with Mr J Pearce of counsel for the Australian Child Care Centres Association and Association of Quality Child Care Centres of NSW Inc on the Notice of Motion (22 November 2005)

CORAM: Wright J, President Walton J, Vice President Schmidt J McLeay C

Tuesday, 7 March 2006 Matter No IRC 5757 of 2004

MISCELLANEOUS WORKERS KINDERGARTENS AND CHILD CARE CENTRES &C (STATE) AWARD

Application by Liquor, Hospitality and Miscellaneous Union, New South Wales Branch for a new award

MISCELLANEOUS WORKERS - KINDERGARTENS AND CHILD CARE CENTRES (STATE) AWARD

DECISION OF THE COMMISSION [2006] NSWIRComm 64

1 In September 2004, the Liquor Hospitality and Miscellaneous Union, New South Wales Branch ('Union') commenced these proceedings under s 10 of the Industrial Relations Act 1996 ('the Act'), seeking the making of a new award, to rescind and replace the existing consent award. The award applies to primary contact staff, other than teachers, employed at workplaces such as pre-school, long day care and out of school hour centres, as well as non-contact staff, such as cooks and cleaners. A new classification structure and increased wages were sought to properly reflect the qualifications, skills and responsibilities of these employees. Numerous other changes in award conditions were also sought. 2 The Union claimed that the industry was overwhelmingly dominated by female employees whose wages had historically been undervalued. The application was pursued under both the Commission's Work Value and Equal Remuneration principles (see State Wage Case 2005 (2005) 142 IR 337). This is the first time that the Commission has been called upon to consider a fully contested application brought under the latter principle, established by the Commission in Re Equal Remuneration Principle (2000) 97 IR 177. 3 An appropriate career path and remuneration were sought to address historical inequities and work value change. The case, as first put by the Union, was that inequity was evident from comparisons sought to be drawn with industries traditionally dominated by male employees. The Union's case altered significantly however, both during and after the evidence was heard. The comparison finally pressed was with teachers employed in the child care industry. 4 In November 2004, Employers First commenced proceedings in a counter application, which also sought the making of a new award. Numerous changes in existing award conditions were sought, as well as increases in some wages and some limited changes to the classification structure. Substantial decreases in wages for all those employed in pre-schools was also sought. The application was also said to fix fair and reasonable conditions of employment and was pursued under the Work Value and Special Case principles. 5 The Association of Quality Child Care Centres of NSW Inc ('AQCCC') also proposed various different changes to current conditions, in a points of contention document filed in November 2004. No increases in wages were sought. 6 The matters were the subject of Major Industrial Case conferences before the Vice-President, Justice Walton . The parties were unable to reach any agreement on their competing claims. 7 In July 2005 the Union filed a further application seeking increases in existing rates, following the 2005 State Wage Case decision . While some employers consented to the increases, Employers First and AQCCC did not, taking the view that the claim should be considered by the Commission, together with the applications already before this Full Bench. The claim was the subject of conciliation proceedings before Schmidt J, but the parties were again unable to reach any agreement. 8 Consequently, the application was referred to the Full Bench. Employers First then amended its application, having regard to what was sought by the Union in its further claim. On 12 August, Employers First again amended its application, to alter a number of the conditions sought and to introduce an interim increase in wages, of up to $20 per week, from the first full pay period to commence on or after 28 August 2005. Discussions about this proposal ensued between the parties. 9 An agreement in relation to increased wages and certain allowances emerged during the course of the hearing. By consent, the award was then varied to reflect the agreement reached, increasing wages by $17 per week for some employees and $20 per week for others and updating certain allowances. The variation took effect on the date Employers First had proposed. 10 Discussions as to the competing claims continued during the course of the hearing, with the result that some agreements were reached. The Full Bench also directed the parties to confer further, prior to the filing of final written submissions, given the view which all parties then shared, that it was possible that further discussion might lead to other agreements being reached. 11 No agreements emerged, but later, during the course of final submissions, the parties requested further assistance from the Bench in conciliation, which was provided by Commissioner McLeay . The result was that on 19 December 2005, in supplementary submissions filed by the Union, a revised classification structure and rates of pay, quite different to what had been pressed to that point, emerged. Significantly, this proposal maintained, with some alterations, the existing award classification structure, which the Union understood would 'meet with the broad approval of most of the employer parties' . The rates pressed still relied on work value change and claimed undervaluation available to be addressed under the Equal Remuneration principle, but they were also at significantly reduced levels, compared to those pressed to that point. 12 The parties then sought further assistance from the Commission in conciliation, which was provided, with the result that the parties further reduced the areas of disagreement, but still no final agreement emerged. The parties' positions further altered, even as final submissions were put and on the part of some employers, after they were concluded. We will later outline what remained in issue, so far as conditions were concerned. The contest between the parties as to rates of pay and conditions, as finally pressed, involved claims for limited alterations to the existing classification structure. Substantially increased rates of pay were still pressed by the Union. Limited increases for only certain classifications employed in long day care centres and out of school hours centres and decreases in rates of pay of 6 per cent, for those employed in preschools, were pressed by Employers First. Other employers apart from CCER finally supported the claim for decreased rates of pay for pre-school employees, as well as supporting other aspects of the Employers First and Union proposals. 13 The competing claims finally advanced were: LHMU Proposed Classifications Employers' First Proposed Classifications Long Day Care Pre-School* Classification Definitions Increment Rate Proposed Rate Proposed Rate Support Worker Equiv of CCW S2 $575.30 $529.40 $497.60 Support Worker (Qualified Cook) Equiv of CCW S3 $587.50 $543.00 $510.40 Support Worker (Cert III Cook) Equiv of Cert III $612.00 Child Care Worker Step 1 92% of CCW Step 5 $563.00 $524.80 $493.30 Step 2 94% of CCW Step 5 $575.30 $529.40 $497.60 Step 3 96% of CCW Step 5 $587.50 $533.80 $501.80 Step 4 98% of CCW Step 5 $599.80 $538.40 $506.10 Step 5 100% $612.00 $561.50 $527.80 Advanced Child Care Worker Step 1 90% of ACCW Q $666.00 $549.30 $516.30 Step 2 92% $680.80 $561.30 $527.60 Step 3 94% $695.60 $572.20 $537.90 Advanced Child Care Worker Qualified Step 1 100% $740.00 $640.55 $602.10 Step 2 102% $754.80 $650.00 $611.00 Step 3 104% $769.60 $659.65 $620.10 Step 4 108% $799.20 Assistant Co-Ordinator 116% $858.40

Co-ordinator OOSH Level 1 $695.60 $568.501 $534.40 LDC / Pre Level 2 90% of Co-Ord Qual $828.00 $582.502 $547.60 LDC / Pre Level 3 $844.56 $592.003 $556.50 LDC / Pre Level 4 $860.40 $603.004 $566.80 Co-Ordinator Qualifed OOSH Level 1 $769.60 $668.405 $628.30 LDC / Pre Level 2 100% $920.00 $687.406 $646.20 LDC / Pre Level 3 102% $938.40 $697.707 $655.80 LDC / Pre Level 4 104% $956.80 $705.158 $662.80

The classifications and proposed rates have been sourced from Employers' First 22 November 2005 Amended Application (Ex 95), as follows:

1. Co-Ordinator Unqualified Small Step 1 2. Co-Ordinator Unqualified Small Step 2 3. Co-Ordinator Unqualified Large Step 2 4. Co-Ordinator Unqualified Large Step 3 5. Co-Ordinator Qualified Small Step 1 6. Co-Ordinator Qualified Small Step 3 7. Co-Ordinator Qualified Large Step 2 8. Co-Ordinator Qualified Large Step 3

• Note: Employers First 22 November 2005 Amended Application (Exhibit No. 95) provides that employees engaged prior to [DATE OF DECISION] shall not receive a reduction in pay. Inspections 14 Inspections were conducted at three child care centres selected by the parties. One, Acacia Cottage Kindergarten, Castle Hill, was a for profit private long day care centre offering 90 places; one, Balmoral Street Pre-school, Blacktown was a community based, not-for-profit pre-school operated by Children First Inc, a charity, offering 59 places for children 3 to 6 years of age; and one at Gumnut Cottage, Macquarie University, was a not-for-profit long day care centre, where five rooms were operating. Each centre was obliged to employ at least one trained teacher under the applicable NSW government Regulations. 15 There was no inspection at any centre representative of the majority of those operating in this industry, namely a centre offering fewer than 29 places, which has no obligation to employ a trained teacher. Nor was there an inspection at a centre conducted by larger employers such as the KU Children's Services ('KU') or ABC Learning Pty Limited ('ABC Learning'). The parties' respective cases

16 The case opened for the Union was that a new seven step classification structure should be introduced, with increased rates of pay established through a proper gender neutral evaluation of the work performed and with progression based on the acquisition of skills and qualifications. Numerous changes in conditions, including increased sick leave; the introduction of non-contact time for planning, programming and observations and the introduction of first aid training and an allowance for first aid, were also sought. 17 It was argued that the current classification structure and rates of pay were undervalued, due to factors associated with the predominantly female sex of the workers employed under the award. It was submitted that comparisons with male dominated industries was not required by the Equal Remuneration Principle, which was not limited to circumstances of discrimination, but evidence as to certain comparisons was led. 18 Existing rates in the award were said to reflect agreements, which may have had regard to work value considerations, as well as productivity improvements, and attraction and attention rates, but which 'do not always reflect the value of the work performed in accordance with the principles.' In this award, it was submitted that the parties' approach had led to an improper undervaluation of the work performed by women. This had been exacerbated by changes in work value, which had not been taken into account in the rates fixed. 19 The award history was argued to demonstrate the absence of comprehensive assessment of the value of the work. Consent arrangements had had an additional impact on inadequate rates of pay in the award. 20 Changes in the industry and in the skills required of workers which were not reflected in award rates, were said to include changes to licensing requirements, accreditation arrangements, training and regulation of childcare workers, as well as health and safety requirements and obligations flowing from child protection and privacy legislation. Mandatory reporting and other government policies had affected the work and training required. There had also been a change from traditional 'care' duties, to a focus on individual development, educational requirements and care needs of each child. There had also been a devolution of work from teachers to child care workers, 'with a consequent departure from long day care centres being run like classrooms'. 21 Structural characteristics of feminised work had also impacted on child care work. There was a disproportionate rate of employment in small workplaces, and an absence of certified agreements and over award payments, which all contributed to the low pay received by workers in the industry. 22 The result had been significant problems for recruitment and retention of qualified childcare workers; low wages and conditions and a lack of career advancement and promotional opportunities. Advancement depended on employees being considered 'qualified' or 'advanced'. There was limited recognition of current qualifications and skills exercised. 23 It was argued that the variations to the award finally pressed, while significantly altered to what was first proposed, would nevertheless remedy these problems. The rates advanced were explained as having regard both to rates fixed for two-year trained teachers employed in this industry and those fixed by the Australian Industrial Relations Commission ('AIRC') for child care workers employed in other States (see (Re Child Care Industry (ACT) Award 1998 (AIRC, Deegan C, 24 June 2005), and Children's Services (Victoria) Award 1998 (AIRC, Ross VP, Marsh SDP and Deegan C, 13 January 2004).

24 The case advanced for Employers First was that, even if there had been an historical undervaluation of rates of pay in this award, due to the charitable origins of this industry, it had not affected how rates of pay had been fixed under current legislative arrangements. The award's classification structure and rates of pay were aligned to key classifications in other awards, particularly the federal Metal Industry Award, as a part of a minimum rates adjustment exercise undertaken in 1991. They were again reviewed in 1997 and the award had since received increases in excess of State Wage Case decisions. 25 It was accepted that since 1997, various changes had occurred in the industry, affecting the skills and responsibilities of some classifications, particularly qualified child care staff, but it was argued that adjustments required to the award classification structure, only affected those classifications. The changes finally pressed sought to give effect to the changes necessary in the award, to recognise those developments. It was proposed that wage increases resulting would be phased in by annual instalments, commencing from 1 January each year. Reduced rates for pre-school employees, finally by 6%, were also pressed. 26 It was the case put for Employers First that otherwise, there was no justification for altering the award classification structure agreed in 1997 by the parties as appropriate for this industry. It properly reflected child care centres' operational requirements. No justification for its removal had been advanced. 27 It was argued that the pay equity claim could not be established, as there had been no undervaluation based on the sex of workers under the award. The requirements of the Equal Remuneration principle were not met on the evidence. Nor were the requirements of the Work Value principle satisfied. 28 It was argued that the rates finally pressed by the Union were inconsistent with the Commission's Minimum Rates Adjustment principle. That principle continued to apply, notwithstanding that work value changes might be established. The principle required appropriate relativities to be maintained between award classifications and those covered by the federal Metal Industry Award. 29 It was also argued that the claims paid no regard to the increases in fees which would result, if they were granted. This would affect the affordability of child care, the viability of centres and employment opportunity for child care workers, the majority of whom were women. 30 The AIRC's decision in the Child Care Industry (ACT) Award case was also relied on. Despite the claim for reduced rates for pre-school employees, it was submitted that Employers First did not propose to reduce wages to those awarded by the AIRC for certain classifications, nor did it propose to increase wages to the levels awarded for others. It was argued that if reliance was to be placed upon federal rates, some of which reflected agreements reached between those award parties, they should be adopted consistently at both the higher and lower levels. There was, however, no objection to a savings provision to hold wages of existing employees constant. 31 The other variations proposed by Employers First to the Award were said to be consistent with structural efficiency considerations, as they introduced important flexibilities. The Association of Quality Child Care Centres of NSW Inc 32 The AQCCC generally supported the claims and case advanced by Employers First. Various other changes in conditions were proposed, including changes designed to clarify what constitutes misconduct in the child care industry and the addition of further specified superannuation funds. 33 AQCCC initially disputed that there had been work value changes of the kind asserted by Employers First in relation to Advanced Child Care Workers or Co-ordinators. This position later altered. AQCCC also took the view that the classification structure originally proposed by the Union suffered from a variety of difficulties and would result in over-classification, wage leap frogging and unnecessary disputes between employers and employees as to the proper interpretation and operation of the award. Finally, different aspects of both the Union and Employers First claims were supported. 34 The AQCCC remained concerned, however, that the result of the Union's claim, if granted, would be fee increases for parents, which would seriously impact on child care affordability, affecting the ability of parents to participate in the workforce. The result would be that children would be placed in unregulated informal care. The commercial viability of many centres would be affected and job losses would also result.

Australian Child Care Centres Association ('ACCCA') 35 This federally registered employers' association was granted leave to intervene in the proceedings. It originally supported the Employers First application and opposed that of the Union. During the course of the proceedings it came to be represented together with AQCCC and finally advanced the same case as that organisation.

The Catholic Commission for Employment Relations ('CCER') 36 Catholic child care employers accepted the need for employees in the industry to receive fair and reasonable wages, which allowed individuals to support themselves and their families. CCER led no evidence in the proceedings. Its case from the outset was that wages for these employees should be consistent with wages paid to similarly skilled workers in the broader workforce, with rates which recognised the important role these employees play in society, in relation to the nurture and development of children. 37 It was acknowledged that increases in rates might significantly impact on affordability of child care for many families, especially in lower socio-economic groups. Phasing-in of increases was proposed, as a means of dealing with this. 38 Variations in conditions finally pressed by Employers First were largely supported, rather than those advanced by the Union. CCER, however, opposed various aspects of the Employers First claims, particularly any reduction in rates or conditions which might increase job insecurity. 39 There was a dispute between the CCER and Employers First as to the role the CCER had taken in the proceedings and how its submissions should be approached. It is convenient to note at this point, that we do not accept the submissions advanced by Employers First in this respect. We accept that CCER was entitled to advance submissions in the proceedings, given the employers it represented, even though it led no evidence. Those submissions have been considered in light of the applicable law and the evidence, like the submissions advanced by other parties. The evidence

40 The witnesses called and their respective details appear at Annexure A. There was a substantial body of evidence called, including a great many documents reflecting investigations and studies conducted into this industry and its regulation, over the course of a number of years. As well as evidence from employees and employers in the child care industry, there was evidence as to the consideration which other tribunals have given to the work of those employed in this industry interstate and how it should be valued. Evidence was also led as to the award regulation of other employees, including that of teachers employed in the industry and of workers employed in other industries and occupations. While it is not possible to outline all of that evidence, it is important that we outline the picture which emerged from the evidence of this industry; how it is regulated; what work is necessary to be performed in it and how that work is covered by awards of this Commission and their history, where relevant.

The Child Care Industry 41 Nowadays the industry covers preschools, long day care centres, out of school hours care centres and a range of other centres, which provide for the care and education of children who, in the main are younger than school age. The industry has grown significantly in the last decade, as the result of various government initiatives. This growth has predominantly occurred in the long day care area, with the entry of larger numbers of privately operated centres. The historical origins of the industry lay in the charitable sector. While there remains a non-profit part of the industry, that is no longer the major part. 42 Various employers operate in the industry, ranging from the State government, Local government, community not-for-profit organisations, Catholic institutions, as well as privately owned and operated businesses designed to generate profits for owners, who can be private individuals, or public or private companies. At one end of the spectrum, one rapidly growing employer, ABC Learning, experienced growth in after tax operating profit from $12 million in 2002/3 to $21.4 million in 2003/4. At the other end, some individual owner/operators and community not-for-profit centres struggle to maintain business viability. 43 Employees include directors and co-ordinators of the centres, teachers, child care workers and support staff such as cooks, cleaners and gardeners. The award here in question, also applies to non-teacher co-ordinators, authorised supervisors, qualified and unqualified child care workers and support workers, employed by non-government centres. 44 The 2004 census of Child Care Centres showed: Private Long Day Care Services Community Based Long Day Care Services Outside School Hours Care Number of Services 1,051 494 561 & % of Services (38.82%) (18.24%) (20.72%) Number of Children & 77,839 38,543 37,317 % of children in type of care (36.7%) (18.18%) (17.6%) Total: 6,464 (23.92%) Total: 3,103 (11.48%) Number of Paid Staff Total: 9,046 (33.48%) F/Time: 3,141 (47%) F/Time: 415 & F/Time: 4,811 (51%) P/Time: 2,024 (30%) (13%) % of paid staff P/Time: 2,551 (27%) Casual: 1,299 P/Time: 1,225 (38%) Casual: 1,684 (18%) (19%) Casual: 1,463 (46%) Number of Families 68,071 33,407 28,102 & % Distribution of Families (39.23%) (19.25%) (16.19%) 63,021 33,383 36,671 Number of Children in care for work related reasons & % of children in particular type of care for work related reasons (80.96%) (86.61%) (98.27%)

Regulation of the Industry 45 The evidence showed the highly regulated nature of this industry, which is obliged to comply with stringent State, Federal and Local government regulations and requirements. These dictate almost every aspect of a centre's operation and affect the work required to be performed by those employed in the centres. Importantly for these proceedings, the regulation of the industry extends to matters such as what services may be offered at a centre, the number of child care places available at a particular preschool, long day care centre, after school care, or vacation care service and the minimum number and qualifications of employees engaged at any time. Centres must also satisfy both State and Federal government reporting and audit requirements, which affect their licensing and funding arrangements. 46 The New South Wales Children's Services Regulations 2004 (the Regulations) dictate the number of employees which centres must employ, as a minimum. In preschools and long day care centres which provide for more than 29 places, these Regulations require the employment of one trained teacher, who has undertaken a university course of three years' duration in early childhood education, ranging up to four trained teachers in centres offering 80 or more places. Primary contact staff numbers are also regulated, with ratios ranging from 1:5 for children under 2 years of age to 1:10, for those aged from 3 to 6 years. The Regulations also require centres to have an authorised supervisor who has a three year teaching degree or two-year diploma in children's services, or equivalent. Centres must also have licensees, who may be the owner, but not also the authorised supervisor of the centre. 47 The number of children for whom a child care worker has responsibility has an effect on the work required to be performed. Some studies suggest that the ratios provided by the current Regulation is a factor contributing to high staff turnover in the industry. This is not a matter regulated by the award. It is the Regulations which impose staff/child ratios as a minimum, which operators are free to improve upon, subject of course to considerations such as cost and the impact on fees. There was evidence that some centres voluntarily improved upon such ratios. 48 The Federal Government's Quality Improvement and Accreditation System ('QIAS'), first introduced in 1994, operates Australia wide and is designed to enhance the differing minimum requirements imposed by the various States in relation to a range of matters. It is operated by the Federal National Child Care Accreditation Council. The system imposes an accreditation scheme which goes beyond minimum staff qualifications, group sizes and staff/child ratios and addresses the quality of care and education provided for children attending accredited centres. QIAS accreditation is not mandatory, but is very wide spread, because a centre's access to federal funding, depends on such accreditation. 49 QIAS provisions have changed over time since their introduction. At the time of the hearing, the system deals with 10 areas and 35 principles, directed to ensuring quality. It operates on a self assessment process, which requires licensees, staff and family involvement at each centre, to engage in an evaluation process, on a regular two and a half year cycle. A continuing improvement plan results from the process, which is assessed by a validator, who visits the centre and produces a validation report. If the centre does not meet the standard required, a further self study report must be submitted by the centre within 6 months. This system replaced an earlier QIAS system, with a further alteration in the system to be introduced in 2006.

Funding and profitability 50 The centres covered by the award receive their funding from two main sources - government and fees paid by parents. The level of funding available differs significantly as between pre-school and long day care centres. Over time, the financial viability of some pre-schools has become more precarious, as State government funding for pre-schools has remained static and parents have turned in larger numbers to long day care centres, which offer longer hours of enrolment and more generous government funding. These developments have accompanied increased participation in the workforce by women. Community based, not-for-profit pre-schools, appear to have been adversely affected by these developments. 51 On Mr Alchin's evidence, funding levels for State funded pre-schools have now been frozen for over a decade. Minimum operating costs must still be met and revenue cannot be raised by pre-schools taking steps such as increasing production or turnover. Licenses regulate the number of children who may attend any pre-school. Fees consequently form an increasing part of overall income (up to 68 per cent now), with staff costs now amounting to some 85 per cent of overall operating costs. Mr Alchin anticipated that the choice of providing a pre-school experience for children where one parent chose not to work, but to pursue a parenting role, will be available to a reducing pool of families in the community in future. In the case of Balmoral Pre-school, for example, the experience has been decreasing occupancy rates, as fee increases were necessary and as competition increased, with more long day care centres opened in the area, which had access to other funding (the Federal Child Care Benefit), not available to pre-schools. 52 It was Mr Alchin's opinion that the approach adopted by government to funding of pre-schools, ignored the important contribution which they made to the community. He was concerned that wage increases granted in these proceedings would result in fee increases, which would further impact on the viability of pre-schools. Other employer witnesses shared that concern. 53 The evidence showed that the proportion of not for profit centres in this industry is declining. On Ms Lymbery's evidence, the majority of centres, (70 per cent), are now privately owned and are operated for profit. This has changed from the position existing before 1996, when the majority of services were community based, or local council operated, not for profit centres. (This award does not apply to the latter centres.) 54 These developments occurred after the Federal government introduced the Child Care Benefit system, which involves fee subsidies payable direct to parents, who are free to choose the centres to which they wish to send their child. This system replaced one where subsidies were formerly paid direct to centres. In order to be eligible to receive such fee subsidies directed to parents, centres must now have QIAS accreditation. It is a system which appears to have resulted in both increased numbers of places and centres being available to the community. Despite this, the system has not resulted in the disappearance of waiting lists, which are still of considerable length at some centres. Whether such lists reflect different qualities of child care offered at different centres, or just insufficient child care places in some locations, or a combination of these and other factors, was unclear on the evidence. 55 The evidence demonstrated that many factors affect centre profitability. The staff the centre chooses to employ, having regard to the minimum obligations imposed by Regulation, affects the centre's labour cost and profitability. Profitability is also affected by decisions made by operators as to whether wages in excess of award minima are paid and also by the level of government funding available to the centre. This is affected by whether the centre operates as a pre-school or long day care centre and the children attending the centre from time to time. Some children receive additional fee support, because of their special needs. The level of fees charged and whether or not a centre has vacancies at any time, also have an impact on profitability. 56 The percentage of centres' income directed to labour costs appears to differ significantly as between for profit and not for profit centres. Up to 80 per cent of income appears to be directed to labour costs in not for profit centres and more typically, 50 to 60 per cent in for profit centres. The outgoings of the two sectors also differ in other respects, including in relation to matters such as lease and mortgage costs. Other parts of the cost base are similar, given that both sectors have to comply with the same Federal, State and Local government requirements. 57 On Ms Skoulagenis' evidence, private for profit long day care centres are subject to additional operating costs, compared to community based not for profit long day care centres. This arises from lease and mortgage costs, which community based centres do not have. Often private long day care operators have mortgages secured over their family homes. Community based centres also achieve cost savings in respect of discounts for rates and public utilities, grants from State, Federal and Local Governments for capital upgrades and staff training. 58 Ms Skoulagenis also gave evidence of parents who were price sensitive to fee increases. Her experience in 2005 at one centre was that fee increases of $5 per day had led to the withdrawal of 10 children, positions which had not been filled since. Ms Skoulagenis staffs her centres on a basis in excess of the minimum Regulation requirements and anticipated meeting additional costs, by making more qualified positions redundant and moving back to the minimum staffing levels required by Regulation. The other alternative was fee increases, or the reduction of places offered at the centre, because productivity improvements were not available at the centre, given the regulated nature of the industry. Such problems were expected, on the employers' case, to have particular impact on centres offering places for the 0 to 2 age group, given the higher staffing levels required for such children.

Over-award payments 59 There was little evidence of over-award payments being made in this industry, as the result of either individual or collective agreements, although it happened in some cases where an employee had been appointed to a non-award promotional position. For example, two witnesses employed as an assistant co-ordinator, not a position provided by the award, were paid an additional amount for the additional responsibilities of the position, as was one employee appointed as a team leader. 60 There was evidence that some employers engaged staff in excess of the minimum requirements imposed by Federal and State Regulation, which affected work performed at those centres and the quality of the service offered, but not what individual child care workers were paid.

Affordability of Child Care Services 61 Affordability of child care services was a matter of ongoing concern to employers, despite evidence of changes in fee support provided by government over time. There was serious concern amongst employers that increases in wages for those covered by the award would have to result in considerably increased fees for parents. This would make child care unaffordable for some parents, leading to reduced use of services and consequential concerns about ongoing viability of some services, particularly amongst those centres privately owned and operated on a for profit basis. While fee pressure was of general concern, the evidence suggested that it was likely to have greater impact in some country regions and certain more disadvantaged metropolitan areas, than in others. 62 Mr Fazeldeen explained how, in his view, wage increases granted in 2005 by the AIRC to interstate centres, if granted in this State, would have a major impact on the affordability of child care for a significant number of families and the resulting utilisation of informal child care. There was evidence of such difficulties. Ms Caldwall, for example had been experiencing difficulty filling places at her centre, given competition in the last four years from local long day care centres 63 Mr Fazeldeen also analysed studies into the impact of increasing numbers of child care places in the past, on affordability of child care and the resulting utilisation of those places. Mr Fazeldeen's calculations of the impact of the Union's claims on utilisation rates were made on the basis of the Union's original claims. They were accordingly not of assistance to the case finally advanced, although of general assistance. He also explained the importance of phasing in increases, both for those operating the centres and those employed in them. 64 Mr Bennett described the financial impact of changing government requirements on child care services, particularly small centres and community based not for profit centres. He described child care fees as a significant barrier for some families' utilisation of such services, despite the impact of the child care benefit, which did not reduce fees to manageable levels, given the way it was structured. Mr Bennett also discussed the impact of this situation on workforce participation in the State, particularly in the current economic position of the State and how wage increases would impact on employment opportunities for those entering the industry. 65 There was also evidence, however, that there were currently long waiting lists for child care places at some centres. In other areas, there are vacancies and competition between centres. In Mr Dwyer's case for example, there appeared to be at least five child care centres operating in Griffith, all with waiting lists. Four of those operated on a for profit basis. At Mr Dwyer's centre, there was a waiting list of over 300, some of whom would never be offered a place. 66 In Mr Alchin's experience, in some areas where there were insufficient child care places, families who had a non-working parent were unable to gain a place for their child in a long day care centre, because such centres gave priority to working parents. For some children, early childhood education was not available as a result, especially where parents could not afford pre-school fees. 67 Ms Legg also described the difficult challenge KU faced as the result of pre-school funding having been largely frozen since 1989, with other government support, for example in relation to rent subsidies, also declining over time. In her opinion, the result was that community based not-for-profit centres now struggle to survive. The result was that large wage increases were particularly unaffordable for families utilising those services, especially in areas of high employment and low income. Mr Russell confirmed the budgetary constraints KU faced and how wage increases would have to be dealt with by increasing fees.

The nature of the workforce 68 The evidence suggested that in excess of 95 per cent of those to whom the award applies are women. 69 There was a dispute in the evidence as to whether or not the industry was predominantly young and over-casualised, as some evidence called by the Union suggested. Ms Press for instance, gave evidence of the predominant youth of those undertaking studies for employment in the industry. In the case of one large employer, the KU, Ms Legg's evidence was that this was not the case and that theirs was an aging workforce, especially in pre-schools, where many child care workers had sought employment, because it gave them an opportunity to have time with their own children during school vacations. 70 Statistics emerging from various studies conducted by government suggested that some 25 per cent of the workforce in the industry are casuals. Federal government studies suggested a high turnover of staff in the industry. Mr Dwyer's evidence was, however, that he had been employed as the director of his centre for some 19 years and many of the other staff was also long serving. He had difficulty in recruiting relief staff. In his view, problems of turnover affected stability and consistency of outcomes for children. 71 Overall, the evidence suggested a varied pattern in the industry, with fairly significant staff turnover experienced by some employers, as well as very long serving staff, engaged by others. In 2001, the Federal Government identified high staff turnover in the industry as a concern which needed to be addressed. Turnover still remains high and in the view of witnesses such as Ms Press and Mr Dwyer, has an affect on the quality of care which some children receive. 72 The evidence also showed that in arranging staffing, centres pay regard to the requirements of the Regulations, the award and the financial consequences of employing staff holding differing qualifications. Some centres employ child care staff with qualifications in excess of the minimum which the Regulations require. This was the KU approach, for example. Some strive to employ teacher trained staff, given the different qualities which their qualifications enable them to bring to their work, despite the cost consequences and the fact that under the Regulations, they are not obliged to employ a teacher at all, given the number of places offered by the centre. Some centres struggle to find teaching staff and qualified child care workers. Other centres appear to view trained teachers as bringing no additional benefit to what the centre offers and only employ them when required to do so by Regulation. They prefer to employ child care workers.

The nature of the workplaces in the industry 73 Very many child care centres in this State are small workplaces. Ms Lymbery's evidence was that over 1000 services in the State are licensed to provide 29 or less places. Such centres are not required to employ a teacher and would employ three full-time staff of differing levels of experience and qualifications, the most senior of whom is a qualified child care worker employed under the award. Other larger services would employ 3 to 20 staff, including teachers, depending on the number of places offered at the centre. 74 On Ms Lymbery's evidence, there are in total some 1600 such services in the State, some of whom have been exempted from the Regulatory requirement of employing a trained teacher, given teacher shortages in the industry. By way of contrast, ABC Learning, now owns and operates in excess of 300 centres across Australia. How many of those are located in New South Wales, and where, was unclear. 75 It was Ms Skoulagenis' evidence that at private long day care centres, the licensee, or one or more of the owners, work closely with the staff, particularly attending to administrative and management matters, which a director or co-ordinator might otherwise be employed to attend to. In some cases, such persons have teacher qualifications and may also be appointed as authorised supervisor, or as a teacher on staff. 76 Ms Skoulagenis, who has teaching qualifications, is a director and shareholder of companies operating three child care centres. She is the licensee of each centre and described how they operated, employing more highly qualified staff than required by Regulations in some cases and having been granted exemptions from the requirement to employ teachers in others. In each case, the authorised supervisor was a child care worker, not a teacher.

Career Paths in the Industry 77 On the evidence, employment at small centres affects the career path available to employees, in a practical sense. Under the award, career advancement is dependent on both attainment of additional qualifications and the availability of a position at the higher level. Consequently, for many employees, career advancement requires new employment to be sought elsewhere in the industry, because the employer cannot offer an employee who has gained new qualifications, a position at that level. On Ms Press' evidence, many of those who pursue studies at university level, then have the option of leaving the industry entirely and taking up employment as teachers in schools. This is an attractive option, given respective rates of pay and working conditions in the two industries. 78 There was evidence that larger centres such as that of which Mr Dwyer was director, had been able to offer career advancement within the centre, when staff obtained new qualifications, including to teacher level. This was not always possible even in that centre, however, given budgetary constraints.

Authorised Supervisors and other positions of responsibility 79 Both teachers and qualified child care workers are employed as authorised supervisors and co-ordinators of centres, who may not necessarily be the centre's authorised supervisors. In some centres, a teacher is employed as the director of the centre. The Regulations impose the same obligations upon authorised supervisors, irrespective of their qualifications. Together with the licensee, the authorised supervisor is responsible for ensuring that the centre complies with the requirements of the Regulations. Sanctions flow from failure, for both licensees and authorised supervisors, including money penalties. 80 In Ms Skoulagenis' opinion, however, it was the licensee, not the authorised supervisor who had responsibility for ensuring that government requirements were satisfied at the centre and who had responsibility for supervising staff and centre operations. Other witnesses disagreed 81 Some centres appoint child care workers as the authorised supervisor, even if a trained teacher is also employed. That was the approach, for example, of Ms Skoulogenis. There was also evidence of child care workers performing the work of the authorised supervisor during absences, but receiving no payment for such work, despite the applicable award provision. 82 There was also evidence that some centres have designated particular child care workers as 'room leaders' or 'team leaders', responsible for supervision of other contact staff working with them in a particular room. In other cases, centres appointed assistant co-ordinators. In some cases the appointment was formal. In others it was an informal arrangement. There was evidence that over award payments flowed from such an appointment in some cases. In Ms Lymbery's opinion, additional responsibility flowed from such an appointment, in relation to supervision of staff, providing advice and assistance, mentoring staff in training and organising meetings.

The work and responsibilities of child care workers 83 It was generally common ground amongst the witnesses, that the quality of the work performed by primary contact staff is affected by the level of training which the employee has attained. For example, Ms Legg was of the view that the depth of understanding brought to the work by a four-year trained teacher was of a higher order than that of a child care worker holding a two-year diploma. In cross-examination, Ms Press agreed, but also took the view that the responsibilities which fell on both teachers and child care workers was similar, given the requirements imposed on contact staff and centres by the Regulations. 84 Ms Sumsion was of a similar opinion. In cross-examination, she explained that while the work and responsibilities of all contact staff were the same in one sense, irrespective of the training and qualifications which staff might hold, the level of training affected the sophistication with which these duties were undertaken and the quality of the result produced. Ms Sumsion also referred to research which had demonstrated higher quality outcomes produced in New South Wales centres, compared to those in other States, which did not require the employment of trained teachers. 85 It was the evidence of Ms Lymbery and Ms Sumsion that, given the regulatory requirements imposed on centres, similar responsibilities may fall upon teachers and qualified child care workers. Ms Legg disagreed with the views of Ms Lymbery and Ms Sumsion as to the impact of change on unqualified child care workers' work, while employer witnesses generally held the view that teachers brought a different depth of understanding to their work and produced a different outcome, by way of comparison to less qualified child care workers.

Changes affecting the Industry and their impact on the work of child care workers 86 Employer witnesses such as Ms Skoulagenis and Mr Dwyer explained their views that there had been little impact on the work of those covered by the award, as the result of changes affecting the industry. Ms Underwood described the impact of changes in the regulatory environment as 'tweaking' the work already required of child care workers. However, it was common ground that significant changes have affected the industry over time. Many of these changes were also dealt with by Schmidt J in 2001 in the Teachers Work Value case and by the AIRC in the Child Care Industry (ACT) Award Case in 2005. What was disagreed was whether there had been any impact on the work of all, some, or indeed, any of those covered by this award. 87 The evidence showed that neurological research in brain development, particularly in the last decade, has confirmed what parents have perhaps always known instinctively, that experiences in the early years of life are crucial to a child's future development. This research has influenced the requirements imposed upon centres and the educational programmes they are required to offer under the QIAS system and the Curriculum Framework document developed by the Department of Community Services ('DOCS'). It has also influenced the content of educational programmes undertaken by child care workers at TAFE and like tertiary institutions and teachers undertaking university degree courses. 88 The evidence showed that there has been a resulting impact upon the work of child care workers, more especially for qualified staff, but also for the unqualified members of staff, given their involvement in the delivery of educational programmes at the centres. The development of these programmes is the responsibility of qualified staff - both teachers and child care workers - under the current Regulations and award structure. 89 Ms Lymbery gave evidence of change affecting the industry, including that flowing from privatisation of children's services. The focus had changed from care for children to education, which parents sought for their children. Brain development research had also influenced the practices adopted by centres and the outcomes designed for children. The Federal government had also allocated a special child care benefit for children considered at risk of abuse or neglect, in order to assist the development outcomes for such children, by longer hours of attendance at child care. 90 It was the evidence of some witnesses, that of Ms Skoulagenis, for example, that while changes in the curriculum document introduced by DOCS in 2003 had introduced change, with an alteration in techniques focussed on negative behavioural patterns to an emphasis on the positive, this was a change in emphasis already developing over time, which had not led to further work or responsibilities, but rather had made the work easier and had led to a more simplified and improved role for the child carer. The evidence of employees, both qualified and unqualified, was to the opposite effect. 91 The 2004 Regulations replaced the 1996 Regulations. While there was a dispute as to whether there was, in reality, any change in the work required to be performed by child centre workers as a result, there was little disagreement about the undoubted impact which resulted on the work of authorised supervisors and temporary supervisors, appointed in accordance with the Regulations to act as supervisor in the absence of the authorised supervisor. 92 Ms Lymbery's evidence was that all child care workers, not just supervisors, have responsibilities under the Regulations which affect their work. They include ensuring that child:staff ratios are always maintained, as well as prescribed group sizes, as well as matters such as safety requirements, space requirements, emergency procedures, food handling and various administrative requirements. 93 In Mr Alchin's opinion, on the other hand, the new regulations had not increased child care workers' responsibilities or accountabilities to their employer. In his view, the regulations had removed discretions which made their responsibilities clearer and their work easier. 94 Mr Dwyer also doubted the impact of change on all child care workers, while describing the QIAS system as bringing a cultural shift, requiring services to talk to staff and parents and to involve them in the accreditation process. While minimum standards were fixed, such obligations had to be met previously, so processes had not changed much, apart from documentation and programming. Paperwork had been reduced over time, with more useful information being gathered, with resulting higher quality outcomes for children. Mr Dwyer accepted however, that the work involved was 'incredibly skilled' and had changed significantly since 1990, in the way in which staff interacted with children. The work was done smarter, under a constantly changing system, which was generally moving towards an emergent curriculum approach in the broader industry. 95 The Children and Young Persons (Care and Protection ) Act 1998 also made those employed at all centres covered by the award mandatory reporters under the Act. Centres must ensure that staff and volunteers complete prohibited persons declarations and consent to working with children check forms. Staff are obliged to undertake relevant training and make reports under the legislation in relation to a variety of matters. 96 Mr Dwyer's evidence was that no real change resulted from this, all his staff had always operated as mandatory reporters. 97 On Mr Alchin's evidence however, at his centres such reports are, in fact, made only by him, with staff raising allegations to the co-ordinator within the workplace, to make a file note, but having no obligation to make external reports themselves. Other employers took a different approach. At KU, for example, applicable procedures make clear that all child care workers may be called upon to make such reports. 98 The various child care workers called by the Union described their duties and responsibilities; the changes in their work over time; how the current award rates impacted on their often difficult financial position as a result and the incidence of unpaid work. It is not possible to describe all of their evidence, which consistently spoke of significant responsibility and the impact of ongoing changes on their work, which had become significantly more complex as a result. 99 It is necessary to highlight aspects of that evidence, however. Ms Cant, for example, gave evidence of a child care worker who job shared her position with a teacher employed at the centre. She also described the necessity of working closely with a range of external specialists, such as special disability officers, occupational therapists and speech pathologists, to assist special needs children attending the centre and described additional training she had undergone, to take on responsibility for issues such as asthma and anaphylaxis at the centre. Ms Ligertwood described how she was called on to assist feeding a child through a tube inserted into her stomach and the training required. 100 Ms Sheikh, like others employed as a child care worker, was, nevertheless, required to perform programming work, which under the award is the work of an advanced child care worker.

Evidence of undervaluation 101 The evidence led in the Union case to support the view that the work of those covered by this award was undervalued, referred to the general position of female dominated industries. Dr Lyons, for example, referred in his evidence to research conducted in 2001 and 2002, which had demonstrated that 'female domination of a workforce reduces the relative pay.' The research suggested that differences in gender pay would continue in Australia, despite substantially increased labour market participation and experience of females. Other studies conducted in the 1990s had shown an hourly pay gap of up to 32 per cent as between industries almost wholly dominated by men and those almost wholly dominated by women. 102 In Dr Lyons' opinion, the child care industry was an obvious example of an industry which had become sex-typed and subjected to stereotypical views of the abilities of females in relation to their caring nature and experience in household related work. He referred to the 2004 research by Smith, which had considered the low participation of males in the primary education workforce, which also had relevance to this industry. Low pay and status were concluded to be an important factor in this phenomena. 103 Dr Lyons found difficulty in making comparisons between this award and others which applied to male occupations with similar characteristics, because award wages are often established by consent and not as the result of work value exercises. In his opinion, comparison of the Australian Standard Classification of Occupations ('ASCO') assessed by the Australian Bureau of Statistics ('ABS'), gave some evidence of undervaluation. Comparisons were sought to be drawn between the work of child care workers and prison officers, (of whom some 75 per cent were male) and various awards which applied to their employment, given that both occupational classifications have been assessed at major group 6. Nevertheless, in Dr Lyon's view, the uniqueness of the work of child care workers, limited the usefulness of selecting any particular male dominated industry as a 'comparator'. It is convenient to observe at this point, that this is a conclusion with which we agree, particularly having in mind difficulties demonstrated with the basis upon which Dr Lyons' comparisons were made. 104 In Dr Lyon's opinion, the views expressed by various employer witnesses that there had not been much change in the work of child care workers, showed gender based stereotypical attitudes about the nature of the work and skill levels of the staff. The importance of formal qualifications in improving the quality of care provided was, in his opinion, not sufficiently appreciated, nor was the changing nature of the work, which flowed from government initiatives, designed to improve the quality of education and care provided at centres. Dr Lyons gave an example of how such views had in the past also affected the decisions made about this industry by some industrial tribunals. In Queensland, in 1991, for example, the view taken was that the work of child care workers was 'simple' and both trained and untrained workers performed the same work and exercised the same responsibilities. (See Child Care and Kindergarten Employees' Award - State (1991) 137 QGIG 399 at 402-403). 105 In Dr Lyons' opinion, such views were influenced by gender based attitudes that work in child care services has strong connotations of mothering and child rearing, a capacity which any female has, thereby permitting them to become proficient child care workers. Surveys Dr Lyons' conducted in 2004 however, suggested that over 90 per cent of students, staff and parents of those attending child care services, took the view that both male and females required training to work in the industry and that the ability was a learned skill, which did not come naturally to either sex. 106 Areas emphasised by the Federal government in the QIAS principles involved 'soft' interpersonal and communication skills, which in Dr Lyons' view, were not necessarily given the same value as 'mainstream' skills, such as use of machinery and technology, or exercising management or supervisory responsibility, when skill levels are assessed for remuneration purposes. In Dr Lyons' opinion, given that in this industry many workers were engaged in small workplaces, in teams responsible for the care of babies, toddlers and pre-school age children, their work was performed in a confined and intimate environment. This necessitated an additional skill, often overlooked and undervalued, namely the necessity for teamwork. This opinion was contested in the employer case, given the requirement for teamwork in other industries and classifications. 107 It was also Dr Lyons' opinion that the historical charitable and philanthropic origins of this industry, where many employees worked for non-financial reasons, had ongoing consequences for the low levels of pay still fixed by the award. 2002 Census information showed that now 85 per cent of staff in the industry had similar formal qualifications and experience, across the for profit and not for profit sectors of the industry, with the majority of services commercial operations operating on a for profit basis. In his opinion, the absence of any work value consideration of that work of child care workers by the Commission, itself evidenced gender undervaluation. 108 Comparisons of 1999 and 2002 Census of Childcare Services also showed that vacancy rates had declined across the industry and utilisation rates had increased. 2003 studies by Pople and Martin, referred to by Dr Lyons, suggested that funding arrangements had made child care more affordable for parents, resulting in increased demand for places. The 2004 survey conducted by Sumsion suggested that quality of services or staff was more influential on parent choice (33 per cent), than location (10 per cent), cost (4 per cent), or hours of operation (4 per cent). 109 Dr Sumsion's view was that the care and education which child care workers provide involved highly complex and challenging work, requiring a myriad of high order and specialised skills, referred to in Curriculum Framework documents. She described the impact of training and experience in the performance of that work and the impact which the work had on children's well being and development. Dr Sumsion also reviewed the complex legislative accountability which child care workers had and compared their work and responsibilities with those of teachers. 110 Dr Elliott explained the impact which various government initiatives had on the work of child care workers, in producing quality outcomes for children and meeting the expectations of parents. She also explained the consequences for children of participating in high quality early childhood programs, which government initiatives seek to ensure. On her evidence, research established links between literacy and numeracy and the capabilities of early childhood staff. 111 Dr Elliott also described the value of early childhood services for children considered 'at risk' and those suffering disabilities; as well as the reduction in juvenile offences and welfare dependence resulting from attendance at such centres. She explained the impact which various government initiatives had on the work of child care workers, in producing quality outcomes for children and meeting parental expectations. In her opinion, program effectiveness was highly dependent on staff skill and experience. The links demonstrated between quality of care in early childhood years and children's later cognitive growth, social development and school readiness, were also explained. 112 Dr Elliot discussed the importance of attracting and retaining appropriate staff and the difficulty faced by the industry, given current rates, career structure and conditions, by comparison to other industries where such staff have employment opportunities. 113 Ms Press described how, in recent times, children have been spending increasing time in formal care and the concern which resulted for both State and Federal governments, to institute mechanisms which established standards for quality in the centres they attended. She outlined the initiatives taken and the consequences for those who work in such centres. She also explained her opinion, that the work required had become more complex as a result and that this had been inadequately recognised in remuneration paid. She observed that the Australian Background Report of the OECD had commented on the low wages and wage discrepancies between teachers and child care workers' rates and the impact of expectations that unpaid work would be performed. State and Federal government studies had made similar observations about child care workers' poor pay and had discussed the consequences for the industry. 114 On Ms Lymbery's evidence, given teacher shortages in the industry, in over 1,000 children's services in the State, the most senior member of staff was a child care worker, responsible for increasingly complex activity not formerly required of them. The responsibilities were similar to those imposed on teachers. The responsibility of child care staff and authorised supervisors for ensuring compliance with various government initiatives, were also described. Rates of pay ought, in Ms Lymbery's view, to reflect differences in qualifications, not skill or responsibility. 115 Evidence which Ms Kelly had given in the Pay Equity Inquiry as to her views in relation to undervaluation, was also put before us and updated in various respects. In part, those views were accepted by Glynn J and in others, rejected. We will later deal with her Honour's conclusions as here relevant, and accordingly do not outline Ms Kelly's evidence at this point.

Support Workers 116 Ms Probert gave evidence of her 20 years' experience as a cook employed in a country child care centre. She initially had no qualifications and was employed to provide simple, basic meals. She had undertaken various studies in the meantime and outlined changing requirements, including those imposed on the centre by local council. On her evidence, consideration of children's nutrition needs had changed over time, as well as the need to deal with life threatening allergies now being required. Ms Probert also described various work performed voluntarily out of hours, including preparing menus at home. 117 Ms Sefton was a qualified cook job sharing on a permanent part-time basis at a centre where 68 children were enrolled. She had trade qualifications, as well as various other qualifications. Her prior experience was as a chef outside this industry. 118 Ms Sefton described the work required to be performed, including in relation to special dietary requirements of the children attending the centre, including allergies, which necessitated various record keeping. She described her other duties, including administration, shopping and cleaning. Ms Sefton regarded the disparity in rates between this award and that which chefs in industry earned to be unfair. She also described the financial consequences of those rates for her personal circumstances. 119 Various employer witnesses described the work of support worker classifications. All disagreed that changes affecting the value of their work had taken place.

Changes in Education 120 The views of the witnesses differed as to the value of various qualifications, so far as this industry was concerned. 121 Ms Lawson described the operation of the Vocational and Educational Training system in Australia and the Australian Quality Training Framework, which provides for six qualification levels, ranging from Certificate I, to Advance Diploma level. She also explained how these levels are developed in consultation with industry parties, in order to produce competency standards from a functional analysis conducted in a tripartite process, involving government, unions and employers. She also explained how this system operated, in relation to child care workers in this industry, in the context of their changing work. 122 Ms Chong was responsible for curriculum development for TAFE NSW and chaired the TAFE NSW Child Studies Head Teacher Group. She described the courses offered to child care workers and how the training provided had been impacted over time, by changing requirements in their work, as the result of various government initiatives. 123 Dr Curtain gave evidence about training requirements for traditional trades in the AQF certificate system and explained his view, that in assessing equivalence between qualifications, duration of training was important. While he accepted that competency based training reduced the need for reliance on a time served benchmark, he did not accept that duration was irrelevant, because in his view, learning skills required more than formal knowledge, it also required acquiring knowledge from skilled workers, in a work setting and demonstrating the application of such skills. In his view, it followed that not all similar AQF levels were equivalent. 124 Dr Curtain referred to OECD standards, which require a minimum of two years formal and on the job training, at the apprenticeship level. While he accepted that there was scope for differences in the time it took to achieve competencies in different industries, given the different types of required skills, in his view, a minimum duration for training was still required. The difficulty of the system for recognition of prior learning, in his experience, was that it was a poor one, without common standards specified, which could be uniformly applied by trainers. It followed that assessment of different AQF levels in different occupations and whether they were equivalent, depended on how the skills required were specified, at the level used in industry and how the levels of required responsibility were exercised. 125 Mr Paton gave evidence that AQF guidelines are subject to a trades interpretation, with Certificate III being the most commonly identified benchmark qualification across industry, at the traditional tradesman level. The result was that such trade qualified employees were expected to perform similar levels of work and to have similar rates of pay, reflective of the level of their qualification. 126 A new apprenticeship scheme is developing which seeks to establish suitable qualifications for other industries, with incentives provided for employers and apprentices, to undertake such studies. The normal number of hours study required, however, differed from traditional apprenticeships, even though qualifications achieved were at similar levels. The result was that hours could range from as few as 165, to as many as 1994. 127 It followed, in Mr Paton's view, that a qualification such as a Certificate III, was not an equal measure of the scope and value of the training required to achieve the qualification. He agreed, in cross examination, that it was possible that there was an equivalence between such qualifications, but explained that even in 1989/1990 in the Metal Industry Award, when relativities were being established, the industrial parties agreed that particular work would be classified as trade work, for example, when the competencies required for the work would not have warranted that outcome. 128 At that time, parties had co-operated to draw the training system into the award restructuring process, with work at different levels being classified by having regard to competency standards. The result was competency based training, which meant that it was possible for a student to accelerate, having regard to work and life experience, after assessment of their competence, to recognise their prior learning. This meant that employees with extensive experience and knowledge could achieve a qualification in a shorter period of time, although this was less likely to be possible for younger people. 129 Mr Paton agreed that traditional apprenticeships had been designed for those of about 16 years of age, working in male dominated industries. There was an emerging view that the traditional, normal duration of such training was not necessary, to gain all the required competencies of a qualified tradesperson. He agreed that there was no minimum level of formal training necessary to achieve a particular set of skills, but in practice, there remained a strong assumption that one needed to spend time in a learning process, to improve capability. 130 Ms Simpson explained how she had designed a transitional degree for someone with a diploma qualification, which in child care, linked with experience, equated to 66 per cent credit for a 3 year degree and 25 per cent for a 4 year degree. In her view, such teacher training produced higher quality work in child care, than that produced by employees with only a diploma qualification. 131 Ms Simpson also described changes over the past 20 years to child care worker qualifications, from the Child Care Certificate before 1985, to the Certificate of Child Care studies in 1985, the Associate Diploma (Child Studies) in 1989, and the Diploma in Children's Services in 1998. The change in focus in 1989 had been from more simple care, to quality programming and education. The 1998 change was a logical continuation of this development. 132 Ms Simpson also described how both teachers and qualified child care workers now had responsibility, with authorised supervisors, in ensuring the provision of an educational programme meeting the needs of individual children, but that significant differences remained in the quality of their work, given their respective training. Evidence as to the Award History

133 The history of this award shows a large measure of agreement reached by the award parties, since the award was first made by consent in 1969. At issue at that stage were rates of pay, which were then determined by Conciliation Commissioner G S Manuel on first award principles ( Miscellaneous Workers' - Kindergartens, &c. (State) Award (unreported, 14 March 1969)). In his decision, the Commissioner described the two sectors of the industry then operating, one private, the other conducted by charitable organisations. In fixing rates the Commissioner had regard to existing rates and conditions, as well as the public interest in fixing lower rates for the charitable sector, to permit them a 'breathing space', before complying with what applied in the private sector. 134 Increases in rates of pay and conditions have since then flowed from time to time by agreement. Variations flowing under the Equal Pay principle were made to the award in 1973. Changes in the classification structure were introduced in 1981 and 1988. New relativities were set under the Minimum Rates Adjustment principle in 1990 and in 1997, the advanced child care worker and co-ordinator classifications were introduced into the award. 135 Difficulties then arose between the parties, which resulted in contested special case proceedings before Redman C (see Miscellaneous Workers Kindergartens and Child Care Centres (State) Award (unreported, 23 August 2000). Increased rates of pay and altered conditions of various kinds were pursued by the award parties. In his decision, the Commissioner noted that there had been no wage increases in the award since 1997 - not even State Wage case increases. The Commissioner observed:

'... the workers under the Award are, by any standard, low paid and relatively disadvantaged with their wage rates commencing at $399.80 rising to $552.70 per week for full time employees, and those employees mostly possess tertiary qualifications and work in an industry characterised by relentless pressure of work carrying with it the responsibility for the welfare and nurture of very young children, a responsibility probably regarded as second to none in the society in which we live.

The lengthy review of the evidence, inspections and submissions preceding this consideration reveals what I find to be a very strong case for relief for both the employees and the employers in this industry. It will be seen that the employees without a doubt have a legitimate claim for wage increases and equally the employers have a legitimate demand for relief from the rigidity of conditions prescribed by the Award. It would be fair to summarise the employers' position by simply saying that there is a commercial imperative to the consideration of the granting of their claims if any wage increases are to be awarded, and indeed the state of the industry is such that for some employers the continued viability of their operations even without wage increases is at best marginal.

It is apparent to me that it would be unfair to attribute fault or blame to either the employees or the employers in the industry for the present cost and wages crises. External factors, particularly the inevitable increase in fixed costs coupled with the withdrawal of Government subsidies, has brought about the present position. The employers would desire to be able to afford to increase wages and the employees for their part recognise that their employers are under considerable commercial stress.

136 Consistent with the then structural efficiency principle, Redman C awarded changes in the temporary employment provisions of the award, removing various restrictions; refused a variation to the paid non-term time provisions in the award; introduced an unpaid meal break of 30 minutes; introduced changes to the hours' provision, to enhance flexibility of centre operations; phased out loadings for part-time employees; and altered rostered day off provisions for part time employees. Rates of pay were increased, having regard to State Wage case decisions in 1998, 1999 and 2000, having regard to observations made in those decisions as to 'lagging awards'. The increases were phased in, with the Commissioner observing that the delay in bringing the proceedings was regrettable, given that the evidence had shown that the parties' negotiations had broken down as early as 1998. In rejecting the position of the employers on wage increases, the Commissioner also observed:

Were the employers' proposals on wage adjustments to be granted, it would result in an increase of about $20 per week or about 5% for the lowest classification over a period of 4 ½ years. I cannot recall ever seeing an employers' proposal for wage increases which was so certain to be immediately rejected by the workers in the industry. The offer made by the employers does on its face give some credence to the Union's consistent assertions throughout this case that the employers are endeavouring to contain their operational costs at the expense of those employees whom they claim to hold in such high regard. One must seriously doubt therefore the bona fides of the employers when they bring forth such a proposal, while at the same time they acknowledge the fact that this female dominated workforce is lowly paid.

137 Since that decision, the parties have regularly agreed to increase award minimum rates of pay, having regard to State Wage case decisions. As we have noted, the most recent wage adjustment, agreed during the course of the hearing of these applications, was to reflect the 2005 State Wage Case decision. 138 The reality is, nevertheless, that despite fairly regular wage adjustments, since the award was first made in 1969 and a change from an industry which was in large part charitable in nature, to one where the majority of centres are privately operated for profit, employees covered by this award are still generally regarded as being low paid, including by government. There is very little over award payment being made. There has never been any consideration by the Commission of the work value of these employees. The last time the parties themselves considered the award classification structure was in 1997. 139 The other remaining matter of historical relevance is the Pay Equity Inquiry conducted by Justice Glynn , after the Ministerial Reference to the Commission in 1997. The Inquiry considered the work of child care workers in the long day care sector of the industry. Consistently with the evidence in this case, Her Honour noted in her December 1998 report at p 156 that:

The child care industry is, in a recognised sense, a relatively new industry. It grew out of the provision of pre-schools and kindergartens for children under school-age and emerged as an industry probably in the late 1960s. Regulation began with an award in 1969 for non-teaching staff employed in children's services known as the Miscellaneous Workers - Kindergartens &c (State) Award. That award is the precursor to the current and principal award in the industry, the Miscellaneous Workers - Kindergartens and Child Care Centres &c (State) Award. Prior to regulation in 1969, pay for child care services was either extremely poor, or the services were provided by charitable institutions for free, or in private homes also for free (Ex 57 at 42). However, it is worth noting that by far the largest amount of child care is still performed on an informal, and unregulated, basis in the family home (Ex 57 at 13). As it is informal, and mostly unpaid, it is not regarded as part of the "children's services industry".

Women are the predominant employees in the child care industry. Estimates of female employment rates range from 90 to 95% of all child care employees (Ex 57 at 6; Labor Council Submissions at 8), a statistic which manifested itself in replies to inquiries from counsel assisting the Inquiry (Ex 29). According to some of the witnesses before the Inquiry the number of men participating in the industry is increasing, but at a very gradual rate, and men are moving away from the direct contact roles in favour of management.

The child care industry is one of the female dominated industries that typifies the poorly paid nature of work which is performed predominately by women. The EPAC Child Care Task Force found in 1996 pay type rates for child care workers were below those for unskilled occupations, such as shop assistants or car park attendants. The Task Force said that the child care industry was out of step with the pay rates paid for workers with similar levels of education and training (Ex 57 at 6).

140 Her Honour noted, at p 158 that there was substantial competition in the industry at that time. That remains the position today, albeit there are now also public companies operating in the industry, with one, ABC Learning, generating very significant levels of profit. The evidence suggests that this company is still growing rapidly, through the acquisition of existing centres. 141 Her Honour's examination was directed to centres operated by registered charities, community based not-for-profit centres and privately operated centres. Her Honour considered the then current regulatory and funding framework which applied to such centres, as well as the new award classification structure agreed by the award parties in 1997, in the context of the qualifications held by those employed under the award and the work which they were called upon to perform, on both a paid and non-paid basis. Both regulatory and funding arrangements have altered since. 142 Her Honour also considered the award history and the award of the AIRC which applied to long day care centres interstate, noting at p 224, the different approaches adopted in 1990 in NSW and federally, to the fixing of relativities with the Metal Industry Award. She concluded that the relativities then fixed in NSW were lower than those which applied federally (at p 226). At p 227, she concluded that the new structure agreed by the award parties in 1997, did not address this situation. On the evidence, the award parties have never revisited these relativities. 143 Her Honour also examined various metal industry workplaces, noting the overwhelming number of men there employed and the incidence of over award payments which such workers enjoyed. At p 242 her Honour noted that 'in the final analysis no parties submitted that a comparison could be drawn between the classifications within the Metal Industry Award and child care workers'. At p 243 her Honour concluded that:

1. There are limitations in the use of competency standards in fixing remuneration and qualifications are an important guide but not a determinative factor.

2. There has been an undervaluation over time (including in the current award) of a qualified child care worker.

144 Her Honour also concluded that it was wrong to contend that a qualified child care worker should be paid the same rate as a Metal Industry C3 level employee, to align child care worker classifications with those fixed in the metals award, but, nevertheless, concluded at p 244 that:

However, as I have earlier noted in my view, the child care worker has been undervalued because of the gender basis for the assessment of the original classification, the failure to clearly and succinctly remove this element of assessment from the classification structure, the failure to properly value the qualifications of the child care worker, the inadequacy of the Minimum Rates Adjustment process and subsequent consent award adjustments re-evaluating the classification.

145 Her Honour suggested that the Metal Industry C5 level may have been the more appropriate comparator for the 1997 Minimum Rates Adjustment exercise. At p 245 she observed:

There is a substantial basis in merit for a comparison at least at this level, having regard to the work performed by the respective classifications of worker, and fully taking into account, not only the qualifications of the child care worker, but the full range of functions performed by them, extending from caring and nurturing functions through to professional or para-professional functions associated with the development and teaching of children.

In my view, the duties and functions of child care workers are evolving in a similar historical fashion to teachers where they are moving into a professional or quasi-professional status and these factors should be taken into account in assessing their work. What is significant for the purposes of this Inquiry is, put simply, the work has been undervalued both simpliciter (that is, in terms of a failure to evaluate the true worth of the work itself) and by reference to relevant comparators.

146 Glynn J also warned about the need for future consent arrangements to address the problems identified. 147 The evidence showed that the award parties have never accepted her Honour's views, or agreed to address her Honour's conclusions. They were not dealt with in the subsequent proceedings before Redman C. Even in this case, the parties' claim were not advanced on the basis of Justice Glynn's conclusions, other than the comparisons finally advanced in relation to rates of pay and conditions fixed for teachers in this industry. While there was some reliance placed by Employers First upon competency standards which attached to Metal Industry Award classifications and the training on which the standards were based, there was no evidence led in these proceedings as to matters such as the responsibilities, or the nature of the work or conditions of those employed under the Metal Industry Award, with whom comparisons were sought to be drawn. 148 As her Honour warned at p 271 and p 272 of her Report and as the Full Bench in the Equal Remuneration Principle Case cautioned, if comparisons are properly to be drawn between entirely different types of work, adequate evidence as to such comparisons must be led.

The Equal Remuneration Principle 149 Given the contested nature of this aspect of the case, it is necessary to refer to the observations made by the Full Bench in the Equal Remuneration Case , as to how an undervaluation case might be demonstrated. At [65] of the decision, the Bench discussed the use to which the Glynn J Pay Equity Report was put in the proceedings:

65 Although the parties adopted different positions at one point as to the use to which the Pay Equity Inquiry might be put, there was finally a large degree of commonality in their respective approaches to that Report. The common ground was that the Full Bench was entitled to have regard to the Report and the findings contained therein; it was not, however, bound by the Report or those findings. Further, it was accepted that in a number of respects the Commission should carefully weigh the material put to her Honour before it acted upon any particular part of the Report or recommendations arising there from. In general terms, we accept that common position. The fact and nature of the Pay Equity Inquiry provides a wealth of information, material and considered recommendations which do indeed provide an appropriate starting point for our consideration of the material before us. It reflects a comprehensive and diverse body of evidence, representing a range of informed opinion and collected data which facilitated the Full Bench's ability to deal with the important questions before it. 150 In these proceedings, various parts of the Report were tendered, as well as parts of the evidence led in those proceedings. The parties, however, had different views as to the relevance of that material and what it demonstrated. 151 We, too, are satisfied that the Report provides important background material to these applications, particularly as a matter of award history. Nevertheless, as the Equal Remuneration Principle Case emphasised, the material before her Honour and the conclusions which she reached, must be weighed carefully in a case such as this, before any particular aspect of it could be acted upon. In part this is because not all of the material before her Honour was led in evidence here and also because a considerable period of time has elapsed since the Report was given. The award parties and the Commission have varied the award since then, in various relevant ways. Further, the competing claims now advanced by the parties differ in various ways from the conclusions which Glynn J reached. The Union made clear in its submissions, it did not accept all of the conclusions Glynn J reached at the time. The case it advanced in these proceedings was not consistent with her Honour's conclusions, other than in a general way - namely, that undervaluation existed and its existence might be assessed by reference to teachers' rates. All of these matters must be considered. 152 The Full Bench also discussed the importance of avoiding double counting:

70 We take the view, however, that the principle made as the result of these proceedings, which will permit such disparities in wages to be addressed, should be such as to be integrated within the Wage Fixing Principles as a whole in order that they can operate in a consistent manner one with the other. This requires that claims be rigorously tested to ensure that there is no, or no more than unavoidably negligible, double counting in the wage fixing process and that any increase in the wages of affected employees occurs in such a way as not to unduly impact upon employment in affected areas. This is of concern because, on the evidence, any unemployment flowing from claims advanced under the new principle would seem likely to occur in areas in which the majority of employees are women.

153 In this award, there has to date been no work value assessment conducted by the Commission. Award rates were originally fixed by reference to actual rates of pay and they have been varied since, by agreement of the parties and application of State Wage Case increases and pursuant to a special case decision in 2000. All of these matters require careful consideration. 154 At [71] - [72] the Full Bench discussed the type of industry in which an undervaluation case might be able to be demonstrated, envisaging that it would be difficult to do so, in cases where less than 60 per cent of the workforce was female. In this case, the evidence was, of course, that more than 95 per cent of the workforce was female. This, of itself, is an important matter for our consideration of the claims advanced, but by itself, is not sufficient to make out the claim. This follows because, of course, award parties in such an industry may themselves have acted to address any past undervaluation, for example under the Equal Pay principle established in the Equal Pay Case 1973 [1973] AR (NSW) 425, or the Special Case or Work Value principles. That is why the current Equal Remuneration principle requires attention to be paid to the award history. 155 At [72] the Full Bench also described how proceedings such as this were envisaged:

72 We emphasise that we do not envisage the principle will permit or encourage the taking of preliminary points or issues in any proceedings under the principle. Such an approach would be inconsistent with the approach discussed in Nagle (T/as WD and JL Nagle & Sons) v Tilberg [1993] 51 IR 8 and is to be discouraged. We take the view that there is very limited scope for the taking of preliminary points or the raising of preliminary arguments in relation to such cases. The proposed principle is intended to be expressed in wide terms to ensure that if there is demonstrated a case of gender affected wage fixation and a consequent wage disparity then the identified disparity may be remedied under the principle. 156 The Bench further warned of the need to ensure that there were no adverse consequences flowing from any successful application, so far as the employment of women is concerned. This is an important issue in this case, given the evidence as to the potential consequences of the claims here advanced. On the evidence, wage increases will have an impact on fees which centres must charge parents and the decisions which parents make about using centres. Such decisions plainly have the potential to negatively impact the employment of some workers. This is a matter to which we will return. 157 It is also of relevance, in this case, that at [144] and [145] the interaction between the Equal Remuneration and Work Value principles were discussed by the Full Bench:

144 As we have noted, the parties were agreed that the Work Value principle was an inappropriate vehicle for undervaluation claims to be advanced before the Commission given the requirement there provided for change to be demonstrated and the time limits imposed. It was accepted that in some cases those requirements might work an injustice because, for instance, no work value assessments had been conducted prior to the relevant dates. Similarly, the Special Case principle was not regarded as the appropriate vehicle for such cases to be advanced, even though it was acknowledged that claims which sought to go beyond the timeframe provided in the Work Value principle, or which sought to draw comparisons with other workers, industrial instruments or over award payments, might presently be pursued under this principle. We accept this common view.

145 The parties also were agreed that some of the safeguards built into the Work Value principle should appropriately be part of any principle which we adopt for equal remuneration. This latter approach was reflected in the principle which they advanced. We take a similar view. Claims of gender undervaluation are concerned with the proper valuation of the work in question. An assessment of the value of any work to which an award applies is not conducted in a vacuum but in a particular context, dealt with in the work value principle itself in para 6(c), namely in the context of other work to which the award applies and to the work of any related classifications in other awards. The principle which we formulate also contains such safeguards and is approached on the basis submitted by the Employers' Federation. It does not direct particular outcomes but facilitates the hearing of cases advanced. Because it is concerned with the proper valuation of work it has been drafted with the Work Value principle as its model. 158 Finally the Full Bench warned of the need to guard against leapfrogging in cases such as this. That is a real consideration in this case, given the way in which teachers and child care workers work together in this industry and the wage rates here claimed by the Union. It was there said: 154 Further, the principle we propose permits appropriate comparisons to be drawn but does not require them. The principle does, however, require appropriate attention to be given to award relativities - both internal and external. As already noted, we are concerned to ensure that undervaluation does not give rise to leapfrogging. This is especially important in cases where reliance is sought to be placed on over award payments, particularly in the case of disparate occupations. Undervaluation claims should not have the result of increasing minimum award rates for one classification by reference to the over award payments of another classification so as to inevitably lead to a claim for increases in the award rates of the comparative classification. The risk inherent in such an approach is that further flow on claims may be brought in respect of other classifications which already have established relationships to the comparative classification, thereby triggering a general wages outbreak. The principle is designed to guard against this possibility which, we accept, the parties do not intend. The applicable principles

159 The Special Case, Work Value and Equal Remuneration principles provide:

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.

(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.

(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. 14. Equal Remuneration and Other Conditions

(a) Claims may be made in accordance with the requirements of this principle for an alteration in wage rates or other conditions of employment on the basis that the work, skill and responsibility required, or the conditions under which the work is performed, have been undervalued on a gender basis.

(b) The assessment of the work, skill and responsibility required under this principle is to be approached on a gender neutral basis and in the absence of assumptions based on gender.

(c) Where the under-valuations is sought to be demonstrated by reference to any comparator awards or classifications, the assessment is not to have regard to factors incorporated in the rates of such other awards which do not reflect the value of work, such as labour market attraction or retention rates or productivity factors.

(d) The application of any formula, which is inconsistent with proper consideration of the value of the work performed, is inappropriate to the implementation of this principle.

(e) The assessment of wage rates and other conditions of employment under this principle is to have regard to the history of the award concerned.

(f) Any change in wage relativities which may result from any adjustments under this principle, not only within the award in question but also against external classifications to which the award structure is related, must occur in such a way as to ensure there is no likelihood of wage leapfrogging arising out of changes in relative positions.

(g) In applying this principle, the Commission will ensure that any alternative to wage relativities is based upon the work, skill and responsibility required, including the conditions under which the work is performed.

(h) Where the requirements of this principle have been satisfied, an assessment shall be made as to how the undervaluation should be addressed in money terms or by other changes in conditions of employment, such as reclassification of the work, establishment of new career paths or changes in incremental scales. Such assessments will reflect the wages and conditions of employment previously fixed for the work and the nature and extent of the undervaluation established.

(in) Any changes made to the award as the result of this assessment may be phased in and any increase in wages may be absorbed in individual employees' over award payments.

(j) Care should be taken to ensure that work, skill and responsibility which have been taken into account in any previous work value adjustments or structural efficiency exercises are not again considered under this principle, except to the extent of any undervaluation established.

(k) Where undervaluation is established only in respect of some persons covered by a particular classification, the undervaluation may be addressed by the creation of a new classification and not by increasing the rates for the classification as a whole.

(l) The expression 'the conditions under which the work is performed' has the same meaning as in Principle 6, Work Value Change.

(m) The Commission will guard against contrived classification and over classification of jobs. It will also consider: (in) the state of the economy of New South Wales and the likely effect of its decision on the economy;

(ii) the likely effect of its decision on the industry and/or the employers affected by the decision; and

(iii) the likely effect of its decision on employment.

(n) Claims under this principle will be processed before a Full Bench of the Commission, unless otherwise allocated by the President.

(o) Equal remuneration shall not be achieved by reducing any current wage rates or other conditions of employment.

160 The starting point for our consideration of the parties' competing cases is the requirement imposed by s 10 of the Act, that the Commission make awards setting fair and reasonable conditions of employment. In a case such as this, where significant alterations are sought to existing consent award arrangements, the discussion in Re Pastoral Industry (State) Award (2000) 104 IR 168 at [77] is applicable:

77 Existing award conditions are, of course, not immutable. Subject to compliance with the requirements of the Act and applicable principles, they can be varied upon the basis of the consent of the parties, or in the case of contested proceedings, if a case is made out on the evidence, upon the basis that the award conditions in question no longer provide fair and reasonable conditions of employment. In a contested case, the onus falls on the applicant to make out a case for an alteration to an award, which otherwise will remain undisturbed. 161 Given the respective cases advanced, the onus falls upon the moving party for each change sought, to demonstrate that a case justifying the alteration has been made out on the evidence. 162 These proceedings are the first occasion upon which the Commission has been called upon to consider the classification structure and rates of pay fixed for workers in this industry in arbitral proceedings, in the context of an assessment of the value of the work. The conditions which apply to that work have also been raised for consideration for the first time since the special case proceedings before Redman C in 1990. This is also, as noted earlier, the first case in which a fully contested undervaluation claim has been considered by the Commission under the Equal Remuneration principle.

The Employers First claim for decreased wages for pre-school employees and reduced conditions for co-ordinators. 163 While a great deal was not agreed between the parties, the evidence overwhelmingly showed that rates of pay for the child care workers to whom the award applies, are too low. Some employer witnesses strongly held the view that unqualified child care workers were not underpaid and the consistent employer view was that other unqualified staff, such as cleaners, cooks and gardeners, were also not underpaid. No witnesses expressed the view that any employees were overpaid, not even those employed in pre-schools. 164 Despite this, the case finally pressed by Employers First, as it was explained on a 'non ambit basis', was that while some wage increases were warranted for qualified child care workers, a differential in wage rates as between all those employed in pre-schools and long day care centres ought also to be introduced. Initially this was proposed to be a 15 per cent differential, but 6 per cent was finally pressed. Given the way the case was advanced, the end result of this application, if granted, would be to reduce rates of pay for all those employed in pre-schools. 165 CCER was the only employer who finally opposed this claim. 166 The position of AQCCC and ACCC was less than clear. While in final oral submissions they submitted that they supported a fair and reasonable outcome on wages, accepting that some classifications deserved increases and opposing the reduction in wages sought for pre-school employees, that position was later seemingly, abandoned. 167 Neither Employers First, nor AQCCC and ACCC had put before the Bench, in clear terms in their submissions, all the rates which they pressed the Commission to award. After the close of the case, in accordance with our direction, Employers First filed a revised document, including the actual rates sought for those employed in pre-schools, by way of decrease. AQCCC and ACCC then informed the Bench by subsequent letter, that they would not provide a similar document indicating the rates they contended for, as they had been directed and had agreed. The letter advised, however, that wage rates sought by Employers First were supported, although in the alternative, a single rate was proposed for two classifications, contrary to the approach in fact, urged by Employers First, that there be differential rates awarded for pre-schools and long day care centres. 168 This illogical and inconsistent approach was most regrettable. It did not reflect the kind of assistance parties ordinarily provide the Commission. The importance of parties frankly and clearly putting the case they advance in a timely way, in order to ensure that is properly able to be understood, both by the other parties and by the Commission, may readily be appreciated. Unfortunately, the approach adopted made the resolution of the issues lying between the parties in these proceedings, more difficult than necessary. 169 We are satisfied that no evidentiary basis for any reduction in rates of pay for any of those employed in preschools was made out, nor it must be said, was such a case in fact attempted. To the contrary, we are well satisfied that as far as both qualified and unqualified child care workers are concerned, a case of both undervaluation and work value change was made out on the evidence. We will develop our reasons for that conclusion below. It follows that this aspect of the Employers First claim must be rejected. 170 In the case of co-ordinators, whether employed in pre-schools or long day care centres, Employers First also proposed that, as managerial staff, they be removed from the hours and overtime provisions of the award. In the alternative, it was proposed that a cut off rate be fixed, beyond which those conditions would not apply to co-ordinators. Neither approach involved any increases in rates for those affected, to reflect the value of what they had lost. AQCCC and ACCC supported these claims. Again, the CCER did not. 171 As was recently again observed by another Full Bench of the Commission in Re Clerical and Administrative Employees (State) Award (No 2) [2005] NSWIRComm 397 at [190] "the desire for a lower cost regime per se does not constitute a sufficient basis for the variation of existing conditions." This observation is relevant to the conclusions we have reached in relation to some of the conditions claims advanced by the employers, but, it should be emphasised, applies equally to claims for reductions in rates of pay. 172 The effect of the claim was to remove co-ordinators from the provision that they may only be required to work 38 ordinary hours per week and must be paid overtime for any additional hours they are required to work. The result would be to permit employers to require such co-ordinators to work unlimited ordinary hours, without any extra pay. 173 There are awards which contain exemption provisions of various kinds for senior staff, but such exemptions typically operate on the basis that such staff are thereby entitled to higher minimum rates of pay. There was no suggestion that any additional payment should flow to co-ordinators, if such an alteration in their award arrangements were to be introduced in this award. 174 Why such a claim would be pressed in an industry already experiencing real difficulty in attracting and retaining staff, given existing rates and conditions, was difficult to understand. This claim, coupled with the proposed reduction in rates of pay for all pre-school staff, made the approach to the case by employers other than CCER, quite inexplicable. 175 The conclusion we have reached on the evidence is that this change is also not warranted. The opportunity it would introduce for unfair exploitation of co-ordinators is patent. 176 Undoubtedly, such a change, if granted, would lead to greater flexibility and cost savings for employers. It would not, however achieve fair or reasonable conditions for the co-ordinators. All they would receive from the alteration is reduced pay and more onerous conditions, without any commensurate recognition or compensation for the change.

The Union's wage claims 177 One significant difficulty with the case originally advanced by the Union was that it sought very substantial increases in rates, with the result that even unqualified child care workers would be more highly paid than university trained teachers. This aspect of its case was entirely unexplained in the evidence called. Even during final submissions, the Union was unable to explain how the claim came to be arrived at. After its submissions were made, the Union substantially amended its claim, as we have explained. The only conclusion open on the approach adopted, was that the Union always advanced its claims on an ambit basis, unconnected with the current award rates, the work value change or undervaluation case sought to be advanced, or even with any of the comparisons sought to be drawn on the evidence led. 178 It must be observed that this approach undoubtedly led to the way in which the employer parties responded to the claim and to unnecessary difficulty in the hearing. 179 For a claim to be understood and to have some prospect of success - either by way of agreement being reached with other award parties, or by award of the Commission - it must have some rational basis which can be explained and understood. Most regrettably, that elementary feature of a properly advanced case was missing here, until the dying moments of the case, when the Union finally advanced an explanation for the entirely different classification structure it then put forward, after it had put its closing submissions.

The Work Value Cases 180 While there was disagreement with the undervaluation claim advanced by the Union, employer witnesses generally accepted that changes affecting the industry had taken place and that they had affected the work of at least some classifications. In accordance with the Work Value principle, the Union submitted that change in work value since 1989 arose for consideration. No employer party disputed that date. 181 There was disagreement, however, as to which classifications had been affected and how that should be reflected in the classification structure and rates of pay. The employers, apart from CCER, generally took the view that changes had affected the work of co-ordinators, or in some cases, those employed as authorised supervisors, required by the 2004 Regulation to be appointed to each centre. The view of many employer witnesses was that changes had affected licensees, more then employees. There was also general agreement that work value changes affecting qualified child care workers had occurred, but not in the case of any other classifications. 182 The Union finally abandoned its claim for a significantly altered new classification structure. Both the Union and Employers First finally sought modifications to the current structure, some agreed, but others not. What became common ground was that they each largely sought to keep intact the existing structure, introduced into the award as the result of the 1997 agreement between the parties. 183 While we have rejected the proposal for decreased rates for pre-schools employees, it must also be noted that the Employer First application to introduce a differential in rates between pre-schools and long day care centres, was reflective of the approach adopted by agreement in the awards applying to teachers in this industry, since 1990. Teachers employed in long day care centres receive rates of pay 4 per cent higher than those employed in pre-schools, to reflect that over the course of a year, those employed in long day care centres work for much longer hours, because such centres typically operate for 48 weeks of the year, not closing during school and pre-school vacations and for longer hours each day. Given the requirements of both the Work Value and Equal Remuneration principles, that the assessment of the value of work have regard to relevant external, as well as internal, classifications, this is a feature of the award regulation of the industry which cannot be ignored in this case, as the parties all came to accept. We will return to this subsequently.

Work Value Changes - Child Care Workers and Co-ordinators 184 We are satisfied that the evidence established work value change sufficient to satisfy the requirements of the principle, in relation to these employees. 185 The evidence well demonstrated the effect of changes in work requirements upon child care workers, with the impact of innovations such as the way in which children attending these centres are taught, having regard to developments in research into how the brain develops and how children learn. The impact which this change has had on the work of qualified child care workers is undoubtedly more significant than the impact on unqualified staff, given the different roles and responsibilities which such staff have. 186 The qualified child care workers are involved in the delivery of the education which these centres are required to provide for children who attend them. In those centres where no teachers at all are employed, the changes identified have undoubtedly had a greater impact on the qualified child care workers, who have direct responsibility for the matters which in larger centres fall upon teachers. Nevertheless, we are satisfied, overall, that there has been change which has had an impact, to varying degrees, upon child care workers generally. 187 Child care workers are employed in an industry which has come under increasingly close supervision and scrutiny of government than in the past, as the result of both changed funding arrangements and views taken as to the way in which children require education and society's protection. We are satisfied that this has not only affected those operating businesses in the industry, whether for profit or not, but also those who work within it. 188 The evidence showed significant and ongoing changes in the regulatory environment. There was no issue that changes had occurred. The point of contention was how significant the changes were for child care workers generally and the unqualified staff in particular, with the employers' view generally being that the impact had been on owners, operators and licensees, more than on employees, with most impact on authorised supervisors and co-ordinators and less impact on qualified staff and none, for those who are unqualified. We are unable to accept those submissions, on the evidence. 189 We are well satisfied that the changes which have occurred in the approach adopted by government to the regulation of the industry, as all parties recognised, have had a general impact on the work of child care workers, with more significant implications for qualified staff, authorised supervisors and co-coordinators, particularly in the smaller centres where no teachers are employed. 190 These changes have taken place at both State and federal level, with ongoing alterations in self assessment, accreditation and registration regimes and programmes. This has had implications, not only for the work itself, but also for the resulting responsibilities which fall upon child care workers. While ultimate responsibility for these matters falls upon licenses and authorised supervisors, there can be no question that they have also impacted upon the work which child care workers are required to perform. These responsibilities are real. The evidence suggested that failures can have significant consequences for the financial viability of centres. 191 The same conclusions must be reached in relation to child protection legislation. Given the requirements of the legislation, there is no doubt that compliance with these statutory obligations falls on all child care workers and has had an impact on the work which they perform, even if ultimate responsibility for ensuring compliance with these obligations at a centre falls upon licensees and authorised supervisors. 192 In Re Teachers (Non-Government) Pre-schools Award (2001) 120 IR 3, Schmidt J was dealing with similar claims in relation to teachers employed in this industry, although here the parties have also addressed changes which have occurred in the industry since 2001. There, employers were resisting wage increases also pursued on work value grounds, in part by reference to the work performed by child care workers. Her Honour concluded that the evidence showed that the work of teachers and child care workers in this industry was different in certain respects, notwithstanding the case there advanced to the contrary by certain employers. At [403] of her Honour's decision it was observed:

Given the amount of the increases awarded, there can be no concerns about flow on claims in respect of school teachers. Given the conclusions which I have reached about the differences in the work of teachers and child care workers employed in preschool and long day care centres, contrary to the case advanced by the employers, the prospect of flow on claims are relatively small. That would of course not prevent such workers themselves advancing claims, if their own work had altered in ways which could be demonstrated under the Work Value principle.

193 The AIRC was dealing with similar claims in the Child Care Industry (ACT) Award Case . It, too, came to the view that work value change had been demonstrated. 194 We are satisfied that such a case has also been made out in these proceedings and that the requirements of the work value change principle has been satisfied, in relation to all child care workers, whether qualified or not, albeit not to the same degree. This is a matter to which we will return.

Work Value Change - Support Workers 195 The evidence showed that some cooks employed in the centres covered by the award have trade qualifications and others do not. Local councils also require cooks to hold various certificates in food handling. Centres are obliged to provide the children attending the centre with meals which satisfy various criteria prescribed by Regulation. The evidence showed the work necessary in order to satisfy these requirements, including in the case of children for whom special meals have to be provided, in order to accommodate various allergies, as well as religious and other dietary requirements. 196 While the evidence showed the duties and responsibilities which fall upon such employees, which are no doubt important for the proper operation of a child care centre, we are satisfied that change of the kind required to be demonstrated by the Work Value principle, was not made out. All work changes over time. Change, of itself, is not sufficient to satisfy the requirements of the principle. What must be established on the evidence is changes in work that "constitute such a significant net addition to work requirements as to warrant the creation of a new classification or upgrading to a higher classification." This was not shown. It follows that the Union's claim for increased wages for such employees, must be rejected. We shall deal below with the claim for the creation of a new classification. 197 Similar conclusions flow in relation to the other support worker classifications covered by the award. While the evidence led explained the valuable work which such employees perform, the requirement for work value change of a particular kind to be demonstrated was not satisfied. It follows that these claims must also be rejected.

The undervaluation case 198 This aspect of the proceedings concerned child care workers, co-ordinators and authorised supervisors, not support workers. 199 We are satisfied that consistent with the Equal Remuneration principle, a case of undervaluation on a gender basis was made out on the evidence. 200 The evidence showed that the vast preponderance of views expressed over some years as the result of various investigations, surveys and considerations conducted by federal and State government bodies and forums, as well as in academic research, was that the work of child care workers is undervalued. Even some employer witnesses in these proceedings accepted those views, albeit only in relation to qualified staff. Child care workers are generally perceived to have low pay and low status, with the result that few males are employed in the industry. One result is that there are difficulties in the attraction and retention of such staff, more in some areas than others, notwithstanding that the cost of the service provided by these centres is underwritten by Federal and State government financial support, as well as by fees paid by parents. 201 On one view, such problems could be addressed by employers paying staff more than the minimum rates of pay fixed by the award. On the evidence, however, very few employers have chosen to do so, either because of concerns about the consequences for the financial viability of their centres, given parental resistance to fee increases, or perhaps because such an approach maximises their profit levels. 202 There can be no doubt of the importance to our society of the work which the predominantly female child care workers employed in this State perform. The responsibility which they bear for the care and education of the largely under school aged children who attend the centres at which they are employed, is of significant value, as is the skill and complexity of their work. The increasingly detailed attention which all arms of government have paid to the regulation of this industry underscores this fact.

203 Despite this, the award parties, through the agreements which they have made and which the Commission has approved over the years, have failed to ensure that the award fixes minimum rates of pay, properly and adequately reflecting the value of this work. Even the conclusions reached by Glynn J in 1998 in the Pay Equity Inquiry, failed to generate proper attention by those award parties, to the undervaluation of this work, either in the special case proceedings which they pursued before Redman C in 2000, or subsequently.

204 Compounding this situation is the fact that these female employees, working with vulnerable children in their care, have in the main themselves been unable to negotiate appropriate rates of pay directly with their employers, on an over-award basis. The serious personal consequences of this situation for those employees has been graphically illustrated on the evidence here led.

205 These circumstances have persisted, despite the now longstanding concern repeatedly expressed in a variety of forums, including by government, that child care workers are underpaid.

206 They have persisted, even though employers face ongoing problems in attracting and retaining child care workers to the industry, problems which, on their own evidence, affect the quality of the care which their services are able to offer.

207 The evidence also showed that increasingly, the employers in this industry are operating child care services for their own profit. This has resulted from steps taken by government to encourage the growth of extra child care places available to the community. Government support for not for profit services has declined at the same time.

208 Parents have been receiving increasing subsidy from government for the cost of child care, but even this has not resulted in rates of pay for child care workers, reflective of the value of their work, either under the award, or outside it.

209 This position persists, despite the entry into the industry of one, at least, substantial corporate employer, rapidly growing its business throughout the State and generating very substantial and growing profits for its shareholders.

210 While generally it may be difficult to detect gender based undervaluation for the reasons discussed by the Full Bench in the Equal Remuneration Principle Case , no other explanation for the obvious undervaluation of the work of child care workers, was ventured by any witness. There was nothing on the evidence to suggest the conclusions reached in this regard by Glynn J in the Pay Equity Inquiry were erroneous. Given the evidence led in the proceedings, this was entirely understandable. We are well satisfied that the undervaluation case has been established. 211 In seeking to demonstrate the nature of the alleged undervaluation, as well as bringing evidence as to changes in work which have impacted on the work of both child care workers and teachers, the Union drew various comparisons between the work of teachers employed at the centres covered by this award, with the work of child care workers. The employers did likewise. The employers also sought to introduce into this award, certain conditions of employment which came from the award applying to teachers employed in long day care centres. This approach accords with the provisions of the Equal Remuneration principle. The evidence clearly demonstrated the real importance of this comparator. 212 The Regulations require that once a centre offers more than 29 places, a teacher must be employed. Some centres employ teachers, even though not required to do so by the Regulation. This is because of the view taken that trained teachers add to the quality of the education, which the centre is then able to offer. Where a teacher is not employed, a qualified child care worker must be employed. Various duties such as programming, which in other centres would be performed by a teacher, then fall to that qualified child care worker. The evidence also shows that the training which a qualified child care worker must undertake to perform that work, may give two years advanced standing, if a three year teaching degree is pursued. 213 The evidence also showed that the Teachers (Non-Government Early Childhood Service Centres other than Pre-Schools) (State) Award 2006 and Teachers (Non-Government Pre-Schools) (State) Award 2006 ('the Teachers awards') applying in this industry, recognise experience as a child care worker, for classification as a teacher in the award incremental scales. The provision made is similar in both awards:

2.5 Calculation of Service ...

(b) For the purpose of this clause, a period of service other than service within paragraph (a), shall be counted as service in accordance with the following principles: (i) A period of service as a lecturer in early childhood education or child development, as a child development officer, or as a Family Day Care Co-ordinator or equivalent shall be recognised as service.

(ii) A period of service as a carer in the child care industry, including service as a Family Day Care carer (as recognised under State Government Regulations), a Child Care Certificate worker or equivalent shall be recognised as service at the rate of one increment for each complete three years so engaged to a maximum of four increments.

214 That consent award provision further confirms the view which we have reached, on the evidence led, as to the similarity in the duties and responsibilities of child care workers and teachers in this industry. 215 The evidence which led to this conclusion was an important aspect of the case, because it was ultimately common ground between the parties that there were serious difficulties in drawing comparisons between the work of child care workers and those employed in other male dominated industries, in considering the undervaluation claim. The evidence showed clearly that the duties and responsibilities of child care workers, who work in many of these centres with teachers and who carry out responsibilities of teachers when a teacher is not employed, are similar to those of teachers. 216 These conclusions accord with the views to which Glynn J came in the Pay Equity Inquiry. The evidence showed that the work of child care workers has evolved in a way similar to the work of teachers. This has, undoubtedly, resulted from the way in which the industry is regulated and how child care workers are trained as a consequence. This has also been recognised by employers in the industry, in the provision made in the Teacher awards for recognition of the experience of a child care worker, when classification as a teacher occurs. 217 While we have come to the view that the duties and responsibilities of such qualified child care workers for the care and education of the children attending the centres at which they are employed, are similar to those of teachers, we have also concluded that the quality of their work is, nevertheless, different and that the similarities established are less significant for non-qualified staff. We accept the evidence that the employment of a teacher with teacher training, has an impact on the educational experience which centres are able to offer children, given the training which the teacher brings to these duties. So, too, does the training to diploma level, which qualified child care workers undertake, have an impact on the work which they perform, by way of comparison to untrained staff. On the evidence, it is this learning which has an impact upon the quality of the work which child care workers, qualified child care workers and teachers respectively produce. This must be reflected in the classification structure and rates of pay fixed for this award. This is a conclusion to which we will return when considering rates. 218 It is also convenient to note, at this point, that the evidence also showed that the current award structure envisages that unqualified child care workers will not be required to perform certain work - programming in particular - and that they will be supervised in their work. The evidence showed that some unqualified child care workers are required to perform programming work, but receive no additional pay from their employer, to recognise this additional requirement. We are satisfied that the award must be varied to reflect this situation. 219 We are also satisfied that a consideration of the minimum award rates fixed for the teachers, well demonstrated the undervaluation of the work of child care workers, given their respective qualifications and experience, the work which they are respectively called upon to perform and the responsibilities which they exercise. This is an industry where neither those employed under this award, or teachers, are likely to receive over award payments. Reference to the award rates paid to teachers, in the circumstances of this industry, plainly is a relevant factor in considering the undervaluation claims. On the evidence, there can be no doubt that it was made out. 220 Consistently with the requirements of both the work value and equal remuneration principles, we will deal separately with the rates claimed in respect of co-ordinators and authorised supervisors and child care workers. Before doing so, we will make some observations about the way in which the Union finally advanced its claims for wage increases in the award, by reliance on the rates of two-year trained teachers.

Reliance on the two-year trained teachers' rates 221 The Union drew particular comparisons between the work of qualified child care workers and two-year trained teachers, which the employers did not accept as valid or relevant, other than as providing a maximum award rate, in the case of Employers First, beyond which rates for child care workers would not be increased. 222 On the evidence, two-year teacher training has not been offered in Australia for decades. It appears that few, if any, two-year trained teachers are employed in the industry. Of necessity, if employed, they must be on the top of the two-year teacher scale. Employers First argued that the two-year teacher classification was, in essence, obsolete. However, the fact that the parties to the Teachers awards have maintained the classification, during s 19 Award Reviews of the awards, and even in the recently agreed settlement of the wages claims affecting teachers, means that this submission cannot be accepted. 223 Teachers employed nowadays in the industry have undertaken either three or four-year university degrees. At present, the diploma which qualified child care workers attain may be recognised as giving a student two years' standing, when undertaking a three-year teaching degree at university. It was on this basis that the Union sought to make good a comparison with the two-year trained teachers' rate in assessing the established undervaluation, having in mind the evidence that teachers and qualified child care workers employed in these centres, undertake similar work and have similar responsibilities, but that teacher training has the result that the quality of their work is different to that of the work of qualified child care workers. 224 We are satisfied that this approach accords with the requirements of the Equal Remuneration Principle. 225 In noting the respective approaches of the parties, it is pertinent to also observe that concerns as to the inadequacy of the wages of child care workers, also extended to teachers employed in the industry. When this case opened, there were other contested proceedings on foot before the Commission, concerning the award minimum rates of pay and conditions of such teachers. Those proceedings were resolved by an agreement reached by the award parties, (including employer parties to these proceedings), that teachers' rates be increased by 13.5 per cent over three years. Those increases were awarded in the decision given by the President on 23 January 2006: Re Teachers (Non-Government Early Childhood Service Centres Other Than Pre Schools) (State) Award [2006] NSWIRComm 4. 226 It is pertinent to observe, at this point, that while the view expressed by Ms Kelly was that rates for teachers in this industry were too low, given their divergence from rates paid to teachers in schools, that was not a part of the case advanced by the Union in this case. 227 What must also be considered, however, in fixing rates for child care workers in these proceedings, is that the rates recently awarded by the Commission for teachers in this industry, maintained the agreed approach adopted with respect to teachers' rates since 1990. The pay and conditions which teachers enjoy, depend on whether they are employed in long day care centres or preschools. Rates of pay for teachers employed in long day care centres remain 4 per cent higher than rates for those employed in preschools. As earlier mentioned, the Employers First application sought not only to introduce an even greater differential for child care workers, but actually sought a decrease in rates. This is an approach entirely contrary to that adopted with respect to teachers, where an overall increase in wages occurred at the time the agreed 4 per cent differential was introduced. We have refused the claim by Employers First, in this respect. 228 Child care workers employed in pre-schools have traditionally worked fewer hours than those employed in long day care centres, over the course of a year, despite receiving the same rates. On the Union's case, this was a benefit which they should not lose. The Union acknowledged, however, in final submissions that its reliance on the teacher rates and conditions, meant that consideration of the 4 per cent differential in those rates could not be avoided, given the differences in hours and working conditions, which applied to the two parts of this industry, to both teachers and child care workers. The practical end result of this situation for child care workers employed in preschools is, of course, that they are required to perform less work over the course of a year, but receive the same rates of pay as those working considerably longer hours overall in long day care centres. 229 This position altered for teachers employed in this industry in 1990. At that time his Honour Justice Bauer was dealing with a work value case (see Re Teachers (Non-Government) Pre-schools Award (2001) 120 IR 3 at [15]). At pp 2-3 of his judgment, his Honour observed:

The major structural change is in recognition of the two industries covered by these awards as separate, namely, pre-school and long day care with respect to teachers - a distinction which up to now has been steadfastly opposed by the Union. It is, however, clear that there is a substantial difference in the conditions under which the work is performed applying in the two industries.

Effectively the parties have agreed that a four per cent increase in all salaries in the pre-school area should be granted and an 8 per cent increase in long day care centres phased in by an increase of 4 per cent on 1 February 1991 and a further 4 per cent on 1 October 1991.

There is also to be a change in the salary scale to the extent that there are three additional steps in the incremental scale for three year trained teachers and an additional step for four year trained teachers.

Directors of pre-school centres and schools receive an additional allowance related to that position. These allowances at present range from about $1,500 to approximately $4,000 depending on the circumstances and the award. These additional allowances are to be increased in a manner reflecting the additional responsibilities of the directors as assessed by the parties. This increase in allowances is about one third representing about something like 2 per cent on the salary.

Having regard to the parties' agreement and submissions I am prepared to vary the awards as requested by the parties. In doing so it must be on the clear understanding and agreement that there now are two distinct industries and neither should be seen as so related to the other as to justify any changes one to the other. Any other basis would be to set up a classic leap frogging scenario and the approval of award changes is on the specific understanding by the Commission that no such argument is in the future available. Further approval is given on the clear understanding of the Commission that all work value changes in each of the industries and at each level to 1 October 1991 is comprehended in the agreement. 230 The differential then agreed for teachers in this industry has been maintained ever since. As we have noted, employers sought to introduce a greater differential for child care workers, by way of decreased rates for pre-school employees, which we have rejected. It, nevertheless, remains relevant that the Union conceded that:

SEARLE: I make the concession if we make out the argument that the workers in this industry are sufficiently like teachers in the industry, particularly two year trained teachers to warrant them being treated in the same way or a substantially similar way, then I think we would be unable to resist some of the other responsibilities that come with such professional standing and recognition.

I think that is a fair way of putting it. Those other accountabilities or responsibilities sought by Employers First, perhaps not in the precise form sought by them but in the form found in the early childhood teachers award, would also be appropriate to be included for the child care workers, if they are to be lifted from their current level of remuneration and standing and made the same as or more substantially like early childhood teachers. 231 We are satisfied, on the evidence, that in fixing fair and reasonable conditions of employment for child care workers, as s 10 of the Act requires, that the difference in the hours which child care workers are called upon to work in pre-schools, as opposed to long day care centres, cannot be ignored in assessing the pay and conditions which should, in fairness be awarded in these proceedings, in order to address both work value change and undervaluation. For reasons which we will explain, we are satisfied that the case for a differential in this industry was made out, but a differential greater than that applying to teachers was not. 232 The differences in work performed are substantial - pre-schools operate for up to six weeks per year less than long day care centres and are also open for far fewer hours each day, with the result that child care workers in long day care centres have typically up to 8 hours per day of contact time with children over 48 weeks of the year. Those in preschools which operate for similar hours to schools, have considerably less daily contact time. In pre-schools, where staff are required to be in attendance for the whole of their shift, such child care workers thereby have time available for preparatory and other work during non-contact time, which on the evidence, those employed in long day care centres often must complete in unpaid non-working time.

233 We have approached the matters which here arise for determination with these considerations in mind.

The classification structure 234 For the reasons earlier given, we make no further change in the structure for support workers. The claim for a trade qualified cook classification was not made out on the evidence. It was resisted by employers, who argued that despite evidence that some employees held such qualifications, they were unnecessary, for the work required to be performed in centres. On the evidence, that submission must be accepted. 235 We have reached a different conclusion in relation to the classification structure proposed for child care workers. While we are satisfied that work value change and undervaluation was demonstrated on the evidence, we are also satisfied, (except as we discuss below), that neither the classification structure and rates of pay claimed by either the Union, or employer parties, may be awarded, consistent with the principles. 236 The award classification structure presently includes various incremental scales, as do the awards applying to teachers, although the scales are of different length. It also distinguishes both qualified and unqualified staff. We are satisfied that the evidence demonstrates the validity of that approach. 237 The value of the work of child care workers undoubtedly increases with education and experience, reflective of the increased quality of the work produced and the increasing responsibility, which employers impose on more experienced staff. The evidence also demonstrated that this is an industry where employees engage in ongoing training, both as required by their employers, having regard to requirements externally imposed upon the operators of the centres which they satisfy through the work child care workers are called upon to perform, and as a part of child care worker's professional approach to their work. 238 We are satisfied that changes to the classification structure which the parties have agreed, are an appropriate way in which to recognise this aspect of the evidence, which demonstrates the increasing value of the work which experience and ongoing training brings. This includes that appropriate recognition be given to those who hold a Certificate III in Children's Services, and changes in the scale applying to other qualified child care workers. 239 A difficulty with the approach urged by the Union to the structure and rates it otherwise proposed, was, however, that it was inconsistent with the applicable principles. It involved selecting as 'key classifications', four of the award classifications and building internal relativities between the classifications, having regard in part to existing award relativities. This approach would bring various curious outcomes, including, for example, that in percentage terms, larger increases in rates for unqualified staff, than qualified staff, would flow, notwithstanding that qualified staff undoubtedly have been more affected by change than the unqualified staff and that their work was more undervalued than that of other child care workers. Neither the Work Value nor Equal Remuneration principles contemplate such an approach. To the contrary, they envisage that changes in work value may change existing relativities, if such changes have not affected different classifications in the same way. In our view, the approach here urged by the Union cannot be accepted. It would not result in fair or reasonable rates of pay. 240 The difficulty with the Employers First approach was, on the other hand, that it sought to introduce an artificial consideration into an assessment of the proper rates for child care workers. Employers First urged, by reference to the Minimum Rates Adjustment principle, an asserted overriding necessity, in proceedings such as this, for ensuring that particular relativities be maintained between this award and the federal Metal Industry Award, even if work value change and undervaluation was established on the evidence. Such an approach was rejected by the AIRC, in Re Child Care Industry (ACT) Award 1988 ; Children's Services (Vic) Award 1998 , 13, January 2004 at [372]:

Prima facie, employees classified at the same AQF levels should receive the same minimum award rate of pay unless the conditions under which the work is performed warrant a different outcome. Contrary to the employer's submissions the conditions under which the work of child care workers is performed do not warrant a lower rate of pay than that received by employees at the same AQF level in other awards. Indeed, if anything the opposite is the case. Child care work is demanding, stressful and intrinsically important to the public interest. 241 These are conclusions with which we agree. The evidence in this case also demonstrated that child care work is demanding, stressful and intrinsically important to the public interest. Relativities fixed by agreement of the parties in 1997 by reference to the Metal Industry Award, cannot affect a proper consideration of the value of the work now required; nor can any predetermined views as to the appropriate relativities in future, between this award and the Metal Industry Award. 242 While the preamble to the Wage Fixing Principles indicates that the Commission will continue to apply the Structural Efficiency principle, including Minimum Rates Adjustment provisions, the principles do not envisage that this will prevail over other specific provisions made elsewhere in the principles. If adopted, such an approach would elevate the Minimum Rates Adjustment principle to an overriding principle, imposing a limitation upon the proper assessment of the value of work, even when it has changed or when it has been undervalued. As the Work Value and Equal Remuneration principles each make expressly clear, proper consideration needs to be given to relevant external and internal classification relativities, in assessing rates of pay to properly reflect the change or undervaluation made out. This means that past relativities between an award and the federal Metal Industry Award may alter as a result. 243 For the reasons we have explained, we have concluded that both work value change and undervaluation has been established. We are thereby satisfied that the proper approach in the circumstances of this industry, is for an assessment of the value of the work to be considered in the context of the awards applying to teachers. On the evidence, those awards no longer maintain relativities with the Metal Industry Award, of the kind now contended for by Employers First for child care workers. That situation has resulted from the outcome of the contested work value case undertaken in 2001 in respect of those teachers, as well as the agreed increases in rates which have been awarded since then. They include the recent settlement of a work value and undervaluation claim for such teachers. These are also all matters which must be considered in these proceedings. 244 The current award classification structure for child care workers provides positions for employees with and without qualifications and encourages their acquisition. There is also recognition of experience, as well as recognition of various promotional positions. On the evidence, the current qualifications available for child care workers are competency based, permitting experienced employees to seek recognition of competencies acquired through on the job training and experience, rather than only through formal study, in the way in which teacher degrees are obtained. This results in a reduction in the amount of formal study an experienced child care worker may be required to undertake, before a particular qualification is acquired. The evidence also showed that some staff pursue teacher training studies at degree level, thereupon having available to them career paths as teachers in this industry, as well as in primary schools. Under the current award, the acquisition of such additional qualifications does not automatically lead to reclassification and higher pay. No change to this aspect of the award is now pressed.

Step 4 of the Advanced Child Care Workers Qualified Scale 245 One aspect of the contest between the parties was whether the incremental scale for advanced child care workers qualified should be extended to step 4. We are satisfied, on the evidence, that the change sought by the Union is warranted. The evidence demonstrated the increasing value of the work which experience brings, particularly in an industry where employers and governments require employees to maintain their learning. Indeed, that child care workers be required to meet this ongoing obligation was a matter pressed by the employers, in the conditions claimed. The views we have reached in relation to that claim, have had an impact on the conclusions we have reached as to this aspect of the case.

Child Care Worker Rates 246 The upshot of our consideration of the competing contentions for the classification structure and rates of pay for child care workers, is that they will eventually be as follows: Classification Definitions Pre-School LDC

Child Care Worker Step 1 587.77 611.28 Step 2 592.93 616.65 Step 3 597.86 621.77 Step 4 603.00 627.12 Step 5 609.11 633.47

Advanced Child Care Worker Step 1 615.21 639.82 Step 2 628.65 653.90 Step 3 650.00 676.00

Advanced Child Care Worker Qualified Step 1 661.51 687.94 Step 2 732.83 762.12 Step 3 770.12 800.93 Step 4 810.39 842.78

247 We have come to those conclusions, having regard to the evidence we have referred to and the approach which we have outlined. The Advanced Child Care Worker Qualified rates reflect those of two-year trained teachers (calculated by converting the annual rates prescribed by the relevant award by dividing them by 521/7 which we understand is the divisor used in practice for the purpose of that award). The rates of the Advanced Child Care Worker and the Child Care Worker classifications have been increased by 12 per cent in the case of those employed in pre-schools, with those in long day care, 4 per cent higher and in one instance adjusted to establish appropriate relativities. We are satisfied that this reflects a proper assessment of the value of the work, in the light of the evidence led in the case. 248 As for those child care workers employed in other centres, such as out of school hours centres, their rates will reflect the operation of the centres in which they are employed. That is according to whether the centre operates pre-school, or long day care centre hours.

249 The Regulations require that there must be an authorised supervisor appointed to each centre. On the evidence, authorised supervisors may be a qualified teacher, or a child care worker. In some cases, teachers appointed to fill that position are classified as a director under their award and in other cases, while appointed the authorised supervisor, the teacher is not appointed to the position of director. 250 Child care workers covered by the Award may also be appointed to the position of authorised supervisor, or co-ordinator or qualified co-ordinator. Qualified co-ordinators may also be required to perform the work of authorised supervisor. 251 Changes to the structure for co-ordinators have been agreed by the parties, but there is not an agreement as to rates. The parties also agreed to the introduction of a daily allowance for authorised supervisor, but disagreed on the rate. There is also a disagreement in relation to the introduction of an assistant co-ordinator position. 252 We are satisfied that it is appropriate that the award continue to provide for an authorised supervisor's allowance and for separate classifications for qualified and unqualified co-ordinators and qualified and unqualified assistant co-ordinators, consistently with the scheme of this award and the evidence. The definitions will reflect this conclusion, consistently with the definition of other qualified and unqualified positions. 253 A driving force behind the classification structure which the Union originally proposed was a concern that the current structure does not provide an adequate career path for employees. This concern had arisen in an industry where very many employers are small, employing only a handful of employees and where opportunities for promotion consequently can only arise with the departure of more senior staff. That difficulty is one which is present, of course, in almost any small workplace, no matter what the industry, as the claim which the Union finally advanced accepted. The evidence also showed that opportunities for career progression and advancement are available, when employees pursue a career path within the industry, rather than at one work place. This is not an opportunity consistently available across the industry. In country areas, for example, there are limitations imposed by distance and the number of centres available in any particular location. 254 There was evidence that employees in some cases are appointed to non-award positions, such as assistant co-ordinators and other positions of responsibility, such as team leaders. While in some cases additional pay flows with such an appointment, reflective of the additional duties performed, that is not an award requirement. The team leader classification was not pressed, but the assistant co-ordinator position was. 255 We are satisfied, on the evidence, that the classification should be awarded. We have been come to that conclusion in light of the Union's acceptance that appointment to such a position must remain a matter of specific decision for an employer, not a matter of automatic award requirement, in any particular circumstances. This will be reflected in the definitions. 256 The parties did agree to a separate recognition for co-ordinators of out of school hours centres, at level 1 of the two co-ordinator classifications. We accept that this is an appropriate classification, having regard to the nature of the care which such centres offer and the resulting responsibilities which fall upon the co-ordinators. The rates we fix have had regard to that additional responsibility, which appointment to such a position brings. 257 The conclusion we have reached in relation to the classifications and rates of assistant co-ordinators and co-ordinators are that the rates will eventually be as follows: Pre-School LDC Assistant Co-ord 675.00 702.00

Assistant Co-ord Qualified 829.23 862.40

Co-ordinator OOSH Level 1 729.33 754.96 LDC / Pre Level 2 748.85 774.48 LDC / Pre Level 3 775.66 801.29 LDC / Pre Level 4 809.24 834.87

Co-ordinator Qualified OOSH Level 1 898.86 931.25 LDC / Pre Level 2 918.38 950.77 LDC / Pre Level 3 945.19 977.58 LDC / Pre Level 4 978.77 1011.16

258 The award fixes one allowance for authorised supervisors, irrespective of the size of the centre. The Teachers awards adopt a different approach, but no party argued for any change of that kind in this award. Employers First argued for a rate which had regard to that currently fixed by the Teachers awards, for an authorised supervisor in a one unit centre. The basis of the Union's claim was unclear. We have determined to fix the rate applicable by reference to the rate in the Teachers awards, once the increases there agreed have been phased in. Accordingly, the allowance will eventually be $28.75 per week. 259 We note that over time the rates which we have awarded will be higher than those awarded by the AIRC in the Childcare Industry (ACT) Award case . That outcome is reflective of the different nature of the case made out in these proceedings on the evidence led. 260 In fixing rates for co-ordinators, we have had regard to the rates we have fixed for advanced child care workers, advanced child care workers qualified, as well as the allowances provided in the teachers awards, for teacher directors of preschools and long day care centres. On the evidence, such directors have similar duties and responsibilities as co-ordinators.

261 In fixing rates for assistant co-ordinators, we have had regard to the evidence of the work they are called upon to perform, the definitions adopted and the rates we have fixed for advanced child care workers, advanced child care workers qualified and co-ordinators.

Changes in conditions 262 The changes in conditions which the parties finally agreed, related to matters such as the definition of full time employees, with a consequential alteration to the part time definition; an update as to the references to the name of the Union; an increase in probationary period from four weeks to three months; a slight rewording of clause 5 (i) of the award; the retention of the miscellaneous conditions clause (subject to a minor change in wording proposed by the union to clause 14 (viii)); job sharing; alterations to the overtime provision in relation to taking time off in lieu and make up time; deletion of the attendance at repatriation centres provision; and examination and study leave. 263 We are satisfied that these changes should be granted, consistently with the requirements of the Act and the applicable principles. We have otherwise approached consideration of the disputed conditions in light of the Principles. 264 The changes which the parties were unable to reach agreement on are dealt with below.

1. Definitions 265 The definitions on which the parties did not agree included additional words in clause 8 (i)(a) pressed by Employers First. Given the conclusion we have reached in relation to the assistant co-ordinator classification, we have concluded that these words should be included. This addition confirms that appointment to a classification is a matter for an employer. That does not, however, permit an employer to appoint a person to one classification, but require them to perform the duties of another. That, in truth, would amount to appointment to the classification which has such duties. The acceptance of the claim by Employers First carries with it the implication that employees performing the duties of an assistant co-ordinator, will be appointed and paid as such. 266 The Union also advanced a definition for the new assistant co-ordinator position, which we accept, subject to firstly, inclusion of a reference to a first aid certificate in the definition and secondly, to appropriate definitions for the qualified and unqualified assistant co-ordinator positions. We deal with this below. 267 The definition for child care worker will also provide that employees classified as child care workers, who are required by their employer to perform the duties of advanced child care workers, such as developing, planning and implementing the child care programme, will be paid as advanced child care workers, at a level commensurate with their experience. 268 The clause will provide:

Employees appointed to the position of child care worker, but required to perform the duties of an advanced child care worker, will be paid the higher rate applicable to that classification.

2. Sick leave 269 The change sought to the current award provision was to increase annual sick leave entitlements to 15 days per year, cumulative indefinitely. The current provision is for 5 days in the first year of employment and 10 days thereafter, cumulative indefinitely. The Employers First claim was for 10 days per year, cumulative for 3 years. 270 Some Union witnesses gave evidence that the current sick leave provisions were inadequate, others did not. Some evidence suggested that employees in these centres are likely to contract more illnesses in their first year of service, rather than subsequently. Comparisons were also drawn by the Union with the sick leave entitlements of teachers, who were entitled to 15 days in the first year and 25 thereafter, cumulative up to 120 days. The history of that provision was not put before the Commission. We infer that it is a consent arrangement regarded by the parties as appropriate for this industry. It was not suggested that it was the result of any arbitrated proceedings. 271 The employers resisted the Union's claim. While some employer witnesses accepted that child care workers were at similar risk to teachers in contracting illnesses from children, the sick leave provisions of the Teachers awards were not accepted as being appropriate or necessary, either for teachers or child care workers, given the levels of illness experienced. 272 The cost and consequences for meeting required staffing levels was of concern for employers, if sick leave was increased. It was Ms Skoulagenis' evidence that centres already experienced difficulty in finding replacement staff and this would only be exacerbated if the Union's claim were granted. Failure to replace staff placed a centre in breach of the Regulations and liable to prosecution. It was the employer case that small workplaces had difficulty in providing for such generous sick leave entitlements. 273 On the evidence, we are satisfied that in the circumstances of this industry, given the nature of the work required to be performed in child care centres, adherence to general industry sick leave standards is not appropriate, as the employer application itself accepted. On the evidence, the sick leave provisions available to teachers would be more generous than required by these employees, given the level of sickness they appear to encounter. This explains the Union's claim, which seeks less than teachers receive by way of sick leave. 274 We are satisfied, on the evidence, that a change to the sick leave provisions is warranted, but not to the extent claimed. We accept that in particular circumstances of this industry, the sick leave provision should provide for 15 days sick leave per annum in the first year and 12 thereafter, cumulative to a maximum of 120 days, except in the case of any current employee with a greater period of accrued sick leave, which will be capped at that higher level. This substantially increases the initial entitlement, which we accept is a different approach to that ordinarily adopted, but one which has regard to evidence in these proceedings as to the kind of illnesses to which employees are exposed in this industry. On the evidence levels of illness appear to decrease in later years. This leaves sick leave at the same level as that applying to teachers in the first year, but at a lower level, than that applying to teachers in subsequent years. This significant increase is, however, ameliorated by the introduction of a cap on cumulation, fixed at the same level as that applying to teachers, but which will of necessity be reached more slowly by child care workers. 275 For those employees who do not currently utilise their leave entitlements, there will be no practical change in their circumstances, either for them or their employer. For those employees who regularly suffer more illness in this type of employment, in the first year of employment, their annual entitlements will be increased significantly. We accept that this represents an increased cost to employers. However, employers' overall potential liability will in future also be known and capped. For long serving employees, the introduction of such a cap may potentially have a negative impact, but we are satisfied that this is appropriately accommodated by the increase in the first year's leave entitlements and the saving provision we have provided for. We are satisfied that this regime provides a just outcome as between the parties, on all of the evidence. 276 We otherwise amend the existing sick leave provisions in the terms sought by the Union, which introduce various sensible clarifications of the current clause, changes which the employers did not appear to oppose.

3. Overtime and change of rosters 277 The alteration sought by Employers First to the current award provision, was to permit a change of rosters with less than 7 days notice, in the case of an emergency beyond an employer's control. The current provision is:

5(ii) Notification of Hours The employer shall, by legible notice displayed at some place accessible to the employees, notify the ordinary hours of commencing and ceasing work and the ordinary times of meal or crib breaks. Such hours, once notified, shall not be changed without the payment of overtime except by seven days' clear notice to the employee, by mutual agreement between the employer and employee to waive or shorten the notice period. NOTATION: For part time employees see subclause (iii) of Clause 12 - Overtime.

278 Employers First sought the addition of the words 'or due to an emergency outside the employers' control.' 279 The evidence suggests that at most workplaces, employees co-operate with their employers in agreeing to a change, in such an event. The Union, nevertheless, resisted the alteration, arguing that no need for the provision had been demonstrated, given evidence of employee co-operation in such circumstances. 280 The conclusion we have reached, on the evidence, is that a case for the change sought has been made out, having regard to the requirement to maintain staff/child ratios imposed on centres by the Regulation. In so concluding we note, however, that an emergency must be given its ordinary meaning. It is not to be understood as comprehending routine events, such as an employee having to remain after the end of their rostered hours, when a parent fails to arrive on time to collect a child. Such work, if required, will involve overtime to which the award overtime provisions will apply in the usual way. Given this conclusion, the clause will also provide that any dispute as to the existence of an emergency will be dealt with in accordance with the award dispute procedure.

4. Annual Leave loading 281 The change sought to the current award provision by Employers First was to permit employers and employees to agree to payment of the loading at the end of the calendar year, or at the end of the employee's year of employment, rather than when the annual leave is taken. The evidence led suggested that this was administratively convenient for some employers and attractive to some employees, who prefered to receive the payment at Christmas time, for example. This was, no doubt in the case of employees, because a significant majority take their annual leave at that time of the year.

282 The alteration was opposed by the Union, because it saw no rationale for the change and had a concern that the payment would become lost, over time. 283 We have concluded that the change sought ought to be granted, subject to the employees' agreement being recorded in writing. We accept that, on the evidence in this case, this is an arrangement which employers and employees who find it attractive, ought to be permitted to come to, if they wish. To address the Union's concern that the payment will be lost, the award clause will require the employer to identify the payment on the employee's payslip, when the payment is made. 5. Non-contact time 284 The Union sought the introduction of a new award provision in the following terms:

(a) An employee responsible for programming and planning for a group of children shall be allowed up to 4 hours per week away from face to face work with the children in their care. This time is to be spent on planning, preparing, researching, programming activities, purchasing and gathering resources and updating individual children's developmental records in accordance with accreditation requirements.

(b) An employee responsible for recording observations of children shall be allowed up to 2 hours per week away from face to face work with the children in their care. This time is to be spent on updating individual children's records with respect to the observations undertaken as part of their duties, and in accordance with accreditation requirements.

(c) Employees shall be entitled to attend room team meetings of at least 1 hour's duration held during the day at regular intervals to be determined by the Director in consultation with Team Leaders. The purpose of the team meeting is for staff to discuss observations and planning of the program.

(d) Employees with responsibility for supervision and assessment of one or more trainees placed in the centre shall be allowed 2 hours per week per trainee away from face to face work with the children in their care. This time is to be spent providing feedback and assistance to the trainees, for the purpose of workplace assessment and the completion of workbooks and other documents as required under the traineeship agreement. 285 The claim was vigorously resisted by employers. The evidence led in their cases suggested that to grant the clause would have a significant financial impact upon pre-schools, but more so for long day care centres. Because of the mandatory staff/child ratios imposed by the Regulation, in many cases, the clause would necessitate the employment of additional staff, particularly in smaller centres, when the non-contact time required was provided. 286 The evidence led by the Union suggested that the absence of non-contact time, particularly for some qualified staff employed in long day care centres, had the result that they were required to perform unpaid work, in addition to the 38 hours per week, for which they were rostered and paid, in order to finish required work. It was argued to be unfair that employees so subsidised their employers, by their unpaid labour. 287 The evidence led by the employers suggested that the amount of such work required was overstated and was declining in any event, given changes in approach being implemented in the industry. There was evidence, for instance, that practices in relation to recording of observations had changed significantly, or were in the process of changing, with more use being made of visual observation, captured by video and cameras, rather than written records, with resulting decrease in the amount of time required for such work and alterations to the time at which it is performed - that is during rostered hours, while children are present at the centre. 288 There was also evidence that in pre-schools, particularly, staff already had non-contact time, given the hours of operation of pre-schools and the attendance of children. In other instances, non-contact time was built into rosters. 289 The clause as drafted would apply to qualified and unqualified staff. Qualified staff would have 6 hours per week non-contact time, as would unqualified staff, potentially, depending upon their duties. The evidence showed that some unqualified staff were involved in recording observations and also in planning work. The award contemplates that only qualified staff be involved in programming, but the proposed clause does not make that distinction. The clause, as drafted, also plainly has regard to the original claim for a team leader classification to be inserted into the award. This was finally not pressed. 290 We have concluded that this aspect of the claim should be refused. In part, that conclusion flows from the views we have reached about the rates of pay fixed for child care workers. The evidence showed that the majority of programming work is performed by qualified staff, while planning and observations are undertaken by most child care workers, to at least some degree. We have taken account of this aspect of their duties, in fixing their rates of pay, an approach similar to that adopted in the case of teachers employed in this industry, for whom non-contact time provision is also not made in the Teacher awards. 291 We are satisfied that to provide for non-contact time on the basis sought, for both long day care and pre-school staff, in addition to significantly increased rates of pay, would be to adopt an unwarranted departure from the way in which teachers rates and conditions are fixed. We have paid close attention to these rates in the approach we have adopted. It would be to risk double counting, by way of increased rates and improved conditions, to also introduce such a condition for child care workers.

Definition of temporary employee 292 The current award provision permits the employment of full and part-time temporary employees, for various specified purposes, but restricts their employment to 'a specified period which is not more than two years but more than 20 days.' It follows that employment for shorter periods, must be on a casual basis under the award and for longer periods, ongoing employment must be offered. Employers First initially sought to distinguish between fixed term employment and temporary employment. Finally, it sought the deletion of the restriction of temporary employment for specified periods. The Union opposed the claim. 293 The employers led evidence as to unnecessary inflexibilities flowing from the provision, particularly when operating together with the restrictions imposed on employing casuals, for no longer than 20 consecutive days. The Union led evidence of potential hardship flowing to employees from long term non-permanent employment. Cross-examination of witnesses suggested that the current clause was not properly understood, a matter which the parties could profitably revisit together. 294 The effect of the proposal would be to permit employers to offer long term temporary employment, albeit for specified purposes, for unlimited time, thereby depriving employees of the benefit of permanent employment. We have reservations as to the fairness of that outcome. It is also relevant to our consideration of this claim, that the existing clause is considerably more flexible than that which applies to teachers, who may only be employed for more than 20 days and up to a year, except when replacing a teacher absent on leave for more than a year, in which case the temporary employment may be offered for up to two years. 295 There was evidence, however, that the current limitation on temporary employment being offered for positions resulting from increases in enrolments in the second half of the year, caused unnecessary inflexibilities, given that enrolments can fluctuate throughout the year. Harvest Care programs was one such example. When a centre determines to offer such a program, increased enrolments plainly follow. 296 We are not satisfied that a case has been made out on the evidence which could fairly warrant the existing adjustment between the rights and interests of child care workers and their employers, to be altered in the way sought by Employers First, other than in relation to the removal of the restriction in relation to increased enrolments only in the second half of the year. The claim is accordingly refused, other than by deletion of the reference to enrolments increasing in the second half of the year.

Unpaid meal breaks 297 The award contains two meal break provisions, as the result of the special case proceedings before Redman C. Then introduced was a provision which permits an employer to direct an employee to take a half hour unpaid meal break, subject to certain conditions. This applies to those employed after 28 August 2000. For those employed beforehand, this provision can only be exercised with the employee's prior written agreement. Employers First sought a uniform provision for all employees, deleting the requirement for an agreement, together with a provision that if an employee was required to perform work during the meal break, it would be paid at overtime rates for either fifteen minutes, or if more than fifteen minutes was worked, for the half hour. 298 The Union opposed the claim as not justified on the evidence and leading to an unwarranted diminution in conditions. 299 It is unarguably important that employees take meal breaks. Under the current scheme, those employed before August 2000, may refuse to take a meal break, unless the employer requires that it be taken during paid working hours. Given their obligations under the Occupational Health and Safety Act 2000, employers may well confront situations where they are obliged to require staff to take such breaks. The difficulty of such a situation, given the work child care workers are required to perform in this highly regulated industry is obvious, particularly given the necessity always to maintain staff/child ratios. That no doubt influenced the conclusion which Redman C reached in 2000, to introduce change. 300 We consider that the evidence was inconclusive, as to whether the change is warranted, particularly given that the current clause flowed from the decision of Redman C in the 2000 Special Case proceedings. Accordingly, we grant leave reserved as to this claim.

Rostered days off for employees in Pre-schools 301 The award contains a 19 day month provision, which permits employers and employees to agree on one day in every fourth week as an accrued rostered day off. In centres operating 41 to 47 weeks per year, the award provides:

An employee may accrue sufficient accrued days off to the extent accrued in accordance with subclause (vii) of this clause to enable such days to be taken as rostered days off to a maximum block of 7 days at any one time in any twelve months of consecutive employment. Provided that any days accrued in excess of 7 days in any 12 months of consecutive employment may be subsumed into a period of paid stand-down provided in clause 4 (ii) of this award.

The employee shall take such rostered days off by mutual agreement with the employer.

302 Employers First proposed that the clause be amended to provide:

Accumulated rostered days off shall be taken during non-term time, including but not limited to the period of paid stand-down provided in Clause 28 of this award. 303 It also sought a new subclause 29(e), applying to pre-schools, which provides: (e) Employees can be required to take accumulated rostered days off during non-term times, see clause 7 - Rostered Days Off.

304 This was resisted by the Union, as resulting in an unwarranted diminution of current conditions. 305 The clause has its origins in the introduction of a 38 hour week in 1984, at a time when pre-school vacations were taken at different times of the year. The evidence led in those proceedings suggested that in pre-schools, the cost of the introduction of RDOs would be minimal, given absorption into non-term time. The ability to adopt that approach, has been altered by changes in pre-school vacation arrangements, reflective of those introduced in schools. 306 Fairness of the competing provisions may again be tested by reference to the awards applying to teachers. That applying to pre-school teachers has no 19 day month provision at all. That applying to long day care centres contains a provisions for establishments operating 41 to 47 weeks per annum, which provides:

Where an ECS Centre operates from 41 - 47 weeks per annum and a teacher receives in consequence more than four weeks paid leave per annum, then the teacher shall accrue rostered days off to a maximum of seven days in any 12 months of consecutive employment and any days accrued in excess of seven days in any 12 months period of employment shall be deemed to be subsumed into the period of paid leave in excess of four weeks.

307 We are satisfied that there exists a proper basis for uniformity in relation to this aspect of the case in the industry. This is consistent with our approach to rates for those employed in pre-schools and long day care centres. We have concluded that the claim should be granted.

First Aid Certificate 308 The award definitions require that advanced child care workers, advanced child care workers qualified and co-ordinators have and maintain a first aid certificate. This follows an agreement made by the parties in 1997. There is no such provision made in the definition proposed by the Union for the assistant co-ordinator classification. Child care workers may also be required to obtain and maintain such a qualification. The award makes no such provision for the other classifications provided by the award. 309 The parties proposed competing new provisions:

(v) First Aid Certificate and First Aid Administration

(a) If the employer requires an employee to undertake first aid training, then such training shall be in paid time and the cost of course (including course materials) shall be paid by the employer.

(b) Where employees are required to, and agree to, administer epi pens, suppositories, drip-feeding and other medical procedures, staff will be adequately trained by the centre and paid for by the employer. Employers First

An unqualified employee, other than an employee in pre-school or out of school hours care centres which operate for less than 48 weeks who does not hold a first aid qualification and who is required by the employer to obtain such qualifications shall be allowed time off without loss of pay for the purpose of completing the course required by the employer.

Where such an employee (other than casual employee) has completed twelve months service with the employer (or equivalent in the case of job share employees) and the employee is required by the employer to renew their first aid certificate the employee shall be entitled to time off without loss of pay for the purposes of completing the renewal course where the employee attends the course during ordinary working hours. 310 The teachers award currently provides:

(a) Teachers shall be required to obtain and maintain an approved first aid certificate.

(b) Teachers will be granted paid leave to attend a first aid course, or when a first aid course is in the teacher's own time, teachers will receive time in lieu at ordinary rates for course attendance time. 311 On the evidence, we are satisfied that the award provisions must be altered. Given the requirements in the classification structure, that certain employees must hold and maintain a first aid qualification, we have concluded that the requirement to have such a qualification is one which should also apply to assistant co-ordinators. The award made will reflect this in the applicable definitions. We have taken this into account in the rates fixed for that classification. 312 We are also satisfied that in an award which obliges certain employees to ensure that they have and maintain the qualification, a requirement comprehended in their rate of pay, if an employer requires another employee to obtain and maintain such a qualification, (where such qualification does not form part of the definition or rate of pay of the classification), fairness dictates that the employer should bear the resulting expense. The award shall provide:

If an employer requires an employee who is not required to have a first aid certificate under the award definition of the classification, to obtain and/or maintain such a qualification, the employee shall be allowed time off without loss of pay for the purpose of completing the course required. The cost of the course shall be met by the employer.

313 There was also evidence of changing requirements imposed on employees to attend to children's medical needs, other than in circumstances where first aid is required. The award does not deal with such work. We are satisfied that the award should also provide:

Employers who require employees to attend to medical procedures such as administering epi pens, suppositories and drip feeding shall ensure staff are adequately trained in such procedures, before being required to undertake them. The cost of any such training will be met by the employer.

314 While the Union claimed additional payment for such work, no particular rate was claimed and the case as pressed finally did not address the claim. Accordingly, we do not deal with it.

Qualification Allowance 315 The removal of the qualification allowance for cooks was also sought by the Union, given the claims made in respect of the Cook classification. Given the conclusions we have reached in relation to those claims, this consequential claim is also refused on the evidence.

Meetings and Activities 316 The Union pressed the insertion of a new clause in the following terms:

(a) Work completed by the employees at meetings and centres activities such as fundraising, accreditation meetings or self study requirements, meetings with parents and staff meetings, etc, arranged in connection with the employer's operation that staff are required to attend or undertake, will be paid in accordance with the provisions of this Award.

317 The evidence showed that some employees were required to attend meetings of various kinds in unpaid time, others were paid and others received time in lieu. Some staff were said to attend such meetings on a voluntary basis. The employers opposed the claim, having regard to its cost. 318 Employers First sought a clause which provided:

Employees may be required to attend up to a maximum of two hours per month and Co-ordinators up to four hours per month where such time involves parental meetings, staff meetings and other duties not including the supervision of children without any payment. 319 The awards applying to teachers employed in long day care centres contain a similar provision. 320 Given the views which we have reached in relation to the similarities in the work of teachers and child care workers, we have concluded that it is fair that a similar provision be inserted into these awards for such staff, as that applying to teachers, in this respect. We have had regard to this conclusion in fixing rates of pay. We refuse the clause claimed by the Union, noting that it carried with it certain ambiguity. What was encompassed by the phrase 'self study requirements' was not apparent. The clause would also appear to have the result that a child care worker could not be permitted to attend a fundraising activity such as a fete, without payment. We are satisfied that such a clause could not be fairly awarded. 321 The result of our conclusion, however, is that required attendance, other than for the specified purposes, namely 'parental meetings, staff meetings and other duties not including the supervision of children' will be overtime, if required in addition to the employees' ordinary hours. It also follows that time occupied in excess of the hours specified in the clause proposed by Employers First, shall be paid at overtime rates.

Relieving in other positions 322 The current award provides: (i) Employees employed at work for which a higher rate is fixed shall be paid such higher rate whilst so employed. If employed for four hours or more on the higher class of work employees shall be paid the higher rate for the whole of that day.

(ii) Where an employee is called upon to perform duties for which a lower rate is fixed the employee shall suffer no deduction in pay. 323 The change sought to the current award provision by Employers First was:

(i) An employee required by the employer to perform work for which a higher rate is fixed for a period in excess of three consecutive working days, the employee shall be paid the higher rate for time so worked.

(ii) Where an employee is called upon to perform duties of which a lower rate is fixed the employee shall suffer no deduction in pay.

324 The change was opposed by the Union, as having not been made out on the evidence. 325 The conclusion we have reached is that the change sought is not warranted. If an employer requires an employee to perform the duties of an absent employee whose work attracts a higher rate, the work should fairly be paid for at the rate applicable. We do not accept, on the evidence, that employees acting up in a position such as that of a co-ordinator, are not required to perform the co-ordinator's duties, in a way that does not fairly attract the higher rate until the absence is longer than 3 days. Were it truly so, no doubt the employer would not require that work to be performed. It would be left to the co-ordinator's return.

Union Picnic Day 326 The change sought to the current award provision was that instead of union picnic day being held on the first Monday in August, it be held on a day decided by the employer, falling between Christmas and New Year. 327 The employer case was that all centres operated in August; the Union, in fact, held no picnic, with the result that all staff worked that day. The alteration would work no hardship on staff and would be advantageous to employers. The Union resisted the claim, because the picnic day clause permitted the date to be agreed between the employer and employee. The result of the claim, it was argued, would simply see employees lose a further day's pay. 328 We decline to award the variation sought. We are not satisfied that the change would result in fair and reasonable conditions, particularly given the change we have made to the RDO provisions of the award.

Training 329 The current award provision in clause 28 is:

28. In-Service Pre-Schools and Out of School Hours Care Centres

(i) This clause shall apply only to pre-schools operating 41 weeks per year and out of school hours care centres operating 41 weeks per year.

(ii) Employees may be required to attend in-service courses totalling up to an accrued value time of 38 hours duration in any calendar year. In computing attendance at in-service courses, each year shall stand alone.

(iii) Attendance at such in-service courses may be during stand-down (non-term) time.

(iv) An employee attending in-service courses outside his or her ordinary hours of work shall accrue such hours as 'accrued value time' at the rate of one and a half hours accrued for each of the first two hours of such in-service attended and two hours accrued for each additional hour of in-service attendance thereafter. In computing 'accrued value time' each day's in-service shall stand alone. Such 'accrued value time' shall count towards hours of attendance at in-service courses in accordance with subclause (ii) of this clause. 330 Employers First proposed a new clause:

28. PROFESSIONAL DEVELOPMENT, PLANNING AND TRAINING

(i) Qualified employees and Coordinators under this Award are required to continue to demonstrate the skills and knowledge required for their position and are responsible for ensuring that they are aware of new developments in early childhood education. The employer may request that such employees attend any courses in non-term time or after hours relating to professional development, training and planning. The employee cannot refuse to attend such courses.

331 This provision, in part, reflects the provision made in the Teachers awards, which provide for example in the Pre-schools award:

10.2 Professional Development, Training and Planning:

(a) Teachers are responsible for ensuring that they are aware of new developments in early childhood education. However, the parties recognise that continuing professional development of teachers is a joint responsibility of both the employer and the teacher.

(b) The employer may request a teacher to attend any courses in non-term term or after hours relating to professional development, training and planning. The teacher cannot unreasonably refuse to attend such courses, provided that a full-time teacher who receives no more than four weeks' annual leave in a calendar year shall receive time in lieu for time spent at any courses outlined in this clause.

(c) Any dispute in relation to attendance shall be dealt with in accordance with clause 15, Disputes and Grievance Procedures. 332 The Union opposed the proposed amendment, arguing that the evidence demonstrated that qualified employees and those occupying similar positions already ensure that they keep abreast of developments in early child care. The proposed clause unfairly permitted employers to require professional development to be undertaken in non-term time, in ways which would place unreasonable burdens on employees. Employers First case was that ongoing professional development was a responsibility, as the Teachers awards also recognised. 333 The conclusion we have reached on the evidence is that a change in similar terms to that contained in the Teachers award, rather than that sought by Employers First, provides a fair and reasonable conditions, given the rates of pay we have fixed. The award will be varied accordingly.

Superannuation 334 The change sought to the current award by AQCCC was the addition of two new superannuation funds. The change was opposed by both the Union and Employers First. 335 Section 124 of the Act provides:

(1) If an industrial instrument requires an employer to pay contributions to a specified superannuation fund for the purpose of providing superannuation benefits to or in respect of an employee of the employer, the required contributions may, despite the industrial instrument, be paid to a complying superannuation fund nominated for the time being by the employee and approved by the employer.

(2) However, subsection (1) applies only if: (a) the nomination of the complying superannuation fund by the employee is in writing and signed by the employee, and

(b) the employer has given the employee a copy of the nomination and written notice of the employer's approval of the nomination, and

(2A) An employee may, by notice in writing, revoke a nomination under this section.

(3) In this section: complying superannuation fund means a superannuation fund that, for the relevant year of income, is a complying superannuation fund within the meaning of the Superannuation Industry (Supervision) Act 1993 of the Commonwealth. superannuation fund has the same meaning as it has in the Superannuation Industry (Supervision) Act 1993 of the Commonwealth. 336 Given the rights provided by the section, we can see no basis upon which the alterations sought could be appropriately awarded, in the face of opposition from the other award parties. Employees who wish to utilise these funds may exercise that right. No variation to the award is necessary to ensure that result.

Progression 337 Employers First sought variation of clause 8 to clarify how employees progress through the incremental steps of the various scales:

Progression through the steps of each classification in this clause for part-time and causal employees shall be based on full-time equivalent service.

338 The result would be that part-time and full-time employees would progress after the same period of time working, rather than simply after a lapse of time, during which the amount of work performed by various employees, was different. The concept is similar to that contained in the Teachers awards, although more clearly expressed there. The Union opposed the clause as unfairly disadvantaging part-time employees. 339 We disagree. Such a provision ensures that both part-time and full-time employees work for the same period of time, before their rate of pay increases. This is a fair way of recognising the increased value of work, which comes with experience in performing that work. To adopt the approach urged by the Union, would be to unfairly disadvantage full time employees. We award the clause accordingly. Economic Considerations and Phasing In 340 As we have already noted, there was considerable concern among employers as to the consequences of substantial increases in wages for those covered by the award - namely, increased fees which parents might have difficulty in meeting, with resulting effects upon the financial viability of some centres. Undoubtedly, these concerns were genuinely held by those who advanced them. 341 We accept, as the employers argued, that affordability of the increases we have awarded is a serious concern for the industry, given the magnitude of the increases we have awarded in some cases. 342 Employers' concerns must also be balanced, however, with the evidence of widely held concerns that the pay of child care workers is too low and the evidence of the resulting hardship which can flow from that situation, for individual employees, who have made their careers in this important industry. Evidence of such difficulties included employees who could not afford to move from their parents' homes; employees who have to work more than one job to make ends meet; those who have to move back to their parents' homes, in order to be able to afford ongoing training; those who struggle to afford a family and the affordability of even starting a family; rates being so low that some employees qualified for a single parent pension and employees who could not afford to return to work from maternity leave, because the cost of the child care they were employed themselves to provide, was prohibitive. 343 The evidence has demonstrated the basis upon which all of these various concerns and difficulties rested. 344 We have determined that rates of pay must be significantly increased for child care workers and the various promotion positions, having regard to the proper value of the work in question. There is a resulting necessity however, that we not only address the work value changes and undervaluation which has been identified, but that we also seek to ensure that the increases awarded are introduced in such a way, that they do not put employer viability at risk and do not lead to unemployment amongst the predominantly female child care worker workforce employed in this industry. 345 The increases and adjustments to the rates of pay, allowances, classification structure and conditions which we award, cannot properly be reduced or refused, on account of the concerns expressed by employers, unless any individual employer makes appropriate application, in accordance with the Economic Incapacity principle. No employer foreshadowed making such an application in this case. 346 There was also no basis in the evidence upon which it could be firmly concluded that the variations we propose to award, will lead to employees being put out of work, particularly given the size and profitability of some employers now operating in the industry. Nevertheless, we are satisfied that the evidence led in the employer case, provided a sound foundation for the conclusion that there is good reason for phasing in the increases awarded, in order to ensure that centres, parents and governments can make adjustments necessary to ensure that they can be paid, without jeopardising the financial viability of particular centres, or the employment of any employee. 347 The changes to conditions which we have awarded, to ensure that such workplaces may operate flexibly and co-operatively in the interests of the employers and employees affected, together with those which the parties themselves agreed and which we have approved, will also assist in the implementation of these improved wages. 348 The increases in rates and allowances and other variations which we award will operate in the usual way, namely prospectively, from the date of the decision. In addition to the interim increases, the further increases we have awarded will be phased in as follows:

First pay period commencing on or after 7 March 2006 - 4 per cent

1 September 2006 - 4 per cent, or the balance of the remaining increase, if less than 4 per cent

I March 2007 - 4 per cent, or the balance of the remaining increase, if less than 4 per cent

1 September 2007 - 4 per cent, or the balance of the remaining increase, if less than 4 per cent

1 March 2008 - The balance of any remaining increase. Orders 1. We make the award to be known as the Miscellaneous Workers Kindergartens and Child Care Centres &c (State) Award 2006 in terms of the current award as modified by this decision.

2. That award shall operate on and from 7 March 2006 and remain in force for a period of three years. 3. The Union shall file and serve by 4pm on Friday, 10 March 2006 a draft new award reflecting Order 1.

349 The Full Bench shall sit at 4 pm on Thursday 16 March 2006 to formalise the terms of the document. ------------------------

s Ian Alchin , Executive Director of Children First Inc.

s Nicola Burdon , untrained child care worker at Childs Family Kindergartens, Frenchs Forest.

s Tania Burchell , Co-ordinator Qualified Small - Step 3 at the Occasional Care Centre, St Michael's Family Centre

s Leslie Caldwell , Licensee of Mayfield Central Community Preschool Kindergarten, Mayfield.

s Sandra Cant , Advanced Child Care Worker, Qualified Step 3,at Belmont Community Childcare Centre, Belmont. s Foonghar Chong , Manager, Child and Family Services Programs for TAFE NSW Community Services, Health, Tourism and Recreation Curriculum Centre.

s Dr Richard Curtain , Principal of Curtain Consulting. s Anne Drummond , Child Care Worker Step 4, employed by KU Children's Services at Berowra Pre School.

s Neville Dwyer , Director of the Dorothy Waide Centre for Early Learning, Griffith.

s Naomi Halliday , Qualified Childcare worker, Open Arms Pre-School and Long Day Care Centre, Punchbowl .

s Doumuoa Howcher , Director of ABC Rosehill, Parramatta Children's Service Pty Ltd and Co-ordinator Qualified - Large, Step 3.

s Allan Fazeldeen , Secretary of the Children's Services Employers Association Queensland Union of Employers.

s Ms Lisa Karajayli , Director of Inaburra Preschool, Bangor.

s Bronwyn Keane , Advanced Child Care Worker Step 3 at Gumnut Cottage Child Care Centre, North Ryde.

s Rosemary Kelly , Union Secretary, Australian Liquor, Hospitality and Miscellaneous Workers Union, New South Wales Branch.

s Judith Kynaston , Executive Director of the Country Children's Services Association of NSW Inc. s Di Lawson , CEO Community Services and Health Industry Skills Council Limited.

s Christine Legg , Manager, Pre-School Services and Professional Development, KU Children's Services.

s Samantha Ligertwood , Full-time Advanced Child Care Worker, Step 3 at Little Angels Early Learning Centre, Baulkham Hills.

s Carol Lymbery , Chief Executive Officer of Community Child Care Co-operative, NSW.

s Dr Michael Lyons , Senior Lecturer with the School of Management at the University of Western Sydney.

s Mr Michael McDonald , Executive Director of the Catholic Commission for Employment Relations.

s Kathleen Murphy , Assistant Co-ordinator and Advanced Child Care Worker Qualified, employed by Sutherland Hire Family Service at Djanaba Occasional Care Centre, Jannali.

s Suzana Nikolic , Advanced Childcare Worker - Qualified at Woolloomooloo Long Day Care Centre and employed by SDN Children's Services.

s Annie Owens , Secretary of the Australian Liquor Hospitality Miscellaneous Union, New South Wales Branch. s Frances Press , Senior Lecturer in the School of Teacher Education, at Charles Sturt University.

s Bernadette Probert , Child Care Support Worker (Qualified Cook) at Jesmond Early Education Centre, Jesmond.

s Sandra Sefton , Child Care Support Worker (Qualified Cook), South Coast Workers Child Care Centre, Wollongong.

s Saira Sheikh , Full-time Child Care Worker Step 1 at ABC Development Learning Centres.

s Tracy Simpson , Senior Lecturer in Early Childhood Education at Charles Sturt University, Dubbo and Course Coordinator Bachelor of Teaching (Birth to Five Years) and Acting Associate Head of School Dubbo.

s Vicki Skoulogenis , member of the Executive Committee of the Association of Quality Child Care Centres of NSW Inc.

s Jennifer Sumsion , Associate Professor and Coordinator of Research at the Institute of Early Childhood at Macquarie University, Sydney and Australian Centre for Educational Studies Staff Representative on the Academic Senate at the University.

s Brian Russell , Manager, Human Resources for KU Children's Services.

s Ms Lillian Tiddy , Manager of the Industrial Relations Unit, Workplace Solutions Division, Local Government Association of NSW and the Shires Association of NSW.

s Michelle Underwood , Manager, Long Day Care and Business Development for KU Children's Services.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.