Miscellaneous Workers Kindergartens and Child Care Centres &c (State) Award - Statement of the Full Bench, Re [2006] NSWIRComm 73

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

CATCHWORDS: Statement of the Full Bench of the Commission in respect of the decision in Re Miscellaneous Workers Kindergartens and Child Care Centres &c (State) Award [2006] NSWIRComm 64 handed down on 7 March 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

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 CHILDCARE CENTRES (STATE) AWARD

STATEMENT 1 These proceedings involved competing applications for variations to the rates of pay and conditions of employment fixed by this award, which applies to pre-schools, long day care centres and other child care services such as out of school hour centres. While the award parties reached a measure of agreement in relation to an interim wage increase and alterations to certain conditions, the Full Bench was required to consider other changes sought to conditions, including the award classification structure. Whether certain rates of pay should be increased, or decreased, also had to be considered. 2 The competing claims were pressed under Commission's Special Case, Work Value Change and Equal Remuneration principles. This is the first occasion on which the Commission has been called upon to consider the value of the work of child care workers and various support worker classifications covered by this award. 3 It is also the first occasion the Commission has been called upon to consider fully contested proceedings brought under the Equal Remuneration principle. 4 For reasons which we now publish, we have concluded that work value change sufficient to satisfy the requirements of the Work Value principle, have been established for child care workers and co-ordinators, but not for support workers. We have also concluded that a case of gender based undervaluation has been established, in the case of child care workers, authorised supervisors and co-ordinators, in accordance with the Equal Remuneration principle. That claim was not advanced in relation to support workers. 5 The case pressed by Employers First and supported by Association of Quality Child Care Centres of NSW Inc and by Australian Child Care Centres Association, for decreases in rates of pay of 6 per cent, for those employed in pre-schools was not made out on the evidence and has accordingly been rejected. So, too, has the claim that co-ordinators should be removed from the hours and overtime provisions of the award, so that they could be required to perform unlimited ordinary hours of work, without payment of any overtime. 6 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. Some employer witnesses also accepted those views, albeit only in relation to qualified staff. Child care workers are generally perceived to have low pay and low status. Over 95 per cent of those employed in the industry are women. The industry has experienced difficulty in the attraction and retention of 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. 7 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. 8 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 these centres 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.

9 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 about undervaluation of the work of those employed in long day care centres in the Pay Equity Inquiry, failed to generate proper attention by those award parties, to the undervaluation of this work.

10 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 have been graphically illustrated on the evidence led in these proceedings.

11 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.

12 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.

13 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.

14 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.

15 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.

16 While generally it may be difficult to detect gender based undervaluation in this case, no other explanation for the obvious undervaluation of the work of child care workers was ventured by any witness. Given the evidence led in the proceedings, we are well satisfied that the undervaluation case was established. 17 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. This approach accords with the provisions of the Equal Remuneration principle. 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. The evidence clearly demonstrated the real importance of this comparator. 18 Applicable Regulations require that once a child care 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. The awards which apply to teachers also recognise experience as a child care worker when teachers are classified under those awards. 19 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 beyond doubt, 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, particularly in the case of qualified child care workers. 20 These conclusions accord with the views to which Glynn J came in the Pay Equity Inquiry. 21 We have come to the view that while the duties and responsibilities of 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, 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. The training to diploma level, which qualified child care workers undertake, also has 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 conclusion has been reflected in the classification structure and rates of pay which we have fixed for this award. 22 The evidence also demonstrated the effect of changed work requirements upon child care workers since 1989, 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 human brain develops and how children learn. 23 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. 24 This industry has come under increasingly close supervision and scrutiny of government, 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. 25 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 were unable to accept those submissions on the evidence provided to the Commission in these proceedings. 26 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. 27 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 licensees 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. 28 We have reached the same conclusions 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. 29 The evidence also established significant differences in the work which those employed in pre-schools and long day care centres are required to perform, given their different hours of operation. This is reflected in the increases which we have awarded, which result in rates of pay 4 per cent higher for those employed in long day care centres. That differential is one which also applies, by consent, to teachers employed in this industry. 30 The classification structure and rates of pay which we have awarded are: Classification Pre-School LDC Definitions

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

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

31 These rates will be phased in over time, as follows: From the beginning of the 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.

32 We have also awarded various changes in conditions for reasons explained in the decision. ------------------------

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